From: Jason Neyers
Sent: Mon 4/7/2008 1:30 PM
Subject: ODG: Contract, Consideration and Tort Duties
On behalf of Jane Stapleton:
I throw myself at your feet in the hope that you will be able to show me a flaw in the following reasoning and where I might find authority on the point.
As I understand orthodox contract doctrine in England and the Commonwealth [I leave Scotland aside], a promise to perform a duty that would be owed anyway is not good consideration. So, for example, if I promise to pay you £100 in return for your promise not to defame me in your up-coming law review article, you cannot sue me in contract for the £100 when you publish your article without any defamatory mention of me. In exchange for my promise of the £100, you gave me nothing more than I would have had in any case: in publishing your article to a third party you were under an obligation not to defame me, an obligation imposed by the law of torts.
The scenario in which I am interested is where you do defame me: clearly I can sue you in the tort of defamation. But I do not think I can sue you in contract because there was not a binding contract between us.
Next, I presume obligations are severable: I promise my dentist Polly £10,000 pounds in return for her promise to extract my upper wisdom teeth on Tuesday 8th April 2008. This is an enforceable exchange of contractual promises.
I also promise my dentist Fred £12,000 pounds in return for his promise to extract my lower wisdom teeth on Wednesday 9th April 2008.
Now, it is obvious that whenever any dentist, even those acting pro bono, extracts teeth that dentist owes a duty of care to the patient: this obligation need not be bought, it is imposed by the law of torts for free. [Indeed, as Cardozo noted, it is even the case that “the surgeon who operates without pay, is liable though his negligence is the omission to sterilize his instruments”.]
On Wednesday 9th April 2008 Fred extracts my lower wisdom teeth carelessly and I suffer a personal injury. I know I can sue Fred in the tort of negligence for compensation for that injury. But I do not see on what basis I could also sue Fred in contract for compensation for my personal injury: Fred was under the obligation of care to me in any case.
This suggests that in relation to most duties of care owed by defendants in relation to their own misfeasance [I leave aside areas such as obligations to affirmatively control the conduct of third parties] the obligation is not concurrent in tort and contract, but arises solely in the law of torts. Or, much more likely, the problem is that I do not understand the rule in contract about when and why a promise to perform an already owed duty does not constitute the consideration needed to support the contractual enforceability of a promise given in exchange.
If I have simply dug myself a hole, please help me out of it!