I'll try to beat Robert to the punch on this one. What you are missing is that the primary obligation in tort, unless the tort involves strict liability, is not to commit the tort (more precisely, not to intentionally invade another's protected interests or negligently endanger those interests) rather than simply to pay damages if one tortiously harms those interests (although economists would like to view tort this way). For torts involving fault, such as negligence and most intentional torts, one can get an injunction to prevent the tort if the threat is imminent and one has the time to get an injunction. Unfortunately, there rarely is sufficient time, except in cases of continuing trespasses and nuisances.
From: Eoin O'Dell
Sent: Tuesday, April 08, 2008 9:34 AM
Subject: Re: Contract, Consideration and Tort Duties
Thanks, Jane, for posing a real conundrum. I have learned a lot from the various responses. But I have a question regarding an element of Jane's analysis that has not yet been taken up in the discussion.
Jane begins with the basic Contract law doctrine that:
a promise to perform a duty that would be owed anyway is not good consideration.
She then poses a hypothetical:
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.
Far be it for me to trespass into Jane's specialist area of the law of torts, but I think the conceptual problems she is encountering come from the characterisation of the issue on the torts side of the line rather than on the contracts side of the line. Is it really the case that the law of torts imposes an obligation to refrain from committing torts; or does it merely impose an obligation to compensate if a tort is committed? The latter, of course, creates a practical incentive not to commit the tort, but it does not amount to a legally enforceable obligation not to commit it. More to the point, it would mean that, in general, the tort obligation is not triggered until the tort has been committed.
I know that there are deep analytical waters here in the proper characterisation of the tort-based obligation, but the difficulties which Jane's hypothetical have in the context of the doctrine of consideration in the law of contract might provide one ground to see the tort obligation as being triggered only when the tort is committed.
If this is so, then there is no problem in finding consideration in the context of Jane's promise to pay me £100 in return for her promise not to defame me in her up-coming law review article; there is no obligation as such not to defame me, and so refraining from doing so is not the performance of a pre-existing obligation.
Despite the great questions of the nature of obligations in the tort, this seems to be too superficial a resolution to Jane's first hypothetical. So, what am I missing?