Contrast Liability in Torts with Contractual Liability
The laws of contract and tort presents the two frequently utilized terms in the law of obligation. Although they both rest on legally-enforceable agreements in their application, they serve varying functions manifested by their functions. Initially, a contract exists as a product of two or more consenting parties, contrary to the tort that mandates no consent. This arises from the fact that the torts are issued against other parties, therefore attracting punitive spirits. This differs from the contracts which draws a more creative or positive circumstance. Here, liability in tort arises during an intrusion by a party affecting the safety, profit or privacy and health of the victim claiming compensation.
Secondly, individuals employing torts attempt to receive compensation or made whole by a party liable for causing the damages. To the contrary, the contract exists as a broad obligation purposed and applied by two parties negotiating to reach a legally-binding agreement. This places an implicit idea manifesting tort as requiring no consensual as the plaintiff has to reveal a proof of tortuous and negligent conduct of the defendant. This differs from the contractual liability where such emerges in the breach of contract actions, contrary to the various degrees from intentional to negligence.
Thirdly, liability in torts arises from the specific damages and compensations awarded as agreed during negotiations or through orders placed by a court. This varies from contractual liability where penalties clearly stipulate in the actual agreement to redress a breach of the set proceedings. An essential distinction concerning lawful contracts reveals exemption clauses exonerating or limiting liability, though void at tort liability (Bar & Drobnig, 2004, p. 247). The difference in the liability between torts and contracts traces to the consent upon which the court utilizes to award damages. In particular, damages awarded for contractual liability seeks to restore the party to their initial position prior to the breach, unlike the damages awarded to punish the torturous conduct.
The freedom characterizing the contractual law attracts an elastic platform contrary to the imposed nature illustrated in tortuous liability. This implies that a claimant can obtain compensation for damages and anticipated earnings in contractual liability. However, a tortuous liability only guarantees claim damages. Equally, the contracts have more privacy in liabilities as only involved parties can sue to recover the damages. This reveals in the Atkin V Sounders (1942), unlike in tortuous liabilities where third parties claim for compensation for suffering losses.
Tort of Negligence
The case involving Janet and Carlos against the King’s Restaurant demonstrate the tort of negligence. Restating the words said by Anderson B in the determination of the case of Birth v Birmingham Water Works Co., negligence constitutes the omission of doing something that a reasonable man directed by ordinary regulations to human affairs acts, or acting in a manner that a prudent and reasonable individual would not have acted (Horsey & Rackley, 2013, p. 52). This case reveals the three elements constituting the tort of negligence namely, legal duty of care, breach of duty, loss or damage.
Firstly, the plaintiffs have a proof to illustrate the defendant owed them a legal duty of care. The circumstances reveal that the defendant or agents acting on its behalf knew or should have known that negligent acts during preparation of the cake would injure the consumer. In reference to the Donoghue v Stevenson (1932), the neighbor principle implies that the defendant ought to have taken reasonable care to avoid omissions or acts that are foreseeable to injure the neighbor (Harpwood, 2009, p. 19). The circumstances reveal negligent conduct during the preparation of the cake, allowing a foreign body to find its way into the dough. Similarly, the baking of the cake in the King’s restaurant voted among the best performing English outlet attracts the standard of care. This yields objectivity in the case as it requires the chef involved to portray professionalism in baking.
Unlike in the cases of Kings v. Philips and Borhill V. Young inadmissible on ground of unforeseen plaintiff, this case reveals that the defendant had reasonable foreseen the suffering of clients under similar circumstances. In addition, the circumstance of sputtering a decomposed insect constitutes a breach of duty, thus satisfying the principle of Res ipsa (Turner, 2013, p. 110). This equates to the case involving Scott v London and St Katherine’s dock (1865), where the plaintiff suffered injuries inflicted by falling bags in the defendant’s warehouse (Durston, 2011, p. 154). Finally, the proof of loss or damage incurred rests on the nervous shock upon viewing the decomposed insect, continued ailing and strike of gastroenteritis owing to the contaminated cake. In this light, the loss suffered by the plaintiffs remains traceable to the breach of legal duty by the defendant.
The case above meets the circumstances revealed in both Donoghue v. Stevenson, where the plaintiff drank some ginger beer brought by her friend. Upon spotting what appeared as the remains of a decomposed snail floating into the tumbler from the opaque bottle. In light of the damages claimed by the appellant for personal injury, Joan suffered a replica of gastroenteritis besides the nervous shock. It was so held that the appellant should continue with the claims (Harpwood, 2009, p. 20). Reflecting on the facts relied upon; Joan may claim damages for personal injury. However, though the loss of their romance arose following the incident, the defendant could rarely have reasonably foreseen a break in their first date.
Before you go, you are invited to support a noble cause on IndieGoGo: