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In Law, What Is the Difference Between Tort And Contract?

English courts established laws regarding torts and contracts during King John's reign.
Contracts are agreements made by two consenting parties.
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  • Written By: Mike Howells
  • Edited By: Michelle Arevalo
  • Last Modified Date: 27 July 2014
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Two frequently used terms in the field of law are tort and contract. Though they both deal with legally enforceable agreements, in practice they serve quite different functions. The key distinction between tort and contract comes down to a question of consent. A contract is created as the product of two consenting parties, whereas a tort needs no consent and is typically issued by one party against another.

Both tort and contract law date back hundreds of years, to the very roots of common law in the Middle Ages and earlier. Binding contracts are described in documents as old as the Bible and in ancient Chinese, Egyptian, Greek, and Roman texts. Torts are similarly present in various classical civilizations. Both came into being as they are known today when laws were put to paper by English courts, around the time of the Magna Carta in the 13th century.

The underlying purposes of tort and a contract are quite different. A tort is punitive in spirit, whereas contracts are more often drawn up in creative or otherwise positive circumstances. Examples of how contracts may be used include getting a car loan, getting married, or adopting a child. Torts, by contrast, may be utilized when someone trips down a flight of wet stairs at a restaurant, gets hit by a bus, or is the victim of fraud. Torts are notorious in the U.S. for their use in medical malpractice cases, largely because there are no limits on that type of compensation.

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In essence, a tort is employed by an individual looking to receive compensation, or be made whole from, the party deemed liable or responsible for causing damage. A contract is more broadly purposed, and is used any time two parties want to enter into a legally-binding agreement. Both, however, are backed by strength of law, with various delineated penalties for breaking or failing to live up to the agreement.

Implicit in the idea that torts are not consensual is the fact that the plaintiff must generally prove in court that the defendant engaged in tortious, or negligent conduct. There are various degrees of culpability in torts, ranging from the negligent to the intentional. This is different from contracts, where only specific provisions, laid out in writing, may be sued for as part of a breach of contract action.

With a tort, specific damages or compensation are usually agreed to through negotiation or set by court order. In breach of contract proceedings, often the penalties are laid out in the actual contract, though they may also have to be negotiated or assigned by a judge. Awards in tort and contract cases both generally escalate along with the degree of negligence or maliciousness. Typically, the worse the negligence or damage, the more money is awarded.

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Markerrag
Post 1

Or, to put it another way, a contract spells out the rights and duties of all parties to the agreement and breach of contract is simply one party claiming another didn't do what was required. A tort action, on the other hand, is based upon the notion that one party had a duty to another and didn't do it through sheer negligence.

Tort actions are a lot more difficult to prove but can be very lucrative (as we've seen in the United States over the years).

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