TORTS AS RELATIONAL CONTRACTS
275
that it argues that contract lawyers should recognize these other relations
(and the norms that underlie them), it is also keen to avoid the possibility
of contract law’s being subsumed within the other legal fields that already
expressly regulate these relationships.
Torts as Relational Contracts
This paper will address associations between private parties that fall within
the first two types of cases. It will argue that a relational theory of contract
law has never developed because many of the most important relational
norms are already recognized by the law — just not in the law of
contracts
,
but the law of non-intentional torts. This should not be taken to imply that
the paper will attempt to resurrect the idea that torts predominates over
contracts, still less that it represents another prognostication of the death
of contract. Nor, unlike the late Peter Birks, will it argue for a general law
of obligations, founded upon the notion of unjust enrichment or restitution,
which has (rightly, in my view) been derided as “a reactionary attempt to
revive [the traditional] formal method in new guises.
14
What it does suggest is that the insistence on demarcating different ter-
ritories for contracts and torts according to the formal manner in which the
respective obligations are said to arise (with contracts being concerned
with voluntary transactions, while torts deal with imposed obligations
)
15
is
badly mistaken. Instead, it will be argued that, while the law of contracts is
concerned essentially with discrete contracts (albeit that they may be made
more relational by the insertion of such terms as price variation and liqui-
14 David Campbell,
Relational Contract and the Nature of Private Ordering: A Comment
on Vincent-Jones
,
.
15 See, e.g., R
ICHARD
S
TONE
,
T
HE
M
L
C
10 (2005).
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