TORTS AS RELATIONAL CONTRACTS
281
implications of this agreement therefore pale into insignificance alongside
the obligations in tort.
The same may be even more true of a contract between a client and an
attorney. With a contingency fee agreement, the client cannot really ever
be in breach of contract, while the attorney’s failure to do anything after
having agreed to take on the case would again be a form of malpractice,
not breach of contract. So here again we have a set of tortious obligations
which arise out of an agreement.
An Ideological Squabble
I suggest that the conventional wisdom, according to which the laws of con-
tracts are and torts are separated according to whether obligations have
been agreed or imposed, is not really founded on the black-letter law at
all, but is merely the product of a fundamentalist, ideological squabble. The
problem with such a squabble is that it is almost inevitable that both sides
will take up positions that, on closer examination of the evidence, prove to
be untenable
.
21
So it proves here, for it is self-evident not only that many
contractual obligations are actually imposed upon the parties, rather than
being the product of their agreement, but also that many obligations in the
law of torts arise out of the agreement of the parties involved, rather than
simply being imposed upon them by the law.
One ideology makes contracts superior because it allegedly rests on the
21 See Tim Kaye,
Rights Gone Wrong: The Failure of Fundamentalist Tort Theory
,
79
(arguing that advocates of fundamentalist theories often
“paint a rather mystical account of the law”; Jane Stapleton,
Evaluating Goldberg and
Zipursky’s Civil Recourse Theory
,
(arguing that
“distinctive features of tort law . . . cannot be reduced to some unitary theory.”)
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