TORTS AS RELATIONAL CONTRACTS
283
may be “classified in a variety of different ways.
23
These include focusing
on the nature of the interest that the victim claims to have been injured; the
cause of the injury; or the nature of the relationship between the plaintiff
and the defendant (e.g. employers-employees, landowner-neighbor/guest,
road users, manufacturer-consumer). While contract law has typically been
organized according to the nature of the relationship involved, the compet-
ing ideologies at work in the field of torts have conspired to reject such
an approach for the law of torts in favor of classification by interest and
causative behavior. The result, of course, has been that “the conceptual
structure” of the law of torts looks like “a disorganized and ramshackle af-
fair.
24
Ideological squabbles tend to induce a strange myopia in the partici-
pants, who find themselves blind to what is actually going on in the world
around them. As we have seen for ourselves, the supposed voluntary-
versus-imposed dichotomy of contractual and tortious obligations is clearly
inapplicable to whole swathes of real-life relationships in America. How-
ever, what really demonstrates that this dichotomy is unsustainable is that
the whole body of contractual doctrine actually embodies the idea of im-
posed obligations as a matter of principle.
The Doctrinal (F)law
Let us begin at the beginning, for offer and acceptance are clear examples
of doctrines steadfastly unconcerned with the subjective intentions of the
parties involved. It is not the voluntary choice of any of the parties involved
which determines whether or not an offer has been made and/or accepted,
23 P.S. A
TIYAH
,
A
, C
L
AW
35 (1980).
24
Id.
at 35–36.
1...,273,274,275,276,277,278,279,280,281,282 284,285,286,287,288,289,290,291,292,293,...304