TORTS AS RELATIONAL CONTRACTS
Since tort law has no formation phase, and simply establishes a rel-
evant relationship after the occurrence of some injury, it is much better
suited to dealing with unpredictable and relatively long-term associations,
where each successive act can be judged on its own merits within context.
When thought of in this way, the law of non-intentional torts works like a
performance-phase equivalent to the doctrine of promissory estoppel.
Thus it seems that the law of contracts tends to give way to the law
of torts when dealing with relational associations. Indeed, the third party
expert witnesses or specialist consultants will themselves normally also
owe a duty of care in negligence — i.e. in torts — to the client or patient.
Once again, such a duty arises out of an association originally regulated
by the law of contracts, albeit that the relevant association here is formed
between the third-party expert witness or consultant on the one hand and
the attorney or consulting physician on the other.
VI. Other Relational Contracts
It is not only associations involving professionals that lead to relational obli-
gations regulated by the law of torts. Perhaps the classic relational asso-
ciation is that of employment. It is, once again, begun with the formation
phase of the law of contracts. But, yet again (at least so far as the US is
it is a contract that is often remarkably difficult to breach. The
68 See Jay M. Feinman,
Liability of Accountants for Negligent Auditing: Doctrine, Policy,
69 Employment laws in Europe and the rest of the developed world typically mean that
an employee whose contract is terminated without good reason can bring some sort