TORTS AS RELATIONAL CONTRACTS
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between the rogue and the person who has been conned, the relational
consequences of that association may well affect an innocent third party
who purchases the goods from the rogue. For, if the goods are traced to
this purchaser, s/he will now be liable to an action in the tort of conversion
by the true owner who seeks to have the goods returned (or compensation
paid instead).
VII. Conclusion
As all these examples suggest, there are numerous relational associations
that are governed by the law of non-intentional torts, even though they
come into being through a discrete contract. Such relational associations
may involve professionals, or not; they may concern the longer-term im-
plications of the association between the two original contracting parties;
or they may extend to having implications for third parties who were never
privy to that original, discrete contract.
It is, by now, surely clear that what distinguishes tort law from contract
law is not whether an obligation was agreed or imposed. Indeed, all the
instances of relational associations discussed in this paper have involved
cases where the law has first “deemed” there to be an initial, discrete con-
tract and then gone on to recognize some form of liability in tort. The dis-
tinctions between torts and contracts therefore lie elsewhere.
In fact, there are really two significant differences between torts and con-
tracts. One is doctrinal; the other is functional. The doctrinal distinction is
that, unlike contract law, tort law has no conceptual space for a formation
phase; instead, it is solely concerned with the performance phase of an
association.
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