III. Rejecting the “Contorts” Thesis
It may be wondered why I am so concerned to belabor the point that con-
tracts and torts cannot be distinguished from each other on the basis of
whether or not the parties involved had truly consented to the obligations
to which they find themselves exposed. The simple answer to that is that
I wish to emphasize the extent to which the current conventional wisdom
has gone wrong — for it has gone wrong in a big way.
A second answer is that I wish to emphasize just how closely related the
laws of contract and torts really are, to the extent that they both regularly
utilize notions of reasonableness and apparent objectivity.
However, having found that the distinction between contract law on the
one hand and tort law on the other cannot be justified on the basis of cur-
rent conventional wisdom, we now need to make a choice. Either there is
no meaningful distinction between the laws of contract and torts — in which
case I shall essentially simply be the latest person to call for us to think of
these areas of private law as a merged body of “contorts
— or else there
must be a wholly different reason for distinguishing between contracts had
In Part IV, I shall explore the latter alternative, since the case for eliding
entirely the distinction between contracts and torts must be rejected for at
least five reasons.
First, it is perfectly clear that pleading a case of breach of contract re-
quires a plaintiff to prove elements in his or her case that are quite different
from those which he or she would need to prove if the case were being
pleaded as a tort. Particularly noteworthy is the fact that a claim of breach
of contract seldom requires proof of fault, while a claim in torts usually
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