THE CONVERGENCE OF TORT AND CONTRACT: A RETURN TO MORE VENERABLE WISDOM?
AbstractThis article takes as its point of departure the recent convergence of tort and contract in the Common Law. The author argues that this movement represents a return to more generalized notions of civil obligation which were accepted before the nineteenth century, especially in the context ofrelationships in which reliance was a crucial element in founding liability. This tradition tended to be submerged with the attempt of judges during the nineteenth century to reconstruct and limit the ambit of contract theory to accommodate the exécutory contract, and in the myopic view of the history of the Common Law of contracts entertained by some of their twentieth century successors. It has reemerged with the greater recognition by late twentieth century courts of the extent to which the purchasers and recipients of goods and service in our society rely on the skill, competence and good faith of those who provide them.
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