DUTY OF HONEST PERFORMANCE

A TORT DRESSED IN CONTRACT CLOTHING

Abstract

In CM Callow Inc v Zollinger, the latest installment from the Supreme Court of Canada on the duty of honest performance, the Court insisted that it is a contractual duty rather than a tortious one. This article contends that the duty to act honestly, a welcome addition as it is to the realm of private-law obligations, represents an infusion of tort logic into contract law. To preserve the coherence of orthodox contract law as a distinct field of liability, the duty should be reclassified under tort. Its breach should be recognized as a tortious wrong, attracting compensation for reliance, not expectation, losses.