What Is Contract?
A contract according to the laws of contract is an agreement between private parties creating mutual obligations enforceable by law. In other words it is a promise or a collection of promises agreed upon by two or more parties.
Contract law is the body of law that relates to making and enforcing agreements. A contract is an agreement that a party can turn to a court to enforce. Contract law is the area of law that governs making contracts, carrying them out and fashioning a fair remedy when there’s a breach.
Elements Of Contract
When the complaining party provides proof that all of these elements occurred, that party meets its burden of making a prima facie case that a contract existed. For a defending party to challenge the existence of the contract, that party must provide evidence undermining one or more elements.
Offer – One of the parties made
a promise to do or refrain from doing some specified action in the future.
2. Adequate Consideration – Something of value was promised in exchange for the specified action or nonaction. This can take the form of a significant expenditure of money or effort, a promise to perform some service, an agreement not to do something, or reliance on the promise. Consideration is the value that induces the parties to enter into the contract.
The existence of consideration distinguishes a contract from a
gift. A gift is a voluntary and gratuitous transfer of property from one person
to another, without something of value promised in return. Failure to follow
through on a promise to make a gift is not enforceable as a breach of contract
because there is no consideration for the promise.
3. Acceptance – The offer was accepted unambiguously. Acceptance may be expressed through words, deeds or performance as called for in the contract. Generally, the acceptance must mirror the terms of the offer. If not, the acceptance is viewed as a rejection and counteroffer.
If the contract involves a sale of goods (i.e. items that are movable) between merchants, then the acceptance does not have to mirror the terms of the offer for a valid contract to exist, unless:
(a) the terms of the acceptance significantly alter the
original contract; or
(b) the offeror objects within a reasonable time.
4. Mutual Assent – The contracting parties had “a meeting of the minds” regarding the agreement. This means the parties understood and agreed to the basic substance and terms of the contract.
How do the courts interpret a contract?
To interpret a contract, a court looks at the clear language of the contract from the viewpoint of an objective and reasonable person. If the contract isn’t clear, the court may consider outside evidence including outside statements and the behavior of the parties. It’s best to put a contract in writing, and the statute of frauds may even invalidate some contracts.
Possible remedies for breach of contract include general , consequential damages, reliance damages, and specific performance.
What Is Tort?
Tort is a collection of legal remedies that are entitled to an effected party to recover from losses, injuries or damages. In other words, a tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.
In the context of torts, “injury” describes the invasion of any legal right, whereas “harm” describes a loss or detriment in fact that an individual suffers.
The primary aims of tort law are to provide relief to injured parties for harms caused by others, to impose liability on parties responsible for the harm, and to deter others from committing harmful acts. Torts can shift the burden of loss from the injured party to the party who is at fault or better suited to bear the burden of the loss.
Typically, a party seeking redress through tort law will ask for damages in the form of monetary compensation. Less common remedies include injunction and restitution.
The boundaries of tort law are defined by common law and state statutory law. Judges, in interpreting the language of statutes, have wide latitude in determining which actions qualify as legally cognizable wrongs, which defenses may override any given claim, and the appropriate measure of damages.
Torts fall into three general categories:
- Intentional torts (e.g., intentionally hitting a person);
- Negligent torts (e.g., causing an accident by failing to obey traffic rules);
- And strict liability torts (e.g., liability for making and selling defective products).
Intentional torts are wrongs that the defendant knew or should have known would result through his or her actions or omissions. Negligent torts occur when the defendant’s actions were unreasonably unsafe. Unlike intentional and negligent torts, strict liability torts do not depend on the degree of care that the defendant used. Rather, in strict liability cases, courts focus on whether a particular result or harm manifested.
There are numerous specific torts including: trespass, assault, battery, negligence, product liability and intentional infliction of emotional distress. There are also separate areas of tort law including: nuisance, defamation, invasion of privacy and a category of economic torts.
Difference Between Contract And Tort In Tabular Form
|BASIS OF COMPARISON||CONTRACT||TORT|
|Description||The contract is a promise or a collection of promises agreed upon by the involved parties.||Tort is a collection of legal remedies that are entitled to an effected party to recover from losses, injuries or damages.|
|Rights||All the rights and obligations in a contract results from the agreement entered into by the involved parties.||All rights and obligations in a tort are as a result of an act of parliament or the court based on the common law.|
|Privity||In contract, there must always exist privity of contract between parties i.e the parties must be legally bounded each to other.||In tort, no privity exists or is needed as harm is always inflicted against the will of the injured party.|
|Period of Limitation||In contract , the period of limitation runs from the date of the breach||The period of limitation in case of torts usually runs from the date when the damage is suffered.|
|Consent||In a contract, obligation is founded on the consent of the parties i.e. consent is the essence of a contract.||A tort is inflicted without or against the consent of the party i.e. the obligation arises without any consent.|
|Minors||In contract, minors contract is void-ab-inition and no rule of estoppel applies. In other words, minors cannot be sued under the law of contracts.||In case of torts, minor can be sued and damages are paid out of his property.|
In contract real and liquidated
damagews are awarded. Exemplary damages are rarely awarded. ||
In torts, damages awarded may be real,
exemplary unliquidated or contemptuous.|
|Duty||In case of contract the duty is fixed by the will and consent of the parties and it is owed to a definite person or persons.||In case of a tort the duty is fixed or imposed by law and is owed to the community at large.|
|Motive||In contract, the ,motive for the breach is immaterial||In torts, motive is often taken into consideration.|