INTRODUCTION

The questionnaire which constitutes the basis for this project rightly asks the question to what extent the traditionally different treatment of tortious and contractual liability is still justified today. This chapter will address that question from the perspective of economic analysis of law. As a principal matter, tort and contract indeed have, at least from an economic perspective, a different basis. The most important distinction which will crucially influence the way in which tortious and contractual liabilities are regulated is that, to an important extent, contracts can be freely negotiated between consenting parties and hence the contents of contractual liability can be determined by the parties through the conditions of the contract. The story is principally a different one in a tort context where the victim usually is a third party who does not stand in a contractual relationship to the tortfeasor. However, the point mentioned in the questionnaire, being that the boundaries between the two areas may increasingly become blurred, can to some extent be recognised from an economic perspective as well.

This chapter, dealing with the borderlines between contract and tort, will attempt to identify the main differences between contracts and torts from an economic perspective and will consequently focus on the different ways in which contractual and tortious liabilities are regulated. This chapter will to the extent possible follow the questions mentioned in the questionnaire, although they may not all be addressed since not all of them have economic relevance or are discussed in the relevant economic literature.

The remainder of this chapter will be structured as follows: first the borderlines will be traced by explaining the main differences between contracts and torts (sec II); next the differences between tortious and contractual liability will be discussed (sec III) as well as the possibility to limit liability (sec IV). The question whether contractual and tortious liability can be cumulated will be addressed in sec V and specific situations of pre-contractual and professional liability will be dealt with in sec VI.

It should be stressed that many of the aspects, more particularly those related to the main differences between tortious and contractual liability (sec III) could require a very detailed discussion.