What are the differences between ‘contract’ and ‘tort’?

The MAIN differences between contract and tort are listed below:

Duties in tort are determined by the law – duties in contract are chiefly determined by the parties. In other words, you choose to be bound under a contract but you cannot choose whether or not to be bound under the law.

Duties in tort are commonly owed to persons generally whereas those in contract are towards a specific person or persons.

The differences above are reflected in the following:

  • assignment – you can assign a debt but you cannot assign a right of action in tort
  • capacity of the parties – a minor is liable for their torts but is limited in liability in relation to contract
  • conflict of laws – the conflict of laws rules are different for contract and tort
  • damages – there are significant differences between the measures of damages recoverable in contract and tort
  • limitation of actions – although both contract and tort claims basically have the same limitation period, there are important differences regarding the time from which the cause of action accrues
  • service of writs outside the jurisdiction (Civil Jurisdiction and Judgments Act 1982 s 2); and
  • the general requirement of consideration to make a contract binding.

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