ICP Program 2011/2013 – European Contract Law
Cumulation of tort and
contract claim
Difference between tort and contract claim
* Difference between tort and contract claim : contractual liability
prevails when there is a contract.
* But problems for pre-contractual period ?
- France : tortious liability
- Germany : tendence to lengthen the contractual liability
- England : Tort law for fault
* Can we choose between contract and tort claim ? That's the problem
of cumul or non-cumul.
Non cumul of tort and contract claim
The exemple of FRANCE
* Absolut theorie of « non cumul »
* Civil chamber of Cour de Cassation, 1922 : Protection of the
contractual field and of the clauses which compose the contract
* We can't cumulate compensations because of the injustify
enrichment : no right to double compensations.
Non cumul of tort and contract claim
* Reasons : protection of the contractual field – protection of the
clause limiting liability
* Exception to the non-cumul : when there is a corporal injury, the
victim can choose the best solution for indemnisation between tort or
contract claim.
* Cass civ. 11 janvier 1989 : Contract law therefore predominates ;
tortious liability is limited to cases which do not concern a breach of
The possibility of choice
The exemple of Germany
* « Anspruchskonkurrenz » (competition of claim) allowing
concurring and competing remedies.
* BGH, 9 may 1957 : The competition of claims allows the plaintiff to
choose between the two cause of action.
German law recognises that tortious liability may have to be modified
in the light of a contractual clause.
* Accumulation of claims
* No right to double compensation : when the claim is based on
more than one basis of liability.
The possibility of choice
The exemple of England
*In english law : as in germany. It has always been possible for a
claimant to sue either contract or tort if both claims can be made out.
*A.J. Jolovicz : « no formal rule against overlapping responsabilities
is not found, either in law, or in jurisprudence ».
*Ex of Oliver J : If I have a contract with my dentist to extract a
tooth, I am not thereby precluded from suiing him in tort ig he
negligently shatters my jaw ». (Midland Bank & Trust Co Ltd v. Hatt
Stubb & Kemp)
Notion of cumulation
* We are using in a wrong way the notion of cumulation
Point of view of Bénabent, french professor : In France it is not the
ule of « non cumul » but on « non choice ».
* Non cumul or absence of option ? It's more an absence of option
Interests to choose
* Advantage to choose : for exemple in the case of prescription
* The main aim for tort is said to be compensation for harm suffered
as a result of the breach of duty fixed by law. Tort is a minimum the
contract may just increase.
* The main aim of contract is to support and enforce contractual
promises and to deter breaches of contract.
*H. Beale, B. Fauvarque-Cosson, J. Rutgers, D. Tallon and S.
Vogenauer, Cases, Materials and Text on Contract Law, Oxford :
Hart Publishing 2010.
*Hess-Fallon Brigitte et Simon Anne-Marie, Droit civil, Sirey ; 2007
* Ruff Anne, Thomson, Contract law, Sweet and Maxwell ; 2005
* Christian von Bar, Ulrich Drobnig, The interaction of contract law
and tort and property law in Europe – a comparative study ; 2004