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Cumulation of tort in addition to contract claim Anne PRUDHOMME ICP Program
Cleveland Institute of Art, US has reference to this Academic Journal, Cumulation of tort in addition to contract claim Anne PRUDHOMME ICP Program 2011/2013 ? European Contract Law Difference between tort in addition to contract claim * Difference between tort in addition to contract claimÿ: contractual liability prevails when there is a contract. * But problems in consideration of pre-contractual periodÿ? – Franceÿ: tortious liability – Germanyÿ: tendence so that lengthen the contractual liability – Englandÿ: Tort law in consideration of fault * Can we choose between contract in addition to tort claimÿ? That’s the problem of cumul or non-cumul. Non cumul of tort in addition to contract claim The exemple of FRANCE * Absolut theorie of ®ÿnon cumulÿ¯ * Civil chamber of Cour de Cassation, 1922ÿ: Protection of the contractual field in addition to of the clauses which compose the contract * We can’t cumulate compensations because of the injustify enrichmentÿ: no right so that double compensations.
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Non cumul of tort in addition to contract claim * Reasonsÿ: protection of the contractual field ? protection of the clause limiting liability * Exception so that the non-cumulÿ: when there is a corporal injury, the victim can choose the best solution in consideration of indemnisation between tort or contract claim. * Cass civ. 11 janvier 1989ÿ: Contract law therefore predominatesÿ; tortious liability is limited so that cases which do not concern a breach of contract. The possibility of choice The exemple of Germany * ®ÿAnspruchskonkurrenzÿ¯ÿ(competition of claim) allowing concurring in addition to competing remedies. * BGH, 9 may 1957ÿ: The competition of claims allows the plaintiff so that choose between the two cause of action. German law recognises that tortious liability may have so that be modified in the light of a contractual clause. GERMANY Anspruchsschufung * Accumulation of claimsÿ * No right so that double compensationÿ: when the claim is based on more than one basis of liability.
The possibility of choice The exemple of England *In english lawÿ: as in germany. It has always been possible in consideration of a claimant so that sue either contract or tort if both claims can be made out. *A.J. Joloviczÿ: ®ÿno formal rule against overlapping responsabilities is not found, either in law, or in jurisprudenceÿ¯. *Ex of Oliver Jÿ: If I have a contract alongside my dentist so that extract a tooth, I am not thereby precluded from suiing him in tort ig he negligently shatters my jawÿ¯. (Midland Bank & Trust Co Ltd v. Hatt Stubb & Kemp)ÿ Notion of cumulation * We are using in a wrong way the notion of cumulationÿ Point of view of Bnabent, french professorÿ: In France it is not the ule of ®ÿnon cumulÿ¯ but on ®ÿnon choiceÿ¯. * Non cumul or absence of optionÿ? It’s more an absence of option Interests so that choose * Advantage so that chooseÿ: in consideration of exemple in the case of prescription * The main aim in consideration of tort is said so that be compensation in consideration of 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 so that support in addition to enforce contractual promises in addition to so that deter breaches of contract.
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Sources *H. Beale, B. Fauvarque-Cosson, J. Rutgers, D. Tallon in addition to S. Vogenauer, Cases, Materials in addition to Text on Contract Law, Oxford : Hart Publishing 2010. *Hess-Fallon Brigitte et Simon Anne-Marie, Droit civil, Sireyÿ; 2007 * Ruff Anne, Thomson, Contract law, Sweet in addition to Maxwellÿ; 2005 * Christian von Bar, Ulrich Drobnig, The interaction of contract law in addition to tort in addition to property law in Europe ? a comparative studyÿ; 2004
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