Tort Law — Like an Implied Contract

Apart from legislation granting a right to sue for a specific harm, personal injury law generally consists of tort law and the civil procedure for enforcing it. This article discusses how tort law can be viewed as a series of implied contracts.

Implied Contracts With Everyone Else In Society

In a sense, torts are certain general standards of civil conduct. As a practical matter, however, torts are nothing more than a collection of theories for suing people for money (and perhaps other remedies, if the law so permits).

A good way to understand why tort law exists is to view each tort as if it were an implied contract. In this view, each tort is an implied contract that you and everyone else in society has with each other. Indeed, each tort is an implied contract that you and everyone else in society has with each other as a result of being a member of society.

Imagine that two strangers meet today and make a contract. Imagine that they make a contract providing that if either of them should unintentionally cause an automobile accident, and the other person’s automobile is damaged in that accident, the person who caused the automobile accident will pay to have the other person’s automobile repaired or, if necessary, replaced..

Even if you can imagine many people meeting and making this contract, it is obviously not practical for every person in society to meet every other person in society to make such a contract. With the way that people are constantly coming and going, it is nearly impossible.

Nevertheless, strangers continue to have automobile accidents with each other.

Tort law simply provides, as if the parties to an accident had agreed ahead of time, that the person who unintentionally causes an automobile accident will pay to have the other person’s automobile repaired or, if necessary, replaced.

Moreover, tort law covers things about which the parties forgot to make an agreement. Besides the damage to the other person’s automobile, what about the other person’s physical injuries? Who is going to pay the other person’s medical expenses, etc.? Again, tort law simply provides, as if the parties to the accident had agreed ahead of time, that the person who unintentionally causes an automobile accident will pay the other person’s medical expenses, etc.

Finally, notice that tort law is not contract law. Tort law’s “implied contracts” are imposed on everyone in society whether they consent to the imposition of those “implied contracts” or not.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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