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The relationship between Torts and Contract.
The relationship between torts and contract is a complex and nuanced one. Both are branches of civil law that deal with the rights and obligations of parties in different situations. However, they have different sources, scopes, and remedies.
One way to understand the relationship between torts and contract is to compare their similarities and differences. Some of the main points of comparison are:
- Source: Contract law is based on the agreement of the parties, while tort law is based on the duty of care imposed by the law¹.
- Scope: Contract law applies only to the parties who have entered into a valid contract, while tort law applies to anyone who owes a duty of care to another person².
- Remedy: Contract law aims to put the parties in the position they would have been in if the contract was performed, while tort law aims to compensate the injured party for the harm suffered³.
- Consent: Contract law requires the consent of the parties to create obligations, while tort law does not require consent to impose liability¹.
- Privity: Contract law requires privity of contract, which means that only the parties to the contract can sue or be sued, while tort law does not require privity, which means that third parties can also sue or be sued⁴.
Another way to understand the relationship between torts and contract is to examine how they interact in different scenarios. Some of the possible scenarios are:
- Concurrent liability: This is when a party can sue or be sued for both breach of contract and tort for the same act or omission. For example, if a contractor fails to perform the work as agreed and causes damage to the property of the client, the client can sue the contractor for both breach of contract and negligence⁵.
- Exclusion of liability: This is when a party tries to limit or exclude their liability for breach of contract or tort by using a clause in the contract. For example, if a seller sells a defective product to a buyer and includes a clause that disclaims any warranty or liability for the product, the buyer may not be able to sue the seller for breach of contract or product liability⁶.
- Independent liability: This is when a party can sue or be sued for tort even if there is no contract between them. For example, if a bystander is injured by a falling object from a construction site, the bystander can sue the contractor for negligence even if the bystander has no contractual relationship with the contractor⁷.
In conclusion, torts and contract are related but distinct areas of law that have different implications and consequences for the parties involved. They can sometimes overlap, complement, or conflict with each other depending on the circumstances of each case. Therefore, it is important to understand the nature and scope of both torts and contract when dealing with legal issues.
(1) Difference Between Contract and Tort. https://askanydifference.com/difference-between-contract-and-tort/.
(2) Difference Between Tort and Contract (with Comparison Chart) – Key …. https://keydifferences.com/difference-between-tort-and-contract.html.
(3) Torts and Contracts | LegalMatch. https://www.legalmatch.com/law-library/article/contract-and-tort-law.html.
(4) Tort Law: What It Is and How It Works, With Examples – Investopedia. https://www.investopedia.com/terms/t/tort-law.asp.
(5) undefined. https://www.upcounsel.com/torts-and-contracts.
(6) undefined. https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859.
(7) undefined. https://www.britannica.com/topic/tort.
What does Company Law entail?
Company law is the branch of law that deals with the formation, management, regulation, and dissolution of companies. It covers a wide range of topics, such as:
- The types and characteristics of different kinds of companies, such as public, private, limited, unlimited, etc.
- The process and requirements of incorporating a company, such as the memorandum and articles of association, the certificate of incorporation, the prospectus, etc.
- The rights and duties of the various stakeholders of a company, such as the shareholders, directors, creditors, employees, etc.
- The rules and principles governing the internal and external affairs of a company, such as the doctrine of ultra vires, the doctrine of indoor management, the doctrine of corporate veil, etc.
- The mechanisms and procedures for resolving disputes and protecting the interests of the company and its stakeholders, such as the winding up, the liquidation, the merger, the takeover, the minority protection, etc.
- The role and impact of various laws and regulations on the company and its stakeholders, such as the Companies Act, the corporate governance codes, the environmental laws, the human rights laws, etc.
Company law is a complex and dynamic field of law that requires constant adaptation and innovation to meet the challenges and opportunities of the modern business world. It is also an important and influential area of law that affects the economic and social development of a country.
(1) COMPANY LAW | English meaning – Cambridge Dictionary. https://dictionary.cambridge.org/dictionary/english/company-law.
(2) DEFINITION OF COMPANY LAW | The Lawyers & Jurists. https://www.lawyersnjurists.com/article/definition-of-company-law/.
(3) Corporate law – Wikipedia. https://en.wikipedia.org/wiki/Corporate_law.
(4) Introduction To Company Law – The Indian Law. https://theindianlaw.in/introduction-to-company-law/.
(5) 30 Company Law Dissertation Topics & Titles – Research Prospect. https://www.researchprospect.com/company-law-dissertation-topics/.
(6) Company Law – Notes, Case Laws and Study Material – Legal Bites. https://www.legalbites.in/library-company-law/.
(7) 190 Top Business Law Paper Topics For Students To Consider. https://www.greatassignmenthelp.com/blog/business-law-paper-topics/.
Wragg, Re [1897] 1 Ch 796
- The case concerned the validity of a will that was made by a testator who was suffering from delirium tremens, a condition caused by alcohol withdrawal that can cause hallucinations, confusion, and agitation.
- The testator, Mr. Wragg, was a habitual drunkard who had been advised by his doctor to abstain from alcohol. He made a will on the 9th of April 1896, leaving his estate to his wife and appointing her as his sole executrix. He died on the 11th of April 1896, after having several fits of delirium tremens.
- The will was challenged by the testator’s son, who claimed that his father was not of sound mind when he made the will and that he was unduly influenced by his wife.
- The court held that the will was valid and that the testator had testamentary capacity at the time of making the will. The court applied the test laid down in Banks v Goodfellow (1870) LR 5 QB 549, which states that a person is of sound mind for the purpose of making a will if he or she can understand the nature and effect of the act, the extent of the property to be disposed of, and the claims of those who might be entitled to benefit from the will. The court also considered the evidence of the testator’s solicitor, who prepared the will and witnessed its execution, and who testified that the testator was rational and coherent when he gave his instructions and signed the will.
- The relevance of the case is that it illustrates the application of the Banks v Goodfellow test for testamentary capacity, which is still the main test used in English law today. It also shows that the presence of a mental disorder, such as delirium tremens, does not necessarily invalidate a will, as long as the testator meets the criteria of the test at the time of making the will. The case also demonstrates the importance of having a reliable and independent witness to the execution of a will, especially when the testator’s mental state is in doubt.
Attorney-General v Unity Dow [1992] BLR 119
The case was about the constitutionality of the Citizenship Act, 1982, which provided that children born in Botswana to a citizen father and a non-citizen mother were automatically citizens by birth, but children born in Botswana to a citizen mother and a non-citizen father were not. The respondent, Unity Dow, was a citizen of Botswana who was married to a non-citizen and had three children born in Botswana. She challenged the validity of the Citizenship Act on the grounds that it violated her right to equal protection of the law and freedom from discrimination on the basis of sex under sections 3 and 15 of the Constitution. She sought a declaration that her children were citizens by birth and an injunction to restrain the government from denying them passports or other privileges of citizenship.
The High Court upheld the respondent’s claim and declared that the Citizenship Act was unconstitutional, null and void. The court applied a broad and generous approach to interpreting constitutional provisions and held that:
– The Citizenship Act discriminated against women and their children on the basis of sex, which was contrary to section 15 of the Constitution, which prohibited any law or treatment that was discriminatory either of itself or in its effect. The court rejected the government’s argument that the discrimination was justified by historical, cultural or social reasons, such as patrilineal succession, prevention of statelessness or protection of national security. The court found that none of these reasons were valid or relevant in the modern context of Botswana as a democratic and sovereign state.
– The Citizenship Act also violated section 3 of the Constitution, which guaranteed every person in Botswana the fundamental rights and freedoms of the individual, subject to respect for the rights and freedoms of others and for the public interest. The court found that the Citizenship Act infringed on the rights and freedoms of women and their children, such as the right to life, liberty, security of person, protection of law, freedom of expression, assembly and association, and protection from deprivation of property without compensation. The court also found that there was no public interest that could justify such infringement.
The government appealed to the Court of Appeal, which dismissed the appeal and affirmed the decision of the High Court. The Court of Appeal agreed with the High Court’s reasoning and conclusions, and added that:
– The Citizenship Act was not only discriminatory but also arbitrary and irrational, as it created different classes of citizens based on their parentage and not on their birthplace or allegiance. The court observed that citizenship was a fundamental right and status that should not be subject to whimsical or capricious legislation.
– The preamble of the Constitution expressed the aspirations and values of the people of Botswana, such as democracy, unity, peace, justice and liberty. The court stated that these values should guide and inform the interpretation and application of the Constitution and its provisions.
The relevance of this case is that it illustrates the scope and limits of sections 3 and 15 of the Constitution, which protect the rights and freedoms of individuals from discrimination and violation by the state. It also shows how the courts apply a broad and generous approach to interpreting constitutional provisions and a narrow or strict approach to derogating from them. This case is cited as an authority on constitutional law and citizenship law in several textbooks and articles on Ghanaian legal system¹².
(1) ATTORNEY-GENERAL v. DOW 1992 BLR 119 (CA) Citation: 1992 BLR 119 (CA …. https://citizenshiprightsafrica.org/wp-content/uploads/1992/07/AG-vs-Dow-CA.pdf.
(2) Unity DOW CASE – Law case – ATTORNEY-GENERAL v. DOW 1992 BLR 119 (CA …. https://www.studocu.com/row/document/university-of-botswana/introduction-to-law/unity-dow-case-law-case/38809836.
(3) Court of Appeal, Attorney-General v. Dow, 3 July 1992, BLR 119 (CA). https://compendium.itcilo.org/en/compendium-decisions/court-of-appeal-attorney-general-v.-dow-3-july-1992-blr-119-ca.
(4) Attorney General v. Unity Dow | Women And Justice | US Law | LII …. https://www.law.cornell.edu/women-and-justice/resource/attorney_general_v_unity_dow.
(5) Botswana: Attorney-General v. Dow (Court of Appeal). https://citizenshiprightsafrica.org/attorney-general-v-dow-court-of-appeal/.
Z and Others v United Kingdom [2001] 2 FLR 612; [2001] 2 FLR 246
The case of Z and Others v United Kingdom was a landmark human rights case decided by the European Court of Human Rights in 2001. The case involved four siblings who had been severely neglected and abused by their parents for several years, while the local authority failed to take adequate protective measures despite being aware of the situation. The siblings sued the United Kingdom for violating their rights under Article 3 (prohibition of inhuman and degrading treatment), Article 6 (right to a fair trial), Article 8 (right to respect for family life) and Article 13 (right to an effective remedy) of the European Convention on Human Rights.
The Court found that the local authority’s failure to protect the children amounted to inhuman and degrading treatment in breach of Article 3, as the children had suffered serious physical and psychological harm that diminished their human dignity and adversely affected their development. The Court also found that the children had not been afforded an effective remedy under Article 13, as they had no appropriate means to determine the local authority’s responsibility for the damage suffered and to obtain an enforceable award of compensation. The Court awarded the children 60,000 pounds sterling each in respect of non-pecuniary damage and 15,000 pounds sterling each for costs and expenses.
The Court did not find a violation of Article 6, as it considered that the domestic proceedings had been fair and impartial, and that the children had been adequately represented by their guardian ad litem and their solicitors. The Court also did not find a separate issue under Article 8, as it considered that the breach of Article 3 had sufficiently covered the interference with the children’s family life.
The case is relevant for several reasons. First, it established that states have a positive obligation under Article 3 to protect individuals from serious harm inflicted by private actors, especially when those individuals are vulnerable and dependent on state authorities. Second, it highlighted the importance of providing effective remedies for victims of human rights violations, including adequate compensation and access to justice. Third, it demonstrated the role of the European Court of Human Rights in supervising the compliance of states with their obligations under the Convention and in ensuring respect for human dignity and fundamental freedoms.
(1) Z v UK Case Summary – LawTeacher.net. https://www.lawteacher.net/cases/z-v-uk.php.
(2) ECHR – HUDOC. https://hudoc.echr.coe.int/app/conversion/docx/?library=ECHR&id=001-59455&filename=CASE%20OF%20Z%20AND%20OTHERS%20v.%20THE%20UNITED%20KINGDOM.docx&logEvent=False.
(3) Z v United Kingdom [2001] 2 FLR 612 Case Summary – Oxbridge Notes. https://www.oxbridgenotes.co.uk/law_cases/z-v-united-kingdom.
(4) Z and Others V. United Kingdom: Human Rights, Private Law Duty, and …. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=894326.
(5) Oxford Public International Law: Z and ors v United Kingdom, Merits and …. https://opil.ouplaw.com/abstract/10.1093/law:ihrl/2901echr01.case.1/law-ihrl-2901echr01.
Carlil v Carbolic Smokeball Co. [1892] 2 Q.B. 484; affd [1893] 1 QB 256
Carlil v Carbolic Smokeball Co. is a famous case in English contract law that established the principle of unilateral offers¹².
- The defendant company advertised a medicine called a “carbolic smoke ball” and promised to pay £100 to anyone who used it and still contracted influenza¹².
- The claimant, Mrs Carlil, bought and used the product as instructed, but still caught the flu and claimed the reward¹².
- The company refused to pay, arguing that the advertisement was not a serious offer, but a mere “puff” or invitation to treat¹².
- The Court of Appeal held that the advertisement was a valid offer that could be accepted by anyone who performed the conditions of the offer¹².
- The court also held that the claimant provided consideration by using the product, which benefited the company by increasing sales and publicity¹².
The relevance of the case is that it clarified the distinction between offers and invitations to treat in contract law³. It also showed that an offer can be made to the world at large, and that acceptance can be implied by conduct without communication³. The case is often cited as an example of a unilateral contract, where only one party assumes an obligation upon performance by the other party⁴. The case also influenced the development of consumer protection laws, as it demonstrated the need for honesty and fairness in advertising practices⁵.
(1) Carlill v Carbolic Smoke Ball Co – Case Summary – IPSA LOQUITUR. https://ipsaloquitur.com/contract-law/cases/carlill-v-carbolic-smoke-ball/.
(2) Carlill v Carbolic Smoke Ball Co – 1893 – LawTeacher.net. https://www.lawteacher.net/cases/carlill-v-carbolic-smoke-ball-co.php.
(3) Carlill v. Carbolic Smoke Ball Co. (England, 1892): Expert Analysis. https://dandylaw.com/carlill-v-carbolic-smoke-ball-co-england-1892-expert-analysis/.
(4) Carlill vs. Carbolic Smoke Ball Co. (Court of Appeal 1893) Case Summary …. https://lawplanet.in/carlill-vs-carbolic-smoke-ball-co-case-summary/.
(5) Carlill v Carbolic Smoke Ball Co – Wikipedia. https://en.wikipedia.org/wiki/Carlill_v_Carbolic_Smoke_Ball_Co.
(6) undefined. https://www.lawteacher.net/cases/carlill-v-carbolic-smoke-ball-co.php?vref=1.
Baidoo v Sam [1987-88] 2 GLR 666 CA
The case of Baidoo v Sam [1987-88] 2 GLR 666 CA was a dispute between two businessmen over the ownership and saleability of a registered business name, Unity Salt Industries, under which they allegedly operated a salt production business at Elmina. The plaintiff, Ellion Baidoo, claimed that he and the defendant, Kojo Sam, were partners in the business and that the defendant had sold the business name to a third party without his consent. The defendant denied that there was any partnership and asserted that he was the sole owner of the business name and the land on which the salt production took place. He also argued that the plaintiff was his agent and employee who had registered the business name on his behalf.
The Court of Appeal held that there was no partnership between the parties, as they had not registered their business under the Incorporated Private Partnership Act 1962 (Act 152), which was a prerequisite for operating a partnership in Ghana. The court also held that the registration of a business name under the Registration of Business Names Act 1962 (Act 151) did not confer any proprietary right or interest in the name, and that the name was not saleable as such. The court further held that the plaintiff, being a stranger to the contract of sale between the defendant and the third party, had no capacity to sue for its rescission.
The relevance of this case is that it clarifies the legal nature and effect of registering a business name in Ghana, and the distinction between a business name and a partnership. It also illustrates the importance of complying with the statutory requirements for forming and operating a partnership, and the consequences of engaging in unauthorized private business as a public officer. The case also raises some issues concerning the law of contract, such as the rights and obligations of agents, and the capacity of strangers to sue on contracts.
(1) Baidoo v. SAM – Case in company law – BAIDOO v. SAM [1987-88] 2 GLR 666 …. https://www.studocu.com/row/document/ghana-institute-of-management-and-public-administration/law/baidoo-v-sam-case-in-company-law/20004041.
(2) Can the insurance company be sued for loss suffered?. https://www.graphic.com.gh/lifestyle/can-the-insurance-company-be-sued-for-loss-suffered.html.
American Cyanamind Company v Ethicon Ltd (1975) AC 396
American Cyanamid Co v Ethicon Ltd [1975] AC 396 is a landmark case in English civil procedure law, concerning the conditions for granting an interim injunction. An interim injunction is a temporary order that prevents a party from doing something until the final resolution of the case.
The case involved a dispute over a patent for artificial absorbable surgical sutures, which are used to stitch wounds and dissolve over time. The claimant, American Cyanamid, held the patent and sued the defendant, Ethicon, for infringing it by launching a similar product in the UK market. The claimant sought an interim injunction to stop the defendant from selling the product until the trial.
The main issue was what the claimant had to prove to obtain an interim injunction. The Court of Appeal held that the claimant had to show a prima facie case of infringement, meaning that there was a strong likelihood of success at trial. The Court of Appeal discharged the injunction, finding that the claimant had not established a prima facie case.
The House of Lords reversed the decision and reinstated the injunction. The House of Lords laid down a new test for granting an interim injunction, which is still followed today. The test consists of four steps:
- The claimant must show that there is a serious issue to be tried, meaning that the claim is not frivolous or vexatious.
- The court must consider whether damages would be an adequate remedy for the claimant if they win at trial, or whether an injunction is necessary to protect their rights.
- If damages are not adequate, the court must consider whether the defendant would be adequately compensated by the claimant’s undertaking in damages if they win at trial, or whether an injunction would cause them irreparable harm.
- If there is any doubt about the adequacy of damages on either side, the court must weigh the balance of convenience between the parties, taking into account factors such as the merits of the case, the effect of granting or refusing the injunction, and the preservation of the status quo.
The House of Lords also emphasized that the court should not try to resolve disputed issues of fact or law at the interim stage, as this would usurp the function of the trial.
The relevance of this case is that it established a clear and flexible framework for deciding whether to grant an interim injunction in any type of case. It also recognized that an interim injunction is a discretionary remedy that should be granted with caution and only when it is just and convenient to do so. The case has been cited and applied in many subsequent cases involving interim injunctions in various fields of law¹²³⁴.
(1) American Cyanamid v Ethicon – LawTeacher.net. https://www.lawteacher.net/cases/american-cyanamid-v-ethicon.php.
(2) American Cyanamid v Ethicon – Case Summary – IPSA LOQUITUR. https://ipsaloquitur.com/civil-procedure/cases/american-cyanamid-v-ethicon/.
(3) U.K., American Cyanamid Co. v. Ethicon Ltd., [1975] AC 396. https://globalfreedomofexpression.columbia.edu/laws/u-k-american-cyanamid-co-v-ethicon-ltd-1975-ac-396/.
(4) American Cyanamid Co v Ethicon Ltd – Wikipedia. https://en.wikipedia.org/wiki/American_Cyanamid_Co_v_Ethicon_Ltd.
(5) undefined. https://www.lawteacher.net/cases/american-cyanamid-v-ethicon.php?vref=1.
Dei Darke XII (1991) 2 GLR SC 318
The case Dei Darke XII (1991) 2 GLR SC 318 was an appeal to the Supreme Court of Ghana by the appellants, who were the chiefs and elders of the Akuapem Traditional Area. They challenged the validity of a chieftaincy election that was held in 1986 and resulted in the respondents being installed as the paramount chief and queen mother of Akuapem. The appellants claimed that the election was not conducted according to the customary law and practice of Akuapem, and that the respondents were not eligible to contest for the positions. The High Court and the Court of Appeal dismissed their claims and upheld the election. The appellants then sought special leave to appeal to the Supreme Court, which was granted on certain conditions. However, they failed to file their statement of case within three weeks as required by rule 13 (1) of the Supreme Court Rules, 1970 (C.I. 13). As a result, their appeal was deemed to have been struck out by operation of law under rule 13 (2) of C.I. 13. The appellants then applied to the Supreme Court to restore their appeal to the list and extend the time for filing their statement of case. The Supreme Court dismissed their application, holding that it had no jurisdiction to do so under rule 66 of C.I. 13, which only allowed the court to extend time for filing a notice of appeal or an application for special leave to appeal¹.
The case Dei Darke XII (1991) 2 GLR SC 318 is relevant because it illustrates the importance of complying with the procedural rules of the Supreme Court, especially in chieftaincy matters, which are often complex and contentious. The case also shows the limited scope of rule 66 of C.I. 13, which does not empower the Supreme Court to extend time for filing a statement of case or any other document after an appeal has been deemed to have been struck out by operation of law. The case also highlights the need for clarity and consistency in the customary law and practice of chieftaincy elections in Ghana, which may vary from one traditional area to another¹.
(1) DEI XI V. DARKE XII | SUPREME COURT | GHANA | 8 JUL 1991 | (1991) JELR …. https://lite.judy.legal/amp/case/dei-xi-v-darke-xii-7ca66.
Addo v Kumi [1971] 1 GLR 25
The case of Addo v Kumi [1971] 1 GLR 25 was a civil suit in the High Court of Ghana, where the defendant-appellant applied for an order to attach the plaintiff-respondent and the deputy sheriff for contempt. The plaintiff had obtained a judgment for ejectment against the defendant in the District Court, and the defendant had lodged an appeal. The plaintiff then applied for and obtained a writ of possession from the same court, which was executed by the deputy sheriff and the plaintiff was put into possession of the premises. The defendant argued that this was in violation of the High Court (Civil Procedure) (Amendment) Rule, 1969 (L.I.619), which provided that an appeal operated automatically as a stay of execution unless the court granted leave to go into execution. The High Court dismissed the application for contempt, holding that the plaintiff and the deputy sheriff acted in good faith and relied on the writ of possession issued by the magistrate, which was deemed to be an order granting leave to go into execution. The court also held that there was no evidence of any intention to interfere with or obstruct the due course of justice.
The relevance of this case is that it illustrates the application and interpretation of L.I.619, which was a procedural rule that aimed to prevent abuse of process and injustice in civil cases. The case also shows the importance of respecting the orders of the court and avoiding any conduct that may amount to contempt. The case also highlights the role and responsibility of the deputy sheriff in executing writs of possession and other judicial processes.
(1) IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT OF … – GHALII. https://media.ghalii.org/files/judgments/ghasc/2014/122/2014-ghasc-122.pdf.
(2) IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA … – GHALII. https://media.ghalii.org/files/judgments/ghasc/2020/57/2020-ghasc-57.pdf.
(3) Cases – Constitutional Litigation IN Ghana – Studocu. https://www.studocu.com/row/document/central-university-ghana/constitutional-law/cases-constitutional-litigation-in-ghana/43748661.
Law Author 