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differentiate the remedy for breach of contract from tort of negligence? Postby sk » May 10th, 2010, 9:13 am

the answer shoulde be based on the following example, a person purchased a house from a seller 2 years ago. on the continunity of habitation, he discovered cracks, which were attributable to the negligient passing of plans by local authority. instead of carrying out repairs, he sold his defective house and recovered loss against what the value would have been without the defects.

predict the judgement of the case if the buyrer filed a case against the local authority with the support of relevant decided cases?

demostrate the nature of the above case and explain whether the local authority would be sued under the law of contract?
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Re: differentiate the remedy for breach of contract from tort of negligence? Postby shellanswerman » May 15th, 2010, 8:33 am

local authority has no contractual duty. they could have a statutory duty which would establish the standard of care for a negligence action. if the standard of care is that they don't pass negligent plans, and falling below that standard of care actually and proximately caused those damages... well, i think you know the rest
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Re: differentiate the remedy for breach of contract from tort of negligence? Postby modoodoo76 » May 28th, 2010, 9:04 am

The remedy under breach of contract is generally specific performance. Since the person did not have a contract with the local authority, there wasn't anything for the local authority to breach. So, he would want to go after the local authority under a negligence claim because he can get $ damages out of it. He would probably want to do this even if he had a contract claim against the local authority because he can get more out of negligence claim than a breach of contract claim (or at least the possibility is there).

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Re: differentiate the remedy for breach of contract from tort of negligence? Postby Tmess2 » May 30th, 2010, 9:08 am

Sounds like an exam question to me.

Contract is about a relationship between two parties (and very rarely a third party). It is not about duty (for the most part) but about the agreement between the parties. In this case, there was no contractual relation between the original builder and the city. Instead, the original builder apparently got a permit which would have been required under some city ordinance or state statute.

The better argument is that the city breached a duty. However, the public duty doctrine would seriously restrict any potential for a claim in tort. In essence, the public duty doctrine precludes a finding of negligence from the failure of government to comply with a general duty owed to the public at large (as opposed to a specifically identified person). In addition, there would be the question of sovereign and official immunity which would depend on the specific laws of the specific jurisdiction.

In short, the proper claim is against the builder not the city.

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