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law of tort to ‘fill in the gaps’ of the law of contract (see, for example, White v Jones, p 702) (but cf ‘tort’, below). 4 In English law, the distinction between contract and liability ex contractu is particularly important, since the law of remedies (debt, damages, injunction, specific performance, rescission, etc) is relatively independent from the law of rights (contract and tort) (see, for example, Co-op v Argyll, p 253; cf PECL, Art 9:102). Certainly contractual liability in English law can, at first sight, appear to transcend the forms of action mentality, since contract is a subject seemingly dominated by rules which are capable of being codified in much the same way as in the civil codes (McGregor, Contract Code: Drawn up on behalf of the English Law Commission, 1993, Giuffrè). However, remedies respond not so much to rights, but to causes of action, and thus liability in contract is founded on the idea, not of nonperformance of an obligation as such, but of a breach of contract. This notion of breach is in turn related to the theoretical foundation of contract in English law, which is not conventio (agreement), but promise. Contractual liability arises from a breach of promise and historically such a cause (form) of action for breach was as much delictuel (tort of deceit) as contractual. Some contractual liability cases are thus difficult to distinguish from non-contractual compensation claims (see, for example, Blackpool and Fylde, p 436). 5 The idea of non-performance is not, however, absent from the common law of contract, since a contractor may be prevented from performing as a result of an event beyond his control (doctrine of frustration) or because the non-performer is under no actual obligation to perform as in a unilateral contract. Consequently, it is on occasions important to distinguish a claim based on breach of contract (usually a claim for damages) from one based on non-performance (usually a refusal to pay a debt) (see, for example, Vigers v Cook, p 516; Bolton v Mahadeva, p 226). Difficult questions can also arise not only about whether the nonperformance was a breach (Joseph Constantine, p 523), but also whether the defendant had actually promised the result claimed by the plaintiff (see, for example, Readhead v Midland Ry, p 543; Thake v Maurice, p 547; Supply of Goods and Services Act 1982) (cf obligation de moyens and obligation de résultat). (d) Tort
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At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of ‘culpa’, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be-persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. This appears to me to be the doctrine of Heaven v Pender… There will no doubt arise cases where it will be difficult to determine whether the contemplated relationship is so close that the duty arises. But in the class of case now before the court I cannot conceive any difficulty to arise. A manufacturer puts up an article of food in a container which he knows will be opened by the actual consumer. There can be no inspection by any purchaser and no reasonable preliminary inspection by the consumer. Negligently, in the course of preparation, he allows the contents to be mixed with poison. It is said that the law of England and Scotland is that the poisoned consumer has no remedy against the negligent manufacturer. If this were the result of the authorities, I should consider the result a grave defect in the law, and so contrary to principle that I should hesitate long before following any decision to that effect which had not the authority of this House. I would point out that, in the assumed state of the authorities, not only would the consumer have no remedy against the manufacturer, he would have none against any one else, for in the circumstances alleged there would be no evidence of negligence

against any one other than the manufacturer; and, except the case of a consumer who was also a purchaser, no contract and no warranty of fitness, and in the case of the purchase of a specific article under its patent or trade name, which might well be the case in the purchase of some articles of food or drink, no warranty protecting even the purchaser-consumer… I do not think so ill of our jurisprudence as to suppose that its principles are so remote from the ordinary needs of civilised society and the ordinary claims it makes upon its members as to deny a legal remedy where there is so obviously a social wrong…

In my opinion, several decided cases support the view that in such a case as the present the manufacturer owes a duty to the consumer to be careful…

Lord Buckmaster (dissenting):… The principle contended for must be this: that the manufacturer, or indeed the repairer, of any article, apart entirely from contract, owes a duty to any person by whom the article is lawfully used to see that it has been carefully constructed. All rights in contract must be excluded from consideration of this principle; such contractual rights as may exist in successive steps from the original manufacturer down to the ultimate purchaser are ex hypothesi immaterial. Nor can the doctrine be confined to cases where inspection is difficult or impossible to introduce. This conception is simply to misapply to tort doctrine applicable to sale and purchase.