The Borderland of Tort and Contract—Opening a New Frontier

Abstract

The Borderland of Tort and Contract-Opening a New Frontier?Tort and contract, their respective remedies, their relation and concurrence, create problems in most legal systems which the author of this article has examined.Jurisdiction and applicable law in international cases, different statutes of limitation, standards of care, measures and kinds of damages recoverable, immunities, and survival of actions are but a few of the issues which in domestic law have to be resolved if a cause of action can be founded in tort as well as in contract.The arrival of Uniform Sales Law adds an additional item to this list.In the borderland of tort and contract,' the new frontier between domestic law and internationally unified law has to be observed.Liability based on breach of an international sales contract falling under CISG may "collide" or "concur" with liability based on domestic tort law rules.If, for instance, an American dry cleaner has purchased from a French manufacturer a machine which is destroyed by a fire caused by a defect in its wiring, products liability under domestic tort law rules or the responsibility of the seller under Section 45(1)(b) of CISG could be invoked by the purchaser.The reader might ask, why not?But if the buyer had failed to examine the machine, therefore overlooked the defect which an examination would (perhaps) have revealed, and consequently did not give notice of the "non-conformity," he loses his remedies under the Convention, Section 39(1) of CISG.Can he circumvent this cut-off provision by basing his claim on domestic tort law?This effect of circumvention of one set of liability rules (and its restrictions on liability) by opting for the concurring liability system constitutes the core of the so-called problem of concurrence of actions, "Anspruch-