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Whither Remoteness? Wellesley Partners LLP v Withers LLP
Author(s) -
Taylor Aaron
Publication year - 2016
Publication title -
the modern law review
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.37
H-Index - 22
eISSN - 1468-2230
pISSN - 0026-7961
DOI - 10.1111/1468-2230.12205
Subject(s) - fiduciary , appeal , tort , liability , unjust enrichment , principal (computer security) , law and economics , business , compensation (psychology) , argument (complex analysis) , law , breach of contract , equity (law) , political science , economics , restitution , duty , damages , computer science , psychology , biochemistry , chemistry , psychoanalysis , operating system
In Wellesley v Withers , the Court of Appeal held that where a defendant is concurrently liable in tort and contract, the contractual rules for the remoteness of loss must apply. Two principal reasons emerge from the judgments. The first, that each party has had the chance to alert the other to unusual risks, is valid but often unconvincing. The second is more original and compelling: that the nature of any responsibility assumed in tort is distinct from, but wholly defined by, the valid contract. This note seeks to develop that argument. It then addresses the uncertain issue of concurrent liability in equity. It suggests that in a case in which any fiduciary duties arise out of, and are defined by, a valid contract, it may now be appropriate to apply the contractual remoteness rules to a concurrent claim for breach of contract and equitable compensation.