posted by Lawrence Cunningham
Last year, I had the pleasure of teaching Contracts alongside a colleague, Jonathan Turley, teaching Torts, who inspired ways that enabled both of us to play the courses off each other. For example, we compared how the two approach remedies and the nature of the underlying obligations implicated. We even had some fun, in our respective classes with the same group of students, probing whether Contracts or Torts was more coherent, successful or even enjoyable.
With the new semester weeks away and my preparation for teaching Contracts in full swing, I’ve been considering the Contracts-Torts interface again. Doing so seems invariably to recall the notion of Contorts. Grant Gilmore coined the term to designate a field of civil obligation that merged Contracts with Torts, famously quipping that “Contracts is dead.” Everyone knows that Contracts is not dead—and neither is Torts—but whatever happened to Gilmore’s general law of civil obligation, Contorts? Is there a definable subject there? Does anyone teach it?
Numerous Contracts scholars promptly and repeatedly disputed Gilmore’s declaration of Contracts’ death, including Richard Speidel, Allan Farnsworth, and Randy Barnett. Others embraced aspects of it, including Peter Linzer, and, most famously, Jay Feinman, who even designed and taught a course called Contorts at Rutgers (Camden) in the 1980s (an earlier version of such a course was pioneered elsewhere in the mid-1970s, including by Clare Dalton and Robert Vaughn at American University). But does an enduring sense of Contorts as a field of civil obligation exist?
Certainly, Contorts has been used to describe the longstanding contexts in which aspects of Tort law and Contract law overlap. Most conspicuously as a factual matter, this overlap occurs in the obligations of professionals, especially doctors and lawyers, who enter into contracts with patients or clients and then are subject to both breach of contract and tort claims for deviant performance.
The concept applies with particular force to the broader variety of obligations undertaken by fiduciaries and others standing in confidential relations with their counterparties. There is also overlap, of course, between principles of contract and tort law in such contexts as third party beneficiary doctrine and tortuous interference with contracts.
But these examples suggest that the distinctive features of Contracts and Torts endure and these are special cases in which the principles overlap rather than blur or merge. I’m curious whether anyone is still teaching a course in Contorts and its content or whether there are widely-recognized ways to delineate the contours of such a general law of civil obligation.