Contorts Anyone?
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.
August 1, 2008 at 3:15 pm
Posted in: Contract Law & Beyond
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Responses (5)
Jim - August 1, 2008 at 5:08 pm
As a first year class – no. I took a “Contorts” class. My professor “unpacked” it about as well as I ever think anyone could have, and it was still difficult and, for the effort, returned very little. First year students’ lack of knowledge of the concepts underlying the “common ground” between contracts and torts – despite Gilmore’s gloss – renders it abstract and empty. This is compounded only by the intellectual mish-mash in which Gilmore himself engaged that led half of the class to distraction (with most saying only during bar review – Oh! I get it!). I reread Gilmore years later and while what he had to say was interesting, its practical implications had been, and remain, nil. A true appreciation requires a thorough grounding in the debates among Corbin, Williston, et al. before Gilmore (before one might say “Formalist,” may I suggest – Letters of Credit and ISDA?). While Contorts is a terrific way to teach social science under the cover of law, and a wonderful way for a teacher to stay amused while teaching an otherwise deadly first year subject, it is, by its very nature, almost fated to remain an abject mess.
Bruce Boyden - August 1, 2008 at 5:14 pm
I once had a case under Quebec law. The Quebec Civil Code has a single chapter, “Obligations,” covering both contracts and torts. There are voluntary obligations — contracts — and involuntary obligations — torts. That doesn’t strike me as a bad way to organize the topics.
Chase - August 1, 2008 at 7:22 pm
As a first year class at LSU we are taught the course of “Obligations.” It’s a spring semester course (torts and contracts are also taught fall semester). Similar (probably identical, come to think of it) to our civilian friends in Quebec, the Louisiana Civil Code (and a short precis on the topic) is the essential text.
Long live the Civil Code!
ubeube - August 1, 2008 at 11:22 pm
Hi Prof. Cunningham,
The back-and-forth you describe between your class and Prof. Turley’s torts class sounds interesting. I hope you plan on doing something similar this year, and that I am lucky enough to be placed in the section you are teaching!
mjb - August 2, 2008 at 5:05 pm
A contorts class is part of Georgetown’s alternative first-year curriculum. It is called “Bargain, Exchange, and Liability” and is currently taught by Gary Peller. Like the other courses in the alternative curriculum, the approach is theory-heavy with academic articles mixed into the case law. The theoretical emphases are law and economics and CLS. Readings include The Death of Contract, Richard Posner, Duncan Kennedy, and Prof. Peller.
The torts and contracts sides of the course are taught in parallel. The syllabus starts with the creation of obligations under both contract and tort law, defenses in each body of law, etc., and culminates with products liability.
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