Both a tort and a breach of contract can result in compensation. So, how do you tell them apart?
The easiest question to ask is:
- Where did the duty come from?
- If the duty comes from law, we generally deal with a tort.
- If the duty comes from an agreement between the parties, we are dealing with a contract.
1. The Basic Difference
Tort
The duty is generally imposed by law.
You do not need to enter into an agreement with someone for the duty to exist.
Example:
A driver has a legal duty to drive carefully. If A drives negligently and injures B, A may be liable even though A and B never made a contract.
Breach of Contract
The duty arises from an agreement between the parties.
Example:
A agrees to deliver a laptop to B on 1 September. If A fails to deliver it as promised, A may have committed a breach of contract.
Remember:
Tort → Duty imposed by law
Contract → Duty created by agreement
2. Key Differences
| Basis | Tort | Breach of Contract |
| Source of duty | Law | Agreement |
| Contract required? | No | Yes |
| Relationship between parties | May not exist beforehand | Contractual relationship exists |
| Nature of wrong | Breach of legal duty | Failure to perform contractual obligation |
| Common remedy | Damages/other civil remedies | Damages/other contractual remedies |
| Example | Negligently injuring someone | Failing to deliver goods as promised |
3. A Simple Example
Suppose you hire a photographer for your wedding.
The photographer promises to deliver your photographs within 15 days but fails to do so.
What happened?
The promise to deliver the photographs came from the agreement.
→ Breach of contract
Now imagine that during the wedding, the photographer carelessly leaves equipment in a place where a guest trips over it and gets injured.
The duty to take reasonable care towards others can exist independently of the contract.
→ Possible tortious liability
So, depending on the facts:
The same situation can potentially involve both contract and tort.
4. Does a Tort Require a Contract?
No.
This is one of the easiest ways to eliminate an incorrect option.
A person can be liable in tort even when there is no contractual relationship.
Example
A driver negligently hits a pedestrian.
The driver and pedestrian have no contract.
Yet the driver may be liable because the law imposes a duty to take reasonable care.
5. Does Every Breach of Contract Become a Tort?
No.
Suppose A promises to deliver furniture to B but fails to do so.
The failure to perform the promise is primarily a contractual issue.
It does not automatically become a tort merely because B suffers financial loss.
The source of the obligation is the contract.
6. Can the Same Act Be Both?
Yes.
Imagine a doctor agrees to treat a patient.
The doctor may have:
- Contractual obligations arising from the agreement with the patient; and
- Legal duties to exercise reasonable care.
If the doctor fails to perform a contractual promise, it may raise a contractual claim.
If the doctor is negligent and causes harm, it may also raise issues of tortious liability.
The exact liability will depend on the facts and applicable law.
Practice Question
Principle
A tort generally arises from the breach of a duty imposed by law, whereas a breach of contract arises from failure to perform an obligation created by an agreement.
Facts
A café agrees to deliver a birthday cake to Meera by 5 p.m. on Saturday. Meera makes the full payment in advance. The café fails to deliver the cake.
While making another delivery, the café’s employee drives negligently and injures a pedestrian, Riya.
Question
Which statement is most appropriate?
A. Both situations are breaches of contract because the employee works for the café.
B. The failure to deliver the cake may amount to breach of contract, while the negligent injury to Riya may give rise to tortious liability.
C. Neither situation can create liability because there was no intention to cause harm.
D. Both situations are necessarily torts because compensation may be claimed.
Answer: B
Why?
The café’s obligation to deliver the cake arose from its agreement with Meera.
The duty to take reasonable care while driving exists independently of a contractual agreement with Riya.
Therefore, the two situations involve different sources of legal duty.
TORT
Law → Legal Duty → Breach → Civil Remedy
BREACH OF CONTRACT
Agreement → Contractual Duty → Failure to Perform → Contractual Remedy
Golden Rule
The key difference is not simply the remedy. It is the source of the duty.
Duty imposed by law → Tort
Duty created by agreement → Breach of contract
Once you learn to identify where the duty comes from, questions involving tort and contract become much easier to solve.
