Legal-Ease: Routes to recovery: Torts and contracts


LEGAL-EASE

By Lee R. Schroeder - Guest Columnist



Lee R. Schroeder

Lee R. Schroeder


Anyone can sue anyone else at any time for anything. However, filing a lawsuit does not mean that the lawsuit will be successful.

The appropriate consideration to contemplate when determining how legally risky any particular act or omission is, is whether the harmed party can successfully get compensated for the loss.

Generally, the rights to recover money in civil lawsuits in our country break down into two categories: torts and contracts.

If someone is injured and entitled to recovery from someone else, the person causing the harm may have committed a tort.

For instance, a thief might steal an item from a neighbor. The thief would be subject to criminal lawsuits, which can include jail or prison and may also force the thief to pay money.

Notably, the thief also can face a direct lawsuit from the neighbor. To win a tort lawsuit, someone generally must prove that someone else owed a duty, that someone else breached that duty and that breach caused damage to the person seeking money.

Thus, in the neighbor’s tort lawsuit, the neighbor’s basis of recovery would be that the thief had a duty to not steal from the neighbor, the thief breached that duty and the thief’s breach of duty to not steal caused damage to the neighbor.

The other route for recovery in civil (non-criminal) lawsuits is based upon contract law. A contract is a mutual relationship between or among multiple people who each have responsibilities to each other and are benefitted in some way by the responsibilities of the other people involved in the contract.

For example, I may have a contract with a buddy to wash his truck every week. My responsibility is to wash my buddy’s truck each week. My buddy’s responsibility is to pay me for the work. That handshake agreement is a contract.

Generally, only people who are “parties” to the contract can sue to enforce the contract.

Therefore, based upon my contract to wash my buddy’s truck, I can agree that the truck will be washed at a certain car wash. If I switch car washes, my buddy can try to recover money for me if the car wash change damaged my buddy. However, the car wash business itself cannot sue me for breaching my contract with my buddy. The relationship between or among the parties to a contract is called “privity.” Generally, only people in privity with each other can recover for breach of contract.

The only way that people who are not parties to a contract can recover for breach of contract (or to have a contract enforced) is if the non-party is an express, intended, third-party beneficiary. In legal terms, an express, intended third-party beneficiary is granted enough privity to enforce the applicable parts of the contract.

Following the example above, the car wash business might recover damages from me if my buddy and I agreed (usually in writing) that the car wash could recover from me if I did not use that car wash.

Lee R. Schroeder
https://www.limaohio.com/wp-content/uploads/sites/54/2018/03/web1_Schroeder-Lee-RGB.jpgLee R. Schroeder
LEGAL-EASE

By Lee R. Schroeder

Guest Columnist

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.

RECOMMENDED FOR YOU


More Stories


Post navigation