Key Takeaways

  • Breach of contract vs negligence refers to two distinct legal claims: one arising from failure to fulfill contractual obligations and the other from failure to exercise reasonable care.
  • A breach of contract occurs when one party does not perform agreed-upon duties, while negligence involves harm due to carelessness, even outside of a contract.
  • Courts consider duty of care, causation, and remoteness of damage when determining negligence claims.
  • Some breaches of contract can also amount to negligence, particularly in professional services, where a failure to meet industry standards can lead to both claims.
  • Liability limitations, waivers of liability, and business insurance can help protect against claims.
  • Understanding the differences between contractual obligations and tort-based duties is essential for legal strategies in litigation.

Can I sue for breach of contract and negligence? Yes, you can. Breach of contract and negligence is an expression derived by blending two legal phrases — breach of contract and professional negligence. Therefore, breach of contract and negligence means violating the terms of a contract by failing to carefully carry out one's contractual obligations.

Illustration of Breach of Contract and Negligence

To illustrate breach of contract and negligence, let's say Tom agrees to sell a car to Barry. Barry pays Tom the agreed amount of money and expects Tom to duly deliver the car. Then, for some reason, Tom gets drunk before driving the car to deliver it to its new owner, which results in wrecking it before delivery. In this instance, Tom didn't only breach his contract with Barry, but also did so by negligence, which constitutes a breach of contract and negligence.

Negligence isn't clear-cut. If a party reasonably proves that the other party didn't carefully keep to the terms of a deal — for instance, by failing to safely deliver goods or services — the court may decide the defaulting party was negligent. Negligence, in some cases, can be considered a breach of contract. For example, if a software developer turns in shoddy software, they could be held liable for negligence, which could translate into a breach of contract when the software fails to fulfill its purpose.

Key Differences Between Breach of Contract and Negligence

While breach of contract and negligence can sometimes overlap, they are fundamentally different legal concepts:

  1. Breach of Contract
    • Based on an agreement between two parties.
    • The injured party must prove that a contract existed, the defendant failed to meet its obligations, and damages resulted.
    • Remedies typically include monetary damages, contract fulfillment, or cancellation.
  2. Negligence
    • Arises from a legal duty of care owed by one party to another.
    • The plaintiff must prove that the defendant had a duty of care, breached that duty, and caused harm as a result.
    • Remedies usually involve compensation for damages, such as medical bills or property loss.

One key distinction is that negligence can exist without a contract, whereas breach of contract cannot. However, professionals like doctors, lawyers, and contractors may be sued for both if their contractual duties involve a professional standard of care.

Negligence

Cases of negligence are founded on a noncontractual interrelation between parties. The parties may know each other, as with a patient and a surgeon, or they may be random strangers, as with drivers involved in an auto crash. Owing to the lack of contractual relationship between involved parties, the first thing that is considered in an alleged case of negligence is whether the parties are connected to each other in any way. If a party must be held responsible for negligence, there must first be proof that they're duty-bound to care.

Interestingly, with negligence, the nature of the duty to care isn't agreed between involved parties. Instead, it's imposed by the rule of law. For instance, a driver legally owes a duty of care to fellow road users and a manufacturer legally owes a duty of care to the end user of their products. Once there's proof of a duty of care, the actions of the party pressing charges for negligence will be interpreted according to the standard of any reasonable person in their position.

Can You Sue for Both Breach of Contract and Negligence?

In some cases, a single act can lead to both a breach of contract and a negligence claim. This usually occurs when a party fails to fulfill a contractual duty in a way that also breaches a legal duty of care.

For example:

  • A construction company that fails to meet contractual deadlines is in breach of contract. However, if the company’s failure leads to a safety hazard that injures workers, it may also be liable for negligence.
  • A doctor who does not follow proper treatment protocols in a medical services contract could face both a malpractice (negligence) claim and a breach of contract claim from the patient.

However, courts often prevent plaintiffs from "double dipping" by seeking damages under both claims when they arise from the same set of facts. The "economic loss rule" limits recovery to contractual damages unless a separate duty of care exists​.

Testing for Causation in Negligence

When dealing with negligence, cases of remoteness (test of causation to decide types of damage) and causation (action or inaction with injurious effect) are often treated separately. The primary test for causation is referred to as the “but for” test. It works by asking whether the damage would have been incurred but for the accused entity's negligence.

To illustrate the but for test for causation, let's say Kyla, an asthmatic, accidentally inhales a pungent and concentrated gas. This results in a life-threatening breathing difficulty, and she is rushed to a local clinic for emergency medical remedy.

However, Danny, a young doctor who is on duty, dashes off with the intention of saying a quick goodbye to his visiting girlfriend. Unfortunately, he takes too long, and Kyla dies before he gets back to her. The question to ask in an instance like that is: Would Kyla have had a fighting chance to live but for Danny's negligence?

Proving Liability in Breach of Contract vs Negligence Cases

To establish liability in either type of case, courts apply different legal standards:

  1. For Breach of Contract
    • Existence of a valid contract.
    • Clear failure to meet contract terms.
    • Resulting financial or material loss.
  2. For Negligence
    • The defendant owed a duty of care.
    • That duty was breached through careless actions.
    • The breach directly caused injury or damage.
    • The damage was foreseeable and not too remote.

While breach of contract claims focus on whether the agreement was fulfilled, negligence claims evaluate whether reasonable care was taken.

Precaution

As much as you can sue for breach of contract and negligence, other parties can also sue you if you fail to satisfy the terms of a contract by, for instance, delivering sloppy goods or services that result in their loss. To take the necessary precautions to protect yourself or your business from potential lawsuits resulting from a breach of contract and negligence, keep the following things in mind:

  • Always get a lawyer to review your contract
  • If you can, include a clause in your contract that limits liability
  • Be sure to thoroughly understand the terms of your contract before signing (miscommunications between parties in a contract can result in a breach of contract or negligence lawsuit)

Preventing Liability for Breach of Contract and Negligence

Businesses and individuals can take several steps to avoid liability:

  • Draft Clear Contracts: Ensure that terms, deadlines, and responsibilities are explicitly defined.
  • Include Liability Limitations: Some contracts contain clauses that limit a party’s liability for negligence, though courts may not always enforce them.
  • Obtain Business Insurance: Professional liability insurance or errors and omissions (E&O) insurance can cover financial losses related to professional negligence.
  • Follow Industry Standards: Maintaining compliance with laws and best practices reduces the risk of negligence claims.
  • Consult Legal Professionals: A lawyer can help draft enforceable agreements and provide legal defenses if a claim arises.

Frequently Asked Questions

  1. Can I sue for breach of contract and negligence at the same time?
    Yes, if the breach also involves a failure to meet a duty of care. However, courts often limit recovery under both claims if they arise from the same conduct.
  2. How does negligence differ from breach of contract?
    Breach of contract occurs when a party fails to meet contractual obligations, while negligence involves a failure to exercise reasonable care, even outside a contract.
  3. What damages can I recover for breach of contract vs negligence?
    Contract damages typically include financial losses from the agreement, while negligence damages may cover medical expenses, property damage, and emotional distress.
  4. Can a contract include a waiver for negligence claims?
    Some contracts include liability waivers, but courts may strike them down if they attempt to excuse gross negligence or intentional misconduct.
  5. Do professional service providers face both breach of contract and negligence claims?
    Yes, professionals like doctors, lawyers, and contractors may be held accountable under both claims if their services fall below industry standards.

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