1. Illustration of Breach of Contract and Negligence
2. Negligence
3. Testing for Causation in Negligence
4. Precaution

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.

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.

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?

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)

If you need help with contract negligence, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.