Contractual liability and tort liability
Contractual liability and tort liability constitute two main categories of liability under tort law. The distinction is particularly important in terms of the requirements for liability, the losses that can be claimed for compensation, and the rules that apply to limitation periods, limitation of liability and complaints.
Contractual liability is based on contract law, whereby the parties have agreed to certain obligations towards each other. Liability for damages in contracts generally requires that there has been a breach of contract, and liability is often regulated by the provisions of the contract and background law.
Tort liability (outside of contract), on the other hand, is based on breaches of general standards of conduct that apply regardless of contract. This typically applies to breaches of unwritten standards or statutory obligations that are not contractually agreed between the parties. Traditional and general damages are an example of this.
Tort liability may arise both within and outside contractual relationships. In contractual relationships, there is a fundamental question of whether and when tort liability can supplement or compete with contractual liability. Firstly, this may raise the question of whether claims that are not based on breach of contract can be brought in a contractual relationship. Questions may also arise as to whether, outside contractual relationships, claims based on breach of contract can be brought against third parties.
The Rambøll ruling
Over the past decade, the Supreme Court has heard several cases in which the relationship between contractual and non-contractual liability has been gradually clarified, mainly through what are often referred to as the “Bori rulings”, but also through last year’s “Bank Fraud” ruling.
The Rambøll ruling concerned the question of whether tort liability could be imposed for losses resulting from a failure to fulfil a duty of care in a contractual relationship, where the loss was purely financial. The ruling provides further clarification on the conditions that must be met in order for tort-based claims to be brought in contractual relationships.
The Supreme Court summarises and continues to apply the criteria previously developed in the Bori judgments, but clarifies that the distinction between contractual and tortious liability must be maintained in order to safeguard predictability and risk control in contractual relationships.
The Supreme Court clarifies that there must be a breach of an external, general standard of conduct outside the contractual relationship in order for tort-based claims to be brought in a contractual relationship. However, this standard of conduct does not need to be “established”.
The Supreme Court also emphasises that a standard of conduct stipulated in the contract cannot form the basis for tort liability, and that a breach of contract or a breach of contractual duties of loyalty or care is not sufficient. In addition, a broad assessment must be made of whether it is reasonable to impose liability.
