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法院在过去一直不愿允许原告利用侵权行为法在合同的情况下,它将提供一个比这更广泛的补救措施已经包含在合同中。这背后的原因是,各方有机会定义他们的义务,法院没有准备允许申请人进一步依靠侵权。[5]同样的,这种方法是在尊重财产损失的过失。[6]在这种情况下,上诉法院裁定,因为合同中条款,这表示,原告是承担风险,申请人不能使用疏忽来保护他的利益。这种情况下因此证明决定侵权与合同的重要性。如果索赔人试图保护自己的合同,他必须确保提供足够的保护的条款仔细考虑他的利益将无法随后依靠法律来保护他。然而,法律已经从这种观点和变得越来越赞成允许当事人合同和侵权的依赖方面有冲突的领域。例如亨德森v与集团有限公司在领先的情况下,[7]上议院认为,一个人执行“准职业”实用性服务客户专业或被认为是一个“承担责任”,如果再加上人的依赖这些服务被执行,将会出现一个并发的责任在侵权和合同。主高夫说在这种情况下,“我不觉得有异议的申请人可能有权利用最有利的救济他,“因此展示从早期的依赖在防止党依靠并发合同责任和侵权。这个案子后来被应用于巴克莱银行股价v Fairclough建筑有限公司[8]在那里举行,并发在侵权责任存在即使有当事人之间的协议,以避免造成经济损失行使合理的护理和技能当执行合同条款。


The courts have in the past been reluctant to allow a claimant to take advantage of the law of tort in contractual situations where it would provide a wider remedy than that already included in the contract. The reasoning behind this was that the parties had the opportunity of defining their obligations and the courts were not prepared to allow the claimant to go further by relying on tort as well.[5] Similarly, this approach was taken in respect of damage to property by way of negligence.[6]The Court of Appeal in this case ruled that because of clauses in the contract, which stated that the claimant was to bear the risk of fire, the claimant could not use negligence to protect his interests. This case therefore demonstrated the importance of deciding between tort and contract. If a claimant sought to protect himself by way of contract, he must have ensured that the terms were carefully considered to provide adequate protection for his interests as he would not be able to subsequently rely on the law to protect him. However, the law has since moved on from this view and has become increasingly more in favour of allowing parties to rely on aspects of contract and tort in areas where there is a conflict. For example in the leading case of Henderson v Merrett Syndicates Ltd,[7] the House of Lords held that where a person performing professional or quasi-professional services to a client there was considered to be an ‘assumption of responsibility’ which if combined with a reliance from the person to whom those services had been performed, would give arise to a concurrent duty in tort and contract. Lord Goff stated in this case ‘I do not find it objectionable that the claimant may be entitled to take advantage of the remedy which is most advantageous to him,’therefore demonstrating a shift from the earlier reliance in preventing parties from relying on the concurrent duties of contract and tort. This case was later applied in Barclays Bank plc v Fairclough Building Ltd[8] where it was held that a concurrent duty existed in tort even where there had been an agreement between the parties to avoid causing economic loss by exercising reasonable care and skill when carrying out the terms of the contract.


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