Legal, like natural divisions, however clear in their general outline, will be found on exact scrutiny to end in a penumbra.<\/p>\n
Oliver Wendell Holmes, Jr[1]<\/a><\/p>\n [It is] a hopeless task to draw a sharp picture corresponding to the blurred [object].<\/p>\n Ludwig Wittgenstein[2]<\/a><\/p>\n The aim of this article is to show that, taken together, certain torts\u2014which I label \u201chybrid torts\u201d because they straddle two legal categories\u2014pose a significant problem of fit for leading, explanatory theories of tort law in so far as they set out to explain tort law as a whole<\/em>. The principal theories falling into this category are those belonging to Robert Stevens, Ernest Weinrib, and John Goldberg and Benjamin Zipursky.[3]<\/a> It is fairly obvious that any given tort deserves to be explained (or, at least, ought not to be ignored) by a theory which sets out to provide an explanatory account of all of tort law<\/em>, unless the tort in question can be seen as anomalous, marginal or trivial.[4]<\/a> A tort will be none of these if it is well-entrenched, its credentials qua <\/em>tort have never seriously been challenged by either judges or jurists, and it possesses considerable practical significance (on account of its being invoked regularly by litigants). If a putatively explanatory theory of tort law cannot account for well-established, widely recognized and practically significant torts, then that theory may fairly be described as being beset by a significant problem of fit.[5]<\/a><\/p>\n What is perhaps less obvious is why the array of hybrid torts upon which this article focuses should also require explanation by such theories and why, when they cannot be so explained, they should be thought of as presenting a significant problem of fit for those theories. The simple reason why they ought to be explained by the theories in view is that the relevant theorists all implicitly commit themselves to providing such explanation.<\/p>\n That Weinrib is committed to explaining all causes of action that are widely recognized as being torts cannot be doubted given the method underpinning his theory. He makes clear that \u201cthe point of departure for theorizing about tort law\u00beas well as about anything else\u00beis experience\u201d since, crucially, such \u201cexperience allows us to recognize a tort issue.\u201d[6]<\/a> For him, \u201c[a]n inquiry into the nature of tort law is…a visit to the familiar landmarks of our legal world,\u201d[7]<\/a> which involves \u201cdrawing on what is salient in juristic experience<\/em>\u201d[8]<\/a> and, in particular, \u201cthe experience of those who are lawyers.\u201d[9]<\/a> In other words, if a particular action comprises a \u201cfamiliar landmark\u201d within the world of tort law, this is good reason for it to be treated as an object of theorization.<\/p>\n Stevens is similarly committed. On more than one occasion in Torts and Rights<\/em>, he makes plain his determination to explain \u201cthe law as we find it\u201d[10]<\/a> and, as we shall see, the law as we find it (whether ideally or not) most certainly treats hybrid torts as part of tort law. They ought therefore to come within the compass of his theory.<\/p>\n Finally, Goldberg and Zipursky are no less tethered to popular conceptions of tort law in developing their theory. They expressly adopt the Hartian position that a legal system (or body of rules) can best be understood from what Hart labelled the \u201cinternal point of view\u201d or \u201cinternal aspect of rules.\u201d[11]<\/a> Signing up to this internal point of view, they insist that the \u201cfirst move in an effort to theorize a subject is to work with, rather than dismiss as empty, the ways in which those acting within a practice make sense of it.\u201d[12]<\/a> In other words, they defend a strong prima facie case for regarding \u201ctort law to be what it appears to be\u201d[13]<\/a> and thereby presumptively undertake to explain those actions\u2014including hybrid torts\u2014that are generally taken to constitute part of tort law.<\/p>\n It is perhaps worth spelling out why hybrid torts present a particular problem of fit for explanatory theories. The plausibility of each of my target theories is intimately linked to the idea that tort law has clearly defined and rigid borders. Without such borders, there is an inescapable problem which besets such theories. It is this: if the boundaries between tort law and other legal categories are indistinct, or if they are porous, then the very idea that there exists a discrete body of law to which the theory in question applies, and against which that theory may be tested, is called into question. In short, blurred boundaries carry with them unavoidable ramifications for the explanatory ambitions of the theorists in view given Wittgenstein\u2019s observation (quoted above) that it is impossible to paint a clear picture of a fuzzy object.<\/p>\n Now of course, not all torts are equally well entrenched, and the practical significance of some torts is undoubtedly dwarfed by that of others. From this emerges one ostensibly attractive escape route for tort theorists who find themselves confronted by the problem of fit posed by hybrid torts. The escape route involves showing that the hybrid torts are anomalies, or otherwise insignificant causes of action. Either way, the action in question can be portrayed as something which need not be explained, for there is no need to account for actions that are not proper torts, or actions that are mere trivial exceptions to the norm. As we shall see, however, no such escape route can plausibly be invoked in relation to the hybrid torts considered in this article. They are all too firmly entrenched and\/or significant to be sidelined. Any attempt to dismiss the actions in question as something other than torts involves a flagrantly Procrustean approach to theorization. The claim that hybrid torts X, Y, and Z fall outside tort\u2019s clear and rigid borders is an unpersuasive assertion of convenience, contradicted by the conception of these actions held by judges and jurists alike.<\/p>\n The article proceeds as follows. In Part I, I set out three key claims made by all of my target theorists that clash in some profound way with the various hybrid torts I consider. In turn, they are the claims that tort law is (1) necessarily bilaterally structured, (2) exclusively part of private law, and (3) categorically different from other branches of private law. In Part II, I explain fully what I mean by hybrid torts. In particular, I highlight how they come into existence and illustrate the classificatory problems they are apt to cause. In Part III, I address another prefatory issue: the matter of when and why certain types <\/em>of legal category ought, in theory<\/em>, to be discrete. The matter is discussed in order to make the important point that not all legal categories are alike, and that only certain types of legal category ought in principle to be distinct from other, neighbouring categories within the same classificatory scheme. I then show that tort law is one such category which should, in theory, be distinct from other legal categories.<\/p>\n In Part IV\u2014having established the theoretical position\u2014I demonstrate how things are very different in practice. I do this by identifying a range of hybrid torts which serve to blur tort law\u2019s boundaries with a number of neighbouring categories. In Part V, I argue that because these actions are routinely treated as torts, they have important ramifications for my target theories. The fact that in practice there are no firm borders between tort law and other legal categories makes it difficult to accept any explanatory theory which proceeds from the assertion or assumption that such rigid borders exist. In Part VI, I consider a superficially compelling objection to this conclusion. The article then ends with a series of concluding remarks.<\/p>\n I make the assumption that anyone who has chosen to read this article is likely to be fairly familiar with the main elements of the theories propounded by Weinrib, Stevens, and Goldberg and Zipursky. As such, instead of offering a summary of all their core claims, I limit myself to picking out three major claims that are common to each of the theories in view. I alight upon these claims because they are the key ones that are challenged by one or more of the hybrid torts I consider in this article.<\/p>\n All of my target theorists subscribe to the view that tort law is characterized in part by its bilateral structure: the idea, that is, that torts link two, and only two, parties (the claimant and the defendant). In each of their hands, though the terminology varies, this two-party characteristic is elevated to the status of structural imperative. For Weinrib, the phenomenon is described in terms of tort law\u2019s bipolarity.[14]<\/a> Stevens prefers the term \u201cprivity\u201d;[15]<\/a> while Goldberg and Zipursky express the structural imperative in terms of \u201crelational wrongdoing.\u201d[16]<\/a> But whichever term is used, the core claim is just the same.<\/p>\n There is scarcely a page of chapter 3 of Weinrib\u2019s principal work, The Idea of Private Law<\/em>, which does not mention his commitment to the notion that corrective justice operates in relation to purely bipolar relationships. And in a subsequent chapter, he goes on to assert that \u201ccorrective justice necessarily connects two parties, no more and no less.\u201d[17]<\/a> Likewise, Stevens is adamant that in tort, \u201c[t]he only person who can enforce a right is the right-holder, and persons who suffer loss because of the infringement of someone else\u2019s right do not have standing to sue.\u201d[18]<\/a> Finally, Goldberg and Zipursky reveal their attachment to the structural imperative in their treatment of the judgment of Cardozo CJ in Palsgraf\u00a0v.\u00a0Long Island Railroad Co<\/em>.[19]<\/a> Invoking what was said in that case, they put the matter this way: \u201ca tort plaintiff \u2018sues in her own right for a wrong personal to her, and not as the vicarious beneficiary of a breach of duty to another.\u2019\u201d[20]<\/a> At the heart of this claim is their insistence that the wrongs of tort law must be \u201cpersonal to\u201d the claimant. Put otherwise, torts involve the breach of a legal duty owed by defendant X to claimant Y. It is not enough that X has in some basic (moral) sense acted wrongfully. Nor is it enough that X has simply caused harm or loss to Y by virtue of his volitional conduct. For an act to be tortious, they insist, it must have been wrongful on the part of X and <\/em>towards Y (or a class of persons to which Y belongs) given that \u201c[t]he wrongs of tort law spring from relational directives.\u201d[21]<\/a><\/p>\n A second claim common to all of the theories in view is that tort law belongs exclusively to the private law domain. This conception of tort law is fundamental to the theory advanced in Weinrib\u2019s The Idea of Private Law<\/em>. In his view, the public\/private divide is reflected in two incompatible modes of ordering: corrective justice and distributive justice. Private law is animated by the former, while public law is animated by the latter.[22]<\/a> Stevens, likewise, believes that \u201c[t]orts belong within private law.\u201d[23]<\/a> He reinforces the point by reference to the way in which crimes that have tort law counterparts (like battery) can be distinguished from those tortious counterparts. While the former are characterized by \u201ca duty owed to society in general (crimes),\u201d the latter involve the \u201cbreach of a duty owed to individual members of society (torts).\u201d[24]<\/a> And it is because torts are characterized by such private duties (and their correlative rights) that Stevens sees tort law as belonging exclusively to the domain of private law.[25]<\/a><\/p>\n Just the same belief can be found in Goldberg and Zipursky\u2019s theory of tort law. They state openly that there is something \u201cdistinctively \u2018private\u2019 about tort\u201d[26]<\/a> and that they \u201cconceive of torts as private wrongs.\u201d[27]<\/a><\/p>\n All of the theorists whose work is examined here consider tort law to be a discrete legal category, even though there is considerable disagreement among them as to whether or not the law is unified by a single organizing concept.[28]<\/a> They all agree that there is a fundamental distinction to be drawn between tort and its nearest neighbour, contract, along the lines that tortious obligations are imposed upon the parties whereas contractual obligations are created by them.[29]<\/a> Equally, all agree that tort law is categorically distinct, not just from contract, but from other familiar branches of private law, such as unjust enrichment and equity. Stevens, for example, states unequivocally that \u201cthe law of torts is…[a] basic category,\u201d[30]<\/a> and he elaborates upon its separation from other legal categories in these terms:<\/p>\n \u201cTorts\u201d is a catch-all category of \u201cother wrongs\u201d. It is the category of wrongs which are not breaches of contract or equitable wrongs.\u00a0Breach of contract has conceptual unity. The category of equitable wrongs is unified by their historical provenance in the chancery division of the High Court. Torts has no unity other than that it is what is left after the other two categories of wrongs are excluded.[31]<\/a><\/p>\n Although he says no more about the difference between tort and equity, Stevens does reiterate elsewhere in Torts and Rights <\/em>his commitment to the idea that tort law is categorically separate from contract. He says, \u201c[t]he law of torts is…quite different from the law of contract which [is]…a unity concerned with one primary right arising for one reason: agreement.\u201d[32]<\/a><\/p>\n In strikingly similar terms to Stevens, Goldberg and Zipursky also assert that \u201c[t]ort is indeed a basic category of law.\u201d[33]<\/a> It is one, they say, of just \u201ca handful of fundamental legal categories such as Contracts, Property, and Criminal Law.\u201d[34]<\/a> They not only see tort as one fundamental part of private law, but also as one that can be distinguished from the other such parts. They assert forthrightly \u201cthat torts…[are] different from breaches of contract\u201d[35]<\/a> and then they move on to explain, more expansively, that tort can also be distinguished from equity in the following way:<\/p>\n Tort law empowers the plaintiff to obtain redress as against the defendant who wrongfully inflicted the \u201chit,\u201d or injury…Equitable wrongs are a different kettle of fish…The [equity] plaintiff does not take a \u201chit\u201d; she is not rendered less than intact. Rather, the wrong is a betrayal of trust…Tort\u2019s wrongs lead the state to empower the plaintiff to demand and obtain from the defendant conduct that is responsive to the defendant\u2019s wrongful injuring of the plaintiff. Equity\u2019s wrongs lead the state to empower the plaintiff to demand and obtain from her fiduciary an accounting as to the fiduciary\u2019s handling of the matters with which he has been entrusted…So, we can after all distinguish torts.[36]<\/a><\/p>\n Weinrib is just as insistent that tort law is a discrete part of private law. While he eschews the familiar language of \u2018legal categories\u2019, he nonetheless maintains that tort law, taken as a whole, is \u201ca mode of legal ordering\u201d such that \u201cbefore we assess the soundness of any tort decision, we can recognize that it belongs to tort law rather than [for example] to criminal law or administrative regulation.\u201d[37]<\/a> In other words, for Weinrib, tort law is \u201ca distinct<\/em> mode of ordering\u201d;[38]<\/a> one which possesses \u201cfeatures that are constitutive of our conception of tort law.\u201d[39]<\/a> He states expressly what he perceives to be the key difference between contract and tort at some length:<\/p>\n Both tort law and contact law rectify losses through corrective justice…[However,] [t]he difference between tort law and contract law lies in the origin of the right. In tort law the right exists independently of the defendant\u2019s action; the damage award therefore aims at eliminating the effects on the plaintiff of the defendant\u2019s wrong.\u00a0In contract law, the parties themselves create the plaintiff\u2019s right to the defendant\u2019s performance of the promised act; the damage award therefore gives the plaintiff the value of that performance.[40]<\/a><\/p>\n Relying heavily on the notion of \u201cnormative loss\u201d (as opposed to factual loss), Weinrib also explains at some length what he perceives to be the way in which tort law and unjust enrichment come apart.[41]<\/a>\u00a0Though he does not specifically address the distinctions between tort law and other areas of private law, it nonetheless seems to follow from his characterization of tort law as \u201ca distinct mode of legal ordering\u201d that he sees tort law as having sharply defined borders.<\/p>\n Taken together, the three claims to which all of my target theorists subscribe make it clear that they all believe tort law to be (i) structured bilaterally, (ii) part of private law, and (iii) within private law, a discrete legal category. Although they do not always spell out in detail <\/em>the ways in which they perceive tort law to be separate from certain other legal categories, it is nonetheless apparent from what they do say that they think this way. The very fact that they each devote time and space to establishing the divide between tort and its closest neighbour, contract, tends to suggest (though it does not strictly entail) that they also believe there to be a rigid divide between tort law and its more remote neighbours (such as unjust enrichment and equity) with which it has a much less obvious connection or affinity.<\/p>\n When a novel case comes before the courts, judges sometimes create a new cause of action by drawing upon an array of interconnected legal principles. These principles may be taken from cases that belong to different legal categories; yet, despite its mongrel heritage, the resulting cause of action is very often labelled a tort.[42]<\/a> Over time, it gets treated by practitioners, students, and teachers of the law alike as though it were an entirely quotidian member of the \u2018tort law\u2019 family. But whether such actions deserve to be treated in this way\u2014as though they were \u2018thoroughbred\u2019 torts\u2014is a question that is seldom asked. As we will see, however, it is an important question for the purposes of assessing the merits of explanatory theories of tort law. To be clear, the critical matter is not whether tort law is capable of providing a home for such actions. It plainly is. Rather, the critical question is about how such hybrid torts ramify for explanatory theories.<\/p>\n The problems that these actions cause for such theories arise because\u2014in a metaphor to rival the idea that tort law can be seen as the common law\u2019s Swiss army knife[43]<\/a>\u2014it can also be seen as the common law\u2019s vacuum cleaner. The metaphor is apt because it is generally tort\u2014as opposed to contract, equity, unjust enrichment or any other legal category\u2014that is called upon to house hybrid actions that are constructed from an array of principles found in cases that belong to different legal categories. Examples are in no short supply.[44]<\/a><\/p>\n I can conveniently start with Lumley v. Gye<\/em>.[45]<\/a> This is nowadays almost invariably regarded as a tort case. Indeed, it is the very case in which the tort of inducing breach of contract was first properly launched.[46]<\/a> But a little reflection soon reveals that the case could just as plausibly have been classified as part of the law of contract: as a rule of accessory liability within contract law <\/em>according to which the duty to make reparation for loss arising from a breach of contract is extended beyond the immediate contract breaker to the person who procured that breach.[47]<\/a><\/p>\n Tort law contains several rules of accessory liability.[48]<\/a> Why should contract law not do likewise? Certainly, Erle J came very close to saying that it should when he declared in Lumley <\/em>that \u201che who procures the wrong…may be sued, either alone or jointly with the agent<\/em>, in the appropriate action for the wrong complained of<\/em>.\u201d[49]<\/a> Critical here are the words, \u201cjointly…in the appropriate action for the wrong complained of,\u201d for this suggests a rule of \u2018contract law\u2019 which mirrors tort law\u2019s rules on concurrent tortfeasance. Paul Davies appears to adopt this understanding. He contends that, \u201c[l]liability under Lumley <\/em>should not be crammed under the umbrella of the economic torts,\u201d and that it is better seen as a particular instance of accessory liability belonging \u201c[i]n the contractual context.\u201d[50]<\/a> So why does this classificatory difficulty matter from the perspective of contemporary tort theory? It matters for at least three reasons.<\/p>\n First, Lumley <\/em>helps illuminate the fact that tort law as it presents itself<\/em> is not the sharply defined body of law that explanatory theories proclaim it to be. More specifically, Lumley<\/em> casts doubt on the idea that tort law has discrete and non-porous boundaries by virtue of the fact that the relevant wrong in that case was a breach of contract, while the action as a whole lay in tort.[51]<\/a> It cannot plausibly be argued that the relevant wrong was the breach of a free-standing duty not to induce the breach of contract, for the reasons that follow.<\/p>\n One possible source of such a duty would be the contract itself. The making of a contract by X and Y might be thought to generate an obligation that binds Z not to induce breach thereof. But this cannot be right, for any such duty created by the contract would be contractual in nature and, as such, an action for breach thereof would lie in contract, not tort. Furthermore, and more fundamentally, it is trite to state that the privity of contract principle stands in the way of X and Y generating rights and duties that apply to parties other than themselves.<\/p>\n Another, subtler way of establishing a direct duty owed by D to C relies on the idea that the contract\u2019s formation generates a secondary, tortious<\/em> (not contractual) duty not to induce a breach of the contract. Indeed, it is exactly this view that Stevens holds. He writes: \u201call contract\u00a0rights carry with them a right good against everyone else that they do not induce the infringement of the contractual right.\u201d[52]<\/a> However, this understanding\u2014the nub of which is that there exists a freestanding tortious duty not to induce a breach of contract\u2014is contradicted by authority. In the leading case of OBG Ltd v. Allan<\/em>[53]<\/a> their Lordships repeatedly stated that liability under Lumley <\/em>is accessory, not primary. Yet, liability would be primary if there were any direct duty owed by D to C along the lines that he suggests.[54]<\/a> Given such weighty countervailing authority, and bearing in mind the fact that no reported decision has ever lent support to the existence of such a duty owed by D to C, the inescapable truth remains that what is key in a case of inducing breach of contract is that quintessential element of contractual liability: the breach of a contractual duty. The action is therefore hybrid in the sense that it mixes tortious and contractual touchstones of liability: it combines the tort law requirement of intention with the need for a contractual duty that gets broken.[55]<\/a><\/p>\n The second reason why Lumley <\/em>is problematic for my target theorists is that it confounds the shared claim sketched earlier that torts are centered upon duties imposed by virtue of a rule of law. The only relevant duty for the purposes of the Lumley <\/em>tort[56]<\/a> is, as we have just seen, the contractual duty in play. Since this duty is plainly generated by the parties\u2019 agreement, it must follow that the tort cannot be explained in terms of the breach of a duty imposed by law. Only if one dismisses what the courts have repeatedly said about liability being secondary rather than primary in this area can one begin to argue that Lumley <\/em>liability is based on a duty imposed by law. But that, of course, involves an obvious departure from explaining the law as we find it.[57]<\/a><\/p>\n The third reason why Lumley <\/em>poses explanatory problems for the theorists in view is this: inducing breach of contract breaks the structural imperative to which they all subscribe. That, recall, is that torts are bilaterally structured around private law rights held directly by C against D. As already noted, the language used to describe this feature varies. There is talk of bipolarity, relational wrongdoing, and the privity of torts. But the core claim is always the same: torts involve wrongs committed by D against C where the wrong in question entails the breach of a duty owed directly by D to C. The Lumley<\/em> tort cannot be made to fit the structural imperative because the House of Lords was perfectly clear in explaining the three-party nature of the action in OBG<\/em>.[58]<\/a><\/p>\n Of course, the blushes of all my target theorists could be spared if, somehow, it could be shown that inducing breach of contract were somehow an exceptional, anomalous or unprincipled action precisely because it obfuscates (or violates) the putative boundary between contract and tort. If the Lumley <\/em>tort could be sidelined in this way, then my target theorists need not concern themselves with the fact that it clashes with core tenets of their theories. So, can it be dismissed as anomalous or sui generis<\/em>? I suggest that it cannot.<\/p>\n The mere fact that the action is rooted partly in the soil of contract law (since the relevant duty is contractual) and partly in that of tort law (since C must show intention) does not per se <\/em>render it an anomaly. Many other actions have (or have had) affinities with both branches of the law. As long ago as the fourteenth century, there was a class of cases that sounded in the tort of trespass that today would be regarded as cases of contractual misperformance.[59]<\/a> And, in the modern era, an action under section\u00a02(1) of the Misrepresentation Act 1967<\/em> (UK) equally centres on mixed touchstones of liability. In terms that bear an obvious affinity with the reasonableness standard in the law of negligence, the Act <\/em>requires the defendant to have made a false representation to the claimant in the absence of reasonable grounds for believing that what he said was true. At the same time, with an obvious link to contract law, the claimant must also have been induced to enter into a contract and suffered loss as a result thereof. Lumley<\/em>, in other words, is by no means alone in having mixed affinities.<\/p>\n If we cannot plausibly regard Lumley <\/em>as anomalous, we have little choice but to take seriously the idea that inducing breach of contract is best thought of as a hybrid tort, whose touchstones of liability are connected both to contract and to tort. But a single, mongrel common law action is not nearly enough to pose a substantial challenge for the theories in view. Were it the sole example, the relevant theorists could well seek to argue that tort law is sufficiently distinct <\/em>from other legal categories for their theories to remain credible. We must, therefore, explore in some depth the question of whether legal categories can and do overlap to a significant degree (somewhat like the different sectors in a Venn diagram). As we shall see, many other well-established common law actions also serve to blur tort law\u2019s boundaries in this way even though a respectable theoretical case can be made against their being able to do so.<\/p>\n But before turning to those matters, it is necessary to head off one possible objection to my using the concept of a \u2018hybrid tort\u2019 to test the explanatory power of the theories I have chosen to examine. The objection runs as follows. There is a logical flaw in seeking to establish the existence of hybrid torts since the concept of a hybrid tort presupposes the existence of distinct legal categories. Without a clear ex ante<\/em> conception of, say, tort and equity, so the argument goes, it is meaningless to say that action X is a hybrid of tort and equity.<\/p>\n Despite ostensible appeal, the objection is unfounded. This is because it is perfectly possible to speak of a hybrid of X and Y without settling quite what the difference is between X and Y. Biologists, for example, uniformly accept that it is possible to breed a hybrid of the domesticated horse (equus ferus caballus<\/em>) and the nearly extinct Asian wild horse (equus ferus przewalskii<\/em>). Yet, what they cannot do is rely on this hybrid to prove the distinctiveness of the two parent species in the usual biological way, namely, the sterility of any offspring produced by inter-breeding.[60]<\/a> By analogy, I think it is possible to speak meaningfully of hybrid torts without such torts being necessarily suggestive of the distinctiveness of the two legal categories.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>We must now turn to the matter of porous boundaries between legal categories: first in theoretical terms, and then as a matter of practical reality.<\/p>\n The enterprise of dividing the law into categories is by no means novel. Blackstone made what is probably the most famous early attempt to classify English common law.[61]<\/a> For him, the aim of so doing was \u201cto render the whole intelligible to the uninformed minds of beginners.\u201d[62]<\/a> He saw the provision of \u201ca general map of the law, marking out the shape of the country, its connections and boundaries, its greater divisions and principal cities\u201d as a means by which the work of \u201can academical expounder of the laws\u201d could be facilitated.[63]<\/a> In short, he attributed an expository function to the enterprise of legal cartography (as did late nineteenth century treatise writers who were concerned by the \u201cdisorderly condition of the law,\u201d and felt the need \u201cto tidy it up, to systematise it\u201d[64]<\/a>).<\/p>\n Interestingly, Blackstone devised a scheme for carving up the law that has long since lapsed into desuetude (using categories like \u201cthe rights of persons\u201d and \u201cthe rights of things\u201d). However, the fact that his scheme is no longer in use does not necessarily imply that it was flawed in some way. It is simply that he classified branches of the law in a way that is no longer popular. This alerts us to two key points: the fact that there is no a priori right or wrong way to carve up the law, and the fact that any given case or rule of law could, in theory, be housed in more than one legal category so long as the categories in question do not belong to the same classificatory scheme.<\/p>\n This is possible because not all classificatory schemes share the same ambition. One might, for example, with very limited ambition, seek simply to distinguish statutory law from the common law, or domestic law from supra-national law, or public law from private law. With divisions of this kind, there is no reason why a particular tort case cannot form part of the common law category, the domestic law category, and the private law category. However, this observation does not assist us with the question of whether legal categories belonging to the same classificatory scheme may overlap. Take, for example, the classificatory scheme frequently used in relation to the law of obligations. Here we encounter the familiar categories of contract, torts, equity and unjust enrichment.[65]<\/a> These legal categories have a markedly different relationship to one another than exists between categories like private law and statutory law. Whereas private law and statutory law belong to different classificatory schemes and are not mutually exclusive, the same cannot be said of contract, torts, equity and unjust enrichment. In theory, these represent distinct subsets of the higher-level legal category: the law of obligations. They are distinct from, yet complement, one another in the same way that private law is distinct from, yet complements, public law, and statutory law comes apart from, yet complements, the common law.<\/p>\n The subdivisions within a particular classificatory scheme are easily understood: they are each constructed according to, and therefore reflect, some or other principle or criterion that is particular to that sub-category. For example, we might take as our starting category, the statutory laws of the last three centuries. We may then seek to divide these laws into three separate sub-categories. The first might comprise the statutory laws of the nineteenth century; the second, the statutory laws of the twentieth century; and the third, the statutory laws of the twenty-first century. No single statute could conceivably be housed in more than one of the subcategories.<\/p>\n More pertinently, we could start with the law of obligations and attempt to subdivide this into the aforementioned subcategories of contract, torts, equity and unjust enrichment. In each case, the question of where to place a given case or rule would be answered not, as under the previous scheme, by reference to the century in which it was decided, but by reference to some central juridical criterion that forms the hallmark of one or other of the subcategories. The criterion of mistaken payments, for example, is widely treated as the organizing principle behind the category of unjust enrichment.<\/p>\n Importantly, one consequence of treating certain juridical features as definitive in this way is that a given case ought, in theory, to belong to just one of the four named subcategories.[66]<\/a> If the case is characterized by a mistaken payment, then it belongs in the box labelled \u2018unjust enrichment\u2019 and not the box labelled \u2018contract\u2019 or the one labelled \u2018torts\u2019. In order to appreciate why this is so, it is necessary to make an important observation concerning the nature of the four sub-categories within the law of obligations. It is this: unlike the major categories within the Blackstonian scheme, the subcategories of contract, torts, equity and unjust enrichment fulfil important dispositive functions and are, for this reason, appropriately described as dispositive legal categories.[67]<\/a><\/p>\n At the heart of a dispositive legal category is a core juridical feature (or set of features). It is this core feature (or set of features) that gives the category both its conceptual unity and its practical utility.[68]<\/a> Thus, when practitioners treat a case as belonging to a particular legal category, they do so because they think that it bears particular juridical attributes.[69]<\/a> In turn, their presentation of the case in this way\u2014as belonging to category X\u2014will determine the way in which it is handled by the courts. As Charlie Webb puts it, \u201cthe classification of a case must tell us something about how the law should respond to it: what set of rules and principles we apply to it, what questions we ask and what tests we use.\u201d[70]<\/a> So, for example, if a case of inducing breach of contract with an international dimension is presented as a tort case rather than a contract case, it will attract the application of the choice of law rules applicable to torts rather than those applicable to contract.[71]<\/a> Similarly, a purely domestic case of inducing breach of contract will necessitate the application of the tort (not the contract) rules on limitation.[72]<\/a><\/p>\n The crucial point is this: since the subcategories within the law of obligations fulfil this dispositive function, they will in theory derive conceptual unity from a particular juridical core.[73]<\/a> Peter Birks thought that he had identified such a core within tort law when he wrote (using the term \u201cwrongs\u201d in preference to that of \u201ctort\u201d[74]<\/a>) that, \u201cthe only definitively essential feature of a wrong is that it is conduct which attracts its legal consequences by virtue of its character as a breach of a primary duty.<\/em>\u201d[75]<\/a> Notice that this conception of what belongs in the category \u2018wrongs\u2019 is a juridical one.[76]<\/a> It looks to the specific, narrow question of whether a primary duty has been breached.<\/p>\n Much as Birks thought that wrongs comprised \u201ca distinct category of obligation-creating event,\u201d[77]<\/a> it is doubtful whether matters are quite that simple. In common law jurisdictions where there exists a multiplicity of different torts (as opposed to the simple idea of tortious wrongdoing that one finds in continental legal systems),[78]<\/a> tort law lacks the kind of conceptual unity that Birks and some of my target theorists would have us believe.[79]<\/a> There is no simple juridical core that can be identified. Not only are torts notoriously heterogeneous in this respect,[80]<\/a> but there are also many well-established mongrel actions that, regardless of the fact that they are uniformly treated as torts, call into play touchstones of liability more readily associated with more than one legal category. These hybrid torts militate against the idea that there exists a body of law that can be sharply defined in juridical terms in the way suggested by the theorists in view. In so doing, they undermine the very foundations of those theories.<\/p>\n As observed earlier, dispositive legal categories which belong to the same classificatory scheme should, in theory, be discrete. At the heart of any such legal category is an organizing juridical principle (or set of such principles) and it is the application of this principle (or set of principles) to all cases within the category that ensures, in line with the rule of law, that like cases are treated alike. As was also noted above, when such organizing principles are used in order to classify cases, any given case ought to belong to just one such category. Webb, making much the same observation, explains the matter this way: \u201cif cases within different classes will fall to be dealt with differently,\u201d that is, according to a particular organizing principle or set of such principles, \u201cthen it makes no sense to say that a case can fall within or straddle more than one category.\u201d[81]<\/a><\/p>\n The logic behind Webb\u2019s claim is impeccable, but the observation pays no regard to the fact that theory and practice often come apart. So, whatever we might say in theoretical terms about legal categories and the cases they house, we would be na\u00efve to expect reality to be a perfect reflection of what theory dictates. Classificatory schemes, like the judgments to which they are applied, are human constructs. Like most such constructs, they frequently fall short of the ideal. So, from time to time we come across cases that, whether by design or by accident, cannot be slotted comfortably within the various conceptions of tort law proffered by my target theorists. These actions\u2014though widely recognized as torts\u2014bear obvious mongrel traits.<\/p>\n I have noted already the way in which inducing breach of contract has an equally strong juridical affinity with contract as it does with tort, but it is by no means alone in blurring the boundary between contract and tort. And nor is this boundary the only one that gets blurred. As we shall see, many of tort law\u2019s boundaries with neighbouring legal categories[82]<\/a> are affected in this way by hybrid torts. So the point is inevitably reached where it becomes irresistible to conclude that tort law is not a discrete, sharply defined legal category with a sufficiently distinctive juridical core to support a neat and tidy theory of the same.<\/p>\n Sometimes, the way in which certain causes of action get classified seems to be attributable to the way in which influential jurists have interpreted key cases. For example, F.H. Newark elaborated a well-known account of the supposedly close relationship between the rule in Rylands v. Fletcher<\/em> and the law of private nuisance. This account played a major role in causing the judiciary to treat the former, many years later, as nothing more than a sub-branch of the latter.[83]<\/a> In Cambridge Water Co v. Eastern Counties Leather plc<\/em>, Lord Goff quoted with approval a lengthy passage from Newark\u2019s article in which the latter had asserted that \u201cRylands v. Fletcher <\/em>[is] a simple case of nuisance.\u201d[84]<\/a> Some years later, in Transco plc v. Stockport MBC<\/em>, Lord Hoffmann acknowledged that Lord Goff had merely been \u201c[a]dopting the opinion of Professor Newark…that the novel feature of Rylands v. Fletcher<\/em> was to create liability for an \u2018isolated\u2019 (i.e., unforeseeable) escape,\u201d but that Rylands v. Fletcher<\/em> \u201cwas nevertheless founded on the principles of nuisance.\u201d[85]<\/a> So, although some jurists contend that the rule does not, because of certain important peculiarities, form part of tort law,[86]<\/a> the orthodox view is clear. The rule is formally not just part of tort law but, more specifically, part of the law of private nuisance.[87]<\/a> Ultimately, it is Newark\u2019s treatment of the case all those years ago that seems to be responsible for this conception.[88]<\/a><\/p>\n Jurists are not alone, however, in making controversial classificatory decisions that have this effect. Occasionally, it is the courts themselves that must shoulder the responsibility. As Stephen Smith has observed, it is sometimes the case that \u201clegal decisions themselves tell us how they ought to be classified and categorized\u2014whether they are tort cases, contract cases, or whatever.\u201d[89]<\/a> All that is required is that the relevant court declares a certain case to be part of tort law and, hey presto, thus is born a new \u2018tort\u2019 even if, in truth, the decision is only partly (or minimally) explicable in terms of familiar touchstones of tortious liability.[90]<\/a> We can once again invoke Lumley <\/em>as an example.<\/p>\n Although the question that arose in Lumley<\/em> was a novel one involving accessory (not primary) liability, Erle J did at one point in his judgment say that \u201c[i]t was undoubtedly prima facie an unlawful act on the part of Miss Wagner to break her contract, and therefore a tortious act of the defendant maliciously to procure her to do so.\u201d[91]<\/a> Of course, his having said this is hard to square with that part of his dictum (considered in Part II, above) in which he suggested that the defendant might somehow be jointly liable in contract<\/em> for the breach that occurred.[92]<\/a> Equally, it is less than obvious why it necessarily follows from the fact that X has broken a contract with Z that Y (who procured that breach) should be considered a tortfeasor. But that is not the point. What is important is the fact that, ultimately, Erle J declared that the defendant was a tortfeasor. And in so saying, he provided a clear steer as to how cases of inducing breach of contract should be treated in the future. Ever since that landmark decision, Lumley <\/em>has almost universally been regarded as establishing a form of tortious liability; and this is despite the fact that its hybrid nature has by no means gone unnoticed.<\/p>\n For example, in his discussion of Lumley<\/em> in OBG<\/em>, Lord Hoffmann acknowledged the mongrel nature of inducing breach of contract. He traced the tort\u2019s origins to an \u201cold action on the case for enticing away someone else\u2019s servant\u201d and noted that, in such cases, the only means by which a claimant could be granted a remedy against the person who induced the servant\u2019s breach of contract was by recourse to a certain \u201cmixing and matching of the forms of action.\u201d[93]<\/a> Even so, Lord Hoffmann was ultimately content to continue to treat inducing breach of contract as part of tort law. A sizeable section of his leading judgment in OBG <\/em>was headed \u201cInducing breach of contract: elements of the Lumley v Gye <\/em>tort\u201d[94]<\/a> and the phrase \u201cLumley v Gye<\/em> tort\u201d was used no fewer than twelve times in his speech as a whole.<\/p>\n The remainder of this section considers numerous other causes of action that are almost always regarded as part of tort law but which, in truth, have hybrid rather than pedigree characteristics. They are addressed according to the various boundaries that they tend to obfuscate.<\/p>\n A relatively modern development within tort law has been the preparedness of the courts to ascribe a duty of care in negligence on the basis of an assumption of responsibility by the defendant. This branch of the law of negligence has its origins in the principle first enunciated in Hedley Byrne & Co Ltd v. Heller & Partners Ltd<\/em>.[95]<\/a> As a subspecies of negligence, one might suppose that these assumption of responsibility cases would occupy a position at the heart of \u2018tort law\u2019. It would be a mistake, however, to think of them in this way. In Hedley Byrne<\/em> itself, Lord Devlin was keenly aware of the juridical propinquity of the case to contract law in which, of course, duties arising from a voluntary assumption of responsibility find their natural home. He specifically referred to the fact that the case before him was almost contractual in nature.[96]<\/a><\/p>\n The proximity of the Hedley Byrne <\/em>principle to the law of contract was also noted in the later case of White v. Jones<\/em>[97]<\/a> where a solicitor negligently delayed carrying out a testator\u2019s instructions to amend his will. This delay resulted in financial disappointment for the intended legatees in whose favour the will should have been (but never was) amended prior to the testator\u2019s death. Ultimately, the case was treated as a further extension to the law of negligence. But notably, the Law Lords (some of whom explored this possibility at length) were acutely aware that the case might conceivably have been resolved by way of an extension to the law of contract. In particular, they made mention of the following juridical affinities with contract: the fact that the duty in question was (1) affirmative, not negative, in nature (2) founded upon an assumed responsibility, and (3) designed to protect an expectation interest.[98]<\/a><\/p>\n As noted already, all of my target theorists concede that it is in the sphere of contract, not tort, that one finds duties that are voluntarily assumed. They could, of course, point to the fact that in some (but by no means all) of the assumed responsibility cases the relevant duty was merely deemed<\/em> to have been assumed, rather than consciously shouldered.[99]<\/a> Yet, this only provides a partial response since it only accounts for some of the cases. And, even then, it is only a response available to non-Kantians (which is not to say that all non-Kantians consider White <\/em>to be unproblematic).[100]<\/a><\/p>\n The reason why Kantians cannot invoke the response just mentioned stems from the fact that, even if the relevant duty was in fact deemed to have been assumed, it remains inexplicable by virtue of being affirmative in nature. To explain: affirmative duties are regarded as being incompatible with the principle of Kantian right insofar as they instantiate an obligation to promote another\u2019s welfare (rather than merely protect an equal right of independence in that person). In this regard, Weinrib is adamant that \u201cprivate law deems no aspect of [the claimant\u2019s] welfare important enough to ground a positive obligation to forward it.\u201d[101]<\/a> It is for this reason that he denies the existence of liability for nonfeasance in tort law.<\/p>\n Allan Beever is in agreement with Weinrib on this score[102]<\/a> and, in an attempt to head off the challenge for his theory presented by the assumption of responsibility cases, he argues that it is preferable to treat cases like White <\/em>as belonging to a category of law best labelled \u201cconsents\u201d.[103]<\/a> He does not believe that they can be slotted into the law of contract because of the absence of consideration, but he argues strenuously that they have been wrongly pigeonholed as part of the law of negligence. He contends that this mischaracterization is due to the fact that there is a widely-held, yet ultimately mistaken, belief that \u201cit is acceptable to inflict upheaval on the law of negligence but not on the law of contract.\u201d[104]<\/a> Even so, it is clear that he sees these \u201cconsents\u201d cases as being closer to contract law than tort. He takes the view that the doctrine of consideration\u2014a mere \u201cidiosyncrasy of the common law\u201d[105]<\/a>\u2014is all that stands in the way of treating such cases as quotidian contract cases.<\/p>\n Beever is assuredly right that there is a general preference to use tort rather than contract in order to accommodate hybrid actions. And he may well be right, too, that the doctrine of consideration has relatively little going for it in theoretical terms. But neither point is relevant here. What matters for present purposes is that the assumption of responsibility cases blur the boundary between contract and tort in a way that many tort theorists either overlook or choose not to acknowledge.[106]<\/a> They blur this boundary by virtue of the fact that some of the relevant touchstones of liability have an obvious affinity with contract while others seem more naturally aligned with tort. So, for all that we may say that the solicitor in White v. Jones <\/em>owed a duty of care and that this duty was broken by virtue of the defendant\u2019s negligence (classic \u2018tort-speak\u2019), we may equally well advert to the fact that the duty in play was voluntarily assumed and that the damages awarded were granted in order to repair a pure economic loss in the form of the claimants\u2019 dashed expectations (classic \u2018contract-speak\u2019).<\/p>\n The significance of looking forward in order to gauge expectation losses is not to be underestimated. Both corrective justice theorists and rights theorists look backwards, to what went wrong, when it comes to gauging tort damages.[107]<\/a> The rights theorist is principally concerned to address the rights infringement that has occurred,[108]<\/a> while the corrective justice theorist\u2014as the name suggests\u2014regards tort damages as the means by which the injustice suffered by the claimant is corrected. Expectation losses, by contrast, do not aim to restore the claimant to the position occupied before the wrong in question was committed. They seek to place the claimant in the position that he expected to occupy at some point in the future.[109]<\/a><\/p>\n In addition, it is vital to note that White v. Jones <\/em>cannot be explained away on the basis of what Birks called \u201calternative analysis\u201d (i.e., affording salience to different aspects of any given case so as to enable it to be dealt with either as a tort case (drawing on facets A, B, and C) or as a contract case (drawing on facets X, Y, and Z)).[110]<\/a> It cannot be so analysed because the factors that were treated as salient in White v. Jones<\/em> were the self-same factors that would have animated a contract action: the voluntary assumption of responsibility, the omission<\/em> to fulfil the duty thereby created, and the need to repair the claimants\u2019 damaged expectations. Put bluntly, White v. Jones <\/em>had but one set of liability touchstones.<\/p>\n Another example of a cause of action that is typically regarded as part of the law of torts, but which might just as well be seen through the lens of contract law, is the \u2018tort\u2019 of two-party intimidation.[111]<\/a> In Kolmar Group AG v. Traxpo Enterprises Pvt Ltd<\/em>,[112]<\/a> the defendant coerced the claimant (with whom it had a contract) into paying a higher price for various goods than had originally been agreed. At one point in his judgment Clarke J observed: \u201cI am quite satisfied…that Kolmar agreed to amend the letters of credit to increase the price…as a result of illegitimate pressure amounting to economic duress on the part of Traxpo.\u201d[113]<\/a> He went on:<\/p>\n [t]he tort of intimidation is established where (i) the defendant makes a demand backed by a coercive and unlawful threat; (ii) the plaintiff complies with that demand because of the coercive and unlawful threat; (iii) the defendant knows or should have known that compliance with its demand will cause loss and damage to the claimant and (iv) the defendant intends its demand to cause loss and damage to the [claimant]…Those requirements are, as it seems to me, satisfied…[and] [a]ccordingly, Kolmar is entitled to $1,405,566.61 as damages for intimidation.[114]<\/a><\/p>\n It seems a matter of mere fortuity that the judge ultimately preferred to anchor his judgment to the tort of intimidation rather than, more simply, the juridical fact of economic duress (which he treated as the basis of the tort). The centrality of economic duress to the decision he reached suggests that the case could equally well have been dealt with according to a familiar set of contract law rules. Indeed, at one point in his judgment Clarke J even indicated as much.[115]<\/a> In fact, perhaps the oddest facet of the case is that the judge ultimately plumped for imposing tortious liability. After all, the continued vitality of two-party intimidation had been specifically called into question just a few years earlier by the House of Lords in OBG<\/em>.[116]<\/a> As it stands, however, Kolmar<\/em> provides a further example of a cause of action that is treated as tortious, but which draws heavily upon juridical ideas more typically associated with a different legal category. And in common with the assumed responsibility cases, Kolmar<\/em> is not susceptible to Birksian \u201calternative analysis\u201d.[117]<\/a> Whether addressed from a tort or a contract perspective, it is the self-same juridical feature\u2014namely, \u201cillegitimate pressure amounting to economic duress\u201d\u2014that is ultimately pivotal.<\/p>\n The preceding paragraphs advert to just a few instances in which it is impossible to disentangle fully contract and tort. There is, however, nothing very new or isolated about these examples.[118]<\/a> Nor, apart from a desire for theoretical neatness, is there any basis for regarding them as anomalous. Tortious assumed responsibility cases have consistently been endorsed at the highest judicial level,[119]<\/a> while the tort of two-party intimidation seems also to have survived the questions raised about its vitality in OBG<\/em>.[120]<\/a> There is, consequently, no doubt that the border between tort and contract is blurred in the law as we find it. And however much we may think that tort and contract should come apart neatly (in accordance with theory), it is at least noteworthy that Lord Goff cautioned his fellow judges against the \u201ctemptation of elegance\u201d in Henderson v. Merrett Syndicates Ltd (No 1)<\/em>.[121]<\/a><\/p>\n A prime example of the overlap that exists between tort and equity can be seen in the developing law on the misuse of private information. This body of law is hard to place in any single legal category since it has a pretty firm foothold in both tort and equity. On the one hand, the modern action in England for misuse of private information has its origins in the equitable wrong of breach of confidence.[122]<\/a> Yet, on the other, it is nowadays often treated as part of the law of torts. This latter characterization of the action owes a great deal to the speech of Lord Nicholls in Campbell v. MGN Ltd<\/em>.[123]<\/a> For there, after noting the way in which the action had \u201cshaken off the limiting constraint of the need for an initial confidential relationship\u201d[124]<\/a>\u2014which was a key touchstone of the equitable action for breach of confidence\u2014his Lordship went on to state that \u201cthe tort is better encapsulated now as misuse of private information.\u201d[125]<\/a> Although Lord Nicholls was admittedly in a minority of one in describing the action in this way, there has since been considerable judicial endorsement of the view that a new kind of tort action has materialized which is based on the misuse of private information.[126]<\/a><\/p>\n Such endorsement does much to settle the question of whether this action is rightly called a tort; but it is also important to notice its hybrid qualities. The fact that textbooks and treatises on both the law of torts and equity now fully discuss this form of civil liability is of course suggestive, but not definitive.[127]<\/a> Much more telling is the fact that senior judges have revealed their willingness to treat the action as one within tort law while continuing to rely on touchstones of liability that include the quintessentially equitable consideration of whether the claimant behaved in an iniquitous way so as to deny her the reasonable expectation of privacy.[128]<\/a><\/p>\n Further areas of overlap between tort law and equity arise in the context of the common law action for passing off as well as in relation to the various statutory causes of action for infringement of intellectual property rights (such as breach of copyright and patent infringement). While all such actions are, again, habitually regarded as torts,[129]<\/a> it is notable that the first choice of remedy in such cases will often be an account of profits and\/or an injunction to restrain further infringements of the claimant\u2019s rights. These remedies are, of course, equitable ones, and this only adds to the suggestion that these actions have as close an affinity with equity as they do with tort. Nor are they alone or anomalous in this respect. The liability imposed upon an accessory for knowing assistance in the breach of a fiduciary obligation (which obligation lies in equity) has also been judicially described as an \u201cequitable tort\u201d,[130]<\/a> and the decision in A-G v. Blake<\/em>[131]<\/a> suggested a fairly sizeable range of circumstances in which an account of profits might be available in tort law.[132]<\/a><\/p>\n One important overlap between tort and property law exists in the shape of the action for conversion. The problems presented by this tort for those who seek to theorize gain-based damages and the limits of restitution are fairly well known. But, for present purposes, it is only the way in which it blurs the boundary between tort and property law that warrants attention.[134]<\/a><\/p>\n Where D1<\/sub> steals C\u2019s coat and sells it to D2<\/sub>, one remedial option open to C is to sue for re-delivery of the coat. This claim is founded upon C\u2019s possessory rights over the coat. It is a claim made directly against D2<\/sub>. It can be distinguished from the alternative remedy of damages, which attends to the fact that C has suffered a loss by virtue of D1<\/sub>\u2019s wrongdoing. Where C elects to claim re-delivery of the coat, the tort of conversion acts, according to Andrew Tettenborn, \u201cas a kind of surrogate vindicatio<\/em>, allowing owners to get back their property…from a wrongful possessor.\u201d[135]<\/a> Putting it this way illuminates the fact that\u2014when re-delivery is sought\u2014conversion is capable of being seen as a proprietary cause of action. In Tettenborn\u2019s view:<\/p>\n [i]t is not really tort but personal property law; it affords not so much reparation for wrongful dealing, as machinery for an owner to get his property back. The law of obligations simply does…what in other systems is achieved by a separate proprietary cause of action.[136]<\/a><\/p>\n The point is a fair one. However, when a claimant invokes the fact that he has suffered a loss and sues for damages, conversion operates in a typically tortious way. The truth about conversion, then, is that it comprises another hybrid tort. The key touchstone of possession is a characteristically proprietary one. Furthermore, in line with the other hybrid actions considered above, the material events in a case of conversion are incapable of being explained away according to Birksian \u201calternative analysis\u201d. This is because the very same element\u2014the non-consensual using, taking, retention or delivery to a third party of the chattel in question\u2014is juridically significant whether what is sought is re-delivery or compensatory damages.<\/p>\n The tort of conversion also blurs the dividing line between tort law and unjust enrichment. It is uncontroversial that if D hands over to X goods belonging to C in respect of which C has a right to immediate possession, D will commit the tort of conversion.[137]<\/a> It is equally trite to state that a failure to hand over goods to someone who has an immediate right to possess them also commits conversion.[138]<\/a> Therefore, one would have thought that a case like Chesworth v. Farrar<\/em>[139]<\/a>\u2014in which the executors of an estate of a deceased antique dealer who had both lost and sold certain goods belonging to the claimants\u2014ought to have been resolved squarely on the basis of the tort of conversion. However, Edmund-Davies J remarked as follows:<\/p>\n [a] person upon whom a tort has been committed has at times a choice of alternative remedies, even though it is a sine qua non<\/em> regarding each that he must establish that a tort has been committed. He may sue to recover damages for the tort, or he may waive the tort and sue in quasi-contract to recover the benefits received by the wrongdoer.[140]<\/a><\/p>\n In so saying, the learned judge made clear his belief that the facts in Chesworth <\/em>were capable of grounding either<\/em> an action in tort or<\/em> one in quasi-contract. This was important in the case itself since an action in tort was time-barred. But it was also important more generally, since granting the claimant a choice as to the cause of action is qualitatively different from seeing conversion as something that is purely a tort that makes available different types of remedy. More simply, on Edmund-Davies J\u2019s understanding, Chesworth <\/em>need not necessarily be treated as a tort case.[141]<\/a> He could scarcely have been clearer when he said that a claimant in such circumstances is free to \u201cwaive the tort and sue in quasi-contract.\u201d[142]<\/a> So long as the claimant adverts to the fact that the defendant has been unjustly enriched, the case, he said, could proceed along the lines of quasi-contract (a category of law that broadly equates with what would now be called unjust enrichment).<\/p>\n There is, however, a possible snag here, for it might still be said that Chesworth<\/em> does not really blur the boundary between tort law and unjust enrichment. It might merely be a case of concurrent liability that is susceptible to alternative analysis: one, in other words, in which highlighting two different juridical aspects<\/em> of the case (Birks used the language of causative events) would support two different types of action.[143]<\/a> But are there really two different juridical aspects to Chesworth <\/em>such that there is no genuine threat to the idea that tort and unjust enrichment are quite separate legal categories? I don\u2019t think that there are.<\/p>\nIntroduction<\/h1>\n
I.\u00a0 Three Shared Claims<\/h1>\n
A.\u00a0 Tort Law\u2019s Bipolarity<\/h2>\n
B.\u00a0 Tort Law is Exclusively a Branch of Private Law<\/h2>\n
C.\u00a0 Tort Law is a Discrete Legal Category<\/h2>\n
II. Hybrid Torts<\/h1>\n
III. Tort Law as a Discrete Legal Category: Theory<\/h1>\n
IV. Tort Law as Discrete Legal Category: Reality<\/h1>\n
A.\u00a0\u00a0\u00a0 Introduction<\/h2>\n
B.\u00a0 The Prevalence of Hybrid Torts<\/h2>\n
1.\u00a0\u00a0\u00a0 Tort and Contract<\/h3>\n
2.\u00a0\u00a0\u00a0 Tort and Equity<\/h3>\n
3.\u00a0\u00a0\u00a0 Tort and Property Law[133]<\/a><\/h3>\n
4.\u00a0\u00a0\u00a0 Tort and Unjust Enrichment<\/h3>\n