Читать книгу Canadian Business Contracts Handbook - Nishan Swais - Страница 45

There is a large body of law built around a case decided almost a century ago in Britain, known as the case of the “Paisley Snail.” It is worth briefly considering this case for the effect it has had on the doctrine of privity.

The case involved a woman who had purchased a bottle of ginger beer, which turned out to contain a decomposed snail. Because her contract was with the store where she bought the drink and not with the manufacturer of the ginger beer (i.e., there was no privity between the woman and the manufacturer), the woman could not claim compensation from the manufacturer for her suffering. (See section 3.1 for a detailed discussion of compensation.)

To avoid the apparent injustice that the situation created, the court, hearing the woman’s case, awarded her compensation from the manufacturer in any event and in the process established the legal principle of a duty of care which it said was owed by the manufacturer even in the absence of privity. This decision helped to create the modern law of negligence.

It is not within the scope of this book to examine the law of negligence in relation to contracts, nor is it necessary. Negligence is ultimately a component of tort law which provides remedies for civil wrongs that do not arise out of contractual obligations. Because our focus in this book is on contractual obligations and how to spell them out (literally speaking) we will have to leave discussion of tort law for another occasion.

For now, it is enough to know that the doctrine of privity is still alive and kicking where contractual obligations are concerned. However, there are rare circumstances in which certain types of claims for compensation may be available on the basis of a duty of care owed by one person to another, regardless of any contractual relationship. Those circumstances relate almost exclusively to personal injury (such as what happens when you consume a decomposed snail). They rarely apply to pure economic or monetary losses. Those are the kinds of losses that most often occur in business and, hence, concern us.

For a further discussion of negligence in a contractual setting, see Chapter 7.