Normally in a contractual relationship only the parties to the contract may enforce the contractual obligations assumed by the implied and express terms of the contract. This is the meaning of the doctrine of privity of contract. The contract will spell out the nature and extent of any warranties concerning whether the materials and methods of construction are reasonably fit for the purposes intended. Furthermore, the contract would spell out any limitations of liability that would be inserted for the benefit of the party who negotiated that provision in the contract. Thus one of the issues before the court was whether it ought to recognize any independent duty arising in tort owed by those who designed, built and supervised the construction of the building to subsequent owners of the property.
Conventional doctrine recognizes the principle of the primacy of private ordering.
Thus, it would be possible to recover for lost wages from a tortfeasor if the wrongful act had caused personal injuries that necessitated absence from work but tort would not allow the plaintiff to recover for lost investment returns occasioned by the negligent misrepresentations of a financial advisor because such harm was purely monetary. Such pure economic losses were considered too remote until the case of Hedley Byrne v. Heller was decided by the House of Lords in 1964. Over the next 30 years, the courts expanded the kinds of relationships that would be recognized to be of sufficient proximity that liability for economic loss should be allowed. In Winnipeg Condominium the S.C.C. recognized that if a defect poses a real and substantial danger to the inhabitants, the contractor should be liable in tort for the cost to repair such defect. The duty was based on the reasonable foreseeability that such a dangerous defect would give rise to a foreseeable risk of harm to occupants over the useful life of the building.