Tort Law and the Right to Contract by Michael I. Krauss Michael I. Krauss is professor of law at George Mason University School of Law. Today courts regularly resolve disputes by applying tort principles when they should apply the law of contracts. When parties have an opportunity to negotiate the terms of their relationship, the resultant contracts ought to be enforced.
Tort law is an acceptable substitute only if parties have no opportunity to bargain.
Over the years the boundary between tort and contract has shifted sharply toward tort. For example, physicians serving rural areas are often not allowed to contract with patients for a lower price in return for diminished care. And courts have allowed consumers who buy cars without air bags to recover from manufacturers for injuries that only air bags would have prevented. Sometimes courts even ignore compulsory arbitration provisions that waive the usual judicial procedures for resolving disputes. Even worse, rules have sprung up that prohibit ordinary commercial contracts.