TRACING THE BORDERLINES
A. DISTINCTION BETWEEN TORT AND CONTRACT
The distinction between tort and contract is made firstly on recognising whether or not there is a binding contract between the tortfeasor (or his principal) and the victim. If not, the doctrine and principles of extra-contractual tort law are applied. However, there are certain areas where the rules of delict are applied even if there is a contract between the parties. In particular, there is a tradition for tort law reasoning whenever personal injuries are involved, regardless of the fact that the risk that led to the injury was caused by the contract and the fulfilment of contractual duties.
B. EXISTENCE OF A ‘GREY ZONE’?
Under Norwegian law, it is well recognised that there is a ‘grey zone’ between contract and tort. The older traditional doctrine referred to culpa in contrahendo as a situation that required special treatment. As explained below in sec V.A, a modern version of the rules of liability within the grey area falls under the concept of ‘pre-contractual liability’. The doctrine recognises that there is an area between contract and tort law, when the claimant may sue both in contract and in tort, even though neither of the approaches captures all the legal implications. This is, however, a minor problem to the parties involved and to the court. The rather pragmatic approach of the Norwegian legal doctrine allows a recognition of the fact that contractual relations, or something very near to a binding contract, may strengthen the grounds of liability in tort. It is also possible to take account of the contact between the parties in an overall judgement of whether liability should arise on the concrete merits of the case.
C. COMMON OR DIFFERENT RULES REGULATING TORT AND CONTRACT
It would be inaccurate to state that there are common rules governing the two areas. In both areas, one may establish a fact that fulfils the criteria of a legal basis of liability, economic loss and a causal link between the mentioned fact and the loss, but these rules are not considered common to tort and contract. The set of rules are similar, but they are perceived to be two separate regimes.