3.8.9 Tort vs. Contract: Defenses

• Jurisdiction: Arizona

The real disparity, then, between contract remedies and tort remedies, is not found in the measure of damages, but rather in the defenses available in the former, but not the latter: namely, contractual provisions limiting or waiving liability. It is these contractual provisions that allow parties to a contract to order their own affairs and through negotiation, establish appropriate remedies commensurate with the promised consideration.

In today’s construction industry, such qualifying contractual provisions proliferate, including:

· No damages for delay clauses

· No consequential damages clauses

· Limitation of liability clauses

An example of each is provided below:

Limitation of Liability

Client agrees that the...