Section 3.8.4 A Preference for Contract Remedies

• Library: Construction Law Practice Manual 3rd Edition 2016

§ 3.8.4 A Preference for Contract Remedies

For proponents of the ELR, freedom of contract requires freedom from tort law and tort remedies; the marketplace simply cannot permit recovery for all foreseeable claims for purely economic losses.

The ELR emerged from product liability cases, not construction defect cases. With respect to product liability, the U.S. Supreme Court, in East River S.S. Corp. v. Transamerica Delaval, Inc.[9], cautioned that expansive tort recovery would “make a manufacturer liable for vast sums.”¹⁰ Moreover, “[t]he increased cost to the public that would...