How Contractual Language Can Shield from Tort Claims

How Contractual Language Can Shield from Tort Claims

Contracts are the cornerstone of modern society, governing countless relationships and transactions. However, the world of legal agreements is not confined to contracts alone. Tort law, with its independent obligations applicable to all members of society, can sometimes intersect with contractual matters, leading to complex legal disputes. In this blog post, we’ll explore how contract language can be your shield against potential tort claims, drawing inspiration from the age-old case of Tuberville v. Savage, and examine why certain contractual words can effectively negate elements of tort-based claims.

The Interplay of Contracts and Tort Law

Contracts involve parties voluntarily imposing specific obligations on each other. However, tort law imposes independent obligations on all members of society, irrespective of contractual arrangements. In many cases, disputes arising from contractual breaches can be accompanied by tort-based, extra-contractual claims. But can the language used in a contract impact the efficacy of a tort-based claim related to that contract? The answer is a resounding yes.


Precision Matters: Lessons from Tuberville v. Savage

In the realm of contract law and torts, the precision of language can make all the difference. Tuberville v. Savage, a 17th-century English case, provides a compelling example of how words, when used with clarity and intent, can defeat elements of a tort-based claim. Although Tuberville v. Savage did not involve contractual language, it revolved around words spoken during an alleged assault, shedding light on the power of communication.

In Tuberville v. Savage, Mr. Tuberville and Mr. Savage engaged in a physical altercation, precipitated by an insult from Mr. Savage. Mr. Tuberville’s response was telling. He placed his hand on his sword’s handle and declared, “If it were not assize-time, I would not take such language from you.” Importantly, this statement conveyed his clear intention not to harm Mr. Savage at that moment due to the presence of judges in town (it being assize-time).

Mr. Savage’s defense rested on the notion that he acted in self-defense against Mr. Tuberville’s alleged assault. However, the court rejected this defense because Mr. Tuberville’s words negated any intention to immediately attack Mr. Savage. Instead, his statement made it evident that he refrained from violence due to the judges’ presence during assize-time. Consequently, judgment favored Mr. Tuberville.


Applying Tuberville’s Lesson to Contracts and Torts

Just as Tuberville’s words defeated a necessary element of an assault claim, contractual language can similarly negate key elements of business torts frequently alleged in post-closing, such as fraud or negligent misrepresentation.

For instance, clear “no reliance” clauses in acquisition agreements, where the buyer disclaims reliance on any statements made outside the written contract, can effectively preclude claims of fraud or negligent misrepresentation based on extra-contractual representations by the seller. But why does a “no reliance” clause work in this way?

It’s not because the contract waives tort-based duties that prohibit fraud. Instead, it’s because the clause eliminates a crucial element of a fraud or negligent misrepresentation claim: justifiable (or reasonable) reliance. By stating in the contract that the buyer did not rely on extra-contractual representations, the buyer has no reasonable basis to later claim that it indeed relied on any such representations.


Other Options

In addition to the strategies discussed above, there are several other contractual mechanisms that can bolster your defenses against tort claims:

  • Indemnification Clauses: Contracts often include indemnification clauses, which stipulate that one party agrees to compensate the other for any losses or liabilities arising from specific circumstances. In the context of tort claims, these clauses can provide protection by shifting the financial burden of legal actions onto the responsible party. For example, in a contract between a landlord and tenant, an indemnification clause could require the tenant to indemnify the landlord for any third-party personal injury claims that occur on the leased property.
  • Insurance Requirements: Contracts can require parties to maintain certain types and levels of insurance coverage. This is particularly important in scenarios where potential tort claims, such as personal injury or property damage, may arise. Requiring the other party to maintain insurance can ensure that there are funds available to cover damages in the event of a tort claim.
  • Exculpatory Clauses: In some contracts, parties may include exculpatory clauses that attempt to release one or both parties from liability for certain acts or omissions. While the enforceability of such clauses can vary by jurisdiction and the specific circumstances, they can serve as a shield against tort claims by limiting the grounds on which a party can bring a claim.
  • Compliance with Regulatory Standards: Contracts may require parties to comply with specific regulatory standards or industry best practices. By incorporating these requirements into the contract, parties can minimize the risk of tort claims stemming from non-compliance with legal and industry standards.
  • Confidentiality and Non-Disparagement Clauses: In business contracts, including confidentiality and non-disparagement clauses can protect parties from tort claims related to defamation, trade secrets, or the disclosure of sensitive information. These clauses can limit the ability of one party to make damaging statements that could lead to tort claims.



In the complex world of contracts and torts, words wield enormous power. Tuberville v. Savage reminds us of that precision in language can defeat elements of tort-based claims. While contractual language cannot eliminate the duty not to commit fraud, it can certainly diminish the efficacy of a tort claim by addressing key elements. By understanding the interplay between words, contracts, and torts, you can better navigate the legal landscape, fortify your agreements, and protect your interests effectively.



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