Tortious and Contractual Liability: (Re)Demarcation, Enclaves, and Grey Zones

Abstract

The article examines the problem of delimiting tortious and contractual liability in civil law – a question that, despite its apparent theoretical clarity, retains considerable practical complexity. It is established that the demarcation line between the two liability regimes is not a clear normative boundary but a dynamic and structurally unstable one, giving rise to two types of problematic situations: "enclaves" and "grey zones."

"Enclaves" refer to situations where a legal institution that by its nature gravitates toward one regime operates within the space of the other. A telling example is liability for damage caused by a defect in a product (product liability): notwithstanding the contractual relationship between the manufacturer and the buyer, the legislature deliberately subjects this class of harm to the tort regime, precluding any contractual limitation of liability for damage caused to life, health, or property falling outside the "orbit" of the contract. The "grey zone" is occupied by pre-contractual liability (culpa in contrahendo), whose legal nature remains contested, though functional analysis supports its tortious characterisation – with corresponding consequences for the scope of recoverable damages. The tort of inducing breach of contract is examined separately, illustrating the capacity of tort law to protect relative rights arising from a contract.

The relevance of this study to the Ukrainian legal order is defined by the operation of the non-cumul principle – the prohibition on the concurrence of actions – which renders a mischaracterisation of the claim directly consequential in procedural terms. It is concluded that the correct classification of harm as contractual or tortious is the outcome of a teleological analysis rather than the mechanical application of formal criteria.