A waiver of tort is a legal decision made by a plaintiff to give up their right to sue for a tort, which is a wrongful act leading to legal liability. Instead, the plaintiff chooses to pursue a remedy through a contract claim. This option is available when the plaintiff has experienced an actionable wrong and seeks restitution, disgorgement, or an accounting, rather than traditional damages for their losses.
The waiver of tort is primarily used in civil law, particularly in cases involving contracts and restitution. It allows plaintiffs to seek remedies that may not be available through tort law. This term is relevant in various legal contexts, such as business disputes, consumer protection, and cases involving unjust enrichment. Users can manage certain legal processes themselves with the help of US Legal Forms, which offers templates for drafting necessary documents.
Here are a couple of examples of abatement:
Example 1: A business partner misappropriates funds from a joint venture. The affected partner may choose to waive tort and sue for breach of contract instead, seeking to recover the misappropriated funds through an accounting.
Example 2: A consumer files a lawsuit against a company for misleading advertising. Instead of pursuing a tort claim for damages, the consumer opts to waive tort and seeks restitution based on the contract of sale. (hypothetical example)
Examples of state differences (not exhaustive):
| State | Notes |
|---|---|
| California | Allows for waiver of tort in cases involving fraud and misrepresentation. |
| New York | Recognizes waiver of tort primarily in contract disputes. |
| Texas | Limits the application of waiver of tort to specific types of claims. |
This is not a complete list. State laws vary, and users should consult local rules for specific guidance.
| Term | Definition | Difference |
|---|---|---|
| Waiver of Tort | Relinquishing the right to sue in tort to pursue a contract claim. | Focuses on contract remedies instead of tort damages. |
| Negligence | A tort involving failure to exercise reasonable care. | Involves a direct claim for damages rather than a waiver. |
| Breach of Contract | Failure to fulfill the terms of a contract. | Can be pursued directly without waiving tort rights. |
If you believe that a waiver of tort applies to your situation, consider the following steps:
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It means giving up the right to sue for a tort and choosing to pursue a remedy through a contract claim instead.