Definition
Waiver of tort is an election-of-remedies doctrine by which an injured party, rather than suing in tort for damages caused by a wrong or fraud, chooses instead to treat the defendant's wrongful conduct as giving rise to an implied contract and sues in quasi-contract (or assumpsit) to recover the benefit the defendant obtained through that wrong. The plaintiff, in effect, "waives" the tort claim and substitutes a restitutionary claim — seeking to strip the wrongdoer of an unjust gain rather than to recover compensatory or punitive damages for the injury suffered.
The doctrine most commonly arises where a defendant has acquired money or property through conversion, fraud, or other tortious conduct. The plaintiff may elect to forgo the tort action and instead sue as if the defendant had impliedly promised to pay over whatever was wrongfully obtained. The recovery sought is the defendant's gain, not the plaintiff's loss — a critical distinction from ordinary tort damages.
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Common Confusion
Waiver of tort is easily conflated with two related but distinct concepts. First, it is not a true "waiver" in the sense of voluntarily relinquishing a known right. Despite its name, the doctrine does not require the plaintiff to forfeit anything; it is simply the choice of one remedy over another. Second, waiver of tort is distinct from election of remedies generally. Election of remedies is the broader principle — waiver of tort is a specific application of it, triggered when the plaintiff converts a tort claim into a quasi-contractual one. Third, the quasi-contract that arises is not a real contract; no actual agreement exists between the parties. The "implied contract" is a legal fiction created to permit restitutionary recovery.
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Core Elements
For the doctrine to operate, three conditions generally must be present:
1. An underlying tort: The defendant must have committed an actionable wrong — typically conversion, fraud, trespass to goods, or similar conduct that resulted in the defendant acquiring something of value.
2. A benefit received by the defendant: The doctrine is only useful where the wrongdoer obtained money, property, or another measurable benefit from the wrong. Where the defendant gained nothing, the restitutionary frame offers no advantage over a straight tort claim.
3. An affirmative election by the plaintiff: The plaintiff must choose the quasi-contractual theory. Because the choice has consequences — including the potential loss of exemplary damages available in tort — courts treat the election as binding once made, particularly after judgment.
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Why It Matters in Research
The doctrine's practical importance has shifted considerably over time, and researchers must account for this when moving across historical sources.
In earlier common law pleading, the election mattered enormously because the form of action determined both procedure and available relief. Suing in assumpsit (implied contract) rather than trespass or trover carried different procedural rules, different limitation periods, and different measures of recovery. Historical sources — including the Black's entry above — speak to this procedural world. Modern researchers should not assume that the doctrine operates the same way in jurisdictions that have abolished the forms of action.
The doctrine remains live in quasi-contract and unjust enrichment litigation, particularly where the defendant's gain exceeds the plaintiff's provable loss, or where punitive damages are unavailable or uncertain. In those situations, waiver of tort offers a strategic path: recover what the wrongdoer pocketed rather than litigate uncertain harm. Conversely, where the plaintiff's damages are large and punitive damages are available, staying in tort is usually preferable.
Researchers examining insurance coverage disputes should note that "waiver of tort" occasionally appears in that literature in a different sense — referring to a policyholder electing not to pursue a tortfeasor so as to preserve a first-party claim. This is a distinct usage and should not be confused with the classical doctrine. See insurance_81 for that context.
Limitation period traps are significant. In many jurisdictions, the limitations period for contract claims differs from that for tort claims. A plaintiff electing waiver of tort to take advantage of a longer contract limitations period should research whether courts in the relevant jurisdiction honor that strategy — some do not.
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Historical Dictionary Support
Black's Law Dictionary defines waiver of tort as the election "by an injured party, for purposes of redress, to treat the facts as establishing an implied contract, which he may enforce, instead of an injury by fraud or wrong, for the committing of which he may demand damages, compensatory or exemplary." This captures the core of the doctrine accurately. The reference to "1 Hun, 630" points to New York Supreme Court General Term reporter from the 1870s — a reminder that the doctrine was well-established in American courts by the latter nineteenth century and developed primarily through common law rather than statute.
What historical dictionaries tend to understate is the restitutionary logic driving the election. The Black's framing emphasizes the substitution of contract for tort, but the deeper rationale — that the plaintiff seeks the defendant's unjust enrichment rather than compensation for personal loss — is not fully surfaced. Modern treatments in unjust enrichment scholarship (Birks, Burrows) give this dimension far more prominence. Researchers using older dictionary sources should supplement them with contemporary restitution literature to understand how courts now reason about the doctrine.
Historical sources also do not adequately address the doctrine's uneven survival across jurisdictions. In several common law countries, particularly Canada and the United Kingdom, waiver of tort has been the subject of sustained academic and judicial scrutiny over whether it is truly an independent cause of action or merely an election of remedy. American sources have been less engaged with this debate, but researchers working in comparative or international contexts should be aware of it.
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Jurisdictional Note
The doctrine is recognized in most common law jurisdictions but its scope varies. Canadian courts have grappled extensively with whether waiver of tort permits recovery independent of any proven loss — a question the Supreme Court of Canada addressed in the class action context. English courts have similarly questioned whether the doctrine adds anything beyond standard unjust enrichment analysis. In U.S. jurisdictions, the doctrine is generally treated as a procedural election rather than a freestanding cause of action, and its significance is reduced in merged law/equity systems.
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Encyclopedia Cross-Reference
contracts_35: Defenses — Waiver and Election of Remedies (The Law Mind Contracts & Commercial Law Encyclopedia)
insurance_81: Estoppel and Waiver in Coverage Disputes — Late Disclaimer, Conduct-Based Waiver, and Prejudice (The Law Mind Insurance Law Encyclopedia)
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