Breach of contract or tort? The starting point for a damages claim

The first question in a damages consultation is usually how much can be recovered. But before answering, there is something to decide first: whether the harm arose from a broken promise or from an unlawful act. Even for the same harm, what you must prove and the deadlines differ depending on which path you take.

What must be proved differs

For liability for non-performance of an obligation (채무불이행), once you show the terms of the contract and the fact that it was not performed as agreed, the debtor can escape liability only by proving there was no intent or negligence on their part (Article 390 of the Civil Act). For liability in tort (불법행위), by contrast, the victim must prove all of the other party's intent or negligence, unlawfulness, the harm, and the causal link between them (Article 750 of the Civil Act).

Suppose a moving company damaged furniture while moving it. If framed as a breach of the transport contract, the company must show it was not at fault; if framed as a tort, the victim must show the company's negligence. This is why, in cases where there is a contractual relationship, non-performance is considered first.

Limitation periods differ

A claim for damages in tort expires 3 years from the date the victim learned of the harm and the wrongdoer, or 10 years from the date of the tort (Article 766 of the Civil Act). A contractual claim is 10 years for an ordinary civil claim and 5 years for a claim arising from a commercial activity. Even if a tort claim is barred after 3 years, there may still be a path if it can be framed as a breach of contract.

Here, the date you learned does not mean the date you first felt the harm, but the date you actually knew that harm had resulted from an unlawful act and who the wrongdoer was. If the calculation is unclear, it is better to go through materials date by date before concluding that it is too late.

Scope of compensation and consolation money

The scope of compensation for non-performance is in principle the damage that ordinarily arises, and damage arising from special circumstances is compensated only if the other party knew or could have known of those circumstances (Article 393 of the Civil Act). This provision also applies to torts (Article 763 of the Civil Act). Mental harm is recognized through consolation money (위자료) where body, liberty or reputation has been harmed (Article 751 of the Civil Act), but in cases involving only a breach of contract, once the financial loss is compensated, consolation money is often hard to obtain.

Comparative negligence also applies to both paths (Articles 396 and 763 of the Civil Act). Either way, if the victim was also at fault, the compensation may be reduced by that proportion.

If both are possible, use them together

If both claims can be made, argue them together in a single lawsuit so that if one is blocked, a decision can still be obtained on the other. Which one to put first depends on whether there is a written contract, what materials show the other party's fault, and how much time has passed. Organizing the date of the incident and whether there is a contract first will speed up the assessment.

If you are the one who received the complaint, look first at which path the other side chose. If the claim is in tort, point out where the plaintiff has failed to prove intent or negligence and causation, and also check whether the limitation period has expired.