(concurring in part, dissenting in part).
I agree with the majority’s conclusion that the trial court properly dismissed the plaintiffs claims based on the theory of negligent misrepresentation. Any representations made by Ruigh and Miller were made to their commercial “adversary” (Thies) in the course of an arms-length commercial transaction. The tort of negligent misrepresentation is not applicable under these circumstances. Onita Pacific Corp. v. Trustees of Bronson, 315 Or. 149, 843 P.2d 890, 897-99 (1992) (representations made during the course of negotiating a real estate development contract were not actionable); 2 Fowler V. Harper et al., The Law of Torts § 7.6, at 412-13 (1986) (the tort of negligent misrepresentation is applied principally against those who advise in a nonadversarial capacity).
However, I disagree with the majority’s conclusion that a cause of action based on negligence is available to the plaintiff. As the majority concedes, only where a duty exists independently of the contract will a tort action lie for conduct in breach of the contract. Preferred Mktg. Assocs. Co. v. Hawkeye Nat’l Life Ins. Co., 452 N.W.2d 389, 397 (Iowa 1990); accord W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 92, at 656 (5th ed. 1984) [hereinafter Pros-ser & Keeton ]. In other words, “there will be liability in tort for misperformance of a contract whenever there would be liability for gratuitous performance without the contract.” Prosser & Keeton § 92, at 661. Where the defendant has merely failed to perform the contract, there is usually no tort liability imposed. Id. at 660; accord Redgrave v. Boston Symphony Orchestra Inc., 557 F.Supp. 230, 237-38 (D.Mass.1983) (holding that refusal to perform a contract is not a tort).
The majority concludes that a cause of action based on negligence has been stated in this case. Despite a professed adherence to Preferred Marketing, the majority does not identify the source of the “general duty” they recognize, nor do they explain how this duty is independent of CSB’s contractual duty to destroy or return the guarantee. An examination of the allegations made by the plaintiff reveals no factual basis for the majority’s conclusion that an actionable claim of negligence based on the breach of a duty independent of the contract has been stated.
Plaintiff alleges that the defendants “negligently failed to perform the duties imposed on them under the agreement between Tal-dine Thies and Citizens.” (Emphasis added.) Plaintiff is clearly relying on the breach of a contractual duty to impose liability on the defendants. Under Preferred Marketing, the breach of such a duty does not give rise to tort liability.
An additional flaw in the majority’s reasoning is their failure to acknowledge the lack of any personal involvement by Hurd and Dickey in the transaction between Thies and CSB. The only involvement by these defendants alleged by plaintiff takes place after the dispute between CSB and the Thies Estate over the scope of the guarantee arose. Surely such after-the-fact involvement does not give rise to personal tort liability on the *912part of the bank employees who happened to be informed of the Estate’s position that the guarantee was to have been returned or destroyed.
In summary, the majority fails to state the specific duty any of these defendants had to Thies which was independent of the agreement between Thies and CSB. Additionally, they fail to explain the source of the “general duty” they have found. Finally, the majority cannot point to any allegation in the petition which even suggests that Hurd and Dickey were personally involved in this transaction so as to be held personally liable in tort for the bank’s failure to perform its alleged agreement to return or destroy the guarantee.
For all these reasons, I respectfully dissent from the majority’s decision that the plaintiff has pleaded a viable claim of negligence against defendants Ruigh, Hurd, and Dickey.
McGIVERIN, C.J., and NEUMAN and ANDREASEN, JJ., join this partial concurrence and partial dissent.