Law of Tort
Definition of Tort:
The word “Tort” came from Latin word “Tortum” which corresponds to the English word twist and to the Latin word delict.
English equivalent word of tort is wrong.
A scientific, suitable and fulfill definition of tort has not yet been formulated.
In general tort means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable.
Evolution of the idea of tort:
Latin Principle “Alterium non leadere” which means don’t do any harm to anybody by your work or act.
Prof. Salmond: Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a trust or other merely equitable obligations.
Fraser: Tort is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.
Every tort is an act or omission whish as related in one of the following ways to harm suffered by a determinate person;
i. It may be an act which without lawful justification or excuse, is intended by the agent to cause harm.
ii. It may be an act in itself contrary to law or an omission of specific legal duty.
iii. It may be an act violating an absolute right and treated as wrongful without regard to the actor’s intention or knowledge.
iv. Unintentional act or omission causing harm.
Ratanlal: “Tort is an act or omission which prejudicially affects a person in some legal; private rights.”
Clerk and Lind sell: They described torts as “wrong independent of contract for which the appropriate remedy is a common law action.”
Simply it can be said that Tort means a breach of some duty independent of contract giving rise of action and for which compensation is recoverable and also give rise to some other form of civil remedy exclusively.
Characteristics of Tort: From the definition of tort we can find out the following characteristics of tort.
- Civil wrong.
- Independent of contract.
- Duties for the whole society.
- Not only intention but also implementation.
Differences between tort and breach of contract:
1. As to Definition: Tort is an infringement of right in rem of a private individual where remedies are available. Contract is consent of two parties which can be implemented by law.
2. As to Consent: No consent in tort. In contract consent of the parties are important.
3. Rights in rem and rights in personem.
4. As to Nature of the duty: In tort the duty is one imposed by the law and is owed to the community at large. In case of contract the duty is fixed by the parties and is owed to a definite person.
5. as to Minors responsibility.
6. as to Remedies.
7. as to Abetment.
8. as to Laws: In tort common law principles are applicable. Contract Act of 1872 is applicable.
Differences between Tort and breach of quasi contract:
- Tort is an infringement of right in rem of a private individual where remedies are available. Quasi contract covers those situations where a person is held liable to another without any argument for money or benefit received by him to which the other person is better entitled.
- Tort is not any kind of contract. Quasi contract is a hypothetical contract implied by law.
- Unjust benefit: In the matter of quasi contractual liability a person must get unjust benefit which belongs to another person. But in the case of tortuous liability there may not any subject of benefit.
- Rights in rem and rights in personem: In case of tortuous liability the duty is towards persons generally. But in case of quasi contract the duty is towards a person.
- Remedies: In case of tort the remedy unliquidated sum. in case of quasi contract the remedy is liquidated sum
Differences between Tort and crime:
h. Withdrawing of cases
Differences between tort and crime:
- A tort is an infringement or privation of the private or civil rights belonging to individuals whereas a crime is a breach of public rights and duties which affects the whole community.
- In tort the wrongdoer has to compensate the injured party. in crime he is punished by the state. Interest of the society.
- In tort the action is brought by the injured party. in crime the proceedings are conducted in the name of the state and the guilty person is punished by the state.
- In case of tort we can get remedy by the civil court. In case of crime it is the subject matter of criminal court.
- In case of tort the remedy unliquidated sum. in case of crime accused get punishment under penal Code.
- In case of tort parties can withdraw the case under their mutual consent but criminal cases can not be withdrawn.
- Limitation: in tort there is limitation but in case of criminal cases there is no limitation.
Differences between Tort and Breach of Trust:
a. As to Definition: A tort is an infringement or privation of the private or civil rights belonging to individuals considered as individuals whereas trust is the branch of law of property. Under it a person called trustee holds property in his name for the use and benefit of another person called beneficiary.
b. As to Development: common law principles of England; developed in the common law court. Trust is related with equity. In the court of Chancery it is developed.
c. As to Claim of damage: In case of torts the damage claimed will be a liquidated sum. But in case of breach of trust it is an unliquidated sum.
d. Right in rem and right in persona
e. Laws: In tort common law principles are applicable. Trust Act of 1882 is applicable.
Types of Torts
1) Intentional Torts: behavior that is intentional in some way, causes injury, and is deemed tortuous
2) Negligent Torts: Behavior that unreasonably risks personal/property injury to another.
3) Strict Liability Torts: Behavior that is tortuous because it causes unlawful personal/property damage to another, regardless of fault, reasonableness, etc.