Definition of Tort

The term Tort is derived from the Latin word tortum which means twisted or crooked or wrong and is in contrast to the word rectum which means straight. Everyone is expected to behave in a straightforward manner and when deviates from this straight path into crooked ways he has committed a tort.

Tort law is said to be the development of the old maxim ubi jus ibiremediumor wherever there is a right, there is a remedy. There is no precise definition of the word ‘tort’ in law. Various definitions have been given over the years by many distinguished jurists. Dr. Winfield has made a critical examination of the various possible definitions and the one suggested by him is as follows: “Tortious liability arises from the breach of a duty primarily fixed by the law, such duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”

In simpler words, a tort is a violation of a right of a person or a breach of duty of another towards him. The right and duty arise under the law. It is redressable in the form of damages or compensation. The person committing the tort or wrong is called a wrongdoer or tortfeasor and his misdoing is the tortious act.

It is important to note that in most jurisdictions across the globe Tort Law is not codified i.e. there are no specific legislations governing aspects of Tort Law. It has been developed and expanded over the years through judicial interpretation.

The Law of Tort thus deals with defining a legal injury and establishing liability on the wrongdoer. The objective of the Law of Tort is to remedy the injury caused by the wrongdoer by awarding compensation or damages. In certain cases exemplary damages may also be awarded in order to achieve the aim of deterrence.Recently Courts have expanded this principle and have observed that the task of law of tort is not only to award compensation but to vindicate rights of the parties and enforce them.

 

 

 

 

Constituents of Tort

 

As discussed above, tort is a wrongful act which infringes the right of another. Some of the most important of these rights are rights to the security of his person, domestic relations, property and reputation. In the course of time other rights have also secured recognition, such as the right to be protected from pecuniary loss caused by judicial over-reach, fraud, interference with contractual relations, infringement of copyright, patent or trademark etc.

 However every wrongful act is not a tort. To constitute a tort or civil injury, the following conditions have to be satisfied:

1. There must be a wrongful act committed by a person,
2. The wrongful act must give rise to legal damage or actual damage, and
3. The wrongful act must be of such nature as to give rise to a legal remedy in the form of action for damages.

Wrongful Act:

Wrongful acts can be categorised into two categories: i. Acts which cause actual damage and ii. Acts which do not cause actual damage. A wrongful act may be one which causes actual damage e.g. A’s outstretched arm hitting a bystander B. A wrongful act may be one which although looks notorious but yet may invade the legal right of another e.g. A erecting a wall on his land which obstructs the light to his neighbour’s house.

The law of torts also redresses rights whose violations have no pecuniary value but are important nevertheless. They include the right to vote, right to worship, right to enjoy privileged membership of a club etc.

More recently, higher Courts have also started awarding compensation for violation of Fundamental Rights enshrined the Constitution. Some of them are the right to liberty, person and property. Others also include right of access to public places, hotels, restaurants, religions and educational institutions.

 

 

Damage:

‘Damage’ means the harm or loss suffered by a person as a result of some wrongful act of another. The sum of money awarded by courts to compensate ‘damage’ is called ‘damages.’ In order for damages to be awarded, there must be a legal damage caused by act of a wrongdoer. This means that a legal right must be violated. Whether actual damage is caused or not is immaterial.

The real significance of a legal damage is illustrated by two Latin maxims, namely, injuria sine damno and damnum sine injuria.

Damnum means damage in monetary terms e.g. loss of service, health etc. Injuria means a tortious act which may either be wilful and malicious or altogether accident.

Injuria sine damnomeans infringement of a legal right without any actual loss or damage. In this case a person who has been wronged has a ‘cause of action.’ Thus a violation of a legal right committed gives rise to a cause of action e.g. interfering with the right to weigh goods at market or interfering with a procession on a specific occasion.

In cases of damnum sine injuriano action lies without proving merely actual and substantial loss without proving a violation of legal right. Mere loss in monetary terms does not itself constitute a tort. There are many acts which though harmful are not wrongful and give no right of action. There are many acts which although harmful are not wrongful and give no right of action. If A opens a mill next to the mill of B which results in loss of earnings to B, then B has no cause of action even though he has suffered damage.

The result of the maxims is thus that there are moral wrongs for which the law gives no legal remedy though they cause great loss or detriment and on the hand there are legal wrongs for which the law does give a legal remedy though there may not be any actual loss.

 

 

 

 

 

Remedy:

The law of torts is said to be a development of the maxim ubi jus ibiremedium or ‘there is no wrong without a remedy.’The essential remedy for a tort is an action for damages. However there are other remedies as well e.g. injunction or specific restitution. Where there is dispossession of land, the plaintiff in addition to damages also claims to recover the land itself. Further damages claimed in an action under torts are unliquidated i.e. they cannot be predetermined and it is up to the Court to determine them based upon the facts and circumstances of the case.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Difference between Tort and Crime

A tort is a civil wrong. The distinction between civil and criminal wrongs depends on the nature of the remedy provided by law. A civil wrong is one which gives rise to civil proceedings. A civil proceeding concerns with the enforcement of some right claimed by the plaintiff as against the defendant whereas criminal proceedings have for their object the punishment of the defendant for some act of which he is accused. The essential differences between tort and crime are the following:

1. Tort is an infringement of private or civil rights belonging to individuals, whereas crime is a breach of public rights and duties which affect the whole community.
2. In Tort the wrongdoer has to compensate the injured party whereas in a crime he is punished by the state in the interest of the society.
3. In tort the action is brought about by the injured party or plaintiff whereas in a crime the proceedings are initiated and conducted in the name of the state.
4. In tort damages are paid for compensating the injured and in crime it is paid out of the fine which is paid as part of punishment. The primary objective of awarding compensation in criminal law is punitive in contrast to the compensatory nature of tort law.

Tort and Quasi Contract

A quasi contract is one imposed by law, in the absence of a contract, to prevent one party obtaining an unfair advantage, could be money or performance. Tort and quasi contract can be differentiated in the following way:

1. There is no duty owed to persons for the duty to repay money or benefit received whereas in tort there is a duty imposed.
2. In a quasi-contract the damages recoverable are liquidated damages and not unliquidated as in the case of tort.

 

 

 

 

Difference between Tort and Contract

Tortuous liability arises from the breach of a duty primarily fixed by law whereas a contract is an agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship whose nature content and consequence are determined and defined by parties. Some of the key differences between the two are as follows:

1. In tort rights and corresponding duties of persons are fixed by law whereas in contract they are fixed by the parties themselves.
2. A tort is a violation of right in rem or right available against the world at large. Breach of contract on the other hand is an infringement of a right in personam or right available against determinate person(s).
3. In tort the measure of damages is unliquidated or incapable of being determined beforehand. It is for the Court to compute and award damages. In a contract however damages are liquidated i.e. determined by the parties themselves.