Law of Torts
A) Introduction –
Law of torts is not a codified law like other laws. This law of torts has its origin from the judicial precedents and case laws in English law. The word tort was the first time used in an old English case viz. Boulton cs Hardy in the year 1597. The word tort has been derived from the Latin term torture which means to twist or from the French word tort meaning as “wrong”. A tort is the breach of a duty independent of any contract which gives rise to a cause of action & for which civil court may award compensation. Tort feasor is a person who commits the wrong & wrongful act is called a tort or tortuous act.
B) Definition –
Some jurists & authors defined the term tort as follows –
1) According to Salmond – “ tort is a civil wrong for which remedy is a common-law action for unliquidated damages and which is not exclusively the breach of contract, or breach of trust, or other merely equitable obligation.”
2) According to Winfield- “tortuous liability arises from breach of duty fixed by law, this duty is towards persons generally, and its breach is redressable by an action for unliquidated damages.”
3) Burdick defines a tort as an “an act or omission which unlawfully violates a person’s right created by law and for which appropriate remedy is common law action.
4) Lord Denning – “The province of tort is to allocate responsibility for injurious conduct.”.
C) Law of torts – Position in India –
As India was ruled by British Country the law of torts evolved since then out of judicial decisions. Hence the law of torts in India is not other than the English law of torts which is based on the common law of England. In India also when a statutory or customary law does not exist, courts in India apply the principles of justice, equity, & good conscience. These common-law rules and principles are applicable in such circumstances.
D) Essentials of a Tort –
The following are the essential elements of a tort., viz…
1) Civil wrong –
First of all, a tort is a civil wrong and not a crime which has remedy based on common law principles. If a civil wrong has the remedy in a statute then such civil wrong cannot be termed as a civil wrong.
2) Violation of right in rem /Legal damage –
In tort, there is a violation of a right in rem. Right in rem means right available against the whole world. Right in personam means right available against a person only.
3) Legal Right –
The infringed right must be a legal right or a right which is fixed by law., apart from the consent of parties.
4) Common law action –
The remedy should be based on common law principles for which no legislature made law exists.
5) Legal Remedy –
The remedy based on common law should be by way of damages, which is compensation in money. Also, other remedies are injunction, specific restitution, are available under the law of torts.
E) Difference between Tort & Crime –
For understanding the concept of tort which is not a crime the difference between two terms has to be understood. But it is also important to note here that some acts can be both, i.e. tort and crime. e.g. Assault, libel, etc. For such acts both remedies are enforced by Courts., I .e.compensation as well as punishment of imprisonment, fine.
1) Nature-
A tort is a private wrong or violation of the right of an individual.
As regards the concept of crime is concerned it is against the whole society which affects the rights and duties of the whole society.
2) Procedure –
In the law of torts, the suit is filed by the injured person himself.
On the other hand for a crime under criminal law procedure is taken and conducted in the name of the state.
3) Remedy –
In the law of tort, the wrongdoer has to pay compensation to the injured party.
While in crime, the individual who committed a crime is punished by the state.
F) Difference between tort and breach of contract-
Although both the concepts are similar in various aspects, the distinction can be explained as follows :
i) Nature of right –
In a tort right in rem (right against the whole world) is violated. While in breach of contract there is an infringement of a right in personam (right against the person).
ii) Privity –
In the contract, there is privity ( legal relationship) between parties.
But in tort, no such privity exists and infringement is done against the will of party injured.
iii) Consent –
In tort there exist no consent, & right is infringed against the will of another person.
But in Contract obligation is based on the consent of parties to the contract.
iv) Liability-
In tort, the liability is imposed by the law while in contract, the liability is fixed by consent of parties, by the free will of themselves.
v) Period of limitation.-
In case of breach of contract, the time of limitation ( for the suit to be filed in limitation period) starts from the date of the breach.
While in the case of tort, the limitations period time starts from the date when damage is done.