DISCHARGE IN TORTS
- There are seven different modes through which tort is discharged and no remedy will lie for tort.
- It is a procedure for bringing a tort to an end.
- A perpetrator bears no responsibility for his acts.
1. Death of the parties
- The maxim ‘actio personalis moritur cum persona’ applies here, which says that once a person dies, his or her personal right of action expires as well.
- The fundamental principle is “Actio personalis moritur cum persona,” which implies that if the person who commits a tort or the person against whom the tort is committed dies, the personal right to claim damages or the right to bring an action dies with them.
- This maxim is applicable in two scenarios.
- Death of the person who was the victim of the tort, i.e., the Petitioner.
- When the individual who committed the tort, i.e., the plaintiff who went to court and filed a lawsuit, died, his personal right of action perished with him.
- With respect to Petitioner, there are several exceptions to the maxim “Actio personalis moritor con persona.”
- There are laws in India that provide an exemption to the preceding principle, such as the Legal Representative Suits Act, 1885. According to this Act, after a person’s death, the legal representative or executors of that person can represent that person in a court of law.
- Similarly, the plaintiff’s counsel can represent him in court under various laws/acts such as the Fatal Accident Act, the Indian Succession Act, and the Workmen Compensation Act, among others.
Death of the defendant
- The tort is dismissed when the individual who commits the tort against another person, i.e., the defendant, dies.
- With regard to Defendant, there are some exceptions to the maxim “Actio personalis moritor con persona.”
- The Legal Representative Suits Act, 1885 is one example of a law in India that makes an exception to the preceding rule. If a person involved in a tortious act dies during the course of the trial, this act applies. The legal representative of that person receives the right to sue.
- Similarly, the defendant’s counsel must represent him in court under many laws/acts such as the Fatal Accident Act, Indian Succession Act, Workmen Compensation Act, and so on.
2. By Waiver
The waiver is the second way of tort discharge. Waiver is defined as when a person has more than one remedy open to him and must choose one of them. Except in cases of defamation and assault, he cannot pursue both remedies.
The doctrine of waiver is based on two major principles:
- Any one remedies must be chosen by the individual.
- If the person does not receive the remedy he desires, the court will not allow him to pursue an alternative remedy.
The Waiver can be Implied or Express.
- In Express waiver, the person expressly communicates about his choice in the court of law.
- In the Implied form of waiver, the person impliedly communicates about his choice for which remedy he is applying.
3. Accord and Satisfaction
- When the parties to a tort, i.e., the person who commits the tort and the person against whom the tort has been perpetrated, reach an agreement and settle the issue, this is referred to as Accord. Accord is the name given to such an arrangement. In general, it refers to resolving a dispute by accepting some form of compensation in exchange for the right to sue.
- Satisfaction refers to the real payment of compensation agreed upon by both the person who commits a tort and the person who is the victim of the tort.
- When both the accord and the satisfaction are completed, the tort is discharged, and the dispute is not resolved in a court of law.
- The only condition in the concept of Accord and Satisfaction is the consent of the party should be free and not from fraud, coercion or undue influence.
- The term “release” refers to relinquishing the right to take action. It refers to when a person has chosen to be free of a tort.
- This privilege is only granted to the individual who is the victim of the wrongdoing.
- The release should be voluntary and issued with the injured person’s consent.
- If consent is obtained through coercion, undue influence, or any other illegal means, the release should not be considered valid, and the tort should not be discharged.
- The discharge of tort occurs in this approach when the court issues a judgement.
- If the tort is discharged after the court renders its decision, no further appeals for the same act of tort for the same remedy can be filed in the court of law.
- The principle of this technique of tort discharge is founded on the legal maxim of Res-Judicata, which states that if a cause of action has been decided by the court previously, the court should not accept the same cause of action twice.
- If the petition is filed by the same person but seeks a different remedy or action in response to a breach of a different right. The petition can then be approved.
- In this manner, the tort is dismissed due to the plaintiff’s incapacity, such as a lack of time to attend to court, a lack of funds to pay the court fees, or any other disability.
- When a person has the legal authority to assert his claim but fails to do so for an extended period of time, the other party is released from liability.
7. Law of Limitation
- The tort is dismissed under this technique due to the limitation, i.e., when the required time limit to file the lawsuit expires, the tort is dismissed and no one is entitled to enforce his right.
- For example, in the instance of false imprisonment or libel, the time limit to file a complaint is one year; in the case of trespass to immovable property, the time limit is three years; and so on. Once the time limit has passed, no one may pursue his or her rights.
Author: SAMEER AFZAL ANSARI,
GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY , THIRD YEAR