Law of torts – Definition, Meaning, Scope & Nature
Tort is a civil wrong i.e.; it is a wrong against an individual. The word tort has been derived from the Latin word ‘Tortum’, which means crooked or twisted. The origin of tort can be traced to Roman precept ‘alterium non-laedere’ which means ‘not to injure someone’ i.e., not to hurt someone by deeds or words. A tort is an infringement of a Right in Rem.
There are two types of rights:
- Right in Rem – available against the whole world.
- Right in Persona- available against any particular individual.
Every person has a right to the enjoyment of his own property and any person who has violated or infringed, will be sued a liable to pay the compensation in the form of unliquidated damages. This is known as ‘Right in Rem’. There need not be any pre-existing relation between the parties. The only requirement is the existence of a right and that right has been infringed by the person.
Section 2(m) of Limitation Act,1963 defines torts as “tort means a civil wrong which is not exclusively a breach of contract or trust”.
According to Salmond–
“Tort as a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.
According to Winfield–
“Tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards persons generally and its breach is repressible by an action for unliquidated damages.”
One of the most important and right allocation of words was done by Lord Denning in The House of Lords as “The province of tort is to allocate responsibility for injuries conduct”.
NATURE OF TORT:
A tort is a civil wrong and thus can be differentiated from various other forms like contract, crime, quasi contract and breach of trust.
Difference between Tort and Contract are as follows:
Firstly, Tort is the violation of Right in Rem i.e., right exercisable against the whole world whereas breach of contract is an infringement of Right in Persona i.e., exercisable against any particular person or persons.
Secondly, in tort, the duty is one imposed by law is owned to the society in general. On the other hand, in contract the duty is fixed by the will and consent of the parties and it is owed to a definite person.
Difference between Tort and Crime are as follows:
Firstly, Tort is the breach of private right whereas, Crime is the breach of public right.
Secondly, in case of torts it is the individual who files a suit whereas, in case of crime state files a suit or is a party to the suit.
Thirdly, in case of tort the suit can be withdrawn or compromised. But in case of crime, except from the offences mentioned under section 320 of CRPC, no suit can be withdrawn or compromised.
Difference between Tort and Quasi Contract are as follows:
Firstly, in case of tort, the plaintiff is entitled to get unliquidated damages whereas, in case of quasi contract the legal remedies available for the plaintiff are – injunctions, specific restitution of property and the payment of liquidated damages of money by way of penalty etc.
Secondly, in tort, the duty is towards persons generally. Every person is under certain obligations against other public, not to cause injury or harm. On the other hand, in case of quasi contract, there is a contract implied by the law and therefore contractual liability is imposed upon the defendant.
Difference between Tort and Breach of Trust:
Firstly, Tort is formulated from the judicial decisions, especially in the Common Law of England. On the other hand, Law of Trust and Equitable obligations originated and developed in the Court of Chancery (court of equity).
Secondly, Tort is not a codified law whereas law of trust is a codified law.
Thirdly, in case of tort motive is not relevant whereas in case of breach of trust motive is relevant.
ESSENTIALS OF TORT:
A wrongful act or omission:
To make a person liable for tort, there must be an act or omission committed by that person in the performance of his legal duty.
For example: if a person enters into someone else’s private property without that person’s consent, then he has committed trespass. In the same way defaming a person of his reputation is also a wrongful act and will come under defamation.
The act must give rise to legal or actual damage:
The second essential in constituting a tort is legal damage. In order to prove an action for tort in the court, the plaintiff has to prove that there was a wrongful act or omission which resulted in the breach of a legal duty or the infringement of a legal right. Unless there is a violation of a legal right, an action under the law of torts cannot lie.
The legal damages are of two types:
It means a violation of a legal right without causing any damage to the other person. Since there is a violation of a legal right; it is actionable even without proof of damage.
To understand this principle, a landmark case is stated below:
Ashby v. White: In this case, the defendant, a returning officer in an election, wrongfully refused to take the vote of the plaintiff, an eligible voter. The plaintiff didn’t suffer any loss by this refusal as the candidate for whom he wanted to vote, won the election. The defendant was, however, held liable, because the plaintiffs’ legal right had been violated.
It means causing damage without the violation of a legal right. Unless there is an infringement of a legal right, mere causing damage isn’t actionable.
The following case law will help us better understand this principle:
Gloucester Grammar School Case: For this situation, the plaintiff set up an opponent school to that of the plaintiff. Due to the opposition, the plaintiff needed to diminish their charges from 40 pence to 12 pence per researcher for every quarter. It was held that the plaintiff had no solution for the loss along these lines endured by them.
Whether Mental component is a significant constituent of Tort:
For the most part, under criminal law, Mens Rea or a blameworthy psyche is an essential component for liability. In any case, the equivalent isn’t the situation with the Law of Torts. Torts, for example, assault, battery
Accordingly, it tends to be reasoned that tort is a common wrong which is caused when one individual abuses the lawful right of the other. Also, the idea of mental component might be significant in certain tort as to decide it, we would initially need to know the idea of the tort submitted by the person. It tends to be done purposefully like on account of Battery, just as coincidentally without the goal of submitting such a demonstration by playing out specific acts recklessly or unintentionally like on account of negligence. The law of torts is generally utilized in nations like the USA, Canada, and others while India utilizes just a piece of it which is the “Consumer Protection Act”.
Author: PRISHITA SARAIWALA,
KIIT SCHOOL OF LAW / 2ND YEAR