Law of torts – definition, meaning, scope & nature
Meaning of torts
The word tort has been derived from the Latin term ‘Tortum’ which means to twist. The word Tort means a conduct which is not straight and lawful but on the other hand is twisted, crooked or unlawful. In other words, a tort is a civil wrong, independent contract, giving rise to civil remedy, for which compensation is recoverable. It is an act or omission which affect the person in some private legal right.
Definition of Torts
- According to the Salmond, “A 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 contract or breach of trust or other merely equitable obligation”.
- According to Winfield, “Tortious liability arises from the breach of duty primarily fixed by the law: this duty is towards person generally and it’s redressible by an action for unliquidated damages.”
- According to Section 2(m), the Limitation act, 1963, “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”
By observing all these definitions, a tort can be defined as –
“Tort is a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere breach of contract or breach of trust.”
Nature of tort
From the above definition concluded, the followings were observed –
- Tort is civil wrong
- Tort is redressible by an action for unliquidated damages
- Tort is other than a mere breach of contract or breach of trust
Tort is a civil wrong
The nature of Tort is of civil wrong. The basis of civil wrong is different from criminal wrong.
- In case of civil wrong, the injured party or the plaintiff can institute civil proceeding against the wrongdoer or the defendant, where the plaintiff is compensated by the defendant for all the damages caused to him by the defendant.
- In case of criminal wrong, state bought the criminal proceedings and the sufferer is not compensated but the justice is administered to him by providing punishment to the wrongdoer.
In some cases the act done by a person may constitute to both torts and criminal. As a result both civil and criminal proceeding are available, where civil action will provide compensation paid by defendant and a criminal action will award punishment to the defendant.
Tort is redressible by an action for unliquidated damages
Damages are the most important remedy for the tort. After the wrong has been committed by the wrong doer or by the defendant, the injured person or the plaintiff can claim compensation in the form of money from the defendant. In torts damages are unliquidated. When the compensation has not been so determined, but the determination of the same is left to the discretion of the court, the damages are said to be unliquidated damages.
Tort have unliquidated damages because it is difficult to visualize the quantum of loss in the case of a tort and, therefore, the damages to be paid are left to be determined the court.
Tort is other than a mere breach of contract or breach of trust
Tort is a civil wrong and which is not exclusively any other kind civil wrong i.e., it is not a breach of contract nor breach of trust. If it is found that the wrong is a breach of contract or breach of trust then it would not be considered as a Tort, but if act is neither a breach of contract nor a trust then it would be considered as a Tort. Note – There may be a possibility that the act may amount to two or more than two civil wrongs, over which one of them may be tort, then the damages can be claimed on either of the two wrong, damage cannot be claim twice or more than it.
For example – A delivers horse to B for a week for a safe custody, but B allows horse to die for starvation. Here, B’s act amount to two wrongs – breach of contract and negligence in tort. Since, both the wrongs are civil wrongs, the plaintiff can claim damages either in law of torts for negligence or for breach of contract, but cannot claim twice for the damages.
Is it Law of Torts or Law of Tort?
Here, two question arises –
- Is it the Law of Tort, that is, Is every wrongful act for which there is no justification or excuse to be treated as tort?
- Is it the Law of Torts, that is, Is it consist only number of specific wrongs beyond which the liability under this breach cannot arise?
According to Winfield, it is Law of Tort. In his theory, if I injure my neighbor, he can sue me in torts whether the wrong happened to me have a particular name like assault, battery, slander or whether it has no special title at all and I shall be liable if I cannot prove a lawful justification.
According to Salmond, it is Law of Torts. The liability under this branch of law arises only when wrong is covered by anyone or the other nominated torts. There is no general principal of liability and if the plaintiff can place his wrong in any of the pigeon-hole, containing a labelled tort, he will succeed. His theory is also known as “Pigeon-hole theory”. If there is no pigeon hole in which the plaintiff’s case could fit in, the defendant has committed no tort.
Because of the difference in opinion, Winfield book is entitled as Law of Tort, whereas, Salmond’s book is entitled as Law of Torts. But each theory is seems to have received same support and each theory is correct from its point of view.
Since, law of torts, being a developing law, its frontiers are incapable of being strictly barricaded.
Essential of Torts
To constitute a tort, it is essential that all the required elements of a tort have been satisfied. The essential elements are –
- There must be an act performed or an omission of an act on the part of defendant.
- Act or omission should result in a legal damage to the plaintiff. In other words, there must be the violation of a legal right that vested with the plaintiff.
Author: Navya Agarwal,
College - GGSIPU; 2nd year