Nature and Definition of Torts | Law of Torts - CLAT PG PDF Download

Introduction

Meaning

Definitions by Renowned Jurists

• 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, trust, or other equitable obligation."
• Fraser:"A tort is an infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party."
• Winfield:"Tortious liability arises from the breach of a duty fixed by law, which is towards persons generally and is redressible by an action for unliquidated damages."

Statutory Definition of 'Tort'

'Tort' is defined in Section 2(m) of the Limitation Act, 1963 as:

"Tort is a civil wrong which is not exclusively breach of contract or breach of trust."

Distinction Between Torts and Other Branches of Law

Distinction between 'Tort' and 'Crime'

• Tort and crime are two distinct legal concepts with fundamental differences.
• Let's explore the key distinctions between 'Tort' and 'Crime' based on various aspects:

1. Nature of Wrong:

• Tort: A tort is considered a private wrong, involving the infringement of an individual's civil right. It is generally regarded as less serious and is labeled a civil wrong.
• Crime: In contrast, a crime is a public wrong, representing a violation of rights and duties that impact the community as a whole. Crimes are deemed more serious in nature.

2. Nature of Remedy:

• Tort: The primary remedy in the law of tort is damages, which involves compensating the injured party for the harm suffered.
• Crime: In cases of crime, the remedy is punishment, aimed at penalizing the wrongdoer for their actions.

3. Parties to Suits:

• Tort: In tort cases, the suit is filed by the injured or aggrieved party, seeking redress for the harm caused.
• Crime: In criminal cases, the complaint is filed in the name of the State, representing the interests of the community.

4. Withdrawal of Suits:

• Tort: In tort cases, the suit can be withdrawn at any time, and the injured party can compromise with the wrongdoer.
• Crime: In criminal cases, the complaint cannot be withdrawn except under certain circumstances.

5. Codification:

• Tort: The law of torts is not codified, meaning there is no comprehensive legal code governing it.
• Crime: On the other hand, criminal law is codified, with specific statutes outlining offenses and penalties.

6. Bar of Limitation:

• Tort: In the law of torts, there is a bar of limitation for prosecution, meaning there are time limits within which legal action must be taken.
• Crime: In criminal cases, there is no such bar of limitation for prosecution.

7. Survival of Action:

• Tort: In cases of the death of the tort-feasor (the person committing the tort), their legal representative can be sued, except in specific situations like defamation or personal injury not causing death.
• Crime: In criminal cases, if the offender dies, the suit is brought to an end.

Distinction between Tort and Crime

Basis of Application of Law

• There is no separate statute that deals with tort. Tort is based on judicial decisions, whereas crimes are addressed in the Indian Penal Code, 1860.

Basis of Intention

• In tort, intention is important but not in all cases, such as in negligence. In crime, intention is the core element of the offence.
• Despite these differences, injunctions can be granted in both tort and crime. There are various wrongs that fall under both the law of torts and criminal law, such as assault, defamation, negligence, nuisance, and conspiracy.

Distinction between Tort and Breach of Contract

Basis of Fixation of Duty

• In tort, the duty is fixed by law itself.
• In contract, the duty is determined by the parties involved.

Basis of Attribution of Duty

• In tort, the duty is owed to every person in the community or society.
• In contract, the duty is owed to specific individuals or parties.

Basis of Violation of Rights

• A tort involves a violation of a right in rem (a right available against the world at large).
• A breach of contract involves an infringement of a right in personam (a right available only against a specific person or party).

Basis of Need of Privity

• In an action for tort, privity is not required to be proved.
• In a breach of contract, privity between the parties must be established.

Basis of Motive

• In tort, motive is often considered.
• In breach of contract, motive is irrelevant.

Basis of Damages

• In tort, the measure of damages varies based on circumstances and can be nominal or exemplary.
• In breach of contract, damages are awarded as compensation for the pecuniary loss suffered.

Basis of Suit by Third Party

• A third party can sue for tort even in the absence of a contract between the injurer and the injured party.
• A third party to a contract cannot sue for breach of contract, except in exceptional cases.

Basis of Intention

• Intention is sometimes considered in tort cases.
• In breach of contract, intention is irrelevant.

Basis of Concern

• The law of tort is concerned with losses.
• Contract law is concerned with promises.

Basis of Period of Limitations

• In tort, limitation begins to run from the date when damages occur.
• In breach of contract, limitation commences when the breach of obligation takes place.

Distinction between Tort and Breach of Trust

Basis of Damages

• Damages in a tort are unliquidated.
• Damages in breach of trust are liquidated.

Basis of Origin

• Law of torts originates as part of common law.
• Breach of trust could be redressed in the court of Chancery.

Basis of Law of Property

• Law of tort is not considered a division of the law of property.
• Law of trust can be and is regarded as a division of the law of property.

Distinction between Tort and Quasi-Contract

• Tort: A wrongful act leading to unliquidated damages.
• Quasi-Contract: Involves liquidated damages for specific obligations.