Law Of Torts
“Law of Torts”,The word TORT is derived form the Latin word “TORTUM” that means “TWISTED”.It can be related to the English word “WRONG”.
Meaning Of Tort :
In very simple words,Whenever a wrong doer violates some legal rights vested in another person,it is simply said a tort.For Example : Violation of a duty to injure the reputation of someone else results in the torts of Defamation,Violation of a duty not to defraud another results in the tort of deceit,etc.
Different Philosophers defined the torts differently,the important one’s are here :
- According to Salmond , “It is a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of the contractor the breach of the 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 the persons generally and its breach is redressible by an action for unliquidated damages. “
- According to Fraser , “It is an infringement of legal right in rem of a private individual giving a right for compensation at the suit of injured party. “
- According to Section 2(m),The Limitations Act,1963 , “Tort means a civil wring which is not exclusively a breach of contract or breach of trust. “
Now the points that can be deduced after going through these definitions by different scholars are that :
- Tort is said to be committed when the legal rights of a person is harmed by the other.
- The damages or compensation is made to the aggrieved party by the other party.
- The party against which to tort is committed is known as the Aggrieved Party and acts as Plaintiff while the party by whom the tort has been committed acts as Defendant.
Evolution of Law of Torts :
- The Torts were formally introduced in England after the Norman invasion through the courts of Normandy and Angevin Kings of England.Though is Torts are uncodified across many Common Law Countries,however it is codified in American Jurisprudence.Law Of Torts are still in the process of development.
- A tort can take place either by the commission of an act or by omission of an act.
- Torts In India : Torts existed in the Pre-British era in Hindu Muslim Jurisprudence to deal with fraudulent conduct.But the thing was that the scope of torts was narrow at that time.British Empire brought the Common Law and the Tort Law to India by the 3 Presidency Courts through the efforts of Sir Henry Man and Sir James Stephens.An attempt was made to codify the torts in India by Sir Federick Pollock but was not succeeded in doing so as the Indian Civil Wrong Bill was never legislated.
Process Of Elimination :
Whenever a wrong is done, the very first thing that is identified is that whether the wrong is a criminal wrong or a civil wrong .If it is civil wrong then it is checked by placing the wrong in the Breach of Contract,if the wrong doesn’t fits in breach of contract,then it is tried to place in Breach of Trust.If the wrong doesn’t fits in either breach of trust or breach of contract,then it will be considered as tort.
Essentials Of Torts :
- There should be a wrongful act/omission on the part of a person.
- The wrongful act/omission must result in infringement of legal rights of another person.
- Legal remedy for the wrongful act/omission.
Difference Between Law of Tort & Law of Torts :
Law Of Tort :
- According to Winfield & Pollock,All injuries done to another person are tort unless there is some jurisdiction recognized by law.
- Therefore,this theory conveys that torts not merely consists those torts which have acquired specific names,but also includes the wider perception that all unjustified harm is tortious.
Law Of Torts :
- This Theory was supported by Salmonds and is also known as PIGEON HOLE THEORY.
- According ti this theory,the law of torts consists of a set of pigeon holes,each hole contains a specified tort.If the wrong doesn’t fit in any of these pigeon holes,then no tort is said to be committed.
Law of Torts is not yet codified because codifying it will limit it’s scope.
Difference Between Law Of Torts & Law Of Contracts :
- In contract,Parties are known to each other but Tort is imposed by law.
- Duties are fixed by parties in contract while in tort,duties are fixed by law.
- In contract there are liquidated damages whereas in torts the damages are unliquidated.
- In contract, privity if contract is present,i.e stranger to contract can not sue, but in tort privity of contract is absent,i.e. stranger cans sue if tort is committed against him.
- Leading case : Balfour Vs Balfour(In Contract) & Donogue Vs Stevenson (Ginger beer case) (In Tort).
Difference Between Torts & Crime :
- Torts is a Civil Wrong while Crime is a Public Wrong.
- Tort is Right In Personam(Right against a person) whereas Crime is Right in rem(right against the whole world).
- Parties are known as Plaintiff & Defendant in Torts while in Crime, Parties are known as Prosecution & Defence.
- In Torts, The individual against whom the wrong is done files the case while in Crime State files the case.
- Compensation, Injunction are the penalty in tort while in Crime, Punishment or Fine are the penalty.
- In Tort two parties can compromise, but in Crime, no compromise is done.
- Exemplary Damages are provided in some cases.(Eg : Punitive Damages) in Tort while in Crime, Deterrence : Punishment is given to set an example to the society.(Eg : Death Sentence).
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