Module – I
Nature & Definitions of tort
1. What is the meaning of tort?
2. What is the nature of tort?
3. What are the definitions of torts?
4. What is the Characteristics of the tort – Concept?
What is the meaning of tort?
The word tort has been derived from the Latin term ‘tortum’, which means ‘to twist’. Thus, tort means “a conduct which is not straight or lawful, but on the other hand twisted, ,crooked or unlawful.” It is equivalent to the English term ‘wrong’.
What are the definitions of torts?
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 redressible by an action or unliquidated damages.”
According to Salmond –
“It 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 the breach of a trust or other merely equitable obligation.”
According to Underhills –
“An act or omission which, independent of contract, is unauthorized by law, and results either in the infringement of some absolute right to which another is entitled, or in the infliction upon him of some substantial loss of money, health, or material comfort, beyond that suffered by the rest of the public, and which infringement or infliction of loss is remediable by an action for damages.”
According to Pollock –
“Tort is an act or omission (not merely the breach of a duty arising out of personal relations, or undertaken by a contract which is related to harm suffered by a determinate person, giving rise to a civil remedy which is not an action of contract.”
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”
According to Fraser –
“It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.”
What is the nature of tort?
After analysis of above definitions tort may be defined as “a civil wrong that is redressible by an action for unliquidated damages. Additionally, tort covers a civil wrong which is other than a mere breach of contract or breach.”
- Tort is Civil Wrong
- This civil wrong is other than mere of contract or breach of trust
- Tort is redressible by an action for unliquidated damages
What is the Characteristics of the Tort – Concept
- A law of tort is a law relating to the violation of a person’s rights. Under special circumstances, rights and duties arise between individuals according to the common law. The infringement of these duties and rights is called tort.
- A tort is different from unfair acts that are wholly subject to breach of contract.
- Remedy of the tort can be obtained by filing a suit for damages in the civil court.
- Both tort and crime are different.
- Tortious Liability is against all the people of the society, so every person of the society is obliged not to do the wrongdoing. It is a public right( Right in Rem).
- The main aim is to re- compensate the plaintiff for the loss suffered by him
- Tort is always redressible by an action for unliquidated damages
What is the difference between tort and Crime?
- Tort is an infringement of private or civil rights of individualwhile crime is a breach of public rights which affect the whole community.
- The forum of redressal is civil court in the matter of tort while processing are to be initiated in a criminal court in a crime.
- The suit for damages is filed in the Civil Court against the wrongdoers by the plaintiff himself in tort while proceedings are initiated against the accused by the state in crime.
- The main aim is to re – compensate the plaintiff for the loss suffered by him from the wrongful act of the defendant in tort while the main aim is to punish the accused if convicted to set example such crime is not repeated in future in crime.
- What is the difference between tort and breach of contract?
- There is a breach of duty which is fixed by law in tort while there is a breach of Duty which is fixed by the contracting parties in contract.
- Motive for breach of duty is immaterial in tort while motive for breach of contract is often taken into consideration.
- There is a violation of a right in rem i.e., a right vested in some determinate person and available against the whole world in tort while A breach of contract is an infringement of a right in personam i.e., a right available only to a some definite person and in which society has no concern in contract.
- Damages are generally unliquidated and are determined by the court on the facts and circumstances of the case in tort while damages are fixed according to the terms and conditions of contract.
What is the difference between tort and breach of trust?
- Damages are unliquidated in tort while the damages may be liquidated as well as unliquidated in trust.
- There exist a relationship of trustee and beneficiary between the two in trust while it is not in tort.
- Trust is a breach of law of property, while tort is not.