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Q. Define Tort and Law of Tort. Discuss Its Nature. What Are Its

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Q. Define Tort and Law of Tort. Discuss Its Nature. What Are Its Q. Define Tort and Law of Tort. Discuss its nature. What are its various ingredients? What conditions must be satisfied before a liability in Tort arises? "A tort is a civil injury but all civil injuries are not Torts". Explain. Distinguish between Tort and Crime. How many kinds of Torts are there? The word tort has been derived from the latin word "tortum" which means to twist. In general, it means conduct that adversely affects the legal right of others and is thus, "wrong". For a healthy society it is necessary that it be free of anti-social elements and that an individual should have freedom to exercise his rights without being restricted by others. Further, if there is a transgression of any right, there must be a way to compensate or to restore the right. This is essentially what the maxim, "Ubi just ibi remedium" implies. Where ever there is a right, there is a remedy. Indeed, a right has no value if there is no way to enforce it. Such rights of individuals primarily originate from two sources - contractual obligations and inherent rights that are available to all the citizens against every other citizen, aka rights in rem. While the violation of contractual right has clear remedy that arises from the contract itself, the violation of rights that are available to all the persons in general does not have a clear remedy because there is no explicit contract between the two parties. Such violations are called wrongs and it is for such wrongs that the law of torts has been developed. For example, one has a right against all other persons to be free of noise in the night. If somebody starts playing music loudly, then he violates one's right to be noise free. He is, thus, doing a wrong and even though there is no contract between the two, one can sue him for damages. There can be innumerable types of acts that can transgress the rights of others and it is not possible to come up with a definition that can accommodate all the cases. However, the following are some definitions from the experts - Salmond - A tort is a civil wrong for which the remedy is action in common law for unliquidated damages and which is not exclusively a breach of contract or breach of trust or other equitable obligation. Winfield - Tortious liability arises from the breach of duty primarily affixed by law. The duty is towards persons in general and its breach is redressable by an action for unliquidated damages. Fraser - Tort in an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party. Thus, it can be seen that tort is an act while the law of tort is the branch of law that provides relief to the person who has been injured due to a tortious act. From the above definitions, it is clear that the nature of a tort is that it is a civil wrong. However, not all civil wrongs are torts. For example, breach of contract and breach or trust are civil wrongs but are not torts because their remedies exist in the contract itself. To determine if a particular act is a tort or not, we must first make sure that it is a civil wrong. We should then make sure that it is NOT a breach of contract or breach of trust. Historically, crime and tort originated from the same root. Later on, they separated on the account that a crime does not only affect the victim but also to the society as a whole to a great extent. Thus, the branch of law that deals with criminal conduct evolved a lot faster than the branch of law that deals with torts. The nature of tort can be understood by distinguishing it from crime and contractual civil liabilities. It can be said that tort is the residual of wrongful acts that are not crime and that do not fall under contractual liabilities. Thus, if a wrongful act is neither crime nor a violation of a contract, it may fall under tort. The damages are unliquidated and are decided only by the common sense of the courts. The following differences between Tort and Crime and Tort and Breach of Contract, shows the true nature of Tort. Distinction between Tort and Breach of Contract Tort Breach of Contract Tort occurs when the right available to all the A breach of contract occurs due to a persons in general (right in rem) is violated without breach of a duty (right in persona) the existence of any contract. agreed upon by the parties themselves. Victim is compensated for unliquidated damages as Victim is compensated as per the terms per the judgment of the judges. Thus, damages are of the contract and damages are always unliquidated. usually liquidated. Duty is fixed by the law of the land and is towards all Duty towards each other is affixed by the persons. the contract agreed to by the parties. Doctrine of privity of contract does not apply because Only the parties within the privity of there is no contract between the parties. This was contract can initiate the suit. held in the case of Donaghue vs Stevenson 1932. When a contract is void, there is no question of compensation. For Tort applies even in cases where a contract is void. example, a contract with a minor is void For example, a minor may be liable in Tort. ab initio and so a minor cannot be held liable for anything. Justice is met by compensating the victim for his injury and exemplary damages may also be awarded Justice is met only by compensating to the victim. In Bhim Singh vs State of J K AIR the victim for actual loss. 1986 - the plaintiff was awarded exemplary damages for violation of his rights given by art 21. In the case of Donaghue vs Stevenson 1932, A purchased ginger beer in a restaurant for his woman friend. She drank a part of it and poured the rest into a glass. Thereby, she saw a dead snail in the drink. She sued the manufacturer. It was held that the manufacturer had a duty towards the public in general for making sure there are no noxious things in the drink even though there was no contract between the purchaser and the manufacturer. The same principal was applied in the case of Klaus Mittelbachert vs East India Hotels Ltd AIR 1997. In this case, Lufthansa Airlines had a contract with Hotel Oberoi Intercontinental for the stay of its crew. One of the co-pilots was staying there took a dive in the pool. The pool design was defective and the person's head hit the bottom. He was paralyzed and died after 13 yrs. The defendants pleaded that he was a stranger to the contract. It was held that he could sue even for the breach of contract as he was the beneficiary of the contract. He could also sue in torts where plea of stranger to contract is irrelevant. The hotel was held liable for compensation even though there was no contract between the person and the hotel and the hotel was made to pay 50Lacs as exemplary damages. Distinction between Tort and Crime Tort Crime Tort occurs when the right available to Tort occurs when the right available to all the persons in all the persons in general (right in rem) general (right in rem) is violated without the existence of any is violated and it also seriously affects contract. the society. Act is comparatively more serious and Act is comparatively less serious and affects only the person. affects the person as well as the society. Intention is the most important element Intention is usually irrelevant. in establishing criminal liability. A crime cannot happen without Mens Rea. It is a private wrong. It is a public wrong. Since it is a private wrong the wronged individual must file a Since it is a public wrong, the suit is suit himself for damages. filed by the govt. The suit is for damages. The suit is for punishment. There is no compromise for the Compromise is possible between the parties. For example, a punishment. For example, if a person is person who has been defamed, can compromise with the guilty of murder, he cannot pay money defamer for a certain sum of money. and reduce his sentence. Compounding is possible. Compounding is generally not possible. Justice is met by compensating the victim for his injury and Justice is met by punishing the exemplary damages may also be awarded to the victim. aggressor by prison or fine. In some In Bhim Singh vs State of J K AIR 1986 - the plaintiff was specific cases as given in IPC awarded exemplary damages for violation of his rights given compensation may be given to the by art 21. victim. Several criminal acts such as assault Tortious acts are usually not criminal acts. and battery are also grounds for tortious suit. Ingredients of Tort (Conditions that must be satisfied before a liability in Tort arises.) There are three essential elements for an act to be liable under Tort. 1. Wrongful act or omission - There must be some act or omission of a duty on the part of the defendant. For a tort to happen, the person must have first either done something that he was not expected to do or omitted to do something that he was supposed to do. Municipal Corp of Delhi vs Subhagvanti AIR 1966 - A clock tower was not in good repairs.
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