Monday, May 27, 2024





Describe the meaning and nature of tort.

Introduction – 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”. The Law of Torts consists of various torts or wrongful acts whereby the wrongdoer violates some legal right vested in another person.

The law imposes a duty to respect the legal rights vested in the members of the society and the person making a breach of that duty is said to have done the wrongful act. As ‘crime’ is a wrongful act, which results from the breach of a duty recognized by criminal law, a breach of contract’ is the non-performance of a duty undertaken by a party to a contract, similarly, ‘tort’ is a breach of duty recognized under the law of torts.

For example, violation of a duty not to injure the reputation of someone else’ results in the tort of defamation; violation of a duty not to interfere with the possession of land of another person results in the tort of trespass to land; and, the violation of a duty not to defraud other results in the tort of deceit.

Meaning – Tort refers to a legal concept in civil law that encompasses a range of wrongful acts or omissions that can cause harm or injury to another person. Tort law is uncodified i.e., not a written law, like The Constitution of India, 1949. Thus, this law is based on principles which provides a framework for individuals to claim damages as they have suffered a loss due to an act of other party.

“Ubi jus ibi remedium”- means when there is a right there is remedy. This legal maxim serves as the base of Tort Law. It is standing as a fundamental principle implicating that no wrong can remain without remedy. The Tort Law is based on the Common English Law. Therefore, it is easy to say that it is the by-product of judicial decisions In nutshell, Tort is a civil wrong or a wrongful act of person or group of persons, either intentional or accidental, which leads to cause damage or injury to one person, providing him/her to have civil remedies for restitution of such damages.

Definition of Tort – Section 2(m), the Limitation Act, 1963- “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”

Sir John William Salmond (New Zealand Lawyer)- “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.”

Percy Henry Winfield (Legal Scholar)- “Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”

Sir Frederick Pollock- “’The law of torts in civil wrongs is a collective name for the rules governing many species of liability which, although their subject-matter is wide and varied, have certain broad features in common, are enforced by the same kind of legal process and are subject to similar exceptions.”

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.”

The basic idea which is indicated by these definitions is- Firstly, tort is a civil is not a tort. There are other civil wrong, and secondly, every wrong is not tort. There are other civil wrongs also, the important of which are a breach of contract and breach of trust.

Nature of Tort – Law of tort has a district nature from criminal law, contract law and many more, which can be easily understood by the below mentioned;

1. Tort and Criminal Law Historically, torts were closely connected to criminal law and even today, certain aspects of damage laws include punitive elements. However, it’s important to recognize that torts are a specific type of civil wrong or injury. Civil and criminal wrongs are distinguished based on the available legal remedies. Civil wrongs lead to civil litigation, whereas criminal procedures aim to punish defendants for accused acts. Civil proceedings focus on enforcing rights asserted by the plaintiff against the defendant, while criminal proceedings seek to punish the accused for their actions. Occasionally, the same mistake may be the subject of both procedures.

On the other hand, a contract is an agreement between parties that establishes a specific legal obligation. The contract’s nature, substance and implications are determined by the agreement reached between the parties. Salmond views contract as a result of individuals exercising the independent legislative power granted by the law to define their respective rights and duties.

3. Tort and Quasi Contract Instances, where a person is held responsible to another party without a formal agreement for money or rightful benefits, fall into the category of a quasi-contract.

From an orthodox perspective, the presence of a hypothetical contract, suggested by the law, serves as the basis for the duty under a quasi-contract. However, the radical viewpoint argues that the responsibility in a quasi-contract is distinct and rooted in the prevention of unfair enrichment.

4. Tort and Breach of Trust A tort is a civil wrong which is not exclusively the breach of a trust or the breach of other equitable obligations. A civil wrong which is a breach of trust is not a tort. In trust the beneficiary has to pay compensation which is determined on the basis of harm caused to the trust property. Like contract, in trust also the damages is fixed, whereas in tort the damages is not fixed.

The distinction between tort and breach of trust is based on historical reason. Historically the law of tort owes its origin to the common law of England whereas the law relating to trust owes its origin to the Equity Court or the Court of Chancery. Basically, in tort there was violation of common law while in trust there was breach of law of property which was under the jurisdiction of Chancery Court. The Chancery Court had no knowledge of cases relating to Law of torts.

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