Nature and Definition of Tort – Law of Torts

Nature and Definition of Tort

The word tort has been derived from the Latin term ‘tortum’, which means ‘to twist’. Thus, Nature and definition of 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, Nature and Definition of 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 results in the tort of deceit. a duty not to defraud another So far no scientific definition has been possible which could mention certain specific elements, the presence of which could constitute a tort as, for example, it has been possible in the case of a contract. The main reason for the same is that the different wrongs included under this head are of diverse species, each having its own peculiar historical background. Most of the tortious wrongs owe their origin to the writ of trespass on the case. These writs were not only responsible for the origin of this branch of law but many other wrongs and legal principles also originated from them. The law of contract, for instance, is practically a gift of these writs. Apart from that, many torts had their origin independently of these writs and their development has been fragmentary and piecemeal.

As a matter of fact, it is an ever growing branch of law and has constantly developed and the area covered in its ambit is continuously increasing.

Some Definitions of Tort

Some of the important definitions, which indicate the nature of this branch of law, are as under :

1. “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust”-S. 2(m), the Limitation Act, 1963.
2. “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.” -Salmond.
3. “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.”-Winfield.
4. “It is an infringement of a right in rem of private individual giving a right of compensation at the suit of the injured party.”-Fraser.

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

As stated above, no such scientific definition of tort has been possible which could explain this wrong by mentioning various elements, the presence of which could be considered to be a tort. The various definitions which have been attempted try to follow a negative approach. They explain the nature of Nature and Definition of Tort by either distinguishing it from other wrongs or by mentioning some of the elements which are found in a tort but are not there in other wrongs. When some wrongful act has been done, it has got to be seen first whether it is civil or a criminal wrong. If the wrong is found to be a civil one, we have to see whether it exclusively belongs to ‘any’ other recognized category of civil wrong like breach of contract and breach of trust’. If we find that it is not exclusively any of the other civil wrongs, then we can say that it is a tort.

Tort.-The term is found in Common Law systems for a civilly actionable harm or wrong, and for the branch of law dealing with liability for such wrongs. Analytically, the law of tort (or torts) is a branch of the law of obligations, where the legal obligations to refrain from harm to another and, if harm is done, to repair it or compensate for it, are imposed not by agreement, but independently of agreement by force of the general law. Socially, the function of tort is to shift loss sustained by one to the person who is deemed to have caused it or been responsible for its happening, and in some measure to spread the loss over an enterprise or even the whole community.

Historically, there was no general principle of tortious liability, but the King’s Courts gave remedies for various forms of trespass, and later allowed an action on for direct injuries, of the case for harm indirectly caused. Other forms harm later became redressible, e.g., libel and slander, and distinct forms of action developed to redress particular kinds of harm, so that the law of tort was concerned with a number of recognized kinds of wrong, each with distinct requirements and procedure, Statute added new entitlements to claim, e.g., in cases of fatal accidents, and new grounds of liability. Case-law has extended liability, e.g., from physical injuries to mental injuries, and from intentional harms to harms done negligently, i.e., Nature and definition of tort by failure to show the standard of precautions deemed necessary in the circumstances. It remains the case, however, that the law of tort is a collection of circumstances in which the courts will give a remedy, normally by way of damages, for legally unjustified harm or injury done by one person to another rather than a general principle of liability applicable to manifold cases. It is potentially confusing to think of tort as connected with wrongs, as the wrongful element consists only in there having been a breach of legal duty, which may be purely technical and not involve any moral delinquency or criminality.

Tort and crime sprang from a common root but have diverged in many respects, but it is still true that many Common Law crimes are also actionable torts, e.g., assault, but not conversely.

Liability in general depends on the defendant having, by act or omission, acted in breach of a legal duty incumbent on him and infringed a recognized legal right vested in the plaintiff and thereby caused the plaintiff harm of a foreseeable kind. Not every harm is actionable; there is no liability for an inevitable accident, or an act of God; there are justifications such as statutory or common law authority. The pecuniary consequence of liability may be shifted by liability insurance.

In tort law, the principle of vicarious liability applies, and joint tortfeasors are all liable for the whole harm caused, with right of relief inter se. If the plaintiff was himself wholly or partly to blame for the damage, damages awarded may be reduced in proportion to the degree in which he was in fault.

The standard of care and precautions which imports liability for harm, is generally failure to take the care and precautions which were reasonable in the circumstances, but in certain cases strict liability applies, where the defendant is liable if he failed to avoid the evil consequences, unless he can establish one of certain limited defences and in cases of breach of statutory duty the liability may be absolute, i.e., there is liability if the prohibited harm happens at all, irrespective of precautions.

Torts may be classified into those involving intention, those involving negligence, and the wrongs of strict liability. They may also be classified into torts affecting the person (e.g., trespass, negligence), the family (wrongful death of a relative), reputation (libel and slander), property (e.g., trespass to land or goods, nuisance, conversion), economic rights (deceit, inducement of breach of contract, injurious falsehood), and certain miscellaneous torts such as conspiracy. There are certain kinds of conduct, such as infringement of privacy, which are not yet, but may come to be, recognized as actionable torts.

The normal remedy for a tort is an award of pecuniary damages in compensation for the computation of harm done; in personal injury and death cases, the circumstances, damages involves many complicated issues. e.g., nuisance, an injunction is a competent remedy.

We may define tort as a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere breach of contract or breach of trust.

Thus, it may be observed that :
(1) Tort is a civil wrong;
(2) This civil wrong is other than a mere breach of contract or breach of trust;
(3) This wrong is redressible by an action for unliquidated damages.

 Tort is a civil wrong – Nature and Definition of Tort

Tort belongs to the category of civil wrongs. The basic nature of civil wrong is different from a criminal wrong. In the case of a civil wrong, the injured party, i.e., the plaintiff, institutes civil proceedings against the wrongdoer, i.e., the defendant. In such a case, the main remedy is damages.

The plaintiff is compensated by the defendant for the injury caused to him by the defendant. In the case of a criminal wrong, on the other hand, the criminal proceedings against the accused of a criminal wrong, the are brought by the State. Moreover, in the case individual, who is the victim of the crime, i.e., the sufferer, is not compensated. is administered wrongdoer

Justice by punishing the possible that the same act done by in such a case. It is, however, person may result in two wrongs, a crime as well as a tort, at the same time.

In such a case, both the civil and the criminal remedies would concurrently be available. Nature and definition of tort would be civil action requiring the defendant to compensation as well as pay a criminal action awarding punishment to the wrongdoer.

Tort is other than a mere breach of contract or breach of trust

Tort is that civil wrong which is not exclusively any other kind of civil wrong. If we find that the only wrong is a mere breach of contract or breach of trust, then obviously it would not be considered to be a nature and definition of tort. Thus, if a person agrees to purchase a radio set and thereafter does not fulfil his obligation, the wrong will be a mere breach of contract. It is only by the process of elimination that we may be able to know whether the wrong is a tort or not. First, we have to see whether the wrong is civil or criminal; if it is a civil wrong, it has to be further seen if it exclusively belongs to another recognized category of civil wrongs, like breach of contract or breach of trust. If it is found that it is neither a mere breach of contract nor any other civil wrong, then we can say that the wrong is a ‘tort’.

It may be noted that there is a possibility that the same act may amount to two or more civil wrongs, one of which may be a tort. For example, if A delivers his horse to B for safe custody for a week and B allows the horse to die of starvation, B’s act amounts to two wrongs breach of contract of bailment and commission of tort of negligence. Since both the wrongs are civil wrongs and damages is the main remedy for any kind of civil plaintiff can wrong, the claim damages either under the law of torts for negligence, or for the breach of contract of bailment. He cannot claim damages twice.

Tort is redressible by an action for unliquidated damages

Damages is the most important remedy for a tort. After the wrong has been committed, generally, it is the money compensation which may satisfy the injured party. After the commission of the wrong, it is generally not possible to undo the harm which has already been caused. If, for example, the reputation a of a person has been injured, the original position cannot be restored back. Nature and definition of tort the only thing which can be done in such a case is to see what is the money equivalent to the harm by way of defamation and the sum so arrived at is asked to be paid by the defendant to the plaintiff.

There are other remedies also which could be available when the tort is committed. It is also just possible that sometimes the other remedies may be more effective than the remedy by way of damages. For example, when a continuing wrong like nuisance is being committed, the plaintiff may be more interested in the remedy by way of ‘injunction’ to stop the continuance of nuisance, rather than claiming compensation from time to time, if the nuisance is allowed to be continued.

The idea of mentioning the remedy by way of damages in the definition is just to explain the nature of the wrong. Apart from that, the fact that damages is the most important remedy for tort, and generally, it is the only remedy after the tort is committed, indicates that the criminal wrong. wrong is a civil wrong, rather than a Damages in the case of a tort are unliquidated. It is this fact which enables us to distinguish tort from other civil wrongs, like breach of contract or breach of trust, where the damages may be liquidated. Liquidated damages mean such compensation which has been previously determined or agreed to by the parties. When the compensation has not been so determined but the determination of the same is left to the discretion of the court, the damages are said to be unliquidated. It is possible in the case of a contract that the contracting parties, at the time of making of the contract, may make a stipulation as regards the amount of compensation payable by either of the parties in the event of a breach of the contract. If it is genuine pre-estimate of the compensation for the breach of the contract, it will be known as liquidated damages. There is no possibility of any such pre-determination of damages by the parties in the case of a tort. Generally, the parties are not known to each other until the tort is committed and moreover, it is difficult to visualize beforehand the quantum of loss in the case of a tort, and therefore, the damages to be paid are let to be determined at the discretion of the court. Such damages, therefore, are unliquidated.

The nature of a tort can be understood by distinguishing

  1. Tort and Crime
  2. Tort and duty in other civil cases, viz., a Contract, a Trust and Quasi-contract.

Tort and Crime distinguished – Nature and Definition of Tort

(i) The wrongs which are comparatively less serious are considered to be private wrongs and have been labelled as civil wrongs, whereas more serious wrongs have been considered to be public wrongs and are known as crimes.

According to Blackstone “Wrongs are divisible into two sorts or species, private wrongs and public wrongs.

The former are the infringement or privation considered as of private or civil rights belonging to individuals, individuals, and are thereupon frequently termed civil injuries; the latter are breach and violation of public rights and duties which affect the whole community considered as a community; and are distinguished by the harsher application of crimes and misdemeanours.

There are various wrongs which find their place both under criminal law and law of torts. Some examples of such wrongs are Assault, Defamation, Negligence, Conspiracy and Nuisance. The definition of any one of these wrongs may. be different under civil and criminal liability for any one of the wrongs, laws. Nature and definition of tort For the purpose of civil the rules of law of torts will be applicable and for the purpose of criminal liability, the rules of criminal law will apply, Generally, when the wrong is a serious one or affects a large number of members of the public, it is placed under criminal law. For instance, if a person causes an obstruction outside a residential building, as the wrong affects only the residents of the building, it would be considered as a tort of private nuisance. If, however, a similar obstruction is caused in the middle of a public road, it would amount to offence of public nuisance stated in Sec. 268, I.P.C.

The rules applicable in case of tort are generally different from those in the case of crime. For example, in the case of tortious liability for the wrong of defamation, truth is in itself a defence, whereas in an action for the offence of defamation, the defence of truth can be taken if the publication was made for public good.

(ii) Since tort is considered to be a private wrong, the injured party himself has to file a suit as a plaintiff. If, at any stage, the injured party likes, he may agree to a compromise with the tortfeasor and withdraw the suit filed by him. In the case of crime, on the other hand, even though the immediate victim is an individual, the criminal wrong is considered to be a public wrong, i.e., a wrong against the public at large or wrong against the State. The criminal proceedings against the wrongdoer are, therefore, not brought by the injured party but by the State. Moreover, except in certain exceptional cases,’ the law does not permit a settlement in criminal cases between the wrongdoer and aggrieved party and, thus, the compounding of an offence is, as a general rule, considered to be unlawful.

(iii) In the case of tort, the ends of justice are met by awarding compensation to the injured party. In the case of crime, the wrongdoer is punished. The idea of awarding compensation to the injured party under civil law is to make good the loss suffered by him. The punishment under criminal law protects the society by preventing the offender from committing further offences and deterring him and other potential offenders from committing wrongs.

Although payment of compensation to the injured party is a civil remedy to be provided by the civil Courts, in certain exceptional cases, Section 357, Cr. P.C. 1973, even a as provided by criminal Court while passing judgment may order that the injured party may be paid compensation out of the fine imposed.

Such amount of compensation may not be sufficient as compared to the loss suffered by the injured party, and if subsequently, a civil suit is filed in respect of the same matter to claim compensation, the civil Court shall take into account any sum paid or recovered as compensation under Section 357, Cr. P.C.1973.

Imprisonment is a form of punishment awarded under criminal law. Under civil law also, arrest and detention may be made. There is, however, a basic difference between the detention made in civil and criminal cases. Under criminal law, the imprisonment is made by way of penalty for a wrongful act having been already done, whereas under civil law, the idea is to put pressure upon the defendant to perform certain duty, and the defendant is released when the duty has been performed. For example, in civil cases, al judgment-debtor may be arrested in execution of a decree under Sec. 57, Cr. P.C. Such a person is released even before the expiration of fixed term, if the decree is satisfied.

Sometimes, the same set of facts may constitute both a tort and a crime. The civil and criminal remedies in such a case are not alternative but they are concurrent. The wrongdoer may be required to pay compensation under the law of torts, he may also be held liable under criminal law. For instance, if A digs a ditch on a public road resulting in inconvenience to the public at large, A has committed the offence of public nuisance as defined in Section 268, IPC. If X, a passer-by, falls into that ditch and thereby gets injured, A’s act also becomes a tort of private nuisance as against X. Not only will A be punished under criminal law for the offence of public nuisance, he will also be liable to compensate X under the law of torts.

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Santhakumar Raja

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