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Law of Torts: The Concept

There are essentially two kinds of law codified and uncodified. Codified law refers to a document which is consolidated into a single text and formally adopted, like the Constitution of India. Uncodified law, on the other hand, refers to an unwritten and unconsolidated document, which majorly depends on the judicial precedents, like the Common Law of England.

Law of torts is a branch of uncodified law which, like many other laws, has been borrowed from the English Law.

This article deals with the meaning, nature and essentials of a tort.

Origin of the Concept of Tort

The term 'tort' is derived from the Latin root word 'tortum' which literally means 'something that is twisted or crooked.'

Therefore, tort is a conduct which is not straight or lawful but is twisted, crooked and unlawful.

But the law of torts has its origin in the Roman maxim 'alteriumnon-laedere' which means 'not to injure another.'

Meaning of Tort

In simplest words, tort is a civil wrong. A wrongful act or omission under civil law by which the legal rights of a person are violated falls under the category of torts.

In Common Law system of England, 'tort' accounts for a civilly actionable harm or wrong, and for the branch of law dealing with such wrongs.

The person committing a tort is called a 'tortfeasor', and if there is more than 1 offender, they are termed as 'joint tortfeasors'.

Definition of Tort

According to Salmond, "Tort is a civil wrong for which the remedy is a civil law action for unliquidated damages, and which is not exclusively a breach of contract or a breach of trust, or other merely equitable obligation."

According to Fraser, "Tort is an infringement of a right in rem of a private individual giving the right of compensation at the suit of injured party."

According to section 2(m) of the Limitation Act, 1963, "Tort means a civil wrong which is not exclusively a breach of contract or a breach of trust."

Nature of Tort
The law of torts being uncodified, is amorphous, and so to understand its nature, it is better to follow the reverse approach, i.e. to define what tort is 'not'.

In the above definitions, tort is strictly differentiated from a breach of contract or a breach of trust. So let us dig deeper into that.

Tort vs Contract

Tort Contract
Duty is fixed by the law, i.e. rights and obligations result because of the law in force. Duty is fixed by the parties, i.e. rights and obligations result from the contract between parties.
It involves a right in rem, can be enforced against anyone. It involves a right in personam, privity of contract exists.
The compensation is in the form of unliquidated damages. The compensation is in the form of liquidated damages.
Minors can sue and get sued under law of torts. Minors are not recognized by law of contracts; an agreement with minor is void ab initio.
Mental element (intention and motive) is taken into consideration, but is not essential. Intention or motive behind breach of contract is irrelevant.

Tort vs Breach of Trust

Tort Breach of Trust
It is a civil wrong. It is a crime under section 405 of IPC.
It can be committed against a person or property. It is an offence against property.
Plaintiff and defendant may or may not know each other. It arises out of fiduciary relationship (based on mutual trust)
Relief is in the form of compensation for unliquidated damages. If proven guilty, accused shall be punished with rigorous imprisonment of 3 years, or with fine, or both under section 406 of IPC.
Mens rea not always essential. Mens rea is quintessential.

Tort vs Crime

Tort Crime
The law is uncodified. The law is codified.
Adjudicated by civil courts. Adjudicated by criminal courts.
The injured party (plaintiff) will approach the court. The criminal proceedings against the accused are brought by the State. 
It is less serious and a private wrong. It has more gravity and is committed against whole society.
The objective is to make good of the loss suffered by the plaintiff. The aim is to protect the society by preventing the criminal from committing further crimes and deterring other potential offenders from committing the same.
It is to be noted here that an act may be a tort only or a tort and crime both. For example, defamation is a tort as well as a crime under section 499 of IPC. It depends on the kind of relief plaintiff is seeking. If he wishes to get compensation for damages, a civil suit shall be filed, and if he wishes the defendant to be punished, then the case shall be dealt in a criminal court.

Scope of Law of Torts

This branch of law contains various acts whereby the wrongdoer violates the legal rights of another person. Some of them are: defamation, assault, battery, trespass, nuisance, etc.

But since it is an uncodified law, it is not limited to these acts and has a wide scope. Over many years, courts have expanded its ambit according to the needs of the time.

In Jay Laxmi Salt Work (P) Ltd. vs State of Gujarat (1994), the Supreme Court observed "Law of torts, being a developing law, its frontiers are incapable of being strictly barricaded."

Essential Elements of Tort

  1. Wrongful act or omission:
    For the commission of a tort, there must be a wrongful act or omission. 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 a wrongful act. But it is to be noted here that the wrongful act or omission must be one recognized by law. Therefore, if a person fails to save a drowning child, he cannot be held liable unless it is proved that it was his legal duty to do so.

    Municipal Corporation of Delhi vs Subhagwanti and Ors (1966): The Corporation was in charge of the maintenance of a clock tower which was situated in the heart of the city. It failed to keep the tower in repairs and consequently, the clock tower fell and resulted in death of many people. The court held the Corporation liable for its omission of duty and gross negligence and ordered to pay the damages.
  2. Results in legal injury:
    Legal damage or injury is sine qua non for commission of tort. It is based on the maxim 'injuriasine damnum' which means legal injury without any damage in terms of money, comfort, etc. That is to say, a person's legal right must be violated, even if he didn't suffer any harm. For example, trespass over property is a tort actionable even though no damage was caused as a result of it. Hence, it can be said that tort is actionable per se, i.e. without any proof of damage or loss.

    On the other hand, if a person suffers monetary loss but is unable to prove that his legal right was also infringed, then he cannot claim relief under law of torts. This is the principle enshrined in maxim 'damnum sine injuria' or 'damnumabseque injuria', i.e. damage without legal injury.

    Ashby vs White (1703):
    An eligible voter was denied to vote by an officer. The person filed suit for legal injury. Even though the candidate he wished to vote won the elections, he was awarded compensation.

    Shri Bhim Singh, MLA vs State of Jammu and Kashmir:
    The MLA was illegally detained as a result of which he could not attend his assembly session. The Supreme Court decided in his favour and directed the State to pay Rs. 50,000 to the petitioner as monetary compensation.

    Gloucester Grammar School Case:
    Defendant opened a school in the neighbourhood of petitioner's school because of which the latter suffered loss. The court dismissed the suit on the ground that no legal injuries were suffered by the plaintiff.
  3. Infringement of jus in rem:
    Jus in rem refers to a right which is exercisable against the public at large, as opposed to jus in personam which can be exercised against an individual only. To simplify, right in rem can be enforced against any individual who interferes with that right. For example, the right to enjoy my property is a jus in rem and is characterized by a complete and absolute dominion over it. Anyone found trespassing through my property or illegally restraining me from enjoying absolute control over it is said to infringe my jus in rem.Therefore, the act by which legal right is violated must be in rem for it to fall under the category of torts.
  4. Mens rea is considered but not always essential:
    In torts like trespass, assault, battery, etc. the intention and motive of the accused is taken into consideration for determining the tortious liability. But in torts like negligence and under principles like strict liability, absolute liability and vicarious liability, mental state of the accused is irrelevant.
  5. Remedy is in the form of unliquidated damages:
    Damages imply the plaintiff's right to be compensated. And since it is a civil wrong, the relief shall be in the form of compensation or injunction or both. Here, unliquidated damages refer to the amount of compensation which is not predetermined and depends on the intensity of the offence committed. In order to get the maximum relief, the plaintiff has to prove the extent of legal injury caused to him.

Objective of Law of Torts:

  1. To compensate or make good of the loss caused to the plaintiff.
  2. To protect the legal rights that were compromised.
  3. To punish the tortfeasor(s) by shifting the cost of injury.
  4. To discourage tortious and delinquent acts in the society.

After going through this article, one can say that a tort is civil wrong which is committed when a person infringes other person's legal rights. The main purpose of law of torts is to compensate the injured party and make liable the person who violates that person's right in rem. It is a branch of civil law and is uncodified, but is being widely used in the present era.

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