LAW OF TORTS AND ELEMENTS OF TORTS

                                                   

INTRODUCTION:

The Law of Torts provides various rights, obligations, and remedies considered by courts in civil cases to provide relief from the wrongful acts of others. In Tort, a Plaintiff is a person against whom the wrongful act is done or who suffers injury due to the wrongful actions of others. The defendant/ Tort Feasor is the person who commits a wrongful act thereby inflicting injury upon others and is therefore liable for the damage or injury caused to the plaintiff. Law of Tort is uncodified in India as it is based on the common law of England which is itself unwritten and uncodified.

MEANING:

A tort is a civil wrong caused by one person to another person not including a breach of contract or a crime. In tort, the plaintiff files a civil case against the defendant for the wrongful act committed by him resulting in injury or damages to the plaintiff making the defendant legally liable to pay damages to the plaintiff. However, such damage, injury, or harm is not criminal and therefore does not lead to any criminal liability. Also, the injury caused is not the result of a breach of contract, breach of trust, or any other equitable obligation. The remedy for such injury lies in the institution of a suit in a proper court of law for unliquidated damages. Some of the examples of tort are trespass to land, battery, assault, etc.

DEFINITION:

Section 2(m) of the Limitation Act, 1963 defines a tort as a civil wrong not being exclusively the breach of contract or trust.

Faeser defined tort as an infringement of a private individual’s Right in Rem and giving compensation at the suit of the injured party.

Salmond defined tort as a civil wrong for which remedy is an action for unliquidated damages and which is not exclusively for breach of contract or trust or any other equitable obligation.

Thus, a tort can be defined as a civil wrong independent of breach of contract and crime and the remedy for which is in the form of unliquidated damages.

DISTINCTION BETWEEN TORT AND BREACH OF CONTRACT:

                  TORT   BREACH OF CONTRACT
   
1.In the case of tort, the damages to be given by the defendant are not previously fixed as the damages are decided by the court on the intensity of the wrongful act of the defendant.In case of breach of contract damages to be given by the defendant are either damages previously fixed between the parties to the contract or actual damages as per the facts of the case.
   
2.In tort, duty is towards everybody.In a contract, duty is towards specific individuals only who are involved in the contract.  
   
3.In tort, duty is fixed by the law of torts.In a contract, the duties are fixed by the parties involved in the contract.  
4.A tort is a violation of Right in Rem.  Breach of Contract is a violation of Right in Personam.
   
5.In tort, the motive is considered in some cases.In breach of contract, the motive or intention is immaterial.
   

DISTINCTION BETWEEN TORT AND BREACH OF TRUST:

                        TORT                       BREACH OF TRUST
   
 1.A tort is a civil wrong that is not exclusively  a breach of trustA civil wrong which is a breach of trust is not a tort.  
   
2. The Law of tort originated from the common law of England.The Law of trust originated from the Court of Chancery.  
   
 3.In tort, compensation to be paid by the defendant is given by way of unliquidated damages.In  breach of trust, compensation to be given is in the form of liquidated damages
   
 4.In tort, there is a breach of or violation of common law.In case of breach of trust, there is a breach of the law of property.  

DISTINCTION BETWEEN TORT AND CRIME:

                        TORT                       CRIME
   
 1.A tort is an infringement of a person’s Right in Rem.Crime is an infringement of a person’s Right in Personam.
   
2. A tort is a private wrong that involves a violation of a personal right.Crime is a public wrong that involves the violation of a public right.
   
 3.In tort, the remedy is that the wrongdoer compensates the injured person.In crime, the remedy is by way of punishment to the wrongdoer by the State.
   
3. In case of commission of a tort by a wrongdoer, a suit is filed.In case of commission of a crime, a complaint is filed
   
 5.In tort, an action is brought by the injured party.In crime, the proceedings are conducted in the name of the State.
   
 6.Law of Torts is uncodified.The Law of Crimes is codified.

OBJECTIVES OF LAW OF TORTS:

  • It compensates the victims for the injuries suffered by them because of the wrongful act of the defendant.
  • The burden of the cost of the injury suffered by the plaintiff is shifted on the defendant who is legally under obligation to bear the cost.
  • It also discourages people from committing legally recognized wrongful acts and omissions. It also discourages careless, injurious, and risky behavior.
  • The violated legal rights that are compromised, infringed, or diminished are vindicated by the law of torts.

ESSENTIAL ELEMENTS OF TORTS:

Some of the essential elements constituting Tort are as follows-

  • Wrongful act or omission of the defendant affecting plaintiff’s legal right-

An act is said to be wrongful when it is recognized as wrong by the law. The plaintiff has to prove that the wrongful act is a result of a breach of a legal duty or violation of a legal right. Mere wrong, injury is not sufficient to file a civil suit for damages. The wrongful act committed by the defendant must be a legal wrong affecting the legal right of the plaintiff. Thus, there should be an infringement of the legal right of the plaintiff. In the case where a person suffers injury not arising from the violation of a legal right then he has no remedy. The act or omission to do some act must be legally wrongful.

  • Legal damage to the plaintiff– Any wrongful act or omission by the defendant must violate the legal right of the plaintiff thereby causing him legal damage. Thus, if the legal right of the plaintiff is not violated but he has suffered huge loss or damage still he will not be able to bring action against the defendant successfully.

Case laws-

Ashby v/s White– In this case, the plaintiff was stopped by a constable from exercising his legal right of voting. Thus his legal right was violated. However, the candidate for which the plaintiff wanted to vote won the election. So the plaintiff did not suffer any damage. However, the plaintiff filed a suit for damages as his legal right to vote was violated. The court held that the plaintiff is allowed to recover damages as his common law right to vote was obstructed thereby giving rise to cause of action.

Gloucester v/s Grammer school– In this case, the defendant started a new school next to the plaintiff’s school. Many students flocked from the plaintiff’s school to that of the defendant. As a result, the plaintiff suffered a huge financial loss. So the plaintiff instituted a suit against the defendant. The court held that as the defendant’s act had not violated any legal right of the plaintiff no action would lie against the defendant.

  • Legal remedy by way of unliquidated damages-

When any wrongful act is committed by the defendant it gives the plaintiff the right to legal remedy by filing a suit for unliquidated damages in the court of law. Here, unliquidated damages mean damages which does not have any prior fixed amount. In unliquidated damages, damages are given as per the intensity or the seriousness of the wrongful act committed by the defendant. Thus, to get maximum damages the plaintiff has to prove the extent of damage suffered by him because of the defendant.

  • Violation of Right in Rem

A tort is committed when a Right in Rem of a person is violated or infringed. Right in rem means a right is vested in a particular person either personally or as a member of a community and the same is available against the whole world. A tort is not concerned with the violation of a right in personam which is available only against a particular person or a body or organization.

CONCLUSION:

From the above discussion, we can conclude that a tort is a civil wrong that violates the legal right of others. The legal remedy for such a wrong is by way of filing a suit for unliquidated damages. Tort involves a violation of a legal right recognized by law and not any moral, social, or religious right. A tort may be done intentionally like battery, assault, or unintentionally like doing an accident because of carelessness and negligence. Law of torts vindicates the infringed legal rights by way of compensation in the form of unliquidated damages to be paid by the defendant to the plaintiff who suffered the damage. Further, tort, crime, breach of contract, and breach of trust are different from each other as distinguished above.

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