Table of Contents
The word “Tort” has come from the Latin word “Tortum” which means “To Twist”. What is twisted is the conduct of the wrong-doer, called the defendant. Such a twist causes a legal injury (a civil wrong) to the plaintiff and the courts provide for a remedy to him in the law of Torts.
Thus, Tort means “a conduct which is not straight or lawful but on the other hand, twisted, crooked, and unlawful.”
It is equivalent to the English term “Wrong”. The Law of Tort consists of various torts or wrongful acts whereby the wrong-doer violates some legal rights vested in another person.
The Law imposes the duty to respect the legal rights vested in the members of the society and the person making the breach of that duty is said to have done the wrongful act.
As crime is a wrongful act which results as a breach of duty recognised by 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 recognised under the law of tort or civil law.
Definition of Tort:
Definition of tort as given in a particular act and by some eminent personalities are as follows: -
- According to Section 2(m) of the Limitation Act, 1963, “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”
- According to Salmond, “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 contract or breach of trust, or merely equitable obligation.”
- According to Wilfred, “tortious liability arises from the breach of a duty primarily fixed by the law. This duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”
- According to Fraser, “it is an infringement of ‘Right in Rem’ of a private individual giving a right of compensation at the suit of injured party.”
Distinction between Tort and Crime:
| Feature | Tort | Crime |
| Nature of Wrong | Private wrong (against an individual). | Public wrong (against society/the state). |
| Area of Law | Civil Law (Law of Torts). | Criminal Law |
| Purpose/Object | To compensate the injured party (victim) for the loss suffered. | To punish the offender and deter others, maintaining public order. |
| Parties to the Case | Plaintiff (the injured individual) sues the Defendant (the wrongdoer/tortfeasor). | The State/Prosecution (government) prosecutes the Accused/Defendant. |
| Remedy | Monetary damages (compensation) awarded to the plaintiff, or an injunction. | Punishment, such as imprisonment, fine (paid to the state), community service, or probation. |
| Intention (Fault) | Can be intentional (e.g., battery) or unintentional/negligent (e.g., car accident due to carelessness). | Generally requires a guilty mind (mens rea), or criminal intent, though exceptions exist. |
| Nature of Offence | Compoundable | Non-Compoundable |
| Nature of Law | Uncodified; based on precedents and case laws. | Codified; punishments and offences are decided. |
Distinction between Tort and Breach of Contract:
| Basis | Tort | Breach of Contract |
| Nature of Damages | The victim is entitled to unliquidated damages, i.e., compensation determined by the court based on the extent of harm suffered. | The injured party typically receives liquidated damages, which are either pre-agreed in the contract or reasonably estimated based on the contract terms. |
| Existence of a Prior Relationship | No contractual relationship is required. A tort can be committed between strangers. | A valid and enforceable contractual relationship is essential. Breach arises only when one party fails to perform their contractual obligations. |
| Source of Obligation | The duty breached is imposed by law, typically related to duties of care, good conduct, or non-interference with others’ rights. | The duty breached arises from the terms of a contract voluntarily agreed upon by the parties. |
| Who can Sue | Any person who has suffered legal injury as a result of the wrongful act can initiate a tort claim. | Only the parties to the contract, or sometimes third-party beneficiaries (in limited circumstances), have the legal right to sue. |
| Nature of Duty | Duty is owed to the public or to individuals generally (i.e., a duty imposed by law and enforceable against the world at large—Right in Rem). | Duty is owed specifically to the contracting party based on the agreement—Right in Personam. |
| Measure of Damages | Damages are compensatory, aiming to restore the plaintiff to the position they were in before the tort occurred. May also include punitive damages in some cases. | Damages aim to place the injured party in the position they would have been in had the contract been properly performed. |
| Intention or Fault | Torts often involve elements of negligence, intent, or strict liability, depending on the nature of the wrong. | A breach can occur regardless of fault or intent. What matters is whether the contractual obligation was performed as promised. |
| Examples | Defamation, negligence, trespass, nuisance, etc. | Non-payment for goods delivered, failure to perform a service, delivery of defective goods, etc. |
In conclusion,
Tort law protects legal rights and enforces duties imposed by law, often without any agreement between parties, whereas, Contract law enforces obligations voluntarily assumed through agreements, providing remedies when such agreements are broken.
Distinction between Tort and Quasi Contract:
| Feature | Tort | Quasi-Contract |
| Basis of Obligation | A breach of a duty primarily fixed by law (e.g., duty not to cause harm). | An obligation imposed by law to prevent unjust enrichment of one party at the expense of another. |
| Purpose/Goal | To compensate the injured party (plaintiff) for the harm or loss suffered due to the defendant's wrongful conduct. | To restore the aggrieved party to their original position by requiring the enriched party to make restitution. |
| Duty Towards | Generally a duty owed to the public at large (a right in rem). | A duty owed to a specific person or persons from whom the benefit was unjustly received (a right in personam). |
| Nature of Damages | Typically Unliquidated Damages (not predetermined; assessed by the court based on the extent of harm). | Typically Liquidated Damages or Restitution (a fixed or ascertainable sum of money equal to the benefit received). |
| Relationship | The parties may or may not have a prior relationship; the liability arises from the wrongful act. | The liability arises in the absence of an actual contract but where one party has benefited unjustly. |
| Example | Negligence (e.g., a car accident causing injury), Defamation, Trespass. | A mistakenly pays money to B; B has a quasi-contractual duty to return the money. |
Law of Tort v/s Law of Torts:
| Basis | Law of Tort | Law of Torts |
| Main Supporter | Professor P. H. Winfield (Wider Theory). | Sir John Salmond (Pigeon-Hole Theory). |
| Core Concept | General Principle of Liability. Every unjustifiable injury is a Tort unless there is a valid legal excuse. | Specific Wrongs Only. There is no general wrong; liability arises only for specific, recognized Torts. |
| Scope | Wide and Evolving. It is a single, broad concept with the capacity to evolve and recognize new wrongs (new torts). | Narrow and Fixed. It is a collection or "bundle" of named wrongs (like negligence, trespass, defamation). |
| New Wrongs | Courts are encouraged to recognize and create new torts as society and technology evolve (e.g., invasion of privacy). | Liability is restricted to existing "pigeon-holes." If a wrong doesn't fit a recognized tort, there is generally no remedy. |
| Analogy | An open basket - all civil wrongs fall in, unless a legal rule pulls them out. | Pigeon-holes - a wrong must fit into one of the established, labelled slots (negligence, nuisance, etc.) to be actionable. |
Essentials of Tort:
To constitute a tort, it is essential that the following conditions are satisfied: -
1. Wrongful Act or Omission –
In order to make a person liable for tort, he must have done some act which he was not expected to do, or, he must have omitted to do something which he was supposed to do. Either a positive wrongful act or an omission which is illegally made, will make a person liable.
- For instance, (in case of a wrongful act): A commits the act of trespass or publishes a statement defaming another person, or wrongfully detains another person, he can be made liable for trespass, defamation or false imprisonment, as the case may be.
- For instance, (in case of an omission): If the Municipal Corporation, having control of a clock tower in the heart of the city does not keep it in proper repairs and falling of the same results in the death of a number of persons, the corporation would be liable for its omission to take care in the matter.
It may be noted that the wrongful act or omission must be one recognised by law. If there is mere moral or social wrong, there cannot be a liability for the same.
For instance, if somebody fails to help a starving man or save a drowning child, it is only a moral wrong and, therefore, no liability can arise for that unless it can be proved that there was a legal duty to help the starving man or save the drowning child.
2. Legal Damage –
In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal damage caused to him. Unless there has been violation of a legal right, there can be no action under law of torts.
With respect to legal damage, there are two legal maxims to be understood:
a. Injuria Sine Damno (Injury Without Damage) –
The infringement of a legal right is actionable even if it causes no actual loss or harm (e.g., trespass, where the legal right to property is violated).
There are two kinds of torts:
Firstly, those torts which are actionable per se, i.e., actionable without the proof of any damage or loss. For instance, trespass to land is actionable even though no damage has been caused as a result of the trespass.
Secondly, the torts which are actionable only on the proof of some damage caused by an act.
Injuria Sine Damno covers the first of the above stated cases. In such cases, there is no need to prove that as a consequence of an act, the plaintiff has suffered any harm. For a successful action, the only thing which has to be proved is that the plaintiff’s legal right has been violated, i.e., there is injuria.
Relevant Case Laws:
- Ashby v. White (1703) – In this case, the plaintiff succeeded in his action, even though the defendant’s act did not cause any damage. The plaintiff was a qualified voter at a Parliamentary election, but the defendant, a returning officer, wrongfully refused to take plaintiff’s vote. No loss was suffered by such refusal because the candidate for whom he wanted to won the election in spite of that. It was held that the defendant was liable.
- Bhim Singh v. State of J & K (1986) – In this case, the petitioner, an M.L.A. of J & K Assembly, was wrongfully detained by police while he was going to attend the Assembly session. He was not produced before the magistrate within the requisite period. As a consequence of this, the member was deprived of his constitutional right to attend the Assembly session. There was also violation of fundamental right to personal liberty guaranteed under Article 21 of the Constitution. By the time the petition was decided by the Supreme Court, Bhim Singh had been released, but by way of consequential relief, exemplary damages amounting to Rs. 50,000 were awarded to him.
b. Damnum Sine Injuria (Damage without Legal Injury) –
Causing actual harm or loss is not actionable if no legal right was violated (e.g., business competition resulting in lost profits).
In Grant v. Australian Knitting Mills, (1935), it was held that:
“The mere fact that a man is injured by another’s act given in itself no cause of action; if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is exercising a legal right.”
Relevant Case Laws:
- Gloucester Grammar School Case (1410) – In this case, the defendant, a schoolmaster, set up a rival school to that of the plaintiffs’. Because of the competition, the plaintiffs had to reduce their fees from 40 pence to 12 pence per scholar per quarter. It was held that plaintiffs had no remedy for the loss thus suffered by them. No legal right was violated.
- Ushaben v. Bhagyalaxmi Chitra Mandir (1978) – In this case, the plaintiffs sued for a permanent injunction against the defendants to restrain them from exhibiting the film named “Jai Santoshi Maa”. It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi, and Parvati were depicted as jealous and were ridiculed. It was observed that hurt to religious feelings had not been recognised as a legal wrong. Moreover, no person has a legal right to enforce his religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since there was no violation of a legal right, request or injunction was rejected.
3. Remedy –
The wrong must be of such a nature that it can be remedied by the courts, typically through an award of damages (monetary compensation), an injunction (a court order to do or stop doing something), or specific restitution of property.
A tort is a civil wrong for which remedy is an action for unliquidated damages. In this concern, there is a Latin Maxim: “UBI JUS IBI REMEDIUM”, meaning “Where there is a Right, there is a Remedy”. Law of Tort is developed on the above maxim.
Remedies are broadly classified into two categories:
a. Judicial Remedies - Judicial remedies are those forms of relief granted to the injured party by a Court of Law after a successful lawsuit. They are the standard means of seeking redress for a tort.
- Damages: A sum of money awarded to the claimant to compensate for the loss, injury, or damage suffered. This is the most common remedy. Types of Damages include: Compensatory (to cover actual loss like medical bills, lost wages); Nominal (a tiny amount where a legal right was infringed but no actual loss occurred); Punitive/Exemplary (awarded to punish the defendant for malicious conduct and to deter others).
- Injunction: A court order that either prohibits a party from doing a specific act (prohibitory) or compels them to perform a positive act (mandatory). Types of Injunction include: Temporary/Interlocutory (granted during the trial to maintain the status quo); Permanent/Perpetual (issued at the end of the trial). Often used in cases of nuisance or trespass.
- Specific Restitution of Property: A court order requiring the defendant to return the specific property (movable or immovable) wrongfully taken or detained to its rightful owner, rather than just paying monetary compensation. Common in cases of wrongful dispossession of land or specific valuable goods.
b. Extra-Judicial Remedies - Extra-judicial remedies (also called self-help remedies) are forms of redress that the injured party may resort to without the intervention of the courts. These remedies allow the party to take reasonable, proportionate action to prevent or remedy a tortious act on their own, provided they act lawfully.
- Expulsion of Trespasser / Re-entry on Land: The right of a person in possession of land to use reasonable force to remove a trespasser or to re-enter and take possession of land from which they were wrongfully dispossessed. Example: A homeowner physically removing (using only necessary force) someone who has unlawfully entered their property.
- Recaption of Goods: The right of a person who has been wrongfully deprived of their movable goods to retake possession of those goods, provided it can be done peacefully or by using reasonable force without breaching the peace. Example: Chasing and taking back a stolen item from the thief, provided no greater force than necessary is used.
- Abatement of Nuisance: The right of a person affected by a nuisance to physically remove or remedy the source of the nuisance, provided they do so peacefully, with due notice, and cause no unnecessary damage. Example: Cutting off the overhanging branches of a neighbour's tree that are causing damage to your property, after giving notice and only cutting what is necessary.
- Distress Damage Feasant: The right of an occupier of land to seize and detain stray cattle or movable chattels that are unlawfully on their land and causing damage until the owner pays compensation for the damage done. Example: Detaining a neighbour's cow that has wandered onto your field and damaged your crops until the neighbour pays for the damage.
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