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Definition of Tort

Salmond- it is a civil wrong for which the remedy is a common law action for un liquidated damages and which is not exclusively the breach of a contract or a breach of a trust or other merely equitable obligations.
Winfield- tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is repressible by an action for un liquidated damages.

Analysis of definitions

  • Tort is a civil Wong.
  • Every civil wrong is not a trot like breach of contract and breach of trust
  • Tort is redressable by an action for un liquidated damages

We may define tort as a civil wrong which is redressable by an action for un liquidated damages and which is other than a mere breach of contract or breach of trust
Tort is a civil Wrong- 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 institutes civil proceedings against the wrongdoer.
The Tort is other than a breach of contract- Tort is that civil wrong which is not exclusively and other kind of civil wrong like breach of contract or breach of trust.
Tort is redressableby an action for unliquidated damages- Damage is the most important remedy for a tort. 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 was already been caused. The only thing which can be done is that is the money equivalent to the harm. Damage in the case of Tort are unliquidated means a compensation which had not been previously determined. A scientific definition of tort is not possible; Tort can be defined by mentioning various elements the presence of which could be considered to be tort.
All the definition of tort follow the negative approach. It explain the trout by distinguishing it from other wrong or by mentioning some of the elements, which are found in a tort, but are not there in other wrong.
The term tort in common law systems for a civil actionable harm or wrong.
Analytically Meaning of Tort -the law of tort is a branch of the law of obligations, where the obligation to refrain from harm to another and, if harm is done, to repair it or compensate for it, are imposed not by agreement.
Social Meaning of Tort- the functions of tort is to shift loss sustained by one to the person who is deemed t have caused it or been responsible for its happenings.
Historically- there was no general principle of tortuous liability, but Kings court gave remedies for various forms of trespass for direct injuries.

Nature of Tort

The nature of tort can be understood by distinguishing

  • Tort and Crime
  • Tort and duty in other civil wrongs.
SpeciesCivil wrongCriminal wrong
EffectPlaintiff is the injured partyVictim is the injured party
Violation of RightsPrivate right and dutyPublic rights and duties
RemedyCompensation in the form of money or other wisePunishment
PartiesIndividualIndividual and State
PurposeTo compensate the loss suffered by him To protect the society by preventive and deterring effect.
Nature of punishmentCompetitively less, or lighterHeavy and serious
Intention factorIntention generally immaterialIntention or mens rea is play an important role
Burden of proofLies with the complaint or injuredLies with the state.
Principle of Natural justicePlan an important role in fixing the wrong doer liabilityStrict rules principles and procedure followed in fixing the wrong doer liability.
CodificationIt is not the codify lawIt is the codify law.
Moral elementMoral element has no place in tort. the wrong doer punished by way of damages for the better social welfare and efficiency.To some extant moral elements are treated in the same.
BasisTortContract / Quasi Contract
Nature of DamageUnliquidated damage, means the damage which has not been agreed upon beforeLiquidated damages, which has been agreed upon on non discharging the contract liability
Nature of RightsIn tort the violation of rights in rem, i.e. of a right vested in public generally.In case of contract in the right in personam, i.e. a right available only against some determinate person or body of person.
MotiveIn tort some time in tort motive play an important roleIn contract motive has no place, jut the breach of contractual obligation is the consideration point.
Codification of lawThere is no codification of law in tortIt is a codify law.
Non occurrence damagesInjured may be entitle for non occurrence damages, which he has not actually suffered.The injured party is only entitle for actual damages.
Kind of damagesExemplary or vindictive damages are awarded in tortSuch kind of damage are not awarded in contract.

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Created on 2020/10/19 23:15 by • Last modified on 2020/11/07 18:34 (external edit)