DEVELOPMENT AND DEFINITION OF TORTS

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Development of Torts

It came to India through England. In 1065 England was ruled by Normans who were the French speaking people of Normandy, a place in France. After Norman Downfall, French became the spoken language in the Courts in England, and thus numerous technical terms in English law owe their beginning to French, and ‘Tort’ is one of them. When India was under the control of British empire, courts were established by British government in Presidency towns of madras, Bombay and Calcutta as mayor’s court.  The charter that established these courts required them to accept the concept of law of torts in their jurisdiction. Thus, ‘tort’ was introduced into the Indian Legislation. At that time in our country there was no such provision for the other courts that were established by local acts. However, these local acts contained a section that required them to act according to “justice, equity and good conscience” in cases where there was no definite law or usage.

 

Definition and Nature of Tort

The word tort is derived from the Latin word “tortum” which means twisted or crooked or wrong. In Roman it is “delict” and in Sanskrit it is “Jimha” which means ‘crooked’. In general terms, tort is a segment of law which deals with the allocation of responsibility for losses, which are bound to happen in society. It is branch of law that governs actions for damages for injuries to personal legal rights of a person for example right to property, right to personal security, right to reputation etc. The law of torts consists of rules recognized and acted on by courts of justice.

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:

  • Tort is a public wrong;
  • This public wrong is other than a mere breach of contract or breach of trust;
  • This wrong is redressible by an action for unliquidated damages.

A practical definition of tort could be: – A civil wrong which is independent of implied contract for which the suitable remedy is an action for unliquidated damages.

Salmond and Heuston

“A tort 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”.

Clerk and Lindsell

“A tort may be described as wrong independent of contract, for which the appropriate remedy is common law action”.

Sir Fredrick Pollock

“The law of torts in civil wrongs is a collective name for the rules governing many species of liability which, although their subject-matter is wide and varied, have certain broad features in common, are enforced by the same kind of legal process and are subject to similar exceptions”.

Winfield and Jolowicz

“Tortious liability arises from the breach of duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”.

 

We can understand the nature of tort by distinguishing:

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

Distinction between tort and crime

                                Tort                              Crime
1.      It is a violation of a private right.

2.      Civil action is brought by the party himself and no other person is entitled to get the compensation.

3.      It is a private wrong

4.      Wrongdoer has to pay damages and the amount goes to the injured party

 

5.      It is a judge made law which is not codified.

1.      It is a violation of a public right.

2.      Action is conducted in the name of state.

 

3.      It is a public wrong

4.      Wrongdoer is punished by the state and the amount which he pays as a fine goes to the government.

5.      It is defined and codified under Crpc.

 

Distinction between tort and contract

                                  Tort                                Contract
1.      Duty fixed by law.

2.      Duty towards every person of the society.

3.      Violation of right in rem

(right against society)

4.      Unliquidated damages.

5.      Judge made law and not codified.

1.      Duty fixed by parties.

2.      Duty towards a specific person.

 

3.      Violation of right in personam

(right against person)

4.      Liquidated damages.

5.      It is codified under Indian contract act.

References

  • Law of Torts (1992), 20th Edn., pp. 14, 15.
  • Clerk & Lindsell, Torts, 8th Edn., p. 1.
  • Pollock, Law of Torts, 11th Edn., p. 15
  • R.K Bangia

 

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