Introduction
A tort is a word derived from the Latin term torture which means not straight or twisted. Tort and crime sprang from the same root, it is a civil wrong for which remedy is common law action for unliquidated damages. It is other than a breach of contract or breach of trust, liability depends on the defendant by the act/omission acted in breach of legal duty if infringes the right of the plaintiff and caused harm which was foreseeable in nature then the defendant will be held liable for the same and will be asked for compensation.
Right refers to any act of a person which the law permits, a legal right is different from a moral or natural right. Court of law can enforce legal but moral/natural rights may not be enforced. There are different types of rights-
- Perfect right – This right is recognized and protected by law if any breach of this right is punishable a person can go to court for enforcing this right.
- Imperfect right- it is recognized but not enforceable by law a person cannot go to court for the breach of such right.
- Positive right- a person has to perform some positive duty to fulfill this right for example Mr. A receives compensation from B.
- Negative right – which prevents a person from doing something/act that is termed as negative right for example Article 21 prevents a person to kill someone.
- Right in persona- it is available against a particular person and corresponds to a duty to impose upon a particular person for example breach of contract, personal rights arise out of contractual obligation.
- Right in Rem- corresponds to the duty imposed upon the people in general, it is available against the whole world in general.
- Proprietory rights- available concerning the property that is related to the owner and its assets, the asset must have some monetary value example ownership of property.
- Personal rights- it is related to a person’s right that is its reputation or standing in society these rights promote, a person’s well-being in society and have no economic value.
- Public right – it is vested in a person by the state or government of the constitution example right to vote.
- Private right- connected with private individuals/persons example contractual obligation between two parties gives rise to a private right to them.
- Inheritable rights- it is passed from one generation to another that is these rights survive even after the death of their owner example a son is a legal heir to the property of his father.
- Uninheritable right- it dies with the death of the owner for example personal right.
Origin
Before William the Conqueror of France’s Norman conquest of England in 1066, the legal system was relatively chaotic, operating more or less on a case-by-case basis. Eminent judges were assigned to go over a particular territory after 1066 to assimilate those village laws that had evolved over two centuries. With the use of this knowledge, these judges took note of and applied the principles they felt were the most impartial in their court rulings. When cited frequently enough throughout time, these cases eventually evolved into what are today known as legal precedents.
Via England, the tort law was introduced to India. One of the many technical phrases in English law that have its roots in French is the term “tort,” which came into use in the English judiciary after the Norman Conquest. The idea that everyone in society has certain rights is the foundation of the term “tort.” This tort law’s goal is to uphold obligations and rights.
Assizes, or sittings in modern parlance, were the sessions during which these judges presided over legal proceedings. Even today, the location from which a judge renders decisions and sentencing is referred to as “the bench.” Following the establishment of these precedents, it was intended for them to apply to every member of society[1]
Tortious liability (Winfield)
This liability arises from the breach of duty (legal) which is preliminary fixed by the law, the duty is towards the person in general and its breach is redressible by an action for unliquidated damages, wherein it has been stated that the jury is preliminary fixed bit by any agreement or contract between the parties and nor they can negate the tortious liability, for example, A has a duty not to trespass on Bs land which is preliminary fixed by law same way B is also not allowed to trespass the As land prior his permission. In some cases the breach committed by someone else let the owner be liable vicariously.[2]
An essential ingredient of the tort
- Wrongful act– A person must have committed the wrongful act or have omitted to do an act which was not expected to be done, there must have been a breach of duty which has preliminary fixed by law. If a person does not take that duty as a prudent or responsible man or else breaks it. In tort intention does not play a great role like in crime here if a wrong is done without intention will also make you liable in the court of law except in some specific torts. To make someone liable, he must have violated the legal right of the plaintiff or unintentionally, for example, the right to property and the right of bodily safety. Wrongful act may be a positive act or omission which can be committed by a person whether negligently or intentionally or even by committing a breach of strict duty. In the usual sense negligence states carless but in a legal sense, it denotes a legal duty owed and neglected. If there is a mere social wrong, there cannot be a liability for the same but when a legal duty has to be performed but not performed it is a wrongful act.
- Legal damage– the second important ingredient in constituting a tort is legal damage. To prove an act of a tort the plaintiff has to prove the legal damage. An act is preliminary fixed by the law and got breached which led to the violation of a legal right of a person and if it is not there can be no action under the law of torts. So whenever there is any infringement of a private legal right, there arises a possibility of damage which include not only monetary loss but also loss due to arising from physical injury, nervous shock, loss to property, theft, etc.
- Legal remedy– the third essential element is that the wrongful act that resulted in injury should give rise to a legal remedy. It is necessary that the wrongful act just come under the category of wrong for which the remedy is the civil action, the principal remedy for tort damages is usually, the court award monetary compensation since the damages are unknown at the time of the event of a tortious act of commission or omission. The damages are referred to as unliquidated, Besides monetary compensation, there are other remedies such as self-help, injunction, and specific restitution of property are also available
There are two most famous stories given by two scholars about tort
- Growing tree theory (Winfield) – this theory is supported by Winfield, according to this theory all injuries done to another person are tort unless there is justification, recognized by law all injuries have done to another person are tort underline principle is that all unjustifiable harm are tort it may be assault, battery, deceit, cylinder, defamation, negligence or it may not even have a name at all
- Pigeon hole theory – this theory is supported by Salmond. According to this theory, there is a definite number of torts or sides in which liability of tort does not arise, here the law of tort consists of a net set of pigeon-hole each containing a specific tort such as assault, battery, deceit, negligence, etc. if the defendants wrong doesn’t fit in any of these pigeon holes has not committed a tort.
Both of the above theories are correct in the sense that they are from a different points of view one is seen to be broader significant and the other signifies a narrower approach. After all, tort has drawn over the years giving the rise to new areas of tort such as strict liability absolute liability, and so on. In the last few decades new branches of law like the consumer protection act, defamation law, etc. Whether these can be seen as new branches of a growing tree or a new array of pigeons holes both approaches can be accommodated as a valid point of view.[3]
The distinctions between crime and tort
Tort | crime |
Civil Courts adjudicate the tort | Criminal Courts are used to try crimes. |
A “Tortfeasor” is a person who commits a tort. | A “Criminal” or “Offender” is a person who commits a crime. |
The remedy for a tort is unliquidated damage or other equitable relief for the harmed. | Punishment of the wrongdoer is the solution. |
Tort cases can be added to. | Except in circumstances where Section 320 of the Criminal Procedure Code permits it, criminal proceedings cannot be combined. |
A tort is a civil wrong that is committed against a person, including legal entities like firms or corporations, as opposed to the government | Criminal law deals with cases where the state accuses someone of violating obligations placed on them to safeguard society and brings charges against them. |
Conclusion
Although tort, a private action, used to be more frequently utilized than criminal laws in earlier ages, there are certain similarities between crime and tort. For instance, an attack is both a criminal and a tort (a form of trespass against the individual). A tort allows the sufferer to receive a remedy that is tailored to their needs (e.g. by paying damages to a person injured in a car accident or by obtaining injunctive relief to stop a person from interfering in their business). On the other hand, criminal actions are undertaken to take away someone’s freedom on behalf of the state, not to acquire remedies to help a person, though criminal courts frequently have the jurisdiction to give such remedies.
Author – Kashif Humzah
Jamia Millia Islamia
[1] Diva Rai, Everything you need to know about the Sources of Tort, iPleaders (2019), https://blog.ipleaders.in/sources-of-tort/ (last visited Apr 3, 2023).
[2] Tort | Definition, Examples, Laws, Types, & Facts | Britannica, Encyclopædia Britannica (2023), https://www.britannica.com/topic/tort (last visited Apr 3, 2023).
[3] R.K. Bangia, Law of Torts (27th ed. 2020), Allahabad law agency