Introduction
The law of torts, a subset of Civil Law, encompasses various torts or wrongful acts that infringe upon legal rights granted to individuals by law. The term “tort” is derived from the Latin word “tortum,” meaning twisted, crooked, wrong, or unlawful. The law imposes a duty to respect the legal rights of others, and a breach of this duty constitutes a wrongful act, thereby forming a tort. The law of torts is primarily founded on case law, often described as a stately edifice of judicial decisions, with only a few statutory enactments addressing this area of law.
DefinitionIssue – Why has it been challenging to provide a scientific definition of tort?
The law of tort has proven difficult to define scientifically. This complexity arises primarily due to the wide variety of wrongs encompassed within this area of law. Numerous efforts have been made to articulate a definition for the law of tort, with some of the most suitable definitions being:
(1) “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust” – S.2 (m), The Limitation Act, 1963.
(2) “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 a contract or the breach of a trust or other merely equitable obligation.” – Salmond.
(3) “Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.” – Winfield.
(4) “It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.” - Fraser.
Generally, a tort is defined as a civil wrong that can be addressed through an action for unliquidated damages, distinct from a mere breach of contract or breach of trust. This definition highlights three key aspects of torts:
(a) Tort is a civil wrong.
(b) The remedy available is unliquidated damages.
(c) It differentiates tort from other types of civil wrongs.
TORT IS A CIVIL WRONG (ISSUE)
When a legal right is infringed, resulting in a civil wrong, the plaintiff initiates civil proceedings against the wrongdoer, known as the defendant. The primary remedy in such proceedings is damages, where the defendant compensates the plaintiff for the injury caused.
In some cases, the same act by a person may constitute both a crime and a tort simultaneously. Examples of such common wrongs include assault, libel, and theft. For instance, if a person commits theft, they can be prosecuted criminally, and a civil action can also be brought against them to recover the value of the stolen item and for damages. Similarly, in defamation cases, if a defamatory article is published about someone in a newspaper, criminal prosecution for libel and a civil action claiming damages for the defamatory publication may be pursued.
In these situations, both civil and criminal remedies are concurrently available. This means there can be a civil action requiring the defendant to pay compensation and a criminal action awarding punishment to the wrongdoer.
REMEDY AVAILABLE IS UNLIQUIDATED DAMAGES ISSUES:-
(a) What is meant by unliquidated damages?
(b) Why is damages the most suitable remedy for a tort?
(c) What are the other remedies available in tort?
In the case of a tort, damages are unliquidated, meaning the compensation to be paid is not predetermined based on prior stipulation by the parties. Instead, the court has the discretion to determine the amount of damages.
In contrast, with liquidated damages, as seen in breach of contract cases, the compensation is previously determined or agreed upon by the parties based on a stipulation of probable loss in the event of a violation.
In tort cases, there is no predetermined compensation between the parties because they are generally unknown to each other until the tort is committed. Moreover, it is difficult to stipulate losses in the case of a tort, so the damages to be paid are left to the court's discretion.
Unliquidated damages, assessed in monetary terms, are most suitable because it is typically impossible to undo the harm caused. The remedy aims to put the injured party in the same position they would have been in if the wrong had not occurred, which generally satisfies the wounded party.
Other remedies available for a tort include:
(a) An injunction is applicable when the wrong is a continuing act, such as in nuisance cases.
(b) Specific restitution.
ALL CIVIL INJURIES ARE NOT TORTS ISSUE:-
a) Illustrate a few cases where the same act amounts to two or more civil wrongs.
Although a tort is essentially a civil injury, not all civil injuries qualify as torts. Determining whether a civil wrong is a tort involves a process of elimination. If a civil wrong does not fall into any other category of civil wrongs, it is likely to be classified as a tort.
In certain circumstances, the same act may result in two or more civil wrongs, one of which could be a tort.
For example:
● Breach of Contract and Negligence: If X leaves his car with Y for safekeeping and Y leaves the car unlocked on the road, leading to its theft, Y's act constitutes two wrongs: breach of the contract of bailment and the tort of negligence.
● Defamation and Breach of Confidentiality: If a person discloses false and damaging information about another, it could be considered defamation and a breach of confidentiality.
● Trespass and Nuisance: If someone unlawfully enters another's property and causes a disturbance, their actions could be trespass and nuisance.
Since both wrongs are civil wrongs and damages are the primary remedy for any kind of civil wrong, the plaintiff can claim damages under the law of tort for negligence or for the breach of the contract of bailment. However, the plaintiff cannot claim damages twice for the same act.
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