WHAT IS TORT
The penal law of ancient communities is not a law of crimes It is the law of wrongs in the modern world and is known as the law of torts. - Sir Henry Maine
The term tort derives from the Latin term tortus, which literally means twisted or crooked. It means that conduct that is not straight or lawful, but twisted and crooked. The word tort can be said as somewhat similar to the English term wrong. But all wrongs cannot be considered torts.
John William Salmond defines tort as, “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.”
Tort is defined by Fraser as, “An infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.”
Winfield has defined Tort as, “A tort is a civil wrong which arises when a person breaches the duty he owed to another person. A legal right is a right which is given to an individual whereas legal duty is when the same individual violates another person’s legal rights, thereby causing damage which asks for compensation (Remedy) which is unliquidated.”
A TORT IS A CIVIL WRONG
The most important characteristic of tort is that it is a civil wrong and not a criminal wrong. It is a wrong against a private person, not against the society as a whole. A civil wrong violates the rights of a person or a group of persons but, on the other hand, criminal wrong is the one that affects the society at large. Civil wrong is considered less serious than criminal wrong and legal remedy for it is an action brought by means of a civil suit. In civil wrong, it is upon the discretion of the aggrieved whether he wants to initiate the proceedings or not. Once an action done is identified as a civil wrong, an action can be brought against it under civil proceedings for seeking legal remedies. One who files a civil suit is called a claimant who claims for enforcement of his rights and to be compensated for his damage. In civil proceedings, the suit is initiated with the sole purpose of safeguarding the rights of claimant, whereas, on the other hand, criminal proceedings aim to punish the culprit. In civil cases, no punishment like sentence, detention or rehabilitation is given to the accused, but only damages are ordered for compensating the claimant.
TORT IS A CIVIL WRONG BUT ALL CIVIL WRONGS ARE NOT TORTS
Tort is a Civil injury but all Civil injuries are not included in Torts. It can be considered as civil wrong which is distinguished from other civil wrongs. Tort is caused by infringement of a right in rem of a private person providing a right of compensation at the suit of the aggrieved party. For instance, breach of contract and breach of trust are civil wrongs but cannot be categorized under torts because their remedies are pre-mentioned in the contract itself. While determining a particular act as a tort, first it should be assured that it falls under the category of civil wrong and then it should be other than the breach of contract or trust.
EXAMPLE OF ‘TORT BEING A CIVIL WRONG’
In 1984, Union Carbide Pesticide Plant, situated at Bhopal, Madhya Pradesh, a very tragic mishappen took place. 40 tons of Methyl Iso-cyanate (MIC), a highly toxic gas, leaked and killed thousands of people and leaving long term medical malfunctions such as eye problems, respiratory diseases, neurological disorders, cardiac problems, and birth defects among children born to affected women. The Union Carbide Company was held liable for strict liability under Law of Torts.
EXAMPLE OF ‘CIVIL WRONG NOT BEING A TORT’
Business Company and Client enter into contract for business purposes and have contractual obligation towards each other. The company has to perform its functions and duties effectively with due care and the client is obliged to pay the company an agreed sum of money for its services. If any dispute arises in the due course, any of the party to the contract can move to the court for the enforcement of the terms agreed in the contract. Therefore, this case of breach of contract would constitute a civil wrong but is not a tort. Moreover, breach of statutory duties although it is a civil wrong, do not fall under torts. Breach of contract is also a civil wrong, but it is not a tort. According to Winfield’s view, tortuous duties exist by virtue of the law itself and do not depend upon the agreement or consent of the persons subjected to it. For instance, a person is under duty not to assault anyone because the law says not because he has agreed to an agreement to undertake such duty.
Tort is a civil wrong which is different from other civil wrongs. It is the infringement of right in rem i.e right available against the whole world, unlikely the right in personam i.e. right available against some particular person or body. As defined by Pollock, “A tort is the violation of that general duty which all members of a civilized community owe towards their neighbors not to do them harm without lawful cause or excuse.”
Tort is distinguished from other civil wrongs such as breach of contract and breach of trust. The legal remedy available to the aggrieved person is in the form of unliquidated damages. In India, the law of torts is still not codified. People have not fully utilized the rules of damages as they are not aware of the laws. It needs reforms and codification of the law so that it can be enforced effectively and people can claim their damages.
• https://academichour.com/class%20notes/Law/1st%20sem/tort.pdf visited on September 22, 2021 at 8:23 pm
• https://blog.ipleaders.in/tort-as-a-civil-wrong/ visited on September 22, 2021 at 9:39 pm
• https://www.quora.com/Why-are-all-torts-civil-wrong-but-not-all-civil-wrongs-are-torts visited on September 23 at 2:57 pm
• https://www.legalserviceindia.com/articles/cr_tr.htm visited on September 23, 2021 at 3:21 pm