GENERAL PRINCIPLES

The following ten topics are discussed in this Chapter:

A. 'Tort' defined

B. Nature of the subject: The law of tort or the law of torts

C. Wrongs which are not torts

D. Law of torts in India

E. Characteristics of a tort

F. Cyber torts

G. Tort and crime distinguished

H. Tort and breach of contract distinguished

I. Felonious torts: Merger of tort in felony

J. Waiver of tort.

A. 'TORT' DEFINED

Much ink has been spilt in unsuccessful attempts at defining a 'tort. It is, therefore, not
proposed to spill any more here. The term has so far defied all attempts at precise or
scientific definition, the reasons for this being mostly historical in nature. The French
word 'tort' means 'wrong'. The derivation of the word may also be traced to the Latin
term 'tortum' (to twist). Thus, 'tort' implies conduct that is twisted or wrongful. The word
also corresponds to the Roman Law term delict and the Spanish term, delittos. A tort is
the breach of some duty (independent of any contract) which gives rise to a civil cause
of action and for which the civil courts award compensation.

The first reported case where the court used the word 'tort' is an old (1597) English case,
Boulton v. Hardy (1597, Cro. Eliz. 547). According to Ratanlal and Dhirajlal, the leading
Indian authors on the Law of Torts, a tort may be defined as "a civil wrong independent
of contract, for which the appropriate remedy is an action for damages". Salmond, the
leading English authority on the subject, defines a 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."
This definition has received judicial approval in several English cases, and is adopted in
S. 2 of the Limitation Act, 1963, which defines a 'tort' as "a civil wrong which is not
exclusively the breach of a contract or the breach of a trust".

> Define "tort". (2 marks)

> B. U. Nov. 2009, Nov. 2010, May 2012, Apr. 2014

>

According to Winfield, "tortious liability arises from the breach of a duty primarily fixed
by law; this duty is towards persons generally, and its breach is redressable by an action
for unliquidated damages."

The Supreme Court of India, in Jay Laxmi Salt Works v. State of Gujarat [JT (1994) 3 S.C.
492] has quoted with approval the definitions of the term given by Salmond and Winfield
above.

Keeton and Keeton (in a book entitled Cases & Materials on the Law of Torts) define the
term as follows: "Tort law is a body of law concerned with granting or denying claims of
individuals or impersonal legal entities against each other for award of damages or
other forms of legal relief."

Burdick defines a tort as "an act or omission which unlawfully violates a person's right
created by law and for which the appropriate remedy is a common law action for
damages by the injured person."

The definition of the term given by Clerk and Lindsell seems to be based on that of
Salmond. Tort is defined by these authors as "a wrong, independent of contract, for
which the appropriate remedy is a Common Law action". In the words of Lord Denning,
"The province of tort is to allocate responsibility for injurious conduct."

Many more definitions of the term can be given but that may only land the reader in a
maze of definitions, and definitions ought not to obstruct one's true understanding of
the subject. It will be seen that in all these definitions, the underlying reference is to an
act or omission (not within the sphere of contract or trust) which prejudicially affects
another person with respect to a legal right of that other person. Further, the
appropriate remedy for such an act or omission is a suit for damages. The person who
commits the wrong is called the tort-feasor and his wrongful act is termed a tortious act
or a tort. A review of all the above definitions of the term leads to the conclusion that a
really satisfactory definition of the word "tort" has yet to be found. The numerous
attempts which have been made to define the term have resulted only in using language
which is so broad that it covers wrongs other than torts or else so narrow that it leaves
out some torts.

The Court held in the above case that hurt to religious feelings is not an actionable
wrong (tort) in India.

In recent times, neither theory has been accepted in totality to the entire exclusion of
the other. In conclusion, it may be said that whereas from the narrow practical point of
view, Salmond's theory would be acceptable, if one takes a broader outlook, Winfield's
theory appears to be more sound.

C. WRONGS WHICH ARE NOT TORTS

There are four classes of wrongs which fall outside the sphere of tort, namely:

(1) Wrongs which are exclusively criminal

The important word to be noted here is 'exclusively'. Ordinarily wrongs are either civil or
criminal. Thus, detention, conversion and wrongful dismissal are purely civil wrongs,
that is, torts. On the other hand, dacoity, murder and forgery are purely criminal wrongs,
that is, crimes. The remedy for a tort is a suit in a civil court for damages and
compensation. In the case of crimes, the remedy is a criminal prosecution in a criminal
court, with the primary object of punishing the offender. There are, however, certain
wrongs which are both torts as well as crimes, as for instance, assault, defamation and
negligence. A civil suit and/or a criminal prosecution will lie in such cases.

(2) Civil wrongs which are exclusively breaches of contract

Several other civil wrongs fall outside the sphere of the law of torts, as they exclusively
involve a breach of a contract. Thus, if X buys a car from Y, and after receiving the
purchase money, Y fails to deliver the car to X, Y has done wrong to X; but this is a wrong
arising out of a breach of a contract and is not a tort.

(3) Breaches of trust or other equitable obligations

A breach of trust is neither a breach of contract nor a tort. Trust is a matter of

confidence and not a matter of contract or tort. It is an equitable wrong and not a tort.

(4) Wrongs which are quasi-contractual

Civil wrongs which create no right of action for unliquidated damages, but give rise to
some other form of civil remedy exclusively, are not torts. A wrong, in order to be a tort,
must have, as its remedy, a suit for unliquidated damages and not a claim for liquidated
damages. Such claims for liquidated damages not arising out of an express contract are
sometimes classified as quasi-contractual, but in truth, they belong neither to the
category of contracts nor of torts, but a distinct category called restitution.

D. LAW OF TORTS IN INDIA

The law of torts has evolved - both in India and in England - out of judicial decisions. The
subject is thus based on case law. There is no Act of the Legislature (like the Indian
Penal Code or the Indian Contract Act) in India dealing with torts. The law of torts
applicable in India is the English Law of Torts which, in its turn, is based on the Common
Law prevailing in England. The rules of English law are to be applied so far as they are
applicable to Indian society and circumstances. When in a given case, statutory or
customary law does not exist, courts in India will be guided by principles of justice,
equity and good conscience.

Jurists in England and in India have often suggested that the law of torts be reduced to a
statutory form. The advantage of such a step would be that the law would become
definite and compartmentalised. However, one must not forget that this branch of law
has evolved out of judicial decisions and since its very basis is case law (both in
England and in India), perhaps more harm than good may be done to the development
of this branch of the law by reducing it to a statutory code. In recent times, some parts
of the law of torts have been codified, as for example, the Fatal Accidents Act, the
Workmen's Compensation Act, the Employers' Liability Act, etc. However, the major
portion of this important branch of the law is still based on case law, that is, judicial
decisions or precedents.

E. CHARACTERISTICS OF A TORT

The following are five important characteristics of a tort:

(1) Civil wrong

A tort is a civil wrong, as opposed to a crime on the one hand, and a breach of contract
or a breach of trust, on the other. It may be noted that breach of contract and breach of
trust are civil wrongs, but they are not torts, inasmuch as the remedies afforded for such
breaches are governed by statutes, whereas the remedies for a tort owe their origin to
common law.

(2) Infringement of a right in rem

Secondly, a tort is an infringement of a right in rem and not a right in personam. A right in
rem is a right vested in some determinate person (either personally or as a member of
the community) and available against the world at large, that is, against everybody.
Thus, one's right not to be defamed or assaulted are rights available against the whole
world. Such rights are rights in rem, and are, naturally, too numerous to be enumerated.

The opposite of a right in rem is a right in personam. A right in personam is a right

available only against some determinate person or persons. Thus, X agrees to sell his
house to Y for a certain sum, but does not honour his obligation. In these
circumstances, Y will have a right to sue X, and only X (and not the world at large) for a
breach of contract. Here, the mutual rights of X and Y against one another are created
by their private agreement. These rights are personal to both of them. Outsiders are not
concerned with them. Such rights are, therefore, called rights in personam.

(3) Right fixed by law

Thirdly, the right which is infringed in the law of torts must be a right which is fixed by
law, independent of the consent of the parties.

(4) Common Law action

The remedy available in respect of the violation of such a right should be a Common
Law action (that is, a suit filed under the English Common Law). Of course, there is
nothing like Common Law in India. In England, there are numerous Common Law
actions, of which actions for torts are a part. Such actions would also be actionable in
India, that is, suits can be filed for such wrongs in civil courts in India.

(5) Remedy

Lastly, the remedy should be by way of damages, that is, compensation in money. A suit
for unliquidated damages is a good test of tortious liability. However, it is not the only
remedy, and a suit for injunction or a suit for specific restitution of land or chattels, and,
at times, even self-help (as in ejecting a trespasser) are other remedies available in the
case of torts.

F. CYBER TORTS

With the invention of the computer and the advent of the internet, a new category of tort
has sprung into existence, namely, cyber torts. Such torts assume various forms such
as cyber stalking, cyber breach of privacy, cyber obscenity and cyber defamation. The
Indian Penal Code are quite inadequate to curb this ever-growing menace.

Cyber defamation

Cyber defamation is said to take place when all the ingredients of the tort of defamation
are present and the defamation is committed online. The publication of such
defamation can take place at lightening speed and reach all corners of the world within
seconds. Once again, there is no specific legislation in India to deal with this tort and
the general principles of defamation would have to be invoked in cases of defamation
committed online, via e-mails, chat rooms, etc.

G. TORT AND CRIME DISTINGUISHED

Both a tort and a crime resemble each other in that both are violations of rights in rem,
and in both, the rights and duties are fixed by law, irrespective of the consent of the
parties. The following are the three points of distinction between the two:

(1) As to the nature of the wrong

A tort is a private wrong. It is an infringement of the private or civil rights belonging to an

individual. A crime, on the other hand, is an invasion of public rights and duties affecting
the whole society. Thus, murder is not only a crime against a particular person or his
family; it is also a crime against society.

(2) As to the remedy available

In tort, the wrong-doer has to pay compensation to the injured party; in crime, he is
punished by the State. The underlying principle of redress is, therefore, different in both.
Crimes involve punishment of the offender in order to deter him from committing
similar acts once again; in tort, compensation is awarded to the person injured.
It is true that in some cases, a Court may order a person convicted of a crime to pay a
sum of money to the injured party by way of compensation. This, however, should not
blur the essential distinction between a tort and a crime, for such compensatory sums
do not form the principal subject-matter of the criminal suit; they are always in addition
to some other punishment, as for instance, a jail sentence.

(3) As to the procedure

Under the law of torts, the suit is filed by the injured party himself. In criminal law, the
proceedings are generally taken and conducted in the name of the State, inasmuch as
the party injured by a crime is the State, which conducts the prosecution either on its
own initiative or on the complaint of a private party.

> Define a "tort" and explain how it differs from a crime.

> B. U. Oct. 2008, Apr. 2011

>

Acts which are both torts and crimes

There are some acts which amount to a tort and also to a crime. For instance, assault
and libel are torts as well as crimes. Thus, in the case of assault, the right which is
violated is one which every man has and which guarantees that his bodily safety shall
be respected. But the matter does not stop here. The act of violence is also a menace to
the safety of society in general, and will, therefore, be punished by the State also. In
such cases, both the rights, namely, rights in rem and rights in personam co-exist. In
these cases, the wrong-doer may be ordered in a civil action to make compensation to
the injured party and may also be punished by a criminal court and ordered to be
imprisoned or fined.

H. TORT AND BREACH OF CONTRACT DISTINGUISHED

Both tort and breach of contract are alike, inasmuch as in both, there is an infringement
of private rights. Moreover, in both, action is taken by the person injured and the remedy
is by way of compensation or damages. The following are, however, seven points of
difference between the two:

1. Nature of right infringed

A tort is a violation of a right in rem, that is, a right exercisable against the whole world,
whereas a breach of contract is an infringement of a right in personam, that is, a right
exercisable against a definite person or persons. A right in rem is a right available
against the whole world. Thus, every person has a right not to be defamed or assaulted,
and this right is available to him, not against particular persons like X, Y or Z, but against
everybody in general. A tort is always a violation of such rights in rem. As opposed to
this, a right in personam is available and enforceable only against a particular person or
persons. Thus, if X enters into a contract with Y, and Y fails to fulfill the terms of the
contract, X has a personal remedy against Y, and strangers to the contract are in no way
concerned with the same. A contract always gives rise to a personal right, that is, a right
in personam.

2. Duty

In the case of a tort, the duty is imposed by the law and is owed to the society in general;
in the case of a contract, the duty is fixed by the free will and consent of the parties and
it is owed to a definite person or persons. It must be remembered that when parties
enter into a contract, they create rights and duties for themselves under such a
contract.

3. Consent

In a contract, the obligation is founded on the consent of the parties. In a tort, the
obligation arises independently of any consent, that is, a tort is inflicted against the will
and without the consent of the other party. Thus, if X assaults Y, without any lawful
cause or excuse, X commits a tort. Here, the duty not to cause unlawful harm to another
person is a duty imposed by law. But if X agrees to sell 10 bales of cotton to Y, and later,
fails to perform the contract, the case is one of a breach of contract. Here, X owes a
duty only to Y, and not to the society at large.

4. Privity

In a contract, there must always exist privity between the parties, that is, a binding legal
tie between them. No such privity exists in a tort, where the harm is always inflicted
against the will of the party injured.

5. As to damages

So far as damages are concerned, there are three points of difference between a tort
and a breach of contract.

(a) Measure of damages

In a tort, the measure of damages is not limited or fixed with precision. The Court may
award any sum of money as it thinks fit and just. In other words, in case of a tort, the suit
is for unliquidated damages. In a breach of contract, the measure of damages is
determined according to fixed legal principles or by an agreement between the parties.
The suit, therefore, is for liquidated damages.

(b) Remoteness of damages

The rules as to remoteness of damages in tort are different from those in contract. Thus,
in tort, a man may be held liable for damages arising from special circumstances of
which he had no knowledge. However, if there are special circumstances under which a
contract was made and they were wholly unknown to the party breaking the contract, he
is not liable for damages due solely to those special circumstances. (Hadley v.
Baxendale, (1854) 8 Ex. 341)

(c) Exemplary damages

In a breach of contract, exemplary damages are normally not awarded, whereas in tort,
exemplary damages can be given in a fit case.