MODULE - I
Introduction
Ubi jus ibi remedium
where there is a right, there is a
remedy
Terminology
■Tort (French) ■tortfeasor, or a
wrongdoer.
■‘Tortum’ (Latin)
means ‘twist’ ■joint tortfeasors.
■‘Wrong’ (English) ■tortious act
■‘delict’ (Roman) ■unliquidated
damages
■‘Jimha’ (Sanskrit)
Definitions
■WINFIELD
■‘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.
Elements
Duty primarily fixed by law
Duty is towards persons generally
Action for unliquidated damages:
Shortcomings
■ In framing this definition, Winfield is not seeking to indicate what conduct
is and what is not sufficient to involve a person in tortious liability, to
distinguish from certain other branches of law
■ The phrase 'duty towards persons generally' is vague and not adequate
to include duties arising from special relationships like doctor and patient
etc., and to exclude duties arising between guardian and ward or trustee
and beneficiary etc. which fall outside the ambit of law of tort.
■ The phrase 'liability arises from the breach of duty', may be true at an
earlier stage of development of law of tort, but it is not applicable or
appropriate to an important category of liability at the present day, for
example vicarious liability of a master for his servant's
■ Unliquidate damages’ is not the only remedy. There are other remedies
such as self -help, injunction and specific restitution of property also
available.
Definitions
■Salmond
■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 trust or
other merely equitable obligation.
Elements
■Torts is civil wrong
■Remedy is unliquidated damages
■Not a breach of a contract, breach
of trust or other merely equitable
obligation.
Criticism of Salmond’s definition
■ The definition fails to underline the essential
characteristics of tortious acts:
■ it does not explain what is wrong and what kinds of
wrong explaining jural features of tort.
■ Moreover the expression "civil wrong" itself requires
explanation.
■ Besides, Salmond’s definition also suffers from all the
shortcomings of Winfield’s definition. While this
definition is more informative, this is still far from
perfect.
■ FRASER’s Definition: Tort is an infringement of a right in rem of a
private individual giving a right of compensation at the suit of the
injured party.
■ POLLOCK’s Definition: Tort is an act or omission (not merely the
breach of a duty arising out of a personal relation, or undertaken by
contract) which is related to a harm suffered by a determinate person,
giving rise to a civil remedy which is not an action of contract.
■ Clerk & Lindsell’s Definition: A tort may be described as wrong
independent of contract, for which the appropriate remedy is common
law action
■Section 2(m)
of the Limitation Act,1963, Addresses
tort as being a civil wrong which is not
just exclusively a breach of contract or
a breach of trust.
Objectives of a tort
■To determine rights between the parties to a
dispute.
■To protect certain rights of every individual
recognized by law i.e. a person’s reputation.
■To prevent the continuation or repetition of
harm i.e. by giving orders of injunction.
■To restore one’s property to its rightful owner
i.e. where the property is wrongfully taken
away from its rightful owner.
Essential Constituents of Tort
I) Wrongful Act
II) Legal Damage
III) Legal Remedy
Wrongful Act
■ To determine the liability in tort, it must be proved that the
act done by defendant was a wrongful act.
■ This wrongful act is done without any lawful justification.
■ The act becomes wrongful only when there is violation of
legal right of another.
■ No violation of legal right, no tort.
■ Violation of social, moral, religious duties does not come
under the category of torts. Therefore, important thing is
that, plaintiff has to prove the violation of his legal right by
the defendant in tort.
■ Municipal Corporation of Delhi (MCD) Vs. Subhagwati
■ Tortious liability arises by:
a) an act, or
b) an omission to do an act.
■ Doing an act which is prohibited in tort.
■ Violating another’s legal right is tort.
■ Violating one’s own legal duty is tort. Therefore it is said that, where
legal rights of another is violated there is, violation of legal duty by
the wrongdoer. (in both cases it constitute tort.)
Legal Damage
■ Damage is the result of wrongdoer’s act.
■ Damage and damages are two different things: damage is the harm
done to a person by the wrongful act; and Damages means the
compensation which is given to the plaintiff for loss suffered by him
(for harm, damage caused to plaintiff).
■ The action for damages lies for infringement of individual’s legal
rights.
■ Violation of LEGAL RIGHT of plaintiff is very important.
■ Where there is no violation of legal rights of a person, no action in tort
will lie (even if he suffers any amount of pecuniary loss).
‘THERE MAY BE VIOLATION OF
LEGAL RIGHT WITHOUT LEGAL
DAMAGE BUT THERE CAN NOT
BE A DAMAGE WITHOUT
VIOLATION OF LEGAL RIGHT’.’
Damnum sine injuria
1. Mayor of Bradford v/s Pickles, (1895)
AC 587,
2. Gloucester Grammar school case,
1410
3. Mogul Steamship Co. v. McGregor Gow
and Co.,(1891) AC 25,
4. Seetharamayya v. Mahalakshmamma,
AIR 1958 AP 103
Injuria sine damnum
1. Ashby v/s White, 1703.
2. Ashrafilal v/s Municipal corporation of
Agra, 9121.
3. Marzetti v/s Williams 1830
4. Bhim Singh v. State of Jammu &
Kashmir, A.I.R 1986 S.C. 494
Damnum Sine Injuria Injuria sine Damnum
■ Damnum sine Injuria refers to the ■ Injuria Sine damnum is the legal injury
damages suffered by the plaintiff but no caused to the plaintiff without any damage
damage is being caused to the legal to the physical injury
rights as there is no violation of it ■ It is an infringement of a legal right where
■ . It is the losses suffered without the even if no loss has been suffered by the
infringement of any legal right hence plaintiff still creates an actionable cause of
creating no cause of action. action.
■ Compensation in the form of damages is
■ No compensation in the form of damages
awarded by the court.
is awarded by the court.
■ This maxim is for the legal wrongs which
■ This maxim is for the moral wrongs which are actionable if the person’s legal right
have no action in the eyes of the law. has been violated.
■ The principle of this maxim is that a ■ The principle of this maxim is that
person exercises in such a manner within whenever there is an invasion of a legal
reasonable limits which does not ground right there creates a cause of action and
action in tort merely because it causes the person whose right is vested is entitled
damages to other people to bring an action.
■ In this, the plaintiff suffers a loss but has ■ In this, the plaintiff suffers legal injury
suffered no legal injury. doesn’t matter they have suffered any loss
on that account.
■ Damages without injury are not
actionable ■ This is actionable since there is a violation
of a legal right.
Crime Torts
1. Crime is a wrong against the 1. Tort is a wrong only against
whole society. an individual.
2. Crime proceedings are held in
criminal courts.
2. Tort proceedings are held in
civil courts.
3. In crime remedy is in the form of
punishment. 3. In tort remedy is in the form
4. Rule of criminal procedure is of damages.
applied. 4. Rule of civil procedure is
5. In Crime state prosecutes applied.
regardless of the wishes of a
person who has been wronged. 5. In tort, it is not so.
6. Different crimes involve Mens Rea 6. In tort emphasis is lay down
7. In crime compromising is only on compensation.
possible in compoundable
offences.
7. In tort, individual can
compromise
Torts Contract
1. In tort, no privity exists or is needed as harm is 1. In contract, there must always exist privity of contract between
always inflicted against the will of the party parties i.e. the parties must be legally bounded each to other.
injured.
2. In contract, minority is a good defense as a minors contract is
2. In case of torts, minor can be sued and damages void-ab-inition and no rule of estoppel applies. (rule of estoppel
are paid out of his property. / another to believe a certain state of things exists which in fact
3. A tort is inflicted without or against the consent is not true, then in such a case he is not afterwards allowed to
of the party i.e. the obligation arises without deny it).
any consent.
3. In a contract, obligation is founded on the consent of the
4. In torts, mistake is no defense, even if it is parties i.e. consent is the essence of a contract.
innocent. If A enters B’s House by mistake,
action lies in tort for trespass. 4. In contract, a contract entered into by mistake is void. But
mistake of law one’s own country is no defense as everybody is
5. In torts, tort is a violation of infringement of a supposed to know the law of ones own country .
right in Rem . i.e. rights available against the
world at large 5. In case of contract it is violation of a right in personam i.e. a
right available and enforceable against a particular persons.
6. In case of a tort the duty is fixed or imposed by
law and is owed to the community at large 6. In case of contract the duty is fixed by the will and consent of
7. In torts, motive is often taken into consideration the parties and it is owed to a definite person or persons.
8. In torts, damages awarded may be real, 7. In contract, the ,motive for the breach is immaterial
exemplary unliquidated or contemptuous
8. In contract real and liquidated damages are awarded.
9. The period of limitation in case of torts usually Exemplary damages are rarely awarded.
runs from the date when the damage is
suffered. 9. In contract , the period of limitation rems from the date of the
breach