Torts Overview

Tort is a French term meaning ‘wrong’.

Origin is Tortum which Latin word meaning twist.

Everyone is expected to behave in straightforward manner and when one deviates from this straight path into crooked ways, he has committed a tort.

Lord Scarman: real danger to common law isn't new situations; it should be able to be extended progressively. The real problem is a conservative judicial approach that isn't modernized.

Definitions

Salmond:

  • It is a civil wrong for which the remedy is 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.

Winfield:

  • Tortious Liability arises from the breach of a duty primarily fixed by the law:

  • this duty is towards persons generally and

  • its breach is redressable by an action for unliquidated damages.

Fraser:

  • 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.

Limitation Act, 1963 u/s 2(m):

Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.
Difference in Tort, Crime, Breach of Contract/Trust



Tort Crime Contract

Civil

Criminal

Civil

Uncodified

Codified

Codified

Civil Wrong



(preponderance of probability)

Offence by wrongful act/omission (beyond reasonable doubt)

Agreement enforceable by Law

Right in Rem

Right in Rem

Right in Personam

Unliquidated Damages

Punishments,


Life imprisonment, Prisonment, Death Penalty, Forfeiture of Property, Fine, Community Service, Fine

Liquidated Damages


To put people in pre tort position



(restitution)

Deterrence

Put people in a post contract position (monetary)

NOTE: even if a party is liable under both contracts and torts, he can only be sued under either.

IF AN ACTION IS COVERED UNDER BOTH TORTS AND CRIMINAL LAW, THE OFFENDER MAY BE ORDERED TO PAY COMPENSATION AND MAY BE PUNISHED OR HIS WRONGDOING AS WELL.


TortTorts

Winfield (branching tree theory): expansive theory for justice and equity.

Salmond (Pigeon-Hole theory): only few principles constitute torts (PLURAL, NOT TORT)

All wrongs are torts as long as they cannot be justified

Salmond did not bar judge from creating new pigeon holes to expand torts (but it must be well defined)

Wider in ambit, covering generally used terms

Narrow Scope