Palak Jain, a 1st-year law student at Law College Rajasthan University has written this article explaining the meaning and nature of Tort Law
Introduction– Meaning & Nature of Tort
In common sense, the Law of Torts is the branch of law controlling the behaviour of the people in society. The principal aim of the Law of Torts is for providing compensation to the victims or their dependents.
The maxim ‘UBI JUS IBI REMEDIUM’ is the foundation of the whole concept of the Law of Torts, which literally means ‘that where there is right there must be a remedy’. It is the fundamental principle that no wrong can remain without a remedy.
In the case of Jai Laxmi Salt Works (p) Ltd. V. State of Gujarat, (1994) 4 SCC 1 Sahai J. observed that “Truly speaking entire law of Torts is founded and structured on morality that no one has a right to injure or harm anybody intentionally or even innocently….”
Origin of the word TORT
The term ‘TORT’ is the French equivalent of the English word ‘wrong’ and Roman term ‘Delicit’. Tort is derived from the Latin word ‘tortum’ which means to twist i.e., twisted or crooked conduct. In this generic sense, it was introduced into the terminology of English law by the French-speaking lawyers and judges of the courts of Normandy and the Angevin kings of England.
DEFINITION OF TORT –
The definition of Tort was attempted by several writers-:
- 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.”
- IN THE WORDS OF SALMOND -: “A tort is a civil wrong for which the remedy is an action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation.
- FRASER Says “A 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.”
- CLERK AND LINDSELL DESCRIBES A TORT AS A “Wrong independent of contract for which the appropriate remedy is a common law action”.
THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL IN ROGERS V. RAJENDRA DUTT1, DEFINED TORT AS -: “an act or omission which prejudicially affects another and some legal right giving him a right to claim damages”.
ACCORDING TO SECTION 2(M) OF THE LIMITATION ACT,1963 “tort means a civil wrong that is not exclusively a breach of contract or breach of trust”.
From the above definitions, we can say that Tort is a civil wrong for which the damages are being given in a form of remedy.
ESSENTIAL ELEMENTS OF A TORT -:
On the basis of the above definitions, it may be said that three distinct factors are essential to constitute a tort.
Let’s discuss them one by one-:
1) WRONGFUL ACT -:
The first essential element of a tort is doing wrongful act. When someone breaches duty primarily fixed by law, then there is the violation of someone’s rights. The violation of the rights is a wrongful act and it is tort.
It’s necessary that these rights must be legal rights. According to AUSTIN “the legal rights mean rights provided to a person by law and these rights are available against the whole world”
2) LEGAL DAMAGE -:
Another essential element of tort is legal damage.
- Legal damages mean a violation of one’s legal rights.
- It’s not necessary that party suffers pecuniary loss; mere infringement of wrong doer leads to having to compensate the other party.
- It is neither economical nor actual damages.
In this context there are two important legal maxims-:
- INJURIA SINE DAMNUM (LEGAL INJURY WITHOUT DAMAGE)
- DAMNUM SINE INJURIA (DAMAGE WITHOUT LEGAL INJURY)
Let’s study one by one:
INJURIA SINE DAMNUM -:
The import of this maxim is that if the right of the plaintiff has been infringed, he will have an action even if the actual physical damage is not there.
The leading case on this maxim is ASHBY V. WHITE2, in this case the defendant, a returning officer, wrongfully refused to registered a duly tendered vote of the plaintiff, who was a qualified voter. The candidate for whom the vote was sought to be tendered was elected and no loss was suffered by the rejection of the plaintiff’s vote. “It was held by hon’ble court that plaintiff is liable for the compensation because his legal rights were violated”
In BHIM SINGH V. STATE OF JAMMU AND KASHMIR (AIR 1986 SC 494), The petitioner an M.L.A of JAMMU and KASHMIR was wrongfully detained by the police while he was going to attend the assembly session. As a consequence of this he was deprived of his constitutional right to attend the Assembly Session. His fundamental right to personal liberty under article 21 of the constitution was also violated. By the time of the petition was decided by the SC, Bhim Singh had been released, and he was awarded with the exemplary damages.
DAMNUM SINE INJURIA -:
This maxim means that damage without injury is not actionable. The main reason of it is that in these cases, the legal rights of a person are not violated. No one can file a suit of damages under the law of tort, unless his legal rights are violated.
If a person is caused economical loss but his legal rights are not violated; then he cannot file suit of damages.
ILLUSTRATION-:
Suppose ‘A’ owns a saree shop and his business is running very good after some days ‘B’ also starts running a saree shop near ‘A’s shop and because of that A’s business suffered a heavy loss and he files a suit against B. But A is held not liable for any damages because his legal rights are not violated though he is caused economic loss.
IN THE CASE OF ‘USHABEN V. BHAGHYALAKSHMI CHITRA MANDIR (A.I.R 1978 GUJ. 13), the appellant filed a suit against the plaintiff that the show of JAI SANTOSHI MAA should be banned because it hurts the religious feelings of the appellant. In this film, Goddess Lakshmi, Saraswati and Parvati were shown envious to each other and was deride. The court rejected the suit and said that it does not violate his legal rights.
3) LEGAL REMEDY -:
The third essential element of a tort is legal remedy. It arises when someone’s legal rights get violated. THE essential remedy for a tort is an action for damages. The quantum of damages depends upon the discretion of the court.
This point is based on the legal maxim ‘UBI JUS IBI REMEDIUM’ which means ‘WHEN THERE IS RIGHT THERE IS REMEDY’. If a man has a right, he must be of necessity to have a means to vindicate and maintain it and a remedy should be provided if he is injured in exercise of enjoying it.
In the case of BRADLAUGH V. GOSSETT PER STEPHEN J. stated that “where there is no legal remedy, there is no legal wrong”.
NOOR MOHAMMAD V. MOHD. ZIAJDDIN (AIR 1932 MP 244) – In this case a marriage had been solemnized but the boy’s side left the marriage hall abandoning the bride just because the bride side was unable to pay the expenses incurred by the groom’s side in arranging a dancing girl. The court held that the demand of expenditure incurred on the dancer and to warn the bride’s side leaving out of groom and his family is tortious act and hence an action against the groom for recovering maintenance is valid.
NATURE OF TORT -:
A tort is a civil wrong and thus can be differentiated from various other forms like crime, contract, quasi contract and bailment.
DIFFERENCE BETWEEN TORT AND CONTRACT
| LAW OF TORTS | CONTRACT |
| DUTY IS PRIMARILY FIXED BY LAW. | DUTY IS FIXED BY PARTIES |
| RIGHT IN REM | RIGHT IN PERSONAM |
| REMEDY IS BY WAY OF CLAIM FOR UNLIQUIDATED DAMAGES | ACTION LIES FOR LIQUIDATED DAMAGES |
| VICARIOUS LIABILITY IS APPLICABLE TO TORTS | IT IS NOT APPLICABLE HERE EXCEPT IN CERTAIN CASES |
| NO PRIVITY BETWEEN THE PARTIES NEEDED | PRIVITY BETWEEN THE PARTIES IS NECESSARY. |
DIFFERENCE BETWEEN TORT AND CRIME
| TORT | CRIME |
| TORT IS AN INFRINGEMENT OF THE PRIVATE OR CIVIL RIGHT BELONGING TO INDIVIDUALS. | CRIME IS A BREACH OF PUBLIC RIGHTS AND DUTIES WHICH AFFECT THE WHOLE COMMUNITY CONSIDERES AS COMMON |
| CIVIL SUIT CAN BE INSTITUTED ONLY BY THE PERSON WHO HAS SUFFERED LOSS OR WHOSE LEGAL RIGHTS ARE VIOLATED | SINCE, CRIME IS WRONG TO PUBLIC AT LARGE SO PROCEEDINGS CAN BE INSTITUTED BY ANY MEMBER OF PUBLIC OR IN SOME CASES POLICE TAKES COGNIZANCE BY ITS OWN |
| REMEDY IS TO CLAIM DAMAGES IN A CIVIL COURT | IN CRIME ITS PUNISHMENT OF THE OFFENDER TO DETER HIM FROM COMMITTING IT AGAIN |
| THEY ARE ONLY REPARATORY PROCEEDINGS MEANT TO COMPENSATE THE INJURED PARTY. | THE PROCEEDINGS ARE DETERRENT MEANT TO PREVENT ITS REPETITION BY PUNISHING THE WRONGDOER. |
CASES -:
IN KESHAB V. MANIRUDDIN3 “It was held that attack, defamation, battery, nuisance, negligence and inadvertence come under both the category of tort and offence.
IN P. RATHINAM NAGBHUSHAN V. UNION OF INDIA4 “The court held that it cannot be said that the torts only affect individuals; they finally reached the society.
DIFFERENCE BETWEEN TORT AND BAILMENT
| TORT | BAILMENT |
| TORT IS A CIVIL WRONG THAT INVOLVES A BREACH OF A LEGAL DUTY OWED BY ONE PARTY TO ANOTHER | BAILMENT IS THE TRANSFER OF POSSESSION OF PROPERTY FROM ONE PARTY TO ANOTHER FOR A SPECIFIC PURPOSE |
| THE HARM SUFFERED BY THE PLAINTIFF IS TYPICALLY PHYSICAL OR ECONOMIC IN NATURE, SUCH AS PERSONAL INJURY OR FINANCIAL LOSS | THE HARM SUFFERED BY THE BAILOR IS THE LOSS OF OR DAMAGE TO THE PROPERTY THAT WAS ENTRUSTED TO THE BAILEE |
| LIABILITY IN TORT IS NOT DEPENDENT ON CONTRACT | LIABILITY ARISES OUT OF CONTRACT |
| IN TORTS DUTY IS TOWARDS PUBLIC IN GENERALLY | IN BAILMENT DUTY BAILOR AND BAILEE IS TOWARDS EACH OTHER. |
DIFFERENCE BETWEEN TORT AND QUASI-CONTRACT
| TORT | QUASI CONTRACT |
| A CLAIM FOR DAMAGES UNDER LAW OF TORT IS ALWAYS FOR AN UNLIQUIDATED SUM OF MONEY | A CLAIM FOR DAMAGES IS FOR LIQUIDATED SUM OF MONEY |
| DUTY IS TOWARDS PERSONS | DUTY IS TOWARDS A PARTICULAR PERSON |
| THE DAMAGES ARE NOT FIXED IN LAW OF TORTS | IN QUASI CONTRACT DAMAGES ARE FIXED AND SPECIFIED BY THE COURT ITSELF |
| IN THE TORT, THERE IS A CHOICE FOR AN INJURED PERSON NOT TO BRING AN ACTION FOR DAMAGES. | IN QUASI CONTRACT, SUING THE WRONGDOER TO RECOVER THE VALUE OF THE BENEFIT OBTAINED BY THE WRONGDOER. |
CONCLUSION – MEANING AND NATURE OF TORT
The concept of tort can be summed up in the following words -: Tort is a civil wrong it arises when a person’s legal rights are infringed and in return to that he has been provided legal remedies in form of unliquidated damages.
In many tort actions, the appropriate remedy is unliquidated damages though it is not the only remedy available in the field of tort. There are other remedies also for example injunction, self-help, etc. but unliquidated damages are the dominant remedy.
In the above discussion, we saw that how law of torts is different in nature from Contract, Bailment, Crime, quasi contract, etc. it can be said that a tort is essentially a civil injury but all the civil injuries are not torts.
However, this law is still not fully developed and supported in India because people are less aware of their rights due to lack of education. But now many campaigns are being organized by lawyers, law students and government to provide legal education to public and make them aware of their rights and duties, it will also help in the development of Indian legal system.
REFERENCES -:
- BOOKS – LAW OF TORTS BY MN SHUKLA AND BANGIA
- https://indianlegalsolution.com/nature-and-definition-of-torts/
- https://legalvidhiya.com/laws-of-tort-nature-definition/
- https://www.legalserviceindia.com
[1] Palak Jain, MEANING AND NATURE OF TORT
[1] (1860)8 MIA 103: MEANING AND NATURE OF TORT
2(1703)2 LD RAYM 938: MEANING AND NATURE OF TORT
3 (1908)13 CWN 50.
4 AIR 1994 SC 184
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