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Definition and Nature of Tort


Definition and Nature of Tort
Definition and Nature of Tort

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Meaning of Tort


The term "tort" finds its roots in the Latin word 'tortum', signifying 'to twist', encapsulating actions that deviate from the straight and lawful path, instead manifesting as twisted, crooked, or unlawful.



Essentially synonymous with the English term 'wrong', this legal domain encompasses a spectrum of wrongful acts where the perpetrator breaches a legal right belonging to another individual. 



Society mandates a duty to honour the legal rights of its members, and transgression of this duty constitutes a wrongful act. Analogous to a 'crime', which stems from breaching a duty recognized by criminal law, a 'breach of contract' denotes the failure to fulfil a duty agreed upon in a contract. Similarly, a 'tort' represents a breach of duty acknowledged under tort law.



For instance, harming someone's reputation breaches the duty of care, constituting the tort of defamation; interfering with another's land possession violates the duty, leading to the tort of trespass to land;


and defrauding another breaches the duty of honesty, resulting in the tort of deceit. No precise scientific definition delineates the essential elements constituting a tort, unlike in the case of contracts. 

 
 

Origin of Tort


The diverse array of wrongs falling under this category each carries its unique historical context, hindering the formulation of a uniform definition.


Many tortious wrongs trace their origins to ancient legal writs such as trespass and trespass on the case, which not only birthed this legal field but also laid the groundwork for various other legal principles.



The evolution of tort law has been both continuous and expansive, with its scope perpetually widening. Its growth trajectory is marked by the emergence of new torts and the expansion of existing ones. Indeed, it remains an ever-expanding branch of law, characterised by continuous development and an increasing ambit of coverage.



Definitions of Tort


  1. According to Section 2 (m) of the Limitation Act, 1963, "Tort means a civil wrong which is not exclusively a breach of contract or breach of trust."

  2. 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."

  3. Winfield elucidates that "Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages."

  4. Fraser states that 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."



The pursuit of a scientific definition of tort remains elusive, as it defies encapsulation within specific elements. Various attempts at definition often adopt a negative approach, either by distinguishing tort from other wrongs or by highlighting elements unique to torts. Determining whether a wrongful act is civil or criminal is the initial step.



If classified as civil, it's essential to ascertain whether it exclusively falls under recognized categories like breach of contract or breach of trust. Only when the act doesn't exclusively fit into these categories can it be considered a tort.




Scope of Law of Tort


In common law systems, "tort" denotes a civilly actionable harm or wrong, constituting a branch of law governing liability for such wrongs. Conceptually, tort law falls under the law of obligations, where legal duties to refrain from harm and, if harm occurs, to rectify it or compensate for it, are imposed independently of agreements.



Its societal function is to transfer loss from one party to another deemed responsible and, to some extent, distribute the loss across a community or enterprise.



Historically, tort liability lacked a general principle, but remedies were available for various trespasses and direct injuries. Over time, other harms became actionable, such as libel and slander, leading to the development of distinct forms of action tailored to specific wrongs.



Legislative enactments introduced new entitlements and grounds of liability, while judicial decisions expanded liability to include mental injuries and negligence.



However, tort law remains a collection of circumstances warranting legal remedy, primarily through damages, for unjustified harm inflicted by one individual on another, rather than a broad principle of liability.

 
 

Though tort and crime share common origins, they have diverged significantly. Many common law crimes also constitute actionable torts, such as assault, but not vice versa. Liability hinges on the defendant breaching a legal duty, infringing a recognized legal right of the plaintiff, and causing foreseeable harm.



Not all harm is actionable, as there are defences like inevitable accidents or acts of God, and liability may be shifted through insurance.



In tort law, vicarious liability applies, and joint tortfeasors are jointly liable for the entire harm caused, with recourse among themselves.



Damages may be reduced if the plaintiff bears partial blame, and liability typically arises from failing to exercise reasonable care and precautions. Strict liability may apply in certain cases, especially for breaches of statutory duty.


Torts encompass intentional wrongs, negligence, and strict liability. They can affect individuals, families, reputation, property, economic rights, and may include various other miscellaneous wrongs, with potential for new forms of actionable conduct like infringement of privacy.



The usual remedy for torts is pecuniary damages, although injunctions may be appropriate in cases like nuisance. In summary, a tort is a civil wrong redressible by an action for unliquidated damages, distinct from mere breaches of contract or trust.



Tort, a civil wrong, stands distinct from criminal wrongs in its procedural and remedial aspects. When a civil wrong occurs, the aggrieved party, or plaintiff, initiates civil proceedings against the wrongdoer, or defendant, seeking remedies primarily in the form of damages. Conversely, in criminal wrongs, the State brings charges against the accused, with the focus on punishment rather than compensation for the victim.



It's plausible for a single act to constitute both a crime and a tort simultaneously, enabling the pursuit of both civil and criminal remedies concurrently. However, if the wrong solely amounts to a breach of contract or trust, it doesn't qualify as a tort.



The determination of whether an act constitutes a tort often involves a process of elimination, excluding acts exclusively falling under recognized categories like breach of contract or trust.



Remedies for Tortious Wrongs


Remedies for torts typically revolve around unliquidated damages, as the primary aim is compensating the injured party for harm suffered. Unlike criminal wrongs, where the focus may be on punishment or restitution, the nature of torts emphasises monetary compensation due to the difficulty of reversing harm already inflicted.



In cases like defamation, where reputation damage occurs, monetary compensation serves as the closest redress available.



While damages remain the cornerstone remedy for torts, other remedies such as injunctions may prove more effective in certain scenarios, particularly for ongoing wrongs like nuisance. The inclusion of damages in the definition of tort underscores its civil nature, distinct from criminal wrongs where punitive measures are predominant.



The term "unliquidated damages" distinguishes torts from other civil wrongs like breach of contract or trust, where damages may be pre-determined or agreed upon by the parties involved. In torts, damages are left to the discretion of the court, as determining the extent of loss beforehand is often impractical.



This characteristic further underscores the civil nature of torts, where compensation is determined by the court based on the circumstances of the case.

 
 



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