INTRODUCTION
The word tort has been derived from the Latin word ‘tortum’ which means ‘to twist’. Thus, the word ‘tort’ means any conduct which is not straight but is unlawful, crooked, twisted. Thus, the word tort refers to the unlawful act whereby a person violates the legal right vested in a person. No precise definition of tort has been given as of now that what constitutes a tort or what are the elements of the tort.
As crime is the breach of a duty imposed by the criminal law. The breach of contract is the violation of contract law. Similarly, breach of tort is the violation of tort law.
Definitions of Tort
- According to Section 2(m) of the Limitation Act, 1963, the tort is a civil wrong which is neither exclusively a breach of contract nor a breach of trust.
- According to 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.
Thus, from the above definitions, we can observe that tort is civil wrong which does not fall within other defined civil wrongs.
Classification of Tort
A tort can be classified into[1]:
- The tort involving intention, tort involving negligence and the torts of strict liability.
- Torts affecting person, torts affecting family, reputation, property, economic rights and certain miscellaneous rights.
It is to be noted that the remedy for tort is unliquidated damages.
Therefore tort is:
- A civil wrong
- Other than a breach of contract or breach of trust
- The remedy for which is unliquidated damages
A Tort is a Civil Wrong
A tort is a civil wrong rather than a criminal law. In criminal law, it is the state who initiates the proceedings against the accused. In crimes, the accused if found guilty is punished. On the other hand under the Civil law, it is the person himself (victim) who files the suit against the defendant. The remedy under Civil law is the monetary compensation and not punishment. It must be noted that an act may constitute both the Civil and Criminal wrong. In such a case, the plaintiff has the option to either take civil action or criminal action or both. Thus, the victim can institute both civil and criminal proceedings simultaneously.
A Tort is other than a breach of contract or breach of trust
A Tort is a civil wrong which is not exclusively any other kind of civil wrong[2]. If a wrong is a breach of contract or a breach on trust then one may say that it is not a tort. It is only by the elimination that we can know if a particular act is a tort or not. Thus, if a person enters into a contract for the delivery of certain goods and the goods are not delivered to the person on time then it is not a torts but a breach of contract.
It is a possibility that a wrong may amount to two or more civil wrongs at the same time. In that case, a person can sue only under one civil law. Thus, if an act has resulted in the breach of contract and torts, then the person has the option either to sue a person either for the breach contract or for the commission of tort but can not sue for both. The reason being, that under both the heads it is the damages which are to be paid, thus, a person can not claim twice for the same wrong.
Unliquidated Damages
In tort law, the remedy is unliquidated damages. Unliquidated damages mean that the party has not determined the amount of compensation. Liquidated damages, on the other hand, means that the parties have agreed previously, the amount to be paid as compensation. Thus. for example, the parties may agree to pay a specific sum of money as compensation if either of them breaches the contract. In this case, it is liquidated damages as the prices are determined before the breach is committed. On the other hand, it is not possible to determine in the cases of torts as no one knows who is going to breach their legal rights. Moreover, in many cases parties don’t even know each other before the commission of the wrong. Thus, in that case, it is the court that has to decide the amount of damages to be paid.
The rationale behind this is that a wrong once committed can not be done but the harm caused because of such wrong is equated with the money to satisfy the injured party. It must be noted that there are several other remedies with the injured party in addition to damages like injunction and sometimes the other remedies may turn out to be more effective for the injured party then the damages. Thus for example, if a defendant is creating in nuisance then in that case injunction is a better remedy than the claim for damages.
Is it the law of Tort or Law of Torts
Winfield and Salmond have given different views in this regard. According to Winfield, it is the Law of Torts. According to his theory, if I injure my injure, he can sue me in tort whether the wrong happens to have some particular name like assault, battery, deceit, slander, or whether it has no special title at law, and I shall be liable if I can not prove lawful justification.[3]
Salmond, on the other hand, stated that it is the Law of Torts and there is nothing like the Law of Torts. Salmond gave the Pigeon Hole Theory. According to his theory, liability arises only if the wrong can be placed in any of the other nominate torts.[4] According to him if the plaintiff can place the wrong in any of the pigeon holes, each containing a labelled tort, he will succeed in his action and if he is not able to place the wrong in any of the labelled pigeon holes he can not succeed.[5]
[1] R.K. Bangia, Law of Torts, The Nature of a Torts, Ed. 24, Pg 4.
[2] Id. pg. 6
[3] Winfield, Tort, 6th ed., p. 14
[4] Bangia, Pg. 14.
[5] id.
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