GenZatLaw - Topic 1: Introduction: Definition, Nature and Scope

Topic 1: Introduction: Definition, Nature and Scope

What is a tort?

Tort Law is a collection of legal rules and ideas to protect you from harm and vindicate your rights. The word tort is derived from the Latin word "Tortum" which means to twist. 'Tort' as it is used today refers to a wrong or twisted or unjust act.The Law of tort originates from the English Common Law System. A tort is a civil wrong which is not a breach of contract or breach of trust. While numerous torts have a criminal law equivalent like the tort of defamation, the law of torts is significantly different from criminal law.

"Tort means a civil wrong which is not exclusively a breach of contract or breach of trust" ~ Section 2 (m) Limitation Act
"Tortious liability arises from the breach of duty primarily fixed by law. This duty is towards persons generally and it’s breach is repressible by an action for an unliquidated damages." ~Winfield
"Tort is an infringement of a right in rem (right in general) of a private individual giving a right of compensation at the suit of the injured party." ~Fraser
"Tort is a civil wrong for which remedy is a common law action for unliquidated damages, and which is not exclusively the breach of contract, or the breach of trust, or other merely equitable obligation. " ~Salmond

What are the objectives of Law of Torts?

Deterrence- Tort Law aims to ensure that the defendant compensates the victim for the wrongful act so as to put the victim(s) back to the position they were in prior to the defendant committing the wrong.
Fair and Just Response- Holds the wrong doers liable.
Provide means through which any-person who has suffered damage due to another may use the law to prevent further suffering through injunctions like restraining orders etc.
To make whole someone who has been damaged by the intentional or negligent acts or omissions of another.

TORT V/S CRIME

Definition :-

Tort:-

A tort is a civil wrong which is said to have been committed by the defendant when the defendant engages in an active act or an omission which a prudent person would have or would not have done. When such an act results in legal damage the court can take action and provide with unliquidated damages in the form of compensation or injunction. (It is not a breach of contract or breach of trust). Tort is a wrong committed against the plaintiff.

Crime:-

Crime is a violation of the penal law as laid down by the authorities and when such laws are violated by the individual the person is taken to court by the state as crime is deemed to be an offense committed against the society at large. Liquidated Damages are awarded in cases pertaining to criminal law.

Is it Law of tort or Law of torts?

Two Competing theories have been propounded by numerous jurists which are opposed to each other:-

An Argument for "Law of Tort"
- According to Winfield & Pollock,All injuries done to another person are tort unless there is some jurisdiction recognized by law.
- Therefore,this theory conveys that the term 'torts' does not merely consist of those torts which have acquired specific names,but also includes the wider perception that all unjustified harm is tortious. Thus, the area of torts covered by the law should be referred to as "the law of tort"
An Argument for "Law of Torts"
- According to Salmond it is law of torts and in his support he proposed the Pigeon Hole Theory.
- Pigeonhole is a theory propounded by Salmond, an authority in the field of tort law. Salmond believes that the specific torts are like pigeon-holes and to prove your case one must prove that the wrong committed against him falls within one of the pigeonholes. This is, understandably, called the pigeonhole theory.
Winfield later made a modification in his stand regarding his own to his theory. He thought that both his and Salmond's theories were correct in their own respect. While the former adopted a broader point of view the latter understood the concept from a narrower point of view. In the words of Winfield, from a narrow and practical point of view, the second theory will suffice, but from a broader outlook, the first is valid.
So, is it Law of Tort or Law of Torts? It depends...

Right in Rem and Right in Personam

Right in Rem-

Is a right which is available to an individual against the world at large.
Rights in rem are generally negative rights
a right in rem corresponds to a duty imposed upon the general public .
Example :- Ms. B is the owner of a house. He has right in rem with respect to that house. This Right in Rem implies that nobody can interfere with his ownership of the house.

Right in Personam

Is any right which is available against a particular individual.,
Most rights in personam are positive Rights.
A right in personam corresponds to a duty imposed upon a particular person
Example:- Mr. X loans Rs. 10,000/- to Mr. Y. The right to recover this money lies with Mr. X against Mr. Y and not against the world at large

Evolution of Tort Law

A Brief History of Tort Law (In England) {Links to additional Reading Material}
In India :-In India, the concept of tort has been in present since the ancient times. The Sanskrit word “Jimha”, meaning ‘slanted’ was a part of the old Hindu law which was practiced within the nation. However inception was not one of great significance under Hindu and Muslim law as compared to the English Law. Tort as a discipline possessed a more conspicuous place under the purview of these legal systems.
The law of torts in India is, for the most part, the English law of torts which itself depends on the standards of the customary law of England. However, the Indian courts before applying any English law, contrast the conditions of the two nations in the context of the law and deliberate upon the implications of adopting the same in the socio-legal sphere of the Union of India. The use of the English law in India has in this way been a unique and specific application.
In the case of M.C. Mehta v Union of India, Justice Bhagwati noted that,
“We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.”
Amid British control, courts in India were ordered by the Acts of Parliament passed in the UK and by Indian establishments to act as per equity, justice, and good conscience if there was no particular lead of instituted law pertinent to the debate in a suit. Concerning suits for harms of torts, courts took after the English customary law seeing that it was in consonant with equity, justice, and good conscience.
The jurisdiction of section 9 of the Civil Procedure Code which allows the civil court to try all cases of civil nature also includes tortious cases and liabilities. '
In the case of Jay Laxmi Salt Works (p) Ltd. v the State of Gujarat, Justice Sahai observed,“Truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever-expanding and growing horizon of tortious liability. Even for social development, orderly growth of the social and cultural the liberal approach to tortious liability by the court would be conductive.”
To completely asses the feigned party by tort law in an advanced society, it is informational to swing to the history of England during the last three centuries. This is for two reasons firstly, tort case in England has developed essentially, making it a fascinating study and besides, the law of torts in India has been to a great extent obtained from the English law of torts.

Relevance of intention, motive and malice in law of torts

“ It is the act and not the motive for the act that must be regarded. If the act, apart from the motive, gives rise merely to damage with legal injury, the motive, however, reprehensible it may be, will not supplement that element” ~SalmondIn the law of torts motive and malice play a minor role. If the act does not inflict legal injury, it will not give rise to tortious liability even though it is accompanied by malice or improper motive. However, in some torts, malice is a necessary ingredient.

Relevant Maxims

Injuria Sine Damno
Damnum Sine Injuria
Ubi jus ibi remedium

Relevant Case Laws:-

White v. John Warrick & Co., Ltd., (1953) 2 All ER 102112.
Town Area Committee v. Prabhu Dayal, AIR 1975 All. 132 53. P.
Seetharamayya v. G. Mahalakshmamma, AIR 1958 AP 103 74.
Jayalakshmi Salt Works Pvt. Ltd. v. State of Gujarat (1994) 4 SCC 15.
State of A. P. v. Govardhanlal Pitti (2003) 3 SCALE 107 6. Ashby v. White (1703) 2 Lord Raym 938
Municipal Corpn. of Agra v. Asharfi Lal, AIR 1921 All. 202
Mayor of Bradford Corpn. v. Pickles (1895) AC 587
Glouscester Grammer School case (1410) Y.B. 11 hen. IV of 47

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