There are essentially two kinds of law codified and uncodified. Codified law
refers to a document which is consolidated into a single text and formally
adopted, like the Constitution of India. Uncodified law, on the other hand,
refers to an unwritten and unconsolidated document, which majorly depends on the
judicial precedents, like the Common Law of England.
Law of torts is a branch of uncodified law which, like many other laws, has been
borrowed from the English Law.
This article deals with the meaning, nature and essentials of a tort.
Origin of the Concept of Tort
The term 'tort' is derived from the Latin root word 'tortum' which literally
means 'something that is twisted or crooked.'
Therefore, tort is a conduct which is not straight or lawful but is twisted,
crooked and unlawful.
But the law of torts has its origin in the Roman maxim 'alteriumnon-laedere'
which means 'not to injure another.'
Meaning of Tort
In simplest words, tort is a civil wrong. A wrongful act or omission under civil
law by which the legal rights of a person are violated falls under the category
In Common Law system of England, 'tort' accounts for a civilly actionable harm
or wrong, and for the branch of law dealing with such wrongs.
The person committing a tort is called a 'tortfeasor', and if there is more than
1 offender, they are termed as 'joint tortfeasors'.
Definition of Tort
According to Salmond, "Tort is a civil wrong for which the remedy is a civil law
action for unliquidated damages, and which is not exclusively a breach of
contract or a breach of trust, or other merely equitable obligation."
According to Fraser, "Tort is an infringement of a right in rem of a private
individual giving the right of compensation at the suit of injured party."
According to section 2(m) of the Limitation Act, 1963, "Tort means a civil wrong
which is not exclusively a breach of contract or a breach of trust."
Nature of Tort
The law of torts being uncodified, is amorphous, and so to understand its
nature, it is better to follow the reverse approach, i.e. to define what tort is
In the above definitions, tort is strictly differentiated from a breach of
contract or a breach of trust. So let us dig deeper into that.
Tort vs Contract
|Duty is fixed by the law, i.e. rights and obligations
result because of the law in force.
||Duty is fixed by the parties, i.e. rights and
obligations result from the contract between parties.
|It involves a right in rem, can be enforced against
||It involves a right in personam, privity of contract
|The compensation is in the form of unliquidated damages.
||The compensation is in the form of liquidated damages.
|Minors can sue and get sued under law of torts.
||Minors are not recognized by law of contracts; an
agreement with minor is void ab initio.
|Mental element (intention and motive) is taken into
consideration, but is not essential.
||Intention or motive behind breach of contract is
Tort vs Breach of Trust
||Breach of Trust
|It is a civil wrong.
||It is a crime under section 405 of IPC.
|It can be committed against a person or
||It is an offence against property.
|Plaintiff and defendant may or may not know
||It arises out of fiduciary relationship
(based on mutual trust)
|Relief is in the form of compensation for
||If proven guilty, accused shall be punished
with rigorous imprisonment of 3 years, or with fine, or both under
section 406 of IPC.
|Mens rea not always essential.
||Mens rea is quintessential.
Tort vs Crime
|The law is uncodified.
||The law is codified.
|Adjudicated by civil courts.
||Adjudicated by criminal courts.
|The injured party (plaintiff) will approach
||The criminal proceedings against the accused
are brought by the State.
|It is less serious and a private wrong.
||It has more gravity and is committed against
|The objective is to make good of the loss
suffered by the plaintiff.
||The aim is to protect the society by
preventing the criminal from committing further crimes and deterring
other potential offenders from committing the same.
It is to be noted here that an act may be a tort only or a tort and crime both.
For example, defamation is a tort as well as a crime under section 499 of IPC.
It depends on the kind of relief plaintiff is seeking. If he wishes to get
compensation for damages, a civil suit shall be filed, and if he wishes the
defendant to be punished, then the case shall be dealt in a criminal court.
Scope of Law of Torts
This branch of law contains various acts whereby the wrongdoer violates the
legal rights of another person. Some of them are: defamation, assault, battery,
trespass, nuisance, etc.
But since it is an uncodified law, it is not limited to these acts and has a
wide scope. Over many years, courts have expanded its ambit according to the
needs of the time.
In Jay Laxmi Salt Work (P) Ltd. vs State of Gujarat (1994)
, the Supreme
Court observed "Law of torts, being a developing law, its frontiers are
incapable of being strictly barricaded."
Essential Elements of Tort
- Wrongful act or omission:
For the commission of a tort, there must be a wrongful act or omission. The
law imposes a duty to respect the legal rights vested in the members of the
society and the person making a breach of that duty is said to have done a
wrongful act. But it is to be noted here that the wrongful act or omission
must be one recognized by law. Therefore, if a person fails to save a
drowning child, he cannot be held liable unless it is proved that it was his
legal duty to do so.
Municipal Corporation of Delhi vs Subhagwanti and Ors (1966): The
Corporation was in charge of the maintenance of a clock tower which was
situated in the heart of the city. It failed to keep the tower in repairs
and consequently, the clock tower fell and resulted in death of many people.
The court held the Corporation liable for its omission of duty and gross
negligence and ordered to pay the damages.
- Results in legal injury:
Legal damage or injury is sine qua non for commission of tort. It is based
on the maxim 'injuriasine damnum' which means legal injury without any
damage in terms of money, comfort, etc. That is to say, a person's legal
right must be violated, even if he didn't suffer any harm. For example,
trespass over property is a tort actionable even though no damage was caused
as a result of it. Hence, it can be said that tort is actionable per se,
i.e. without any proof of damage or loss.
On the other hand, if a person suffers monetary loss but is unable to prove
that his legal right was also infringed, then he cannot claim relief under
law of torts. This is the principle enshrined in maxim 'damnum sine injuria'
or 'damnumabseque injuria', i.e. damage without legal injury.
Ashby vs White (1703):
An eligible voter was denied to vote by an officer. The person filed suit
for legal injury. Even though the candidate he wished to vote won the
elections, he was awarded compensation.
Shri Bhim Singh, MLA vs State of Jammu and Kashmir:
The MLA was illegally detained as a result of which he could not attend his
assembly session. The Supreme Court decided in his favour and directed the
State to pay Rs. 50,000 to the petitioner as monetary compensation.
Gloucester Grammar School Case:
Defendant opened a school in the neighbourhood of petitioner's school
because of which the latter suffered loss. The court dismissed the suit on
the ground that no legal injuries were suffered by the plaintiff.
- Infringement of jus in rem:
Jus in rem refers to a right which is exercisable against the public at
large, as opposed to jus in personam which can be exercised against an
individual only. To simplify, right in rem can be enforced against any
individual who interferes with that right. For example, the right to enjoy
my property is a jus in rem and is characterized by a complete and absolute
dominion over it. Anyone found trespassing through my property or illegally
restraining me from enjoying absolute control over it is said to infringe my
jus in rem.Therefore, the act by which legal right is violated must be in
rem for it to fall under the category of torts.
- Mens rea is considered but not always essential:
In torts like trespass, assault, battery, etc. the intention and motive of
the accused is taken into consideration for determining the tortious
liability. But in torts like negligence and under principles like strict
liability, absolute liability and vicarious liability, mental state of the
accused is irrelevant.
- Remedy is in the form of unliquidated damages:
Damages imply the plaintiff's right to be compensated. And since it is a
civil wrong, the relief shall be in the form of compensation or injunction
or both. Here, unliquidated damages refer to the amount of compensation
which is not predetermined and depends on the intensity of the offence
committed. In order to get the maximum relief, the plaintiff has to prove
the extent of legal injury caused to him.
Objective of Law of Torts:
- To compensate or make good of the loss caused to the plaintiff.
- To protect the legal rights that were compromised.
- To punish the tortfeasor(s) by shifting the cost of injury.
- To discourage tortious and delinquent acts in the society.
After going through this article, one can say that a tort is civil wrong which
is committed when a person infringes other person's legal rights. The main
purpose of law of torts is to compensate the injured party and make liable the
person who violates that person's right in rem. It is a branch of civil law and
is uncodified, but is being widely used in the present era.
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