Pigeon Hole Theory
The aim of this
article to give the research Regarding the Pigeon hole Theory. So here if we put
three Pigeons in two Pigeonholes ,at slightest two of the Pigeons put a stop to
up in the constant puncture then we can find that so far underlying attitude of
life as it captures the self-same essence of counting .this paper also
discussing how this Theory evaluate in law with different examples. To analysis
this Theory I have read many cases and journals, this Theory is from various
e-resources, case law
and it is explorative in nature.
Is it law of Tort or law of Torts? This question faced by every law student in
their 1st or 2nd semester of law school, regarding this Theory Salomon give his
view, What Should be called law of Torts or we should called law of tort, to
figure out this problem Salmond introduced this Theory Pigeon hole Theory and
said it's not law of tort , it is law of Torts, according to this statement a
person is liable for a tort committed by him but there are some specific
When a person is made liable for tort a tort which was committed by
another, and the liability is fixed. Strict liability and absolute liability are
well recognized for these kind of wrongful act. An act said to be tort when any
harm causing injurious act. A person can only escape from being guilty if that
person can prove a legal justification for not committing an offence, or an
excuse to it. This article covers the main concept of Tortuous liability and the
variant theories of Winfield and Salmond (Pigeon hole Theory) on addressing
Aspects of criticism:
Should be called law of Torts or law of tort, to describe this question Salmond
introduced the Pigeon hole Theory and said it is law of Torts, basically This
article covers the general concept of Tortuous liability and the variant
theories of Winfield and Salmond (Pigeon hole Theory) on establishing tortuous
Tort is a Civil Wrong committed by a person to another. But all civil wrongs are
not Torts. Then the question raise that how we can filter Tort from the whole
mix of all civil wrongs. There is solution for this question we can understand
from the definitions given by Winfield, Salmond, fraser.
Their definitions of Tort
can be summarized as follows:This introduced by Salmond which can justify tort as any harm constituted as
legal injury, must fit into Pigeon holes i.e specific tort because there is no
space for another tort. -tort is a civil wrong in cases of tort there remedy is
a common law action for all unliquidated damages and which is not exclusively the
breach of a contract or the breach of a contract or the breach of a trust, or
other merely equitable obligation. Tort = Civil wrongs (Breach of trust +
Breach of contract + other merely equitable obligations)
Winfield utility Theory talks about liability of Torts arises from breach of
duty primarily which is fixed by law. This duty is towards persons generally and
its breach is Redressable by an action for unliquidated damges. It provides
deterrents, kind of a relief for diverse forms of harms like mental illness,
financial injuries and impairment of reputation or goodwill. This highlights the
regulation of liability relating to the scope of tort, such as trespass to
property, wrongful birth and unjust life.
Tort = Breach of duty Remedy =Unliquidated
Fraser believed that an infringement of a right in rem of a private
individual giving a right of compensation at the suit of the Injured party.
Tort = Infringement of a private right of individuals Remedy = Compensation
A person who violates duty and infringe the private rights of another is liable
for committing the wrongful act. Such kind of liability called tortuous
liability. The liability which is not arise from any contract or other
obligations and act of parties but merely due to the breach of duty or trust is
known as Tortuous liability. This Theory is completely different from criminal
It law of Tort or law of Torts?This question can be answered by the theories of Winfield and Salmond (Pigeon
Salmond's Pigeon hole Theory
Salmond believed that it is law of Torts not law of tort (it's specific
well-defined wrongs and there is only a law of Torts and no law of tort)
According to him there is no single principle to check the tortuous liability.
If any affected person can put the tort under any specified tort, that means if
a person is entitle to file a suit against only that harm which comes within one
of the categories of this law specific verse like forgery, murder etc has
specific Torts and all other wrongs fall outside of this preview. he could be
eligible for damages.
Otherwise there is no wrong and remedy. So the burden of
proof is vested on the injured party to establish that the tort is under any
particular head or hole of specified Torts. This Theory is popularly known as
Pigeon hole Theory. Torts like defamation , nuisance, negligence, trespass etc
are examples of already existing Pigeon holes. If the injury cannot be placed
under any heads ,it should not be considered as a tort and therefore quashed the
right of action.
Winfield's TheoryIf we look at the definition which is given by Winfield failed to distinguish
between crime, tort, breach of contract. he believed that it is law of Tort.
According to him where the legal injury is strictly against the recognized law
of the land or the general principle of liability arises when a person inflict
injury to another and or If a person violates the duty and resulted in the legal
injury of other person. which says, all unjustified harms are tortuous.
we can called tort and the aggrieved party has a right of action for un liquidated damages. Winfield leaves space for the creation of new
Theory has a wide approach towards tortuous liability. New Torts originated with
changing times can be properly handled by Winfield's Theory. Thereby the extent
of Torts covered and range of remedy is also wide.
Reception law of Torts in India:Winfield proposed that every mental and psychical injure will considered as a
tort unless justified¯, whereas Salmond that no mental and psychical injury
can be said to be tort until or unless they satisfy the condition of Pigeon
hole¯. That's why the book explaining this concept of tort written by Winfield
is called law of tort whereas book by Salmond is called law of Torts.
This concept has emerged in England and the purpose of this law is to provide a
remedy to the person Whose Rights has been violated. It is also the second hand
of criminal justice by awarding exemplary damages. This concept has been a
famous and secured place in the United States and the United Kingdom and many
different countries. But still it is a growing branch if the tree and still
developing in India. This tort is active in litigation, judiciary and people.
Pigeon Hole Theory has already been criticized, there are still many
intelligent people and they are still questioning the future development in the
study of law.
We can see that law of tort is not written anywhere, tort law come under common
law. As we can say tort is not codified. Sometime court needs to think with time
and emerging new concerns. That's why both Theory have equal role addressing
Torts as it is a still growing area of law, which is given by Salmond and
Winfield. In conclusion, though the Pigeonhole Theory seems to be simple, this
principal furthermore can also be functional in our everyday life whether we
realize it or not.
Written By: Gauri Kaushik - Pursuing BA.LLB.
Law Article in India
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