Characteristics of Tort and its Definition by Salmond, Winfield & Others
You must have come across the term “tort” in legal parlance. It is used to signify a civil wrong or when a person’s action causes harm to another person. In this blog post, we have discussed the definition and characteristics of a tort.
What is a tort?
The word “tort” has been derived from the Latin word “Tortum” which means to twist. It implies conduct that is not lawful and is rather twisted, crooked or unlawful. Thus, tort means a civil wrong.
In general, the law of torts deals with a system that enables a person to claim damages in a civil suit if he has suffered harm or injury by the acts of another person. In other words, a tort is a civil wrong against which a common law action can be brought and unliquidated damages may be claimed. Thus, a tort consists of some wrongful act done by a person that results in legal damage to another person. Examples can be trespassing on someone’s land, defamation, assault, and so on.
When a tort is committed, the injured party institutes civil proceedings against the wrongdoer and the main remedy for it is damages or compensation. To put it another way, the liability for a civil wrong arises in the form of unliquidated damages to be borne by the defendant (wrongdoer).
Definitions of tort and its underlying characteristics
It is difficult to find a scientific definition of tort because the law of torts is based on judicial decisions and because there are diverse varieties of wrongs that are included in it. It may be said that the law of torts is still being developed.
Yet many definitions of “tort” are given by different authors and Acts. One among them is described under Section 2(m) of the Limitation Act of 1963. According to it, “Tort means a civil wrong which is not exclusively the breach of a contract or the breach of a trust”. This definition clarifies that a tort is different from a breach of trust and a breach of contract.
Another definition of tort as given by Salmond is as under:
“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 a trust, or other merely equitable obligation.”
Fraser defines the term “tort” as:
“It 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.”
In addition, Winfield defines “tort” as under:
“Tortious liability arises from the breach of a duty primarily fixed by the law. This duty is towards persons generally and its breach is redressable by an action for unliquidated damages.”
From the analysis of the above definitions, it can be said that a tort is a civil wrong that is redressable by an action for unliquidated damages and it is not merely a breach of a contract or a breach of trust. It is a violation of a legal right of a person or a breach of duty by one person towards another. For instance, the violation of a duty not to injure the reputation of someone else gives rise to a tort of defamation.
Nature and Characteristics of Tort
The following are the important characteristics of a tort:
1. A tort is a civil wrong
Since tort is a civil wrong, the injured party takes civil proceedings against the defendant and the main remedy for the same is damages or compensation.
It may be noted that, unlike a civil wrong, in the case of a criminal wrong, criminal proceedings against the wrongdoer are initiated by the State itself and the accused is punished. The injured party is not compensated except in certain cases. This feature also differentiates a tort from a crime.
Thus, a tort is a civil wrong and not a criminal wrong.
2. Duty fixed by law
Under tort law, the duties are primarily fixed by the law and a breach of these duties by the defendant constitutes a tort. For example, the duty not to trespass on someone’s land.
3. A tort is not merely a breach of a contract or a breach of a trust
Put simply, we know that a tort is a civil wrong. But not every civil wrong is a tort. It has to be found out whether a civil wrong is a tort and not a breach of contract or a breach of trust. For example, if a person agrees to purchase an electronic set and thereafter does not fulfill his obligation to pay, the wrong is a mere breach of contract and not a tort.
4. Unliquidated damages
The claim for damages under tort law is always for an unliquidated sum of money. Damages are the most important remedy under tort law and the term “unliquidated” means something which is not fixed or previously determined rather it is left to the discretion of the Courts.
Since usually the parties are not known to each other until the tort is committed, it is very difficult to visualize beforehand the amount of loss in a tort.
Hence, the damages are unliquidated. This is one of the essential characteristics of tort.
5. Violation of a right in rem
Under the law of torts, the duty is towards persons generally (the duty of not doing a civil wrong). Because a tort is a violation of a right in rem, i.e., against the world at large. For example, A’s duty not to trespass is not towards X or Y or Z only. Rather whosoever’s property is trespassed by A will be entitled to bring an action against him, depending upon the circumstances of the case.
6. Tort law is not codified
One of the essential features of the law of torts is that it is not codified like statutory laws. In India, tort law is mostly based on English common law which is derived from judicial decisions. There is little legislation in the area of torts. This is so because liability in tort can arise from a number of cases and the number is so large that it is almost impossible to specify each and every act on the part of the defendant for which he may be made liable for damages.
Thus, the law of torts has its origin as part of common law.
7. Other remedies
Apart from the right to damages, other remedies are also granted to the plaintiff under tort law. For example, the Courts may grant an “injunction” to the plaintiff to prevent a continuous nuisance.
General conditions of liability in a tort
It may be important to note that in order to constitute a tort, the following general conditions must be satisfied:
1. There should be a wrongful act or omission on the part of the defendant.
2. Such an act or omission should cause some legal damage to the plaintiff, i.e., it should result in the violation of a legal right vested in the plaintiff.
3. Lastly, there must be some legal remedy available in the form of a civil action for damages. Damages are the main remedy and other remedies such as an injunction are additional only.
These conditions are essential to give rise to tortious liability on the part of the defendant (wrongdoer).
Under tort law, if the rights of a person are violated by another person, he can sue the wrongdoer for compensation for the harm he has suffered. This contributes to the acknowledgment of the rights of all individuals.
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