Scribd
Upload
241 views3 pages

Define Tort and Distinguish It From Crime and Contract

Tort is distinguished from crime and contract in several ways: (1) A tort is committed without consent while a contract is based on consent. (2) Privity is not required for a tort but is implied in a contract. (3) Motive is considered for a tort but is irrelevant for a contract. (4) A tort violates a right in rem while a contract violates a right in personam. (5) Damages are unliquidated for a tort but liquidated in a contract.

Uploaded by

Anupama A
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
241 views3 pages

Define Tort and Distinguish It From Crime and Contract

Tort is distinguished from crime and contract in several ways: (1) A tort is committed without consent while a contract is based on consent. (2) Privity is not required for a tort but is implied in a contract. (3) Motive is considered for a tort but is irrelevant for a contract. (4) A tort violates a right in rem while a contract violates a right in personam. (5) Damages are unliquidated for a tort but liquidated in a contract.

Uploaded by

Anupama A
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
You are on page 1/ 3

Q1] Define tort and distinguish it from crime and contract.

Tort & Contract

(a) A tort is inflicted without any consent, contract is founded upon consent

(b) In tort no privity is needed, privity is necessarily implied in contract

(c) In tort motive is taken into consideration, motive is immaterial in contract.

(d) Tort is a violation in rem, whereas a contract is an infringement of a right in


personam

(e) Damages are unliquidated, and damages are liquidated in contract.

Previously determined damages are known as liquidated damages. In contract,


parties are known to each other. They at the time of entering into the contract make a
stipulation as regards to the compensation payable by the parties in case of a breach.
So here the damages are pre-determined, i.e. liquidated. But in torts the parties are
unknown to each other before the tort is committed, and so it makes quite difficult to
visualize beforehand the loss which can be suffered by the aggrieved party. They are
decided by the court of law after the mishap took place. Such damages are
unliquidated.

It was Winfields view that tortuous duties exist by virtue of the law itself and are not
dependent upon the agreement or consent of the persons subjected to them. I am
under a duty not to assault you, not to slander you, because law says. I am under
such a duty and not because I have agreed with you to undertake such a duty

Again, tort is the infringement of a right in rem as distinguished from a right in


personam. As Pollock puts it, a tort is the violation of that general duty which all
members of a civilized community owe towards their neighbours not to do them
harm without lawful cause or excuse.

A common definition of torts is that they are redressable civil wrongs, i.e. wrongs for
which the injured party may claim remedies in the form of compensations from the
party who has injured him. Civil wrongs mean those wrong actions which are not
recognized by the State as being criminal wrongs.
Criminal wrongs are more serious and the State itself takes actions against the
criminal to protect the public interest. Civil wrongs are private rights, criminal
wrongs are wrongs against the public in large. Like if someone fails to cut the
branches of a growing tree in his garden and the trees falls on the car of his
neighbours and damage it, it is a civil wrong because it does not concern the society.
But if A murders B, then B is the one who is getting affected. But A is a danger to the
whole society. Hence the latter one is criminal wrong. However, it must be noted that
sometimes criminal and civil wrongs overlaps to each other. For instance, careless
driving which results in injury to a person may qualify as a tort and may also be an
offence prohibited under the IPC. So, in such situations, the distinction between the
two is slightly blurred.

Q2] “All torts are civil wrongs, but all civil wrongs are not torts”.
Justify the statement with leading cases

In order to understand when somebody who commits a civil wrong will commit a
tort, it is convenient to distinguish between cases when somebody commits a civil
wrong by breaching a judge made duty owed to another and cases where somebody
commits a civil wrong by breaching a statutory duty owed to another.
When some wrongful acts have been done, it has got to be seen first whether it is a
civil or a criminal wrong. If the wrong is found to be a civil one, we have to see
whether it exclusively belongs to any open category of civil wrongs like breach of
contract and breach of trust. If we find that it is not exclusively any of the other civil
wrong, then we can say it is a tort.

Thus, it can be seen that tort is an act while the law of tort is the branch of law that
provides relief to the person who has been injured due to a tortious act.

From the above definitions, it is clear that the nature of a tort is that it is a civil wrong.

However, not all civil wrongs are torts.


For example, breach of contract and breach of trust are civil wrongs but are
not torts because their remedies exist in the contract itself. To determine if a
particular act is a tort or not, we must first make sure that it is a civil wrong. We
should then make sure that it is not a breach of contract or breach of trust.
Torts is the right against the whole world ( jus in rem) but whereas in other civil
wrongs like breach of contract or breach of trust there exists a privity of contract that
is the right against a specific party or individual (jus in personam)

2. In both torts and other civil wrongs the remedy is damages but in torts the
damages are unliquidated (the compensation is not determined in prior and left to
the discretion of the court) but in other civil wrongs the damages are liquidated
(which means they are previously determined or decided by the party)

You might also like