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2 yrs ago

What is a Tort?

Author: Advocate Shreya Bansal
Category : Tort law

You must be wondering what is Torts? There are very fewer chances of you coming across this term unless you belong to law fraternity. But trust me, you will surely going to realize the importance of this term and why everyone needs to be familiar with it after reading this article.

So, let's start with a simpler term that we all know i.e. 'Wrong'. How do you define wrong? Some might say that it is something which is not right or which is unjust. Well, you are thinking it right but to put it in a broader sense, law imposes on every one of us some rights and duties and except in few cases every right has a corresponding duty, like for example, I have lent you my book for 2 days and after that I have the right to take back my book and you have a corresponding duty to return my book. But if you don't return it, you will commit a breach of duty which is a 'Wrong'. Thus 'Wrong' is the breach of duty that is imposed on us by law.

Now 'Wrong' could be classified into two categories:

1. Criminal Wrong

2. Civil Wrong

When there is a breach of public rights and duties which affect the whole community and it is more serious in nature then it will be considered as Criminal Wrong. Whereas, when there is an infringement of private rights and duties belonging to individuals and are less serious in nature then it will be considered as Civil Wrong. For instance, if a person causes an obstruction outside a residential building, as the wrong affects only the residents of the building, it would be considered as a tort of Private nuisance. If, however, a similar obstruction is caused in the middle of a public road, it would amount to an offence of public nuisance stated in Section 268 of Indian Penal Code. Another term for Civil Wrong is 'Torts'. But where every Tort is Civil Wrong, every Civil Wrong is not a Tort.

Consider the Definition of torts given in Section 2(m) of the Limitation Act, 1963 Tort means a civil wrong which is not exclusively a breach of contract or breach of trust. Thus every civil wrong apart from breach of contract and trust is a tort. Now let's discuss it separately.

Tort and Breach of Contract distinguished

A breach of contract results from the breach of a duty undertaken by the parties themselves with their free consent. A tort, on the other hand, results from the breach of such duties which are not undertaken by the parties themselves but which are imposed by law. For Example, I have a duty not to assault or defame anyone, not because I have voluntarily undertaken anyone of these duties, but because the law imposes such duties on me, or rather on every member of the society. The breach of these duties, imposed by law, is a tort. But if I undertake to supply you a set of books and then fail to perform the obligation which I have voluntarily undertaken, it is a breach of contract.

Tort and Breach of Trust distinguished

In the case of breach of trust by the trustee, the beneficiary can claim such compensation which depends upon the loss that the trust property has suffered. Thus in a breach of trust damages (Compensation) are liquidated i.e. they are predetermined. Whereas, in case of Tort the damages are always unliquidated, which means that the amount of damages are not predetermined and it is left to the discretion of the court.

Now that we are clear what tort is, there are two essential elements which are needed to constitute a tort that are:-

1. There must be some act or omission on the part of the defendant (party against whom the case has been filed)

This means that the defendant has done some act which he was not expected to do. For example, when a person commits the act of trespass or publishes a statement defaming another person, he can be made liable for trespass or defamation as the case may be. In another set of cases, the defendant could be made liable because of his failure to perform a legal duty.

2. The act or omission should result in legal damage

In order to be successful in an action for tort, the plaintiff (party who files the case) has to prove that there has been a legal damage or injury caused to him.

Thus, whoever by his act or omission infringes my legal right resulting into an injury, will give me a right to seek civil remedies in the court of law. Sometimes, the same set of facts may constitute both a tort and a crime. The civil and criminal remedies in such a case are not alternative but they are concurrent. The wrongdoer may be required to pay compensation under the law of torts, he may also be held liable under the criminal law. For instance, if Rahul digs a ditch on a public road resulting in inconvenience to the public at large, Rahul has committed the offence of public nuisance as defined in Section 268 of Indian Penal Code. If Simran, a passer-by falls into that ditch and thereby gets injured, Rahul's act also becomes a tort of a private nuisance as against Simran. Not only will Rahul be punished under the criminal law for the offence of public nuisance, he will also be liable to compensate Simran under the law of torts.

When you know the remedies that you have, you can protect your rights by taking action against the wrongdoer because keeping silent when somebody else is getting away by committing a wrongful act should never be an option. People say that your safety is in your hands, it is indeed true.

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