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DEFINITION AND CONCEPT OF TORTS

A Project Submitted To

ARMY INSTITUTE OF LAW

In partial fulfillment of the requirements for the award of degree of

B.A.LL.B.

SUBMITTED TO: SUBMITTED BY:

Dr. Anmol Bajwa Aman Singh

(Assistant Prof. Law of Torts) 2144

PUNJABI UNIVERSITY PATIALA (PUNJAB)

2021-2022

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DECLARATION

It is certified that the report submitted in this project work entitled

“DEFINITION AND CONCEPT OF TORTS” embodies the result of original

work carried out by me. All ideas and references have been duly acknowledged.

AMAN SINGH

(2144)

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ACKNOWLEDGEMENT

I would like to express my sincere gratitude to our Principal - Dr. TEJINDER KAUR as

well as my Torts Teacher – Dr. ANMOL BAJWA under whose mentorship I have got this

great opportunity to work on this wonderful project on the topic- DEFINITION AND

CONCEPT OF TORTS. This project helped me, enhance my skill in research work and
reading through which I have come across many new ideas and concepts. I would also like to
pay a humble thanks to my family and friends who have provided me with every kind of support
required in the completion of this project. Lastly I would also like to thank all my sources
without whom this project would not have been the same as it is right now.

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INDEX

S No. TOPIC PAGE

NO.

1 INTRODUCTION: 5-6
HISTORY, SLOW DEVELOPMENT

2 DEFINITIONS OF TORT 7-8

3 NATURE OF TORT 9

4 TORT IS A CIVIL WRONG 9

5 TORT IS OTHER THAN MERE BREACH OF CONTRACT OR 10

BREACH OF TRUST

6 TORT IS REDRESSIBLE BY AN ACTION FOR 10-11

UNLIQUIDATED DAMAGES

7 REFERENCES 12

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INTRODUCTION

Tort is a civil wrong. Wrong can be classified as criminal wrong and civil wrong. Civil wrong
is further classified as breach of contracts, breach of trust and torts. Therefore, tort is a civil
wrong which is not exclusively breach of contract or breach of trust. Law of torts originated in
UK but in India there is a slow development of law of torts. The remedy of torts in unliquidated
damages.

WRONG

CRIMINAL CIVIL

BREACH OF BREACH OF TRUST TORTS

CONTRACT

HISTORICAL BACKGROUND OF TORTS

• Law of torts was originated in UK.

• It was formulated from judicial decisions.
• Sir Fredrick Pollock Drafted it in the form of CIVIL WRONGS BILL.
• It is an uncodified law

The focal point of discussion about torts will invariably start with Salmond's school of
legal interpretation which denotes law to be consisting of rules which are recognized and
acted upon by Courts of Justice. However, before the supremacy of the State as the
custodian, law was enforced by an individual whose right has been allegedly violated by
clans.

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According to Henry Maine this was the Penal Law of ancient communities which has
emerged as the law of wrongs in modern day society and has been attributed as the Law of
Torts.

CAUSES OF SLOW DEVELOPMENT

It is a documented fact that the applicability of the Law of Tort in India is much rudimentary
in structure as compared to the British Law. Predominantly, in the Indian Legal system,
punitive and corrective remedies are more in vogue than compensation for wrongs. In India,
the English Law of Torts has undergone a synthetic Indianization assuaging to the principles
of Justice, Equity and Good Conscience which has remained the fundamental philosophy of
the country's codified legislative system.

• Lack of awareness among the masses - There is lack of awareness in the population of India
in regards to civil wrongs and their legal rights.

• Habit of ignorance among people - People in India tend to ignore any violation of the legal
rights.

• Attitude of court in awarding damages - The courts and the judicial system in India at
certain points of time lacks in awarding damages for the violation of legal right of a person.
This leads to hindrance In the population from Pursuing the case for the in court of law.

• Advocates do not give proper advice to their clients - Advocates many times, Do not give
proper advice to the glands leading to a sense of disbelief in the clients mind. the client thinks
his money is being wasted in the court proceedings as well as in paying the Advocate who is
not even advising him properly.

• Uncodified Law - Given the fact that the law of tort is an Uncodified law there are no strict
provisions for violation of a particular legal right of a person, thus enabling the judicial system
to give varied and different punishments and damages to different people.

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DEFINITIONS OF TORT

The word tort has been derived from the Latin term ‘tortum’, which means ‘ to twist’. Thus,
tort means “ a conduct which is not straight or lawful, but on the other hand twisted, crooked,
or unlawful. It is equivalent to the English term ‘ Wrong’. The law of torts consists of various
torts or wrongful acts whereby the wrongdoer violates some legal rights vested in another
person. 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 set to have done the wrongful act. As crime is a
wrongful act which results from the breach of a duty recognized by criminal law, a breach of
contract is the non- performance of a duty undertaken by a party to contract, similarly, tort is
breach of duty recognized under law of torts.

For example, violation of a duty not to injure the reputation of someone else results in the tort
of defamation; violation of a duty not to interfere with the possession of land of another person
results in the tort of trespass to land; and, the violation of a duty not to defraud another results
in the tort of deceit.

So far, no scientific definition has been possible which could mention certain specific elements,
the presence of which could constitute a tort as, for example, it has been possible in the case of
a contract. The main reason for the same is that the different wrongs included under this head
are of diverse species, each having its own peculiar historical background. Most of the tortious
wrongs owe their origin to the writ of trespass on the case. These writs were not only
responsible for the origin of this branch of law but many other wrongs and legal principles also
originated from them. The law of contract, for instance, is practically a gift of these writs. Apart
from that, many torts had their origin independently of these writs and their development has
been fragmentary and piecemeal.

As matter of fact, it is an ever- growing branch of law and has constantly developed and the
area covered in its ambit is continuously increasing.

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SOME DEFINITIONS OF TORT:

1. Section 2(m), Limitation Act, 1963 - Tort means a civil wrong which is not exclusively a
breach of contract or breach of trust

2. Salmond - It 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.

3. Winfield – Tortious liability arises from the Breach of Duty primarily fixed by the law: this
duty is towards persons generally and its breach is redressable by an action for unliquidated
damages.

4. Fraser – It is an infringement of a right in rem of a private individual giving a right of

compensation at the suit of the injured party.

As stated above, no such scientific definition of tort has been possible which would explain
this wrong by mentioning various elements, the presence of which could be considered to be a
tort. the various definitions which have been attempted try to follow negative approach to stop
they explain the nature of ‘tort’ by either distinguishing it from other wrongs or by mentioning
some of the elements which are found in a tort but are not there in other wrongs. When some
wrongful act has 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
other recognised category of civil wrong like breach of contract and breach of trust or not. If
we find that it is not exclusively any of the Other civil wrongs, then we can say that it is a tort.

The term tort is found in Common Law systems for a civilly actionable harm or wrong, and for
the Breach of Law dealing with the liability for such wrongs. Analytically, the law of tort is a
branch of the Law of Obligations, where the law obligates to refrain from harm to another and,
if harm is done, to repair it or compensate for it, are imposed not by agreement, but
independently of agreement by force of the general law. Socially, the function of tort is to shift
loss sustained by one to the person who is deemed to have caused it or been responsible for its
happening, and in some measure to spread the loss over an enterprise or even the whole
community.

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NATURE OF TORT

Tort can be defined as a civil wrong which is redressable by an action for unliquidated damages
and which is other than a mere breach of contract or breach of trust.

Thus, it may be observed that:

1. Tort is a civil wrong

2. This civil wrong is other than a mere breach of contract or breach of trust

3. This wrong is redressable by an action for unliquidated damages.

TORT IS A CIVIL WRONG :

Tort belongs to the category of civil wrongs. The basic nature of civil wrong is different from
a criminal wrong. In the case of a civil wrong the injured party, that is, the plaintiff institutes
civil proceedings against the wrongdoer, that is, the defendant. In such a case, the main remedy
is damages. The plaintiff is compensated by the defendant for the injury caused to him by the
defendant. In the case of a criminal wrong, on the other hand the, criminal proceedings against
the accused are brought by the state. Moreover, in the case of criminal wrong, that individual
who is the victim of the crime, that is the sufferer is not compensated. justice is administered
by punishing the wrongdoer in such a case. It is, however, possible that the same act done by
a person may result in two wrongs, a crime as well as a tort at the same time. In such a case,
both the civil and the criminal remedies would concurrently be available. That would be civil
action requiring the defendant to pay compensation as well as a criminal action awarding
punishment to the wrongdoer.

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TORT IS OTHER THAN A MERE BREACH OF CONTRACT OR BREACH OF

TRUST:

Tort is that civil wrong which is not exclusively any other kind of civil wrong. If we find that
the wrong is only a mere breach of contract or breach of trust, then obviously it would not be
considered to be a tort. Thus, if a person agrees to purchase a radio set and thereafter does not
fulfil his obligation, the wrong will be a mere breach of contract. It is only by the process of
elimination, that we may be able to know whether the wrong is a tort or not. First, we have to
see whether the wrong is civil or criminal; if it is a civil wrong, it has to be further seen if it
exclusively belongs to another recognised category of civil wrong, like Breach of Contract or
Breach of Trust. If it is found that it is neither a mere Breach of Contract nor any other civil
wrong, then we can say that the wrong is a ‘tort’.

It may be noted that there is a possibility that the same act may amount to two or more civil
wrongs one of which may be a tort. For example, if A delivers his horse to B for safe custody
for a week and B allowed the horse to die of starvation, then B’s act amounts to two wrongs -
Breach of Contract of Bailment and Commission of Tort of Negligence since both the wrongs
are civil wrongs and damages is the main remedy for any kind of civil wrong, the plaintiff can
claim damages either under the law of torts for negligence, or for the breach of contract of
bailment. He cannot claim damages twice.

TORT IS REDRESSABLE BY AN ACTION FOR UNLIQUIDATED DAMAGES:

Damages is the most important remedy for a Tort. After the wrong has been committed, it is
generally, the money compensation which may satisfy the injured party. After the commission
of the wrong, it is generally not possible to undo the harm which has already been caused. If,
for example, the reputation of a person has been injured, the original position of the person
cannot be restored back. The only thing which can be done in such a case is to see what the
money equivalent to the harm by way of defamation is, and the sum so arrived at is asked to be
paid by the defendant to the plaintiff. There are other remedies also which could be available
when the tort is committed. It is also just possible that sometimes, the other entities may be
more effective than the remedy by way of damages. For example, when a continuing wrong

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like nuisance is being committed, the plaintiff may be more interested in the remedy by way of
‘injunction’ to stop the continuance of nuisance, rather than claiming compensation from time
to time, if the nuisance is allowed to be continued. The idea of mentioning the remedy by way
of damages in the definition is just to explain the nature of the wrong. Apart from that, the fact
that damages is the most important remedy for tort, and generally it is the only remedy after
the tort is committed, indicates that the wrong is a civil wrong, rather than a criminal wrong.

Damages, in the case of a tort are unliquidated. It is this fact which enables us to distinguish
tort from other civil wrongs like Breach of Contract or Breach of Trust where the damages may
be liquidated. Liquidated damages mean such compensation, which has been previously
determined or agreed to by the parties. When the compensation has not been so determined,
but the determination of the same is left to the discretion of the court, the damages are set to be
Unliquidated.

It is possible in the case of a contract that the contracting parties, at the time of making of the
contract may make a stipulation as regards the amount of compensation payable by either of
the parties in the event of a Breach of Contract. If it is a genuine pre-estimate of the
compensation for the breach of contract, it will be known as Liquidated Damages. There is no
possibility of any such predetermination of damages by the parties in the case of a tort.
Generally the parties are not known to each other until the tort is committed and moreover, it
is difficult to visualise beforehand the quantum of loss in the case of a tort, and therefore the
damages are to be paid at the discretion of the Court. Such damages, therefore are unliquidated.

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REFERENCES

1. Indian Penal Code, 1860

2. Law of Torts by Dr. R.K. Bangia

3. Legal Services India

4. The Wire

5. Wikipedia

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