XIX.
TORTS (QUASI-DELICTS)
TORT DEFINED
A tort is legal wring committed upon
another’s person or property independent of
a contract.
ELEMENTS OF TORT
(1) Existence of legal duty from
defendant to plaintiff;
(2) Breach of duty; and
(3) Damage as proximate result.
CONCEPT OF TORT
(1) the Spanish tort – based on culpa
aquiliana or negligence.
(2) the American tort – based on malice
and wilful intent.
• Liability and damages for torts, in general,
are governed by the lex loci delicti commissi
(law of the place where the delict or wrong or
tort was committed).
Two (2) important reason for this rule:
(1) the state where the social disturbance
occurred has the primary duty to
redress the wrong, and to determine
the effects of the injury; and
(2) the law of said state m use be
presumed to have been foremost in
the minds of the parties concerned:
thus they acted with knowledge of
the resultant consequences under
said law.
THEORIES OF LEX LOCI DELICTI COMMISSI
(1) Civil law theory – the locus delicti is
where the act began.
(2) Common law theory – the locus delicti
is where the tortious act first became
effective.
(3) The theory of Dr. Rarely- the locus
delicti is the place which has the most
substantial or essential connection
with the act.
Example: While negligently cleaning his
gun, a person situated in State A
accidentally shot another in State B, who
then rushed to a hospital in State C, whre
the victim finally died. Where is the locus
delicti?
Answer:
(1) According to the civil law theory, the
locus delicti is State A because the
negligence act occurred there.
(2) Under the common law theory, State
B is the locus delicti because the
injury was felt there.
(3) Front the viewpoint of Dr. Rabel's
theory, the locus delicti is evidently
State A, because it has the most
substantial connection with the tort.
Had the gun not been fired, there
would have been no injury.
It is submitted that generally the
theory of Dr. Rabel should control as
it is the most logical one.
SPECIAL RULES
(1) If the tort committed aboard a public
vessel, whether on the high seas or in
foreign territorial waters, the country
to which the vessel belongs is the
locus delicti; the law of the flag is the
lex loci delecti commissi.
(2) If the tort takes place aboard a
private or merchant vessel on high
seas, the law of flag is likewise the lex
loci delicti commissi. If the vessel is in
a foreign port or within foreign
territorial waters, the rule is not
uniform. However, it is suggest that
generally the law of the flag must also
be determinative.
(3) If the tort concerns property, whether
real or personal, the lex situs is usually
also the lex loci delicti commissi.
(4) Maritime Torts
(a) If the colliding vessels are of
the same sate, or carry the
same flag, said law is the lex
loci delicti commissi.
(b) If the vessel come from
different states, whose laws
however, on the matter are
identical, said laws constitute
the lex loci delicti commissi.
(c) If the vessels come from
different states with different
laws, the lex loci delicti
commissi is the general
maritime law as understood
and applied by the forum
where the case is tried.