Specific Restitution of Property for Tort Claims

Meaning of the term Restitution

Restitution means the return of objects that were lost or stolen or a payment made for a loss or
damage. Restitution can either be a legal remedy or it can be an equitable remedy. This
depends on the claim made by the plaintiff and the nature of the sought remedies. Restitution
generally is an equitable remedy when the property or the money which is wrongfully in the
possession of the defendants can be traced In such cases restitution is in the form of a
constructive trust or equitable lien.

Law of Restitution
The law of restitution is the regulation of profits-based recovery or restoration. It has to be in
contrast with the law of compensation, which is the law of loss-primarily based recovery. When a
court orders-

Restitution- it orders the defendant to surrender the profits or gain to the claimant.
Repayment- it orders the defendant to pay the claimant for his or her loss.
Restitution according to American Jurisprudence
In the 2nd edition notes the term restitution was used to denote the restoration of or the return of
a thing or condition in the earlier common law. In modern legal usage, the meaning of the term
is extended to returning something back to its rightful owner, returning to the status quo,
reimbursement, compensation, indemnification, reparation for the benefits derived from or the
loss for injury caused to another person.

Thus the word implies the relinquishment of a profit or benefit or the return of money or property
that has been obtained through an improper means to the person by whom the property has
been taken.

Specific Restitution of Property for Tort Claims

Meaning of the term Restitution
Law of Restitution
Restitution according to American Jurisprudence
Specific Restitution of Property
Restitutionary Remedies
Forms of action in English Law
Types of Disgorgement Legal Remedies
Restitution for Wrongs
Example
Difference Between Restitution and Civil Damages
Difference Between Restitution and Compensation
Courts may order full or partial restitution
Collecting Restitution
The Tort of Nuisance
Introduction
Definitions by Various thinkers
Essential elements of Nuisance
Wrongful act
Damage or loss or annoyance caused to another individual.
Kinds of Nuisance
1. Public Nuisance
2. Private Nuisance
Elements which constitute a private nuisance
1. Property
2. Physical discomfort
What are the defences available to Nuisance?
1. Prescription
2. Statutory authority
What are the remedies for nuisance?
1. Injunction
2. Damages
3. Abatement
Nuisance and Trespass – Distinguished
Conclusion
Trespass to Land and Dispossession
Meaning of Trespass
Kinds of Trespass
Trespass to Land
How is Trespass to Land committed?
Difference Between Trespass and Nuisance
Aerial Trespass
Indian Law of Aerial Trespass
Continuing Trespass
Trespass by Animals
Criminal Trespass
Remedies
Damages
Injunction
Possession
Defenses
Dispossession
Prerequisite
Remedy
Defenses
Distress Damage Feasant – Animal Rights and Tort Law
Introduction
Cattle Trespass
Scienter Rule
Animal Act, 1971
Cattle Trespass Act, 1871
Defenses
Distress Damage Feasant
Endnotes
Joint Tort-Feasors and the Laws in India
Introduction
Liability of Independent Tortfeasor
Liability of Several Concurrent Tortfeasors
Liability of Joint Tortfeasors
Laws in India
When does the liability of joint tortfeasors arise?
Tortfeasors Defenses
Remedies
Criticism of Joint Tortfeasors
Conclusion
Endnotes
Assault as a Tort and Remedies
What is a Tort?
Examples of Torts
Assault
Elements of Assault
Difference between Assault and Battery
Difference between Criminal and Civil Assault
Legal defenses on charges of Assault
Cases
Remedies
Conclusion
Torts Relating to Marital Rights
Introduction
What are the Torts relating to Marital Rights?
What are the kinds of Torts relating to Marital Rights?
Abduction
Adultery
Causing Physical injuries to the Wife
Pre-requisites of Torts relating to Marital Rights
Are these rights available to the cohabitants who reside together without having a valid
marriage?
Liability of Tortfeasor in transfer of Venereal Disease
English Legal System on Torts relating to Marital Rights
Torts relating to Marital Rights in India
Why Torts relating to Marital Rights are important?
Are there any Marital Rights which are covered both under Civil and Criminal law?
Difference between rights given under Civil law and Criminal law
Preference to civil or criminal right?
Conclusion
References
Torts Relating to Abuse of Legal Process
Introduction
Essential Elements of Malicious Prosecution
Prosecution by the defendant
Absence of reasonable and probable cause
Defendant acted maliciously
Termination of proceedings in the favour of the plaintiff
Plaintiff suffered damage as a result of the prosecution
Malicious civil proceedings
Conclusion
References
Fraud or Deceit in Torts
What is the Tort of Deceit?
What is the meaning of Deceit and Fraud?
What is Fraudulent Misrepresentation?
What are the elements of Fraudulent Misrepresentation?
What is meant by Fraudulent Concealment?
Non Disclosure of Known facts
Proof of Intent not to perform
What is Negligent Misrepresentation?
The essential elements by a negligent misrepresentation for a claim of fraud are:
Difference between Criminal and Civil fraud
What are the Remedies given?
What is the Effect of Silence?
What are the Damages given for Deceit?
What is it’s Relationship with Negligence?
References
Slander of Title and Goods
Slander
What is Slander essentially?
What qualifies as Slander?
How can one judge if the statement is a Slander or not?
Slander of Title
What is Slander of Title?
What must you prove in order to claim Slander of Title?
What are the Remedies available in a Slander of Title Case?
What are the defences to Slander of Title?
Privilege
Statutory Authority
How is Disparagement different from Defamation?
Slander of Goods
What has to be proved to file a suit for Slander of Goods?
How is Slander of Goods protected under Law?
Can boasting of one’s own goods result in Slander of others’ goods?
Boasting with figures showing poor results of competitor
Does False Advertising of one’s own good result in Slander of others’ Goods?
Conclusion
The Tort of Passing Off
Meaning of passing off
Law of Passing off in India
Passing Off and Trademark Law
Essentials of Passing Off
Modern Elements of Passing off
Goodwill
Deceptive Similarity
Loss Due to Passing off
Importance of Passing off
Difference between Passing off and Infringement
Remedies for Passing Off
1. Injunction
2. Damages or Compensation
3. Account of profits
References
Procuring a Breach of Contract
Introduction
What is a Breach of Contract?
Anticipatory breach of Contract
Is Anticipatory breach of Contract protected under Law?
What are the effects of Anticipatory breach of Contract?
Actual breach of Contract
Actual Breach of Contract under Law
When is an Actual breach of contract committed?
What is Tortious Interference?
Who is a Tortfeasor?
What does Inducement in Law mean?
Inducement as a Tort
The contract between Mr. Rick and Mr. Morty
Knowledge
Is malice a necessary element?
Damage
What is Fraudulent Inducement?
How to prove Fraudulent Inducement?
Does Misrepresentation amount to Inducement?
What are the defences to this tort?
What are the remedies to this tort?
Conclusion
The Tort of Nuisance – Public and Private
Introduction
Definitions by various Thinkers
Essential elements of Nuisance
Wrongful act
Damage or loss or annoyance caused to another individual
Kinds of Nuisance
1. Public Nuisance
2. Private Nuisance
Elements which constitute a private nuisance
1. Property
2. Physical discomfort
What are the defences available to Nuisance?
1. Prescription
2. Statutory authority
What are the remedies for nuisance?
1. Injunction
2. Damages
3. Abatement
Nuisance and Trespass – Distinguished
Conclusion
The Concept of Absolute Liability
Introduction to Absolute Liability
Essential Elements of Absolute Liability
Scope of Rule of Absolute Liability
Is Strict Liability and Absolute Liability the Same Thing?
Evolution of absolute liability
References
Constitutional Tort
Introduction
Evolution in India
Article 300
Landmark judgements on Constitutional Tort
Growth of remedy under Constitutional Tort
1. Doctrine to Entertain Appropriate Cases
2. Constitutional Tort and the end to Sovereign Immunity
3. Compensation for Constitutional Tort under SLPs (Article 136 of the Indian Constitution)
4. Defence of Sovereign immunity in Civil Law Proceedings
5. Supreme Court’s approach on Constitutional Tort Issues
Conclusion
Tort Law and Environment
Introduction
Background
Role of Torts in the protection of the environment
Role of Indian judiciary in extending tortious liability in cases of environmental harm
Why is there a lack of environmental-tort litigation in India?
Conclusion
References
Bhopal Gas Tragedy and Development of Environmental Law
Background of the Case
Principle of Strict Liability
Conclusion
References
Medical Negligence
Introduction
What is Medical Negligence?
What are the essentials or ingredients that constitute the Act of Medical Negligence?
What are the duties of a medical practitioner towards a patient?
Acts of Misconduct
What are the rights of the patients?
What are the consequences of Medical Negligence?
Civil or monetary liability
Liability under the Consumer Protection Act
The complaints under the Consumer Protection Act can be filed at
Liability under the Law of Torts
The principle of Res Ipsa Loquitur
Criminal liability
Sections that are often applied to deal with the cases of medical negligence under criminal
liability are –
Disciplinary action
What are the defenses available for a doctor under the Indian Penal Code?
What are the laws that affect the medical profession?
What are the exemptions for Medical Negligence?
Conclusion
References
Death in Relation to Tort
Introduction
What is the effect of death on the subsisting cause of Action?
Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital
Exception to the maxim “Actio personalis moritur cum persona”
The Action by or Against the Estate of the Deceased
The Law Reform (Miscellaneous Provisions) Act, 1934
Case law
Hicks v. Chief Constable of South Yorkshire
The Administration of Justice Act, 1982
Shortening of the expectation of life
Flint v. Lovell
Damages in Case of Shortening of Expectation of Life
How far is causing death actionable in Tort?
Position in England
Rule in Baker v. Bolton
Exception to the rule in Baker v. Bolton
Jackson v. Watson
Dependent’s Action
Dependency Claims
The Dependent must have suffered a loss of dependency
The action must not be barred or excluded
Contributory Negligence
Damages
Bereavement
Position In India
Fatal Accidents Act, 1855
Payable compensation under a statute
Conclusion
Specific Restitution of Property for Tort Claims
Meaning of the term Restitution
Restitution means the return of objects that were lost or stolen or a payment made for a loss or
damage. Restitution can either be a legal remedy or it can be an equitable remedy. This
depends on the claim made by the plaintiff and the nature of the sought remedies. Restitution
generally is an equitable remedy when the property or the money which is wrongfully in the
possession of the defendants can be traced In such cases restitution is in the form of a
constructive trust or equitable lien.

Law of Restitution
The law of restitution is the regulation of profits-based recovery or restoration. It has to be in
contrast with the law of compensation, which is the law of loss-primarily based recovery. When a
court orders-

Restitution- it orders the defendant to surrender the profits or gain to the claimant.
Repayment- it orders the defendant to pay the claimant for his or her loss.
Restitution according to American Jurisprudence
In the 2nd edition notes the term restitution was used to denote the restoration of or the return of
a thing or condition in the earlier common law. In modern legal usage, the meaning of the term
is extended to returning something back to its rightful owner, returning to the status quo,
reimbursement, compensation, indemnification, reparation for the benefits derived from or the
loss for injury caused to another person.

Thus the word implies the relinquishment of a profit or benefit or the return of money or property
that has been obtained through an improper means to the person by whom the property has
been taken.
Specific Restitution of Property
The third kind of judicial remedy is the specific restitution of property. It is granted where the
plaintiff has been wrongly dispossessed of his lands and goods. Thus, a person who is
wrongfully dispossessed of immovable property, or of some specific movable property, is entitled
to recover such property. When one is wrongfully dispossessed of his movable or immovable
assets, the court may order that the specific belongings must be restored back to the plaintiff.

Illustration: Action for ejectment, the recovery of chattels with the aid of an action for detinue etc.
According to section 6 of the Specific Relief Act, 1963 a person who is wrongfully dispossessed
of immovable assets is entitled to get better the immovable assets. According to section 7 of the
Specific Relief Act, 1963 someone who is wrongfully dispossessed of movable assets is entitled
to recover the movable property.

Restitutionary Remedies: These are also meant to restore the plaintiff to a position of
“wholeness”, as close as possible to their state before the tort occurred. These can include:

Restitutionary damages: These are similar to damages, except that they are calculated based
on the tortfeasor’s gain rather than the plaintiff’s losses.
Replevin: Replevin allows the victim to recover personal property that they may have lost due to
the tort. For example, they may recover property that was stolen. Replevin can be coupled with
legal damages in some cases.
Ejectment: This is where the court ejects a person who is wrongfully staying on real property
owned by the plaintiff. This is common in instances of continuing trespass.
Property Lien: If the defendant cannot afford to pay damages, a judge may place a lien on their
real property, sell the property, and forward the proceeds to the tort victim.
Restitutionary Remedies
These are also intended to repair the plaintiff to a position of “wholeness”, as closely as possible
to their state before the tort befell. These include-

Restitutionary damages: These are similar to damages, besides that they may be calculated
based at the tortfeasor’s advantage in preference to the plaintiff’s losses.
Replevin: Replevin lets in the sufferer to recover private belongings that they will have
misplaced due to the tort.
Example- a person may recover assets that were stolen. Replevin may be coupled with legal
damages in a few instances.

Ejectment: This is in which the court ejects someone who is wrongfully staying on actual
belongings owned with the aid of the plaintiff. This is common in times of continuing trespass.
Property Lien: If the defendant can’t find the money for to pay damages, a judge may place a
lien on their actual assets, sell the belongings, and ahead of the proceeds to the tort sufferer.
Forms of action in English Law
Under the English law, there are three different classes of action:
Real
Personal
Mixed
In real actions, the plaintiff claims his right to recover lands, tenements and hereditaments. In
personal actions, the plaintiff claims a debt, or sought to recover a chattel, or claimed damages
for injury done to his person or property. Mixed actions partake of the nature of both.

The most common personal actions are- debt, covenant, assumpsit, trespass the case, detinue,
replevin and trover.

Detinue is the form of action for the recovery of specific goods wrongfully detained, or their
value, and also damages occasioned by their detention.
Replevin is the action to recover specific goods which have either been wrongfully distrained
from the plaintiff or had been wrongfully taken out of his possession.
An action of trover was originally the remedy to recover damages against the person who had
found goods and refused to deliver them up on demand to the plaintiff. In course of time, it
became the form of action where the plaintiff sought to recover damages from the defendant
who had converted the plaintiff’s good to his own use and came to be known as an action of
conversion.
Types of Disgorgement Legal Remedies
Restitution is a legal remedy where a particular property at issue cannot be particularly
identified. Example- The plaintiff is seeking a judgment imposing personal liability to pay a sum
of money.

Identified types of disgorgement legal remedies are-

Unjust enrichment
Quantum meruit
These kinds of damages restore benefits conferred to the non-breaching party and the plaintiff
receives the value of whatever that was conferred to the defendant when there existed a
contract. The two general limits to recovery are:

(i)- The contract needs to be completely breached.

(ii)- If restitution damage exceeds then damages will be capped at the contract price.

Restitution for Wrongs

Illustration- If A commits a wrong against another person B and the latter sues A for the wrong,
then A will be liable to compensate B for the loss. If B demands compensation then the court
would measure the loss due to A’s action by reference and compensation would be awarded.
But, in certain situations, B may seek restitution over compensation. If the profit made by A’s
wrongful action is greater than the loss suffered by B then restitution would be in B’s interest.
Whether a claimant can or cannot seek restitution for a wrong depends on the particular wrong
in question to a large extent. Example- Restitution for breach of fiduciary duty in English law is
widely available but restitution for breach of contract is comparatively exceptional. The wrong
could be of any one of the following types:

Criminal offences
Breach of contract
Statutory tort
Common law tort
Equitable wrong
The law responds to each and everyone of them by implementing an obligation to pay
compensatory damages. Restitution for wrongs is the issue which deals with the problem of
when precisely the law responds through enforcing a responsibility to make restitution.