To understand the law of torts it's essential to differentiate tort with other kinds of legal liabilities. Other legal liabilities viz. crime, breach of contract, breach of trust and bailment have same similarities with that of tort but even then, there are some points on which tort stands apart from these legal liabilities. In this chapter, we will try to find out the true position of tort at legal forum.
Q.
Since the time immemorial, it was a rule of primitive communities that the injured were compensated through pecuniary reparation. Private compensation was also allowed in crimes like homicide and serious bodily injury.
Henry Maine, observed that the penal law of primitive communities was not the law of crimes but the law of torts.1
In the Anglo-saxon law, mostly pecuniary punishments were in vogue for different kinds of injuries viz. WER - price for causing death; BOT for personal injuries; WITE or fine - it was payable to the King. During the reign of rulers like Henry II, the crime was separated and the concept of Tort came into being and it was separated from crime.
Holdsworth2.-Only certain lines of distinction are to be found in the nature of remedy given, and the nature of the procedure to enforce the remedy. If the remedy given is compensation, damages, or a penalty enforced by a civil action, the wrong so redressed is a civil wrong. If the remedy given is punishment of the accused which is enforced by a prosecution at the suit of the Crown, the wrong so redressed is a crime...
Blackstone3.-The distinction of public wrongs from private, of crime and misdemeanours from civil injuries, seems practically to consist in this: That private wrongs or civil injuries are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanours, are a breach and violation of the public rights and duties due to the whole community, considered as a community in its social aggregate capacity.
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1. Maine, Ancient Law, p. 379.
2. Sir William Holdsworth, History of English Law, p. 7.
3. Blackstone Commentary, p. 5.
Tort |
Crime |
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1. A tort is an infringement of |
1. A crime is an invasion of public |
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private rights belonging to an |
rights or duties affecting the whole |
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individual. |
society/community. |
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2. In tort the civil action is brought |
2. In crime, the wrongdoer is |
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by the injured party himself. The |
prosecuted/punished by the State |
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wrongdoer has to pay damages |
and if he is proved guilty and fined |
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to the injured party. |
then the fine (money) will go to Government treasury. |
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3. In tort, the intention of wrongdoer |
3. In crime, the intention is one of the |
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is of secondary importance. |
main factors. |
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4. Tort is considered as a private |
4. Crime is regarded as a public |
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wrong. |
wrong. |
Some more facts:
* A liability in tort may co-exist with criminal liability.
* Most of the crimes are also torts e.g. assault, libel, theft etc.
* Sometimes an injury may be regarded as a crime but not a tort e.g. public nuisance by obstructing traffic on a public road.
2.
With the growth of civilization, necessities of people grew manifold and thus trade and commerce started growing day-by-day. When the trade increased, litigation could not lag behind, since the interests of the people clashed and it started taking ugly shape, then the concept of contract came into being i.e., laying down the terms and conditions between the parties on which both are agreed. It was done to avoid the litigation arising out of differences of opinions later on.
Professor Winfield said about the distinction between contract and tort as-"At the present day, tort and contract are distinguished from one another in that the duties in the former are primarily fixed by the law, while in the latter they are fixed by persons themselves. Moreover in tort the duty is towards persons generally, in contract it is towards specific persons or a specific person".1
Differences between Tort and Contract as observed by Judges in various cases:
"................by entering into a contract, the parties to it create for themselves rights and obligations and a breach of duty arising out of those obligations is actionable as a breach of contract, and when it is necessary in order to establish the existence and enforceability of the duty, prove and rely upon the contract, the only action that can be brought is an action for breach of contract, and the breach of a duty of this kind is not a tort. Thus an action for wrongful dismissal of an employee is a breach of contract and not a tort. So also, is perhaps, a wrongful expulsion from school."
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1. Winfield, Law of Tort, 6th Edn., p. 40.
"the distinction in the modern view for this purpose between tort and contract may be put thus: Where the breach of duty alleged arises out of a liability independently of the personal obligation undertaken by contract, it is tort and it may be a tort, even though there may happen to be a contract between the parties, if the duty in fact arises independently of that contract. Breach of contract occurs where that which is complained of is a breach of duty arising out of the obligation undertaken by the contract."
"........ the right which a passenger by railway has to be carried safely does not depend on his having made a contract but the fact of his being a passenger casts on the company a duty to carry him safely. The child was taken into the train and received as a passenger by the railway company's servants with their authority. Under these circumstances, does not the law require those who were carrying the child to take reasonable care that he should come to no damage."
Q.
Tort |
Contract |
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1. In tort, the duty is fixed by the |
1. But, in contract, the duty is fixed by |
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law itself e.g. A commits battery |
the parties themselves. e.g. A |
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against B or damages B's property |
agrees to sell goods to B for a price |
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without lawful cause or excuse, it |
but A fails to do so. A has |
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is a tort. Here, duty violated is a |
committed a breach of duty what |
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duty imposed by law itself. |
he had agreed to perform under a contract with B. Here, the duty has been fixed by the parties themselves and not by law. |
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2. In tort duty is towards every |
2. In contract, the duty is toward |
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person of the community or society. |
specific person or persons. |
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3. Motive is one of the essentials |
3. Motive is not of paramount |
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of tort. |
importance in case of contract, it is virtually immaterial. |
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4. A tort may be committed against |
4. A contract is done on the basis of |
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or without consent. |
consent given by both the parties. |
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5. No privity is needed in tort. |
5. In contract, there is a privity between the parties. |
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6. A tort is a violation of a right in |
6. A breach of contract is an |
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rem (i.e. of a right vested in some |
infringement of a right in |
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determinate person and available |
personam (i.e. of a right available |
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against the world at large). |
against some determinate person or party). |
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7. Measure of damages differs in |
7. Damages are awarded in the form |
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different circumstances. |
of compensation for pecuniary loss suffered* in case of breach of contract |
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8. In tort, a third party can sue for |
8. The question does not arise since |
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tort even though there was no |
the third party does not come |
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contract between the wrongdoer |
under the purview of being |
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and the person injured. |
covered for any compensation. |
* There are instances/cases viz. breach of promise of marriage or when a banker refused to honour the cheque even when the funds were available with banker cases are - Jogendernath v. New Bengal Bank, 1939 Cal 63; and Groom v. Crocker, (1939) 1 KB 194 CA.
Quasi-contract is based on the principle that if a person unjustly gets something (wrongly delivered by someone) then he must inform/return it to the rightful owner then and there. If a person has received an advantage for which he is not entitled, then he should return it back to the rightful owner.
Tort and Quasi-contract, both have duty as imposed by law.
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Tort |
Quasi-contract |
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1. Tort gives right to damages as |
1. Quasi-contract gives right only in |
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well as also grants other remedies. |
respect of money. |
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2. In tort, the claim is always for un- |
2. Claim under quasi-contract is for |
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liquidated damages. |
liquidated sum of money. |
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3. Duty is towards persons generally |
3. Rights arisen from quasi-contract |
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and not to a definite person. |
is against particular person or persons. |
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4. Duty under torts arises due to |
4. In Quasi-contract, there is no such |
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breach of primary duty. |
concept of primary duty. |
Trust is a relationship which is established through mutual understanding. It has got some similarities with that of law of contracts but forms a different branch from contract as well as tort.
* Damages claimed in tort are unliquidated while these are liquidated in case of the breach of trust.
* In breach of trust compensation is not termed as damages.
* Whole law of trusts is regarded as a division of the law of property which is fairly detachable from other parts of law.
Sir William Jones, in 'Treatise on the Law of Bailment' has described bailment is a delivery of goods on a condition, express or implied, that they shall be restored to the bailor or according to his directions, as soon as the purpose for which they are bailed has been completed.
Bailor - who delivers the goods.
Bailee - to whom the goods are delivered.
Hire of goods, gratuitous loan of goods and pawn or pledge.
Prof. Winfield opines that the bailee's liability is not tortious because the duty arises from a relation i.e. in between bailor and bailee created by the parties. He has further expanded in these words-"if the bailor's claim is necessarily founded upon some specific provision in a contract, then no doubt, the bailee's liability is no tortious but contractual, but if the bailor's claims rest upon a breach by the bailee of one of the bailer's common law duties, then his liability is as much attributable to the law of tort as is the claim of a visit or against the occupier of premises under the Occupiers' Liability Act."
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