> _ ) > = > > = 2 2 2 3 > > 2 2 2 a 2 2 2 a> a 2 2 > -S- TORT +. What do you mean by tort ? Distinguish tort & Crime. Tort & breach of Contract . Tort and Breach of Trust ? _2, Damnum sine injuria 7 \ _3. Injuria Sine Damnum ? _4- Ubi Jus Ibi Remedium ? _S. Ex-turpi Causa Non-oritur action. Explain . _S. Malfeasance, Misfeasace and Non-feasance ? 7. Res Ipsal Loquitor 7 -8. What is vicarious liability? Explain with reference to master servant relationship . 8. What is libel ? What is Slander ? Distinguish between two ? 10. Explain Nuisance : public nuisance & private nuisance . How nuisance diffors from Trespass ? 44. Explain Strict liability ? Explain Absolute liability ? Explain Bhopal Gas Leak Case. 7 What do you mean by tort ? Distinguish tort & Crime. Tort & breach of Contract. Tort and Breach of Trust ? Ans. Tort means ‘Wrong’. It is derived from the latin term “tortum * (to twist ). Thus tort implies a conduct ice. twisted or wrongful. It correspondence to the roman law term delict A tort is thus the breach of some duty which gives rise to a civil cause of action and for which the civil courts award compensation . But all civil wrongs are not tort. Breach of contract and breach of trusts are excluded from tort. Thus tort is violation of a person's right in rem (right against whole world) not right in personam (right against a particular person ). Thus tort may be defined as a civil wrong which is redressible by an action for unliquidated damages and which is other than a mere breach of contract or breach of trust. Thus (i) tort is a civil wrong, (ji) this civil wrong is other than a mere breach of contract or breach of trust, (ii) This wrong is redressibie by an action for unliquidated damages . Unliquidated damages means the compensation to be awarded is not fixed. The first reported case where the court used the word tort is an old English case, Boulton V. Hardy ( 1597, Cro. Eliz. 547 ). Salmond the leading English authority on this subject defined tort as a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of the contract or breach of 1oSs_ereovwKt La => s aD ~~ a) rm ~ seRRKLUKKYVLHVHELHEKIEDIEEE... .. the trust or other merely equitable acme hel 2 (M) of The Indian limitation Act *963 defines tort as “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust” The following are the five important characteristics of a tort : 1. Civil Wrong A tort is a civil wrong, as opposed to a crime on the one hand, and a breach of contract or a breach of trust, on the other. 't may be noted that a breach of contract and breach of trust are civil wrongs, but they are not torts, in as much as the remedies afforded for such breaches are governed by statutes, whereas the remedies for a tort owe their origin to common law. 2. Infringement of a right in rem Secondly, a tort is an infringement of a right in rem, and not a right in personam. A right in rem is a right vested in some determinate person and available against the world at large, ie. against everybody. Thus, one’s rights not to be defamed or assaulted are rights available against the whole world. Such rights are rights in rem, and are, naturally, too numerous to be enumerated. The opposite of a right in rem is a right in personam. A right in personam is a right available only against some determinate person or body. Thus, X agrees to sell his house to Y for a certain sum, but does not honour his obligations. In these circumstances, Y will have a right to sue X, and only X ( and not the worid at large ) for a breach of the contract. Here , the mutual rights against one another are created by their private agreement. These rights are personal to both of them. Outsiders are not concerned with them. Such rights are, therefore called rights in personam. 3. Right fixed by law Thirdly, the right which is infringed in the law of torts must be a right which is fixed by the law, independent of the consent of the parties, 4. Common Law action The remedy available in respect of the violation of such a right should be a ‘common law action (i.e. a suit fled under the English Common Law ) . Of course, there is nothing like common Law in India. In England, there are numerous common law actions, of which actions for torts are a part. Such actions would also be actionable in India. 5. Remedy Lastly, the remedy should be by way of unguided damages, i.e. compensation in money. A suit for unliquidated damages is a good test of tortuous liability. However, it is not the only remedy , and a suit for injunction, or a suit for Specific restitution of land or 2-5- chattels, and at times , even self-help ( a8 in ejecting a trespasser ) are other remedies vailable in the case of torts. Both a tort and a crime resemble each other in that both are violations of rights in rem, and in‘both, the rights and duties are fixed by law, irrespective of the consent of parties An act may be both a tort and a crime, Such acts are called felonious tort. (Felony means crime ) The following are the four points of distinction between the two 1. Written Law The criminal law is always written, Since without legislation there can be no crime. The civil law is largely un-written, Thus tort is mostly un-written, 2. As to nature of the wrong A tort is a private wrong . It is an infringement of the private or civil rights belonging to an individual, a crime, on the other hand, is an invasion of public rights and duties affecting the whole society. 3. As to the remedy available In tort, the wrong-doer has to compensate the injured party ; In crime, he is punished by the State. The underlying principle of redress is, therefore , different in both. Crimes involve punishment of the offender in order to deter him from committing it again. In torts, compensation is awarded to the person injured, It is true that in some cases, a court may order a person convicted of a crime to pay a sum of money to the injured party by way of compensation. This, however, should not blur the essential distinction between a tort and a crime , for such compensatory sums. do not form the principal subject-matter of the criminal case, they are always in addition to some other punishment , as for instance, a jail sentence. 4, As to the procedure In tort, the suit is filed by the injured party himself. In crime, the proceedings are taken and conducted in the name of the state, in as much as the party injured by a crime is the state, which conducts the prosecution either on its own initiative or on a complaint of a private party. There are some acts which amount to a tort and also to a crime. For instance, assault and libel are torts as well as crimes. Thus, in the case of assault, the right which is violated is one which every man has and which guarantees that his bodily safety shall be respected. But the matter does not stop here. The act of violence is also a menace to the safety of the society in general, and will, therefore, be punished by the State also. In such cases, both the rights, viz, rights in rem and rights in personam co-exist . In these cases, the wrong-doer may be ordered in a civil action to make compensation to the injured 3Party, and may also be punished by a criminal court and ordered to be imprisoned or ‘ned. TORT AND BREACH OF CONTRACT DISTINGUISHED Both tort and breach of contract are alke, inasmuch as in both, there is an infringement of private rights. Moreover, in both , action is taken by the person injured and the remedy is by way of compensation or damages. The following are however, seven Points of difference between the two : 1, Nature of right inringed A tort is violation of a right in rem, i.e. a right exercisable against the whole world, whereas a breach of contract is an infringement of a right in personam, ‘i.e. a right exercisable against a definite person or A right in rem is a right available against the whole world. Thus every person has a right not to be defamed or assaulted, and this right is available to him, not against particular personas like X, Y or Z, but against everybody in general. A tort is always a violation of such rights in rem. As opposed to this, a right in personam is available and enforceable only against a Particular person or persons. Thus, if X enters into a contract with Y and fails to fulfil the terms of the contract, X has a personal remedy against Y and strangers to the contract are in no way concerned with the same. A contract always gives rise to a personal right, ie. a right in pesonam. 2. Duty In the case of a tort, the duty is imposed by the law, and is owed to the society in general, in the case of a contract, the duty is fixed by the will and consent of the parties, and it is owed to a definite person or persons. It must be remembered that when parties enter into a contract, they create for themselves rights and duties under such a contract. 3. Consent In a contract, the obligation is founded on the consent of the parties, In a tort, the obligation arises independently of any consent, i.e. a tort is inflicted against the will and without the consent of the other party. Thus, if X assauits Y, without any lawful cause or execuse, X commits a tort. Here, the duty imposed i.e. the duty not to cause unlawful harm to another person, is a duty imposed by law. But if X agrees to sell 10 bales of cotton to Y, and later, fails to perform the contract, the case is one of a breach of contract. Here X owes a duty only to Y and not to the community at large. : 4. Privity In a contract, there must always exist privity between the parties, i.e. a binding legal tie between them . No such privity exists in tort, where the harm is always inflicted against the will of the party injured.ae So far as damages are concerned, there are three points of difference between a tort and a breach of contract, (a) Measure of damages 5. As to damages In a tort, the measure of damaged is not limited or fixed with precision. The court may award any sum of money as it thinks fit and just. In other words, in case of a tort, the Suit is for unliquidated damaggs. In a breach of contract, the measure of damages is determined either by an arrangement between the parties or according to fixed legal principles . The suit , therefore, is for liquidated damages. (b) Remoteness of damages The rules as to remoteness of damages in tort are different from those in contract. Thus, in tort , a man may be held liable for damages arising from special circumstances of which he had no knowledge. If there are special circumstances under which a contract was made, and they were wholly unknown to the party breaking the contract , he is not liable for damages due solely to those special circumstances. ( Hadley V. Baxendale (1854 ) 8 Ex. 341) (c) Exemplary damages Ina breach of contract, exemplary damages are normally not awarded, whereas in tort, exemplary damages can be given in a fit case. ( Exemplary (or) pumnitive ) damages are sometimes referred to ( especially in the U.S.A. ) as “smart money )" 6. Starting point of the period of limitation In a contract, for purposes of considering whether a suit is time barred, time runs from the date of the breach, in tort, it usually runs from the date when the damage is suffered. 7. Motive In the case of breach of contract , the motive of the defendant is generally immaterial, while in the case of a tort, it is often ( though not always ) taken into consideration. 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. The amount of damages being ascertainable before the beneficiary brings the action, the damages , in the case of a breach of trust, are liquidated, On the other hand, damages in a tort are uniquidated. But a much better way of differentiating tort from breach of trust is to regard the whole law of trust as a division of the law of property which is fairly 5ce detachable from other parts of our law. The reason for the classification is mere historical. Gre law of torts has its origin as a part of common law whereas breach of trust could be redressed in the Court of Chancery, ~@2. Damnum sine Injuria ? ‘Ans. Damnum means damage in the ordinary sense. This may be a loss of money, physical hurt, loss of health or service, or the like .Sine means without . Injuria means a legal injury i.e. a tortious act. This injuria may or may not be accompanied by damnum i.e. actual loss or damage. ; The maxim “damnum sine injuria’ refers to damage which is inflicted without infringement of any legal right. Where there is no infringement of a legal right , the mere fact of harm or loss resulting from an act or omission will not render such act or omission wrongful, even though the loss is substantial, may even irreparable. Damage thus suffered in the absence of the violation of any legal right is known as damnum sine injuria. Every possible form of harm or damage is not recognized by the law. The law takes no account of several forms of harm. Thus, for instance, a violation of the rules of ethics does not always amount to an infringement of legal rights. In order to make a person liable in law, the plaintiff must, therefore, prove legal injury. Damage without injury (damnum sine injuria ) is not actionable. There are many acts which though harmful, are not wrongful in the eyes of law, and therefore, do not give rise to a right of action in favour of the person who sustains the harm. No one is to be considered a wrongdoer who merely avails himself of his legal rights, though his action may result in damage to another. In case of damnum sine injuria, i.e. actual and substantial loss without infringement of any legal right, no action lies, i.e. no suit can be filed. Mere loss of money or money's worth does not, of itself, constitue legal damage. The most terrible harm may be inflicted by one man on another without legal redress being obtainable. There are many acts which, though harmful, are not wrongful and give no right of action. Damnum may be absque ( i.e. without ) injuria, Thus if, X has a flour mill, and his neighbour sets up another mill, and thereby the profits of X’s mill fall, X can not bring an action against the neighbour and yet X has suffered substantial damage. But if the other mill-owner hinders the water from running to X's mill, or causes any other like nuisance, X will have a legal remedy against the other person. The cases which illustrate the maxim, damnum sine injuria, are based on various grounds, but the general principle is that the exercise of one's common or ordinary rights, within reasonable limits, does not give rise to an action in tort, merely because it causes [