The term ” Tort ” has been derived from the Latin term ” Tortum which means to twist .
It means twisted , crooked , unlawful or wrongful act rather than an act which is straight or lawful. Tort may be defined as a civil wrong which is repressible by an action for unliquidated damages and which is other than a mere breach of contract or breach of trust.
Tort is a civil wrong but every civil wrong is not a tort . For better understanding it is necessary to make a difference between tort and other civil wrongs.
Tort & Crime
The distinctions between a tort and a crime are :
( 1 ) Tort is infringement of a private or a civil right and therefore it is considered to be wrong against the person to whom the damage has been caused . Crime , on the other hand, is considered to be a public wrong .
( 2 ) In a tort , the injured party himself bring an action against the wrongdoer whereas in a crime , the wrongdoer is prosecuted by the State even though victim in this case is also an individual .
( 3 ) In a tort the injured party is awarded compensation or damages . In a crime the wrongdoer is punished.
Tort & Breach of Contract
Distinctions between tort and breach of contract are :
(1) In a contract , the parties , with their free consent . undertake to perform certain duties . In a tort , the duties are imposed by law . For example , I promise to sell you a radio set , the duty is contractual and I have voluntarily undertaken it . On the other hand , I have a duty not to commit trespass on your land . Such duty is imposed by law and the breach of it is a tort .
(2) In a contract , the contracting parties owe a duty to each other only . A duty not to commit a tort is owed to person generally and not to particular individual ( Donoghue V. Stevenson ) .
When A and B have entered into a contract and A makes breach of contract , B can bring an action for the breach of the contract . It is also possible that the breach of the contract by A also results in the commission of a tort against C. It has now been established by Donoghue v . Stevenson , that C can also bring a contract between A and B. action against A. C has not to prove his privity of contract with A as his action is based on tort , which is quite independent of are ascertainable hofe are unliquidated .
Tort & Breach of Trust
Tort is different from a breach of trust. In tort, the damages are unliquidated. In a breach of trust, they are liquidated as they are ascertainable before the beneficiary brings an action against the trustee. The Law of Tort is a branch of Common Law whereas trust has its origin in the Court of Chancery.
Tort & Quasi Contract
Tort should also be distinguished from Quasi – Contract .
When a person receives some unjust benefit from the other , the law implies a contract on the part of the person so gaining the advantage to compensate the other party even though , in fact , there was no such contract .
Distinctions between tort Quasi Conract are :
(1) In a quasi – contract the action is only in respect of money and generally it is liquidated sum of money . In tort , remedies other than damages can also be claimed and moreover in tort the damages are always unliquidated .
(2) In the case of a quasi – contract , the duty is always towards a particular person whereas , in a tort the duty is towards persons generally .
Is it law of tort or law of torts ?
In this regard there are two theories namely –
Salmond’s Theory
Winfield’ Theory
Salmond’s Theory ( Pigeon hole)
According to Salmond , it is law of torts because this branch of law consists only of a number of nominate torts like assault . battery , false imprisonment , etc. There is no general principle of liability and if the plaintiff can place the wrong done to him in anyone of the pigeon – holes each containing a labelled tort , he will succeed . This theory is also known as ‘ pigeon – hole ‘ theory .
Winfield’ Theory
Winfield is of the view that it is law of tort . According to his theory , every wrongful act is actionable as a tort , unless lawful justification for that can be shown . For the liability under this branch of law to arise , it is not necessary that the wrongful act should have a special label like assault , false imprisonment , etc. It is in consonance with the principle . ubi jus ibi remedium ( where there is a right , there is a remedy ) .
The fact that new torts are recognised from time to time supports this theory . For instance , the tort of a decelt , in its present form had its origin in Pasley v . Freeman ( 1789 ) , inducement of breach of contract in Lumley v . Gye ( 1853 ) , negligence as a separate tort in the beginning of 20th century , the rule of strict liability in Rylands v . Fletcher ( 1868 ) . Inducement to a wife to leave her husband in Winsmore v . Greenbank ( 1745 ) and the tort of intimidation in Rookes v . Barnard ( 1964 ) .
Each theory bears some truth . If we try to see the position existing at any particular moment of time , we take into account only those torts which have been created until that time ; from that point of view Salmond’s theory is correct . If , on the other hand , we observe from a broader point of view and look to the present , past and future , Winfield’s theory is correct because whenever the courts find that the harm caused is unjustifiable , they consider it a tort . and provide compensation for the same even though previously there had been no pigeon – hole ‘ for the same .
