LAW OF TORTS
Define torts and give its essential elements?
The term ‘tort’ has been derived from the Latin word ‘tortum’ which means to twist or to crook or a wrongful act rather an act which is not straight or lawful.
The word tort was used first time in case of Boulten vs hardly 1597.
The tort is completely based on the common law of England which is codified and to give also tort is a progressive law, so it is the very difficult certain definition of this word, but various eminent jurists defined the term tort in the following manner.
According to section 2(m) of the Indian limitation Act 1963,
‘Tort is a civil wrong which is responsible by an action for unliquidated and which is other than a mere breach of contract or breach of trust’.
It’s according to Salmond:
A tort is a civil wrong for which the remedy is an action for unliquidated( not pre-fixed) damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.
It is according to Fraser:
The tort is an infringement(violation) of right in Rem of private individual giving a right of compensation at the suit of the injured party.
The ‘law of torts’ owes its origin to the common law of England. So it’s very well developed in the UK, U.S.A, and other advanced countries.
In India law of tort is non-codified, like other branches of law e.g. Indian Contract Act(I.C.A) 1872, Indian penal code(I.P.C) 1860. It is still in the process of development.
ESSENTIALS OF TORTS
To constitute a tort-:
- There must be a wrongful act or omission committed by a person.
- The wrongful act or omission must result in legal remedy in the form of an action for damages.
- The wrongful act must be of such a nature to given rise a legal remedy in the form of an action for damages.
WRONGFUL ACT OR OMISSION:
To determine liabilities in tort it must be proved that the act or omission done by the one person was a wrongful act. The act or omission must be legally wrongful. Violation of moral, social and religious right does not come under the category of torts.
Another essential element is wrongful act or omission committed by one person must result in legal damages to the other i.e. Such act or omission resulted into violation of legal remedy to another person. The following are the essential ingredients of the legal damages:
- There must be an infringement (violation) of a legal right (absolute or qualified).
- Such infringement of a legal right must have a presumption of damage in the eye of law.
- Proof of actual damages suffered in case the right contravened is not an absolute but only a qualified right.
The real signification of legal damage can be best illustrated by the following two maxims:-
- INJURIA SINE DAMNUM
- DAMNUM SINE INJURIA
To be successful in an action for torts the last essential is that the wrongful act or omission must come under the category of wrongs for which the remedy is a civil action for damages.
A tort is a civil injury, but all civil injuries are torts. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. Though the specific remedy for a tort is an action for damages. But there are other remedies also i.e. An injunction may be obtained in addition to damages in certain cases of wrongs. To similarly, specific restitution of a chattel may be claimed in an action for the detention of a chattel.
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