NATURE AND DEFINITION OF TORT
The word tort has been derived from the Latin term ‘tortum’, which means ‘to twist’ . Thus, “tort” means “a conduct which is not straight or lawful, but, on the other hand, twisted, crooked or unlawful.” it is equivalent to the English term ‘wrong’ . The Law of Torts consists of various ‘torts’ or wrongful acts whereby the wrongdoer violates same legal right vested in another person. The law imposes a duty to respect the legal right vested in the member of the society and the person making a breach of that duty is said to have done the wrongful act. As ‘crime’ is a wrongful act, which result from the breach of a duty recognised by criminal law, a ‘breach of contract’ is non-perfomance of a duty undertaken by a party to a contract, similarly, ‘tort’ is a breach of duty recognized under the law of torts. For exmaple, violation of a duty not to injure the reputation of someone else’ results in the tort of defamation; violation of a duty not to interfere with the posession of land of another person result in the tort of trespass to land; and, the violation of a duty not to defraud in the tort of deceit.
Some Definition of Tort
Some of the important definitions which indicate the nature of this branch of law, are as under :
1. “Tort means a civil wrong which is not exclusively a breach of contract or breach of contract or breach of trust”-S. 2(m), the Limitation Act 1963.
2. “It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.” -Salmond.
3. “Tortious Liability arises from the breach of a duty primarily fixed by the law : this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.” -Winfield.
4. “It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.” -Fraser
The basic idea which is indicated by these definition is-Firstly, tort is civil wrong, and secondly, every civil wrong is not a tort. there are other civil wrongs also, the important of which are a breach of contract and breach of trust.
Tort.- The term is found in common law systems for a civilly actionable harm or wrong. and for the branch of law dealing with liability for such wrongs. Analytically, the law of tort (or torts) is a branch of the law of obligations, where the law obligates to refrain from harm to another and, if harm is done, to repair it or compensate for it, are imposed not by agreement, but independently of agreement by force of the general law.
1) Tort is a civil wrong
Tort belongs to the category of civil wrongs, which simply means it is a private legal dispute rather than a criminal matter handled by the police.
In these cases, the injured party—the plaintiff (the victim)—institutes civil proceedings against the defendant (the wrongdoer) because the main goal here is damages, which is just the legal word for financial compensation to make up for the harm done.
This stands in sharp contrast to a criminal wrong, where the State takes the accused to court to administer justice through punishment (like jail), meaning the actual sufferer usually isn’t compensated.
However, a single act can easily be “two wrongs” at the same time; for instance, if someone destroys your property, they face criminal action to punish them for breaking the law, alongside a concurrent civil action forcing them to pay out of pocket for the damage they caused.
2) Tort is other than a mere breach of contract or breach of trust
Legal principles establish that a tort is a civil wrong which is not exclusively any other kind of civil wrong, operating as a residual legal category discovered through a process of elimination where an act is filtered out if it is criminal, or if it is purely a mere breach of contract or breach of trust.
If a person simply fails to fulfill an obligation like purchasing an item, it remains an isolated breach of contract; however, the same act may amount to two or more civil wrongs, one of which may be a tort.
This intersection is clearly illustrated when someone leaves a horse for safe custody and the caretaker lets it starve: the single act simultaneously triggers a breach of contract of bailment alongside the tort of negligence.
Because damages is the main remedy across civil law, the injured plaintiff can choose which legal pathway to pursue to get compensated, but they are strictly barred from double recovery and cannot claim damages twice for the exact same underlying loss.
3) Tort is redressible by an action for unliquidated damages
A tort is redressible by an action for unliquidated damages, meaning that because it is usually impossible to undo harm—like restoring a person’s ruined reputation after defamation—the primary remedy is providing a money equivalent to satisfy the injured plaintiff.
While alternative legal tools exist, such as an injunction to legally halt a continuing nuisance like ongoing property disruption, the defining nature of a tort is that its financial payouts are strictly unliquidated, meaning the final sum is not fixed beforehand.
This drastically differs from a breach of contract, where parties often agree in advance on a set financial penalty known as liquidated damages in case a breach occurs.
Because individuals involved in a tort are generally strangers until the incident happens, it is impossible to visualize the quantum of loss ahead of time; therefore, there is no pre-determination of costs, and the final financial payout is left entirely to the discretion of the court.