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Tort Law: A Legal Concept of Fundamental Importance, Part I.

Contents discussed in this blog: 

  • Introduction 
  • Definition & Meaning of Tort Law 
  • Tort Law in India 
  • Essentials to Tort 
  • Conclusion

INTRODUCTION 

Before we could delve deeper into the topic, let’s first look into its history and learn how “Tort” become known to the world, at large. 

Tort has been a part of our history for a long time and you can find examples of its implementation in a number of books. Although it has a vast history, its development can be considered a bit slow as compared to its counterparts, however, it does not change the fact that the branch of law has been significantly influential. Irrespective of the legal system prevalent in countries all around the world, law has incorporated tort law in some manner or the other [Check Ref 1]. 

For example, some countries have decided to adopt this “wide and amorphous” area of law by using a different terminology. 

DEFINITION & MEANING OF TORT LAW 

In the words of the House of Lords, “The truth is that tort law is a mosaic in which the principles of corrective justice and distributive justice are interwoven. And in situations of uncertainty and difficulty a choice sometimes has to be made between the two approaches” [Check Ref 3]. You see, corrective justice lays down the fundamental principle concerning the reversal of a wrongful transaction and distributive justice lays down the basis of fair and equal distribution of rewards and costs. And as we move forward, you will understand the rationale behind this statement. 

As for the definition of tort law, there are a number of famous definitions that will help in the better understanding of the topic, are mentioned below: 

  1. “Tort” means a civil wrong which is not exclusively the breach of a contract or the breach of a trust [Check Ref 4]. 
  2. “Tort is a civil wrong for which remedy is a common law action for unliquidated damages, and which is not exclusively the breach of contract, or the breach of trust, or other merely equitable obligation” [Check Ref 5]. 
  3. “Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages” [Check Ref 6]. 

Tort law consists of several ‘torts’ or ‘wrongful acts’ whereby the wrongdoer violates some legal right i.e., vested in another person by the supreme authority of that particular state to which that person is subject. 

The word “tort” is derived from the Latin term “tortum” which means “to twist”, basically implying that tort is a conduct which is not straight or lawful but instead twisted, crooked, or unlawful. 

For example, violation of a duty not to interfere with the right to enjoy the possession of the land of another person resulting in the tort of trespass or violation of a duty not to injure the reputation of another party resulting in the tort of defamation [Classification of tort discussed in the upcoming blogpost].  

TORT LAW IN INDIA 

For some, the concept of tort may sound quite intimidating but it’s only in the beginning, once you start learning about this topic, you will understand how interesting and exciting tort law is. 

Now in India, tort law can be considered to be a relatively newer branch of law as compared to other branches and therefore, it’s not fully established but instead the branch is under the developmental stages of its growth. 

Furthermore, the Indian tort law stems from the approach adopted by the United Kingdom and thus, follows a similar pattern. Although it is interesting to note that there are still notable differences in the manner in which tort law is implemented. This is simply due to judicial activism, implying that the differences occur primarily caused due to the differences in the social, political, and legal environment. 

Moreover, under the Hindu law and Muslim law, tort law has a much narrower interpretation as compared to tort law under the English Law. 

ESSENTIALS OF TORT 

Now, we should learn a bit about the essentials of a tort. You see, in order for an act or omission to constitute as a tort, there are two essentials: 

  1. There must be an act or omission on the part of the defendant;
  2. The act or omission must result in some legal damage. 

Explanation:

In order to make an individual liable for a tort, he must have committed an act which he was not supposed to do or he must have omitted something he was supposed to do. In that sense, either a wrongful act or a wrongful omission, both can (/will) make an individual liable. For example, A commits an act of trespass or publishes a defamatory statement, or wrongfully detains an individual, he can be made liable for trespass, defamation, or false imprisonment. 

Likewise, when there is a legal duty/obligation to perform an act or omission and an individual fails in performing a legal duty then that individual can be made liable for such negligence. For example, if a corporation that has a duty to maintain a public park, fails to perform its legal duty and as a consequence of non-fulfillment of such a duty, an individual is harmed (or his legal right has been violated) then such a corporation would be held liable [Check Ref 8].  

Note: 

Additionally, it is important to keep in mind that the wrongful act or omission for which the defendant is being made liable for, must be recognized by the law of the land. You see, if the wrong is merely social or moral in nature then that would not amount to a tort. 

For instance, if an individual decides not to save a starving man or a drowning man (as it simply falls under the category of moral or social wrong) then that individual can not be held liable as there is no legal duty. However, if that individual has a legal duty, let’s say, a lifeguard decides not to save the drowning person then in that scenario, there will be a case of tort. 

In short, in the former case, there is no case and the latter, there is a case. 

CONCLUSION 

In this article, we learned about the basics of tort law and discussed the essentials that form the foundations of tort law. In the next article, we will be discussing the concept in detail. Important sub-topics would be discussed, so stay tuned and have a good day. 

References:

  1. Ratanlal & Dhirajlal, Singh J, G.P. (ed.), The Law of Torts(24th. ed.), Butterworths
  2. https://www.britannica.com/topic/tort
  3. Macfarlane and Another v. Tayside Health Board (Scotland) https://publications.parliament.uk/pa/ld199900/ldjudgmt/jd991125/macfar-2.htm
  4. Sec 2 (m) of the Limitation Act, 1963 https://indiankanoon.org/doc/1317393/
  5. Definition by Sir John Salmond
  6. Definition by Percy Henry Winfield
  7. https://www.lawentrance.com/article/law-of-torts-in-india.html
  8. Case Law: Municipal Corporation of Delhi v. Subhagwanti, A.I.R. (1966) S.C. 1750. “The trial court held that it was the duty of the Municipal Committee to take proper care of buildings so that they should not prove a source of danger to persons using the highway as a matter of right”. See link https://indiankanoon.org/doc/706862/

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