The word ‘tort’ has its origin in the French language which means a civil wrong. Being derived from the medieval Latin word ‘tortum’ which means a ‘wrong’ or ‘injury’. A tort arises when the duty of a person towards anyone else is affected. An individual who commits the tort is called a tortfeasor or a wrongdoer and where multiple individuals are involved, they are called joint tortfeasors. The act of wrongdoing is called a tortious act and they can be prosecuted jointly or individually. The Law of Torts focuses on providing the compensation for the damages one faces for someone else.
Objectives of Torts
There are various objectives of torts penned down by various thinkers, however, it was managed to mention a few of them in this article. They are as follows:
- To regulate the rights between the parties to a dispute.
- To refrain from continuation or repetition of harm I.e., by giving injunction orders
- To protect certain rights of every individual who are recognized by the law I.e., a person’s reputation.
- To restore one’s property to its rightful owner i.e. where the property is wrongfully taken away from its rightful owner.
Essential Elements of Torts
There are four essential elements of torts. They are:
- A wrongful act or omission.
- Duty imposed by the law.
- The act must give rise to legal or actual damage
- Should be of such a nature that it will bring about a legal remedy in the form of action or damages.
There is no pro bone rule for a wrongful act to be acted or omitted, rather a wrongful act can be morally or legally wrong and can also be both combined at times. A legal wrongful act is the one that puts an impact on one’s legal right, the wrongful act must be one recognized by law, and the act must be in violation of the law to be a legal wrongful act. An act which may deem prima facie innocent and free from injury may also end up contravening someone’s rights.
Duty imposed by law
A duty of care which is imposed on every individual and asks for a standard of reasonable care that he could see as being pernicious towards others. Therefore, a duty imposed by law is a duty which is legally enforceable in the Indian Courts.
It is to be kept in mind that ‘Damages’ is NOT the plural of ‘Damage’ rather both of them denotes two separate meaning legally. ‘Damage’ literally means to affect injuriously whereas ‘damages’ on the other hand refers to compensation.
The two factual importance of Legal Damage is being given example by two maxims. They are:
- Injuria Sine Damno
- Damno Sine Injuria
Injuria Sine Damno
This maxim portrays an injury without damage. Such a damage is applicable under the law of torts. This maxim occurs when a person goes through a legal damage instead of actual loss. In short, when his legal right is infringed by some other individual. This is a transgression of an absolute right of a person without having suffered from actual loss.
A mind-blowing example of this maxim can be the landmark case of, Ashby v. White (1703) 92 ER 126, where Mr Ashby, the plaintiff, was refrained from voting by Mr White, the constable. This rule is basically based on the old maxim “Ubi jus ibi remedium” which translates to “where there is a right, there will be a remedy.”
In an Indian case of Bhim Singh v. State of Jammu and Kashmir, the plaintiff was a member of the parliament (MP), and was not accorded to enter into the premises of the Assembly election by a police constable. Hence, his legal rights are infringed.
Damnum Sine Injuria
This maxim is just the opposite of the former one. It denotes to a damage without injury. Here, the party suffers from actual loss which may be physical or moral but no transgression of their legal rights takes place. In layman’s terms, the happening of an actual and substantial loss to a party without any transgression of a legal right. No action lies on the plaintiff’s end in this case for no legal rights are being transgressed here.
Difference between Injuria Sine Damno and Damnum Sine Injuria
|Injuria Sine Damno||Damnum Sine Injuria|
|Legal injury without physical damage.||Damage may be physical but no infringement of legal rights caused.|
|Compensation in the form of damages is awarded by the court.||No compensation in the form of damages is awarded by the court.|
|This maxim is for legal wrongs which can be prosecuted if the person’s legal rights are infringed.||This maxim is for moral wrongs having no action in the eyes of law.|
|Plaintiff suffers from legal injury.||Plaintiff may suffer from physical injury but not legal injury.|
Distinction between Crime and Tort
- Let’s put it as simple as it can be. A tort is a civil private wrong and it is a transgression of a person’s right in rem which means transgression of personal right; whereas crime is a public criminal wrong which is against the whole world and the state which is a transgression of right in personam.
- In torts, the remedy for the loss is in the form of damages, whereas in crime, the remedy is in terms of punishments.
- In a case of tort, a suit is filed; whereas in the case of a crime a complaint is filed.
- Law of Torts is an uncodified law whereas, on the other hand, Law of Crimes is a codified law.
- In torts, the intention is important but not in every case; whereas in the law of crimes intention is the essence of offence in itself.
Liquidated Damages and Unliquidated Damages
Even if they have a hairline difference, both of them stiffen the plaintiff’s right to be compensated. On one hand, liquidated damages have a fixed amount of compensation; whereas on the other hand, unliquidated damages have no foolproof fixed amount, they may be modified with the depth of offence that occurred.
After reading the article by now it must have been clear that tort is a civil wrong which arises when a person transgresses another person’s legal rights and that focused on compensating the person who suffered from damages instead of punishing them.
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