Tort Noots of Sir,Lecture By M. Mujahid Rana (Advocate High Court) Class LLB Part 1 Law of Torts Q 2

Law of Torts

Difference between Tort & Crime, Tort & Breach of contract, Tort & Bailment, further similarities between Tort and Crime.

Distinguished Between Tort and Crime

Both tort and crime resemble each other, that in both are violation of right  in-rem and in both the rights and duties are fixed by law irrespective of the consent of the parties. Following are the distinctions between the two.

Points	Tort	Crime
1.      As to nature of wrong	Infringement of private rights belonging to an individual.	Crime is an invasion of public rights duties affecting the whole society.
2.      As to remedy/Punishment	Wrong-doer has compensated the injured party.	Accused is punished by the state.
3.      As to proceeding	Action is brought by the injured party himself.	The proceedings are taken and conduct in the name of the state.
4.      Jurisdiction	Only civil.	Criminal.
5.      Role of injured Party	Can release other party.	Cannot release in all cases.
6.      Parties name	Plaintiff vs. defendant.	State vs. Accused.
7.      Compensation	Can get.	Not allowed under section 544-A. Cr.P.C.
8.      Compoundable	Yes	Not in all cases.
9.      Minor under 7 years	Liable for tort.	Not liable under section 82 PPC.
10.  Doctrine of necessity	A defence in tort.	Is not a defence Regina vs. Dudley Stephens (1895)
11.  As to Intent	Not relevant.	Always relevant.
12.  As to procedure	Regulated by CPC 1908.	Regulated by Cr.P.C 1898.
13.  As to codification	Not codified.	Codified in P.P.C.

Tort & Breach of Contract:

Although both tort & breach of contract resemble in this namely that in both, there is an infringement of private rights. The society in general not being concerned at all. Moreover, in both actions is taken by way of compensation or damages. The following are however, points of difference between the two.

Points	Tort	Contract
1.      Nature of right infringement	A tort is a violation of right in rem i.e. a right exercise able against the whole world.	A breach of contract is an infringement of right in Personam i.e. a right exercisable against a definite person.
2.      Duty	The duty is one imposed by the law and is owed to the society in general.	The duty is fixed by the will & consent of the parties & it owed to a definite person.
3.      Consent of the parties	The obligation arises independently of a contract, tort is inflicted against consent or without it.	The obligation is founded on the consent of the parties only.
4.      Privities	No such privity can exist in tort which is always inflicted against and without the consent of the party injured.	There must always exist privities between the parties i.e. a binding legal tie between them.
5.      Measure of damages	The measures of damages is not limited or fixed with precision/un-liquidated.	The measure of damages is determined by the stipulation between the parties/liquidated.
6.      Remoteness of damages	Man is many times held liable for damages arising from special circumstances of which he had no knowledge.	If there are special circumstances under which a contract was made and they were wholly unknown to the party breaking the contact he is not liable for damages due solely to those special circumstances.
7.      Exemplary damages	Exemplary damages can be given.	Exemplary damages are not awarded.
8.      Motive	It is often taken into consideration though not always.	Motive of defendant is immaterial.
9.      Privacy	Privacy is not compulsory.	Privacy is compulsory.
10.  Minor’s status	Minor can sue and can be sued.	Minor cannot sue & cannot be sued.
11.  Law of necessity	Is a justification, a defence.	Is not justification, is no defence.
12.  Enacted law	No.	Yes.

Tort and Bailment:

A bailment is a delivery of goods on condition, express or implied that they shall be resorted to the bailer or according to this direction, as soon as the purpose for which they are bailed shall be answered. If I give my car on hire to B. The latter is the bailee of the car. He must use the car in such a way as not to cause any damage to it and must return it to me in good condition at the end of the period of bailment. Otherwise he will be liable to me in the civil action that may be brought by me as the bailer of the car. But even apart from the action under bailment, he will also be liable to me for negligence if he uses that pleasure car of mine for carrying granite stones and causes substantial damage to the car. Bailment like contract, originates in agreement of the parties but tortuous liability may also coexist along with the liability under bailment.

Tort & Trust:

Trust is a breach of the law of property. Under is a person called trustee hold property in his name for the use and benefit of another person is called the beneficiary. If a trustee misappropriates the property which he hold up for a beneficiary. The beneficiary can claim compensation. But that compensation amount will usually be the value property concerned. It can be ascertained before hand and as such the damage claimed will be liquidated sum and not unliquidated. Thus a tort is distinguishable from trust mainly on the ground that while un-liquidated damages are claimed in tort only liquidated damages are claimed in trust transactions.

Act amount to Tort & Breach of Contract at the same time:

The same act may amount to a tort and a breach of contract for example persons such as carrier, surgeon etc. Who undertake the discharge certain duties and voluntarily enter into contract for the due performance thereof, will be liable for neglect or unskillfulness either in an action for a breach of contract or in tort.

Illustration:

A physician, who harms his patient by negligently administering a poisonous drug, is liable both in tort and in contract. In such a case, it is open to the patient to sue the physician either for the tort or the breach of contract or both.

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