Law of Torts
DISCHARGE OF TORTS
1.
INTRODECTION
Discharge
is the extinction of tort. There are some circumstances where right of action
comes to an end. There are two parties in every case plaintiff and defendant if
case falls into the circumstance of discharge of tort. The law assumes that
plaintiff has suffered no damage. These circumstances are exception to tort.
2.
MEANING OF DISCHARGE OF TORT
Discharge of tort means
extinction of injured persons of his right to sue and liability of tort feasor
to be sued in an action under tort.
3.
MODES OF DISCHARGE OF TORTS
A tort is
discharge or extinguished through:
i.
Death
of the parties
ii. Waiver by election
iii. Accord and satisfaction
iv. Release
v. Judgment recover
vi. Limitation
vii. Acquiescence
1
DEATH OF THE PARTIES
If an act is
done either to the person or property of another for which damages only could
be re-covered then the right of action dies with the death of the person to
whom or by whom the wrong is done. This mode is based on the following maxim:
“Actio
Personalis Moritur cum persona”
Which means a
personal right of action dies with the person. Of an injury were done either to
the person or property of another, for which damages only could be recovered in
satisfaction, the action with the person to whom or by whom, the was done.
CASE LAW
1990 CIC 404
It was held that a personal action dies with
the person and the death extinguishes the liability in tort.
2
WAIVER BY ELECTION
If a man has more than one remedy for the
same wrong and elects to pursue one of them, giving up the others the other
remedies, so right to sue are waved and liability to be sued would be
discharged through waiver of injured person who, having a choice between
contractual and tortuous remedies.
3
ACCORD AND SATISFACTION
Accord is Bilateral agreement
injured parson and tortfeasor by which by which injured person agrees to forgo his right to
sue in tort against offer of compensation offered by tortfeasor. The amount of
compensation by tortfeasor to injured person is called satisfaction. Right to
sue and liability to be sued would be discharged when injured person and
tortfeaser enter into accord and satisfaction.
4
RELEASE
A release is the giving up or
discharging of right of action which a man has or may have against another
person. So it is surrender of a right of action against wrong does. Release is
open to an injured party to release the wrong doer from liability to
compensation.
When Release is not valid
i.
Release
executed under mistake.
ii.
Element
of fraud
iii.
Ignorance
of one’s right
5
JUDGEMENT RECOVER
The
cause of action against a wrong doer in respect of a wrong is extinguished by a judgment obtained in a
court of law. The person injured can not bring a second action for the same
wrong even though it is subsequently found that his damage was much greater
than was anticipated when the action was brought.
6
LIMITATION
The limitation
act prescribed period with in which action in tort must be brought after which
they can not be maintained by the court of law.
7
ACQUIESCENCE
Where
a person having knowledge of his right fails to get it enforced for a
consideration period will be debarred from enforcing it later. It will be
inferred that he has acquiesced in commission of the act.
4. CONCLUSION
To
conclude I can say that tort is a civil wrong for which an appropriate remedy
is an action for liquidated damages. In case of discharge of tort the damages
would not be actionable because discharge of tort would extinguish liability of
wrongdoer to be sued on an action on tort.
GENERAL
DEFENCES IN TORT
· INTRODUCTION
Tort is
defensible, justifiable, and excusable in some circumstances. The result of
action in justifiable of tort would involve dismissal of action of injured
person and exoneration of tortfeasor. This can be pleaded by tortfeasor in any
case relating to any kind of tort.
· GENERAL RULE
It is
the general rule that he who commits tort is a tortfrasor and liable for the
tort committed by him.
· GENERAL
DEFENCES OR EXCEPTIONS TO LIABILITY
IN TORT
Following
are the general defences or exceptions which are also called justification in
torts.
i.
Leave and license
ii. Act
of God
iii. Inevitable
Accident
iv. Acts
of State
v. Private
Defence
vi. Mistake
vii. Damage
incident to Authorized Act
viii.Necessity
ix. Plaintiff
himself a wrong doer
x. Exercise
of common rights
xi. Acts
causing slight harm
xii. Judicial
and quasi judicial act
xiii.Parental
and quasi parental acts
xiv.Executive
acts
xv. Contributory
negligence
xvi.Foreign
tort
6.CONCLUSION
To
conclude I can say that act or omission which is prima facie tortuous is not
actionable if it is done under some lawful excuse. Law of torts has laid down
those circumstances where tort committed by tortfeasor would be justified and
excusable.
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