October 28, 2021

Tort, Crime and Contracts

Law of torts

In a general sense, the wrongs, which are less serious in nature, are categorized as private wrongs and have been grouped as civil wrongs. On the other hand, wrongs, which have more serious effects, are termed as public wrongs and fall under the group of crimes. A crime affects the whole community, but, tort violets individual rights. In a case for tort, the injured party has to file a suit as the plaintiff. In a criminal litigation, however, the criminal proceeding against the accused is initiated by the State.

Further, the law does not permit a settlement between the accused and the victim in a criminal proceeding (except in few cases) At any time in a suit for tort, there can be a settlement by and between the parties and as a consequence, the said suit can be withdrawn. Tort can also be distinguished from a crime by the final award of the concerned court. In tort, the injured party is awarded compensation, whereas, in a criminal case, the accused in awarded punishment .At times, an act may constitute both a tort as well as a crime. The remedies available in such instance are not alternative, but concurrent. Though there are multiple features that distinguish a crime from a tort, there exists one basic similarity between the two as well. It is the primary duty of not to commit an offence.

Distinction between Tort and crime

Tort is an infringement or privation of private or civil rights belongigng to individuals.   In tort the wrong doer has to compensate the injured party   In tort the action is brought about by the injured party   In tort damages are paid for compensating the injured   The damages in tort are unliquidatedwhereas crime is a breach of public rights and duties which affect the whole community.   in crime, he is punished by the state in the interest of the society.   in crime the proceedings are conducted in the name of the state.   it is paid out of the fine which is paid as a part of punishment.   in crime they are liquidated.  

Tort and crime

The definition given by P.H. Winfield clearly brings about the distinction between tort and contract. It says, Tortuous 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. A contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, content and consequence of which are determined and defined by the agreement between the parties. According to Salmond, a contract arises out of the exercise of the autonomous legislative authority entrusted by the law to private persons to declare and define the nature of mutual rights and obligations.

At the present day, tort and contract are distinguished from one another in that, the duties in the former are primarily fixed by law while in the latter they are fixed by the parties themselves. Agreement is the basis for all contractual obligations. “People cannot create tortious liability by agreement. Thus I am under a duty not to assault you, not to slander you, not to trespass upon your land because the law says that I am under such duty and not because I have agreed with you to undertake such duty.

In tort no privity is needed   A tort is a violation in rem (right vested in some person and available against the world at large.)   Motive is often taken into consideration in tort,   In tort the measure of damages is not strictly limited nor is it capable of being indicated with precisionThere should be privity between the parties   a breach of contract is an infringement of a right in personam( right available against some determinate person or body).   but it is immaterial in a breach of contract.   in a breach of contract the measure of damages is generally more or less nearly determined by the stipulations of the parties.    

 Eg. a manufacturer of ginger beer had sold to a retailer, ginger beer in a bottle of dark glass. The bottle, unknown to anyone, contained the decomposed remains of a snail which had found its way to the bottle at the factory. X purchased the bottle from the retailer and treated the plaintiff, a lady friend (the ultimate consumer), to its contents. In consequence partly of what she saw and partly of what she had drunk, she became very ill. She sued the manufacturer for negligence. This was, of course, no contractual duty on the part of the manufacturer towards her, but a majority of the House of Lords held that he owed a duty to take care that the bottle did not contain noxious matter and that he was liable if that duty was broken.

Tort and Quasi-Contract

Quasi contract cover those situations where a person is held liable to another without any agreement, for money or benefit received by him to which the other person is better entitled. According to the Orthodox view the judicial basis for the obligation under a quasi contract is the existence of a hypothetical contract which is implied by law. But the Radical view is that the obligation in a quasi contract is sui generis and its basis is prevention of unjust enrichment.

there is a duty imposed   unliquidated damages as in tort.  There is no duty owed to persons for the duty to repay money or benefit received unlike tort   In quasi contract the damages recoverable are liquidated damages,

Quasi contracts resembles tort and differs from contracts in one aspect. The obligation in quasi contract and in tort is imposed by law and not under any agreement. In yet another dimension quasi contract differs from both tort and contract. If, for example, A pays a sum of money by mistake to B. in Quasi contract, B is under no duty not to accept the money and there is only a secondary duty to return it. While in both tort and contract, there is a primary duty the breach of which gives rise to remedial duty to pay compensation.


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