INTRODUCTION
Law is any rule of human conduct accepted by the society and enforced by the
state for the betterment of human life. In a wider sense it includes any rule of
human action for example, religious, social, political and moral rules of conduct.
However, only those rules of conduct of persons which are protected and enforced
by the state do really constitute the law of the land in its strict sense. According to
Salmond the law consists of rules recognized and acted on by courts of justice. The
entire body of law in a state (corpus juris) may be divided into two, viz. civil and
criminal.
Civil law: The term may be used in two senses. In one sense it indicates the law of
a particular state as distinct from its external law such as international law. On the
other side, in a restricted sense civil law indicates the proceedings before civil
courts where civil liability of individuals for wrongs committed by them and other
disputes of a civil nature among them are adjudicated upon and decided. Civil
wrong is the one which gives rise to civil proceedings, i.e., proceedings which have
for their purpose the enforcement of some right claimed by the plaintiff as against
the defendant. For example, an action for the recovery of debt, restitution of
property, specific performance of a contract etc. he who proceeds civilly is a
claimant or plaintiff demanding the enforcement of some right vested in him and
the remedy he seeks is compensatory or preventive in nature.
Criminal Law: Criminal laws indicate the proceedings before the criminal courts
where the criminal liability of persons who have committed wrongs against the
state and other prohibited acts are determined. Criminal proceedings on the other
hand are those which have for their object the punishment of the wrong doer for
1
,some act of which he is accused. He who proceeds criminally is an accuser or
prosecutor demanding nothing for him but merely the punishment of the accused
for the offence committed by him.
Definition of Tort
The term tort is the French equivalent of the English word ‘wrong’ and of the
Roman law term ‘delict’. The word tort is derived from the Latin word tortum
which means twisted or crooked or wrong and is in contrast to the word rectum
which means straight. Everyone is expected to behave in a straightforward manner
and when one deviates from this straight path into crooked ways he has committed
a tort. Hence tort is a conduct which is twisted or crooked and not straight. As a
technical term of English law, tort has acquired a special meaning as a species of
civil injury or wrong. It was introduced into the English law by the Norman jurists.
Tort now means a breach of some duty independent of contract giving rise to a
civil cause of action and for which compensation is recoverable. In spite of various
attempts an entirely satisfactory definition of tort still awaits its master. In general
terms, a tort may be defined as a civil wrong independent of contract for which the
appropriate remedy is an action for unliquidated damages. Some other definitions
for tort are given below:
Winfield and Jolowicz- 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.
Salmond and Hueston- A tort is a civil wrong for which the remedy is a common
action for unliquidated damages, and which is not exclusively the breach of a
contract or the breach of a trust or other mere equitable obligation.
2
,Sir Frederick Pollock- Every tort is an act or omission (not being merely the
breach of a duty arising out of a personal relation, or undertaken by contract)
which is related in one of the following ways to harm (including reference with an
absolute right, whether there be measurable actual damage or not), suffered by a
determinate person:-
a) It may be an act which, without lawful justification or excuse, is intended by the
agent to cause harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty,
which causes harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or
property), and treated as wrongful without regard to the actor’s intention or
knowledge. This, as we have seen is an artificial extension of the general
conceptions which are common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting or
omitting to act did not intend to cause, but might and should with due diligence
have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm
which the party was bound absolutely or within limits, to avoid or prevent.
Fraser- Tort is an infringement of a right in rem of a private individual giving a
right of compensation at the suit of the injured party.
3
, The Law of Torts in India
Under the Hindu law and the Muslim law tort had a much narrower conception
than the tort of the English law. The punishment of crimes in these systems
occupied a more prominent place than compensation for wrongs. The law of torts
in India is mainly the English law of torts which itself is based on the principles of
the common law of England. This was made suitable to the Indian conditions
appeasing to the principles of justice, equity and good conscience and as amended
by the Acts of the legislature. Its origin is linked with the establishment of British
courts in India.
The expression justice, equity and good conscience was interpreted by the Privy
Council to mean the rules of English Law if found applicable to Indian society and
circumstances. The Indian courts before applying any rule of English law can see
whether it is suited to the Indian society and circumstances. The application of the
English law in India has therefore been a selective application. On this the Privy
Council has observed that the ability of the common law to adapt itself to the
differing circumstances of the countries where it has taken roots is not a weakness
but one of its strengths. Further, in applying the English law on a particular point,
the Indian courts are not restricted to common law. If the new rules of English
statute law replacing or modifying the common law are more in consonance with
justice, equity and good conscience, it is open to the courts in India to reject the
outmoded rules of common law and to apply the new rules. For example, the
principles of English statute, the Law Reform (Contributory Negligence) Act,
1945, have been applied in India although there is still no corresponding Act
enacted by Parliament in India.
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Law is any rule of human conduct accepted by the society and enforced by the
state for the betterment of human life. In a wider sense it includes any rule of
human action for example, religious, social, political and moral rules of conduct.
However, only those rules of conduct of persons which are protected and enforced
by the state do really constitute the law of the land in its strict sense. According to
Salmond the law consists of rules recognized and acted on by courts of justice. The
entire body of law in a state (corpus juris) may be divided into two, viz. civil and
criminal.
Civil law: The term may be used in two senses. In one sense it indicates the law of
a particular state as distinct from its external law such as international law. On the
other side, in a restricted sense civil law indicates the proceedings before civil
courts where civil liability of individuals for wrongs committed by them and other
disputes of a civil nature among them are adjudicated upon and decided. Civil
wrong is the one which gives rise to civil proceedings, i.e., proceedings which have
for their purpose the enforcement of some right claimed by the plaintiff as against
the defendant. For example, an action for the recovery of debt, restitution of
property, specific performance of a contract etc. he who proceeds civilly is a
claimant or plaintiff demanding the enforcement of some right vested in him and
the remedy he seeks is compensatory or preventive in nature.
Criminal Law: Criminal laws indicate the proceedings before the criminal courts
where the criminal liability of persons who have committed wrongs against the
state and other prohibited acts are determined. Criminal proceedings on the other
hand are those which have for their object the punishment of the wrong doer for
1
,some act of which he is accused. He who proceeds criminally is an accuser or
prosecutor demanding nothing for him but merely the punishment of the accused
for the offence committed by him.
Definition of Tort
The term tort is the French equivalent of the English word ‘wrong’ and of the
Roman law term ‘delict’. The word tort is derived from the Latin word tortum
which means twisted or crooked or wrong and is in contrast to the word rectum
which means straight. Everyone is expected to behave in a straightforward manner
and when one deviates from this straight path into crooked ways he has committed
a tort. Hence tort is a conduct which is twisted or crooked and not straight. As a
technical term of English law, tort has acquired a special meaning as a species of
civil injury or wrong. It was introduced into the English law by the Norman jurists.
Tort now means a breach of some duty independent of contract giving rise to a
civil cause of action and for which compensation is recoverable. In spite of various
attempts an entirely satisfactory definition of tort still awaits its master. In general
terms, a tort may be defined as a civil wrong independent of contract for which the
appropriate remedy is an action for unliquidated damages. Some other definitions
for tort are given below:
Winfield and Jolowicz- 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.
Salmond and Hueston- A tort is a civil wrong for which the remedy is a common
action for unliquidated damages, and which is not exclusively the breach of a
contract or the breach of a trust or other mere equitable obligation.
2
,Sir Frederick Pollock- Every tort is an act or omission (not being merely the
breach of a duty arising out of a personal relation, or undertaken by contract)
which is related in one of the following ways to harm (including reference with an
absolute right, whether there be measurable actual damage or not), suffered by a
determinate person:-
a) It may be an act which, without lawful justification or excuse, is intended by the
agent to cause harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty,
which causes harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or
property), and treated as wrongful without regard to the actor’s intention or
knowledge. This, as we have seen is an artificial extension of the general
conceptions which are common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting or
omitting to act did not intend to cause, but might and should with due diligence
have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm
which the party was bound absolutely or within limits, to avoid or prevent.
Fraser- Tort is an infringement of a right in rem of a private individual giving a
right of compensation at the suit of the injured party.
3
, The Law of Torts in India
Under the Hindu law and the Muslim law tort had a much narrower conception
than the tort of the English law. The punishment of crimes in these systems
occupied a more prominent place than compensation for wrongs. The law of torts
in India is mainly the English law of torts which itself is based on the principles of
the common law of England. This was made suitable to the Indian conditions
appeasing to the principles of justice, equity and good conscience and as amended
by the Acts of the legislature. Its origin is linked with the establishment of British
courts in India.
The expression justice, equity and good conscience was interpreted by the Privy
Council to mean the rules of English Law if found applicable to Indian society and
circumstances. The Indian courts before applying any rule of English law can see
whether it is suited to the Indian society and circumstances. The application of the
English law in India has therefore been a selective application. On this the Privy
Council has observed that the ability of the common law to adapt itself to the
differing circumstances of the countries where it has taken roots is not a weakness
but one of its strengths. Further, in applying the English law on a particular point,
the Indian courts are not restricted to common law. If the new rules of English
statute law replacing or modifying the common law are more in consonance with
justice, equity and good conscience, it is open to the courts in India to reject the
outmoded rules of common law and to apply the new rules. For example, the
principles of English statute, the Law Reform (Contributory Negligence) Act,
1945, have been applied in India although there is still no corresponding Act
enacted by Parliament in India.
4
