Saturday, 29 January 2022

choice of remedy

 The factors that  depend on the  choice of remedy one depends upon between contract and tort  are as follows:

  1. Limitation periods- the limitation period for the breach of contract in India is three years and starts from the time the breach has occurred  and time of cessation of the breach.  The limitation period under tort law has a six year limitation period found under the Limitation  Act, 1980,  from the date which the cause of  action was arisen, but  there are certain limitations pertaining to the type of damage. For instance there is a three year limitation in damages for personal injury and defamation claims.  

  2. Need to prove fault-  In cases pertaining to breach of contract  the need to prove fault is not always necessary  as it can the innocent can cancel or  breach the contract too given the circumstances that they might have faced. In tort law fault is frequently necessary as one’s conduct even if it was not blameworthy, one is still liable and punishable to compensate for the breach of duty of care . 

  3. Amount of damages-  In breach of contract, damages are awarded by the court by analysing the gravity of loss suffered, be it liquidated or unliquidated. In breach of tort monetary compensation is awarded to the injured party and  damages are measured by actual loss pecuniary or non pecuniary. The one with greater amount given will be considered as a choice. 

  4. Wider obligations-  In breach of contract  the guilty party is obligated to compensate remedies for the breach. In torts there are wider obligations as one owes a duty of care to everybody around us and their properties too. 

Less Concern with fault -  A breach of contract is very rarely dependant of fault of  the defecting party, as other factors like mistake or coercion play more dominant reasons for the breach of a contract. However in in tort law there are few offences that has less concern with fault, for e.g,  trespass and libel.

Therefore one makes their choice by analysing these factors for choosing either the remedy for breach of contract or violation of tort law. 

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