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Extinction of Liability under Torts by Mayurakshi Sarkar at Lexcliq

 Extinction of Liability under Torts

The tort is a civil wrong, but all the civil wrong doesn’t come under the ambit of tort. If one person does any civil wrong to another person, and that wrong comes under the ambit of tort then the person against whom the wrong has been done is entitled to get remedy in form of unliquidated damages. But the law of tort also discusses various methods by which the act of tort gets discharged.

Discharge of Tort

There are seven different modes through which tort is discharged and no remedy will lie for tort. It is a process through which the tort comes to an end. A wrongdoer is not liable for his actions. Following are the methods of discharge of torts.

Death of the parties

Here the maxim ‘actio personalis moritur cum persona’ applies which means if the person dies his personal right of action dies with him. Actio personalis moritur cum persona this is the important maxim, it means if the person who commits a tort or the person against whom the tort is committed dies, the personal right or the right to receive the damages or the right of action dies with the person. There are two situations where this maxim applies -

  1. Death of the person against whom tort was committed i.e., Petitioner. When the person against whom the tort was committed i.e. the plaintiff who approached the court and filed a case died, so his personal right of action dies with him only.

Illustration: If A files a case against the act of tort done by B. If A dies during the course of trial and the case is still pending before the court. Due to the death of the A, the tort gets discharged, as the right of action of A dies with him only.

 

Exceptions to the maxim of ‘Actio personalis moritor cum persona’ with respect to Petitioner

 

In India there are laws which constitute the exception to the above maxim like;

The Legal Representative Suits Act, 1885

 

As per this Act, the legal representative or the executors of any person, after his death can represent the deceased person in the court of law. Illustration: If A died during the procedure of trial of court. His legal heir or representative can represent him in the court of law.

 

Similarly, in different laws/act like Fatal accident act, the Indian Succession Act, Workmen Compensation Act etc. the representative of the plaintiff can represent him in the court of law.

 

  1. Death of the person who commits tort i.e. Defendant 

It means the person who commits the act of tort against any other person i.e. the defendant dies, the tort gets discharged. Illustration: If Ram commits the act of tort against Geeta, if Geeta files a complaint against Ram, but if during the course of trial Ram died, then his right of action also dies with him i.e. the discharge of tort.

 

 Prusti v. Mohanty

 

In this case, the defendant received some amount by misrepresentation of fact, but the defendant died. The High Court of Orissa held that where a money decree was passed against a person in respect of the amount received by him from the decree-holder by misrepresentation of the facts, the liability would be personal and could not be extended to his son under the law, as whatever the relief a decree-holder has against the father ended with the father’s death

Accord and Satisfaction: Concept of accord means when the parties of the tort i.e. the person who commits the tort and the person against whom the tort has been committed, come to an agreement and settle the dispute. Such an agreement is known as Accord. In general term, it means settling the issue by accepting some consideration in lieu of the right of action. Satisfaction means the actual payment of consideration agreed by both, the person who commits a tort and the one against whom the tort committed. When both the accord and satisfaction once completed, it results in the discharge of tort and the dispute does not proceed in a court of law.

Release : A Release means giving up the right to the action. It means when a person by his own choice discharged the tort. This right is only provided to the person against whom the wrong has been done.

Judgement : In this method, the discharge of tort happens by the judgement given by the court. If once the court gives judgement on the matter, the tort gets discharged, no appeal for the same act of tort can be claimed for the same remedy in the court of law. The concept of this method of discharge of tort is based on the legal maxim of Res-Judicata, it means, if any cause of action decided previously by the court, the same cause of action should not be entertained by the court twice.

Acquiescence: In this method, the tort gets discharged because of the incapacity of the plaintiff himself i.e. if he has no time to go to court, no money to pay the court fees, or any other incapacity. When any person is entitled to enforce his right, and he doesn’t enforce his right for a long time, this makes other party waived from his liability.  

Law of limitation: Under this method the tort gets dismissed due to the limitation i.e. when the prescribed time limit to file the case gets over, in this situation the tort gets dismissed and no person is entitled to enforce his right. Like, in the case of false imprisonment or libel the limit to file a case is 1 year, in case of trespass to immovable property, the limit set is 3 years etc after the time limit gets over, no person can enforce his/her right.

Conclusion

A tort is an act/conduct that is twisted. It means the violation of a legal right of a person by the act of the other person i.e. the breach of the legal right of the other person. But the right of action of the party can become discharged in certain conditions like the death of any of the party, by Waiver, by Accord and Satisfaction, by Release, or by the judgement of the court of law. Through the above methods, the tort becomes discharge and no remedy will lie for tort.

 

 


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