Monday, 18 July 2022

Nature & Scopt of Torts by Mayurakshi Sarkar At LexCliq

 Nature & Scope of Torts

-Mayurakshi Sarkar

All rules of behaviour that are recognised by society and enforced through the state are known as laws. Religious, social, political and moral rules are among the many examples that fall under this umbrella. Law in its strictest definition, on the other hand, refers only to those norms of behaviour that are recognised and enforced by the state. The law, according to Salmond, is a set of norms that are recognised and enforced by courts of law. Civil and criminal law make up the bulk of a state's body of law (corpus juris).

Definition of Tort

As with English and Roman law, the term 'delict' means 'wrong' in the French language. Unlike the English rectum, which denotes straight, the Latin word tortum is derived from the word tortum, which means twisted or crooked or incorrect. Anyone who deviates from this straight route towards crooked methods is guilty of committing a criminal offence. As a result, tort is defined as activity that is not straight. For the purposes of English law, tort refers to any type of civil harm or injustice. Historically, the Normans were the ones who first brought it to England's courts.

Until recently, tort was defined as a civil cause of action for which compensation could be sought for a violation of some duty that was not part of a contract. Despite numerous attempts, tort has yet to be defined in its entirety. Generally speaking, a tort can be described as a civil wrong that is not governed by a contract and for which an action for unliquidated damages is the appropriate remedy.

It is possible to recover unliquidated damages in a tort action, as defined by Winfield and Jolowicz, for the violation of a duty owed to all persons. If a tort is a civil wrong for which the remedy is a common action for unliquidated damages, and if it is not simply a breach of a contract or the breach of a trust or other mere equitable obligation, a tort is a civil wrong.

The Law of Torts in India

Tort in the Hindu and Muslim legal systems was far more limited than in the English legal system. In these regimes, punishment for crime took precedence over recompense for wrongdoing. In India, tort law is mostly based on English common law concepts, which in turn is based on the common law of England. As altered by the Indian Acts of Legislation, this was adapted to Indian situations in accordance with principles of justice, equity, and good conscience. When the British first established courts in India, this is where it all began.

It was construed by the Privy Council to mean the norms of English law if they could be applied in Indian society and conditions. It is possible for Indian courts to determine whether a rule of English law is appropriate for Indian society and circumstances before adopting it. As a result, only a limited number of cases have been decided under English law in India. According to the Privy Council, the common law's flexibility in adapting to the diverse cultures of the countries where it has flourished is not a flaw but rather a virtue. The Indian courts, on the other hand, are not limited to common law when interpreting English law. Whether or not the new English statutory law regulations that replace or modify the common law are more in line with the values of fairness, justice, and virtue is up to the courts in India. As an example, the Law Reform (Contributory Negligence) Act, 1945 (English law), has been used in India, despite the lack of a corresponding Indian law.

Nature of Tort

Tort had its origins in criminal proceedings. Even now, some components of the rules on damages are punitive. But tort is a civil hurt or wrong. The legal remedy distinguishes between civil and criminal wrongs. A civil wrong is one that warrants civil action. A civil procedure seeks to pursue a plaintiff's claim against the defendant, whereas a criminal proceeding seeks to punish the defendant for a conduct. The same mistake might sometimes be the subject of both types of litigation. Assault, libel, theft, malicious injury to property, etc. The wrongdoer may be penalised criminally and civilly required to compensate or restitution.

It is not all tort. A civil wrong is a tort only if the remedy is an action for unliquidated damages. So, for example, public annoyance is not a tort since the attorney general may seek an injunction, but only in those rare situations where a private person may seek damages for harm suffered as a result. However, a person is liable in tort whether or not a claim for damages has been made against him. The tortfeasor is accountable from the moment of tort. While a damages action is the hallmark of a tort and its typical remedy, other remedies exist.

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