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


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.

No comments:

Post a Comment

Concept of constitutionalism

  Concept of constitutionalism Who Started Constitutionalism? John Locke - The English Bill of Rights is a foundational constitutional docum...