Skip to main content

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.

Labels:

Comments

Post a Comment

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B
Post a Comment
Read more

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske
1 comment
Read more

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree
Post a Comment
Read more