A comparative overview between Tort and Breach of Contract, highlighting their distinctive roles.
INTRODUCTION
The term Tort is derived from a Latin term “Tortum” which means ‘to twist’ or something that is not straight. It refers to an action that goes against lawful behavior. In legal terms, it is considered as a civil wrong, where the wrong doer’s act or omission affects the legal right of an individual, resulting in damages or compensation. Generally, law can be divided into three categories: Civil, Criminal and the Law of Torts. The Law of Tort is a branch of a law that regulates the behaviour of individuals in the society which is different from other civil wrongs such as contractual obligations. The entire Law of Torts is founded on the principle that, ‘no one has a right to injure another intentionally or even innocently’.
DEFINITIONS
Many scholars and jurists have defined the term Tort. Some of them are as follows:
Salmond
According to him “A tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract, or the breach of a trust, or the breach of other merely equitable obligation”.
Faser
According to him “A tort is an infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party”.
Statutory definition
As per Section 2(m) of the Limitation Act, 1968 it is defined as “Tort is a civil wrong which is not exclusively breach of contract or breach of trust”.
NATURE
The above definitions help us understand the following key features of tort:
- It is a Civil wrong.
- Act or Omission of wrong doer.
- Infringers the right of an individual.
- Remedy through Unliquidated Damages.
- Not a breach of contract or trust.
- Infringement of Right in Rem.
DIFFERENCE BETWEEN TORT AND BREACH OF CONTRACT
| Basis of Distinction
|
Tort | Breach of Contract |
| Fixation of Duty | Duty is fixed by law | Duty is fixed by the parties themselves |
| Attribution of Duty | Duty is towards every person in society | Duty is towards one specific person |
| Violation of Right | Violation of a right in rem (available against the world at large) | Infringement of a right in personam (available against a determinate person) |
| Motive | Motive is often concerned | Motive is irrelevant |
| Damages | Damages may be nominal, exemplary, or compensatory, depending on circumstances. | Damages are awarded as compensation for pecuniary (financial) loss suffered. |
| Suit by third party | A third party can sue for tort even without a contract | A third party generally cannot sue, except in exceptional cases. |
| Period of Limitation | Limitation begins when the damage occurs. | Limitation starts from the date of breach of obligation |
CONCLUSION
Therefore, unlike contractual breaches, where duties arise from mutual agreements, tortuous duties are imposed by law and owed to society at large. It provides remedies through unliquidated damages to compensate for the harm suffered and by this it serves as a corrective and preventive mechanism within the legal system.
SOURCE
- INDIA CODE– LIMITATION ACT
ALSO READ – CONTRACT LAW
WRITTEN BY – PRIYA
EDITED BY: NANCY SHARMA
