Tort, Crime and Contracts

In simple terms, we can think of wrongs in two main categories: Private Wrongs and Public Wrongs. Private wrongs, also known as civil wrongs, are generally less serious, while public wrongs are crimes and have more severe consequences. When someone commits a crime, it affects the entire community, but a civil wrong, or tort, violates individual rights. Now, if you’re dealing with a tort, the person who’s been harmed files a suit as the plaintiff.


In criminal cases, it’s a bit different – the State takes the lead in bringing charges against the accused. Another thing to note is that in criminal proceedings, settlements between the accused and the victim are usually not allowed (with a few exceptions). On the flip side, in a tort case, the parties involved can reach a settlement at any point, and the lawsuit can be withdrawn accordingly.

One more key difference is what happens at the end of the legal process. In a tort case, the injured party is typically awarded compensation, while in a criminal case, the focus is on punishing the accused.

Sometimes, an action can be both a tort and a crime. In these situations, the remedies aren’t mutually exclusive; they can happen at the same time. Despite these differences, there’s a fundamental similarity between crimes and torts – the basic responsibility not to commit an offense.

Distinction between Tort and Crime

A tort is an infringement or privation of private or civil rights belonging to individuals.  

In tort, the wrongdoer has to compensate the injured party  

In tort, the action is brought about by the injured party  

In tort damages are paid for compensating the injured  

The damages in tort are unliquidated
where as crime is a breach of public rights and duties that affect the whole community.  

In crime, he is punished by the state in the interest of society.  

In crime, the proceedings are conducted in the name of the state.  

It is paid out of the fine which is paid as a part of the punishment.  

In crime, damages are liquidated.  

Tort and Contract

  • P.H. Winfield helps us see the clear difference between tort and contract with his insightful definitions. He points out that tortuous liability arises when someone breaks a duty set by the law, which is owed to people in general and can be addressed through a claim for damages. On the other hand, a contract is like a special agreement where legal obligations are established between the parties involved. It’s a kind of legal relationship shaped by what the parties agree upon, and Salmond emphasizes that contracts come into being through the independent legislative authority given by the law to individuals to outline their mutual rights and responsibilities.
  • In simpler terms, today we distinguish between tort and contract because, in tort, duties are mainly set by the law, while in contracts, parties themselves decide the duties. In contracts, the agreement forms the foundation for all obligations, and it’s worth noting that people can’t just create legal responsibilities through agreement in the case of tort. So, if I have a duty not to harm you, it’s not because we agreed on it but because the law says so.
In tort, no privity is needed  

A tort is a violation in rem (right vested in some person and available against the world at large.)  

Motive is often taken into consideration in tort.

In tort the measure of damages is not strictly limited nor is it capable of being indicated with precision.
There should be privity between the parties.

A breach of contract is an infringement of a right in personam( right available against some determinate person or body).  

But it is immaterial in a breach of contract.  

In a breach of contract, the measure of damages is generally more or less nearly determined by the stipulations of the parties.    
  • A company that makes ginger beer sells a bottle to a store, and this bottle happens to be made of dark glass. Little did anyone know, the bottle had an unexpected guest – a decomposed snail that somehow found its way in during the manufacturing process.
  • Now, enter X, who excitedly buys the ginger beer from the store and decides to share it with a friend, our plaintiff – a lovely lady. They start sipping away, blissfully unaware of the unwelcome addition to their beverage. Unfortunately, as a result of what she both saw and drank, the lady falls seriously ill. Determined to seek justice, she decides to sue the ginger beer manufacturer, arguing negligence on their part.
  • While there was no direct contract between the lady and the manufacturer, a majority of the House of Lords believes that the manufacturer had a responsibility to ensure their product didn’t contain anything harmful. In their view, the manufacturer could be held liable for neglecting this duty of care.

Tort and Quasi-Contract

Quasi-Contracts cover those situations where a person is held liable to another without any agreement, for money or benefit received by him to which the other person is better entitled. According to the Orthodox view, the judicial basis for the obligation under a quasi-contract is the existence of a hypothetical contract that is implied by law. But the Radical view is that the obligation in a quasi-contract is sui generis and its basis is the prevention of unjust enrichment.

there is a duty to impose unliquidated damages as in tort.  There is no duty owed to persons for the duty to repay the money or benefit received unlike tort. In quasi-contract the damages recoverable are liquidated damages.
  • Imagine a scenario where person A accidentally gives money to person B. In the world of quasi-contracts, B isn’t obligated to refuse the money, but there’s a secondary duty for B to return it. This is different from both tort and contracts.
  • In tort and contracts, there’s a primary duty, and if that duty is breached, it leads to the remedial duty of paying compensation. So, in our accidental payment situation, quasi-contract doesn’t require B to reject the money outright, but there’s a friendly nudge to give it back, unlike the clear-cut primary duty in tort and contracts that triggers compensation if breached.

Read Also: Chief Justices of India

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