Torts and its Characteristics

Torts finds its roots in the Latin word ‘tortum,’ which translates to ‘twist.’ Essentially, it encompasses actions that deviate from the straight and lawful path, taking a twisted or unlawful turn. In simpler terms, you can think of a tort as a kind of “wrong” in English, where someone’s actions go off course from what’s considered right or legal.

Definitions by Various Thinkers

  • According to Salmond “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 other merely equitable obligation.
  • Winfield defines torts as “Tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards persons generally and its breach is redressable by an action for unliquidated damages”.

In simpler terms, let’s break down what these legal scholars are saying about torts. Imagine you have a right, like the right to not be harmed by someone else’s actions. Now, if someone goes and messes with that right, causing you harm, tort law kicks in. It’s like a safety net for individuals, saying, “Hey, you can’t just go around causing harm to others without consequences.” Torts aren’t crimes, and they’re definitely not like contractual agreements.

It’s more about making things right when someone has been wronged. So, when Lord Denning talks about the province of tort, he’s saying it’s all about figuring out who’s responsible when things go wrong. The cool thing is, tort law isn’t set in stone; it can adapt to what society needs. It’s like a flexible set of rules that keep evolving to make sure people are treated fairly. So, in a nutshell, torts are like the unsung heroes of the legal world, making sure everyone plays fair and square.

Characteristics of Tort

Torts as Civil Wrongs:

  • In simple terms, a tort is a civil wrong – a legal issue that falls under civil law, not criminal law.
  • Unlike criminal cases where the state takes action, in civil cases, individuals pursue legal action themselves.
  • The focus in civil law is on compensation, often in the form of unliquidated damages, rather than punishment.

Infringement of Rights:

  • Torts involve the infringement of a person’s rights, specifically categorized as either rights in rem (against the whole world) or rights in persona (against specific individuals).
  • Unlike a breach of contract, where the injured party can only sue the contract violator, torts allow anyone with a violated right to take legal action against the wrongdoer.
  • Torts only address violations related to legal rights. Economic or social losses, without a breach of a legal right, don’t find recourse in tort law.
  • Illustrated by cases like Gloucester Grammar School, where economic loss occurred but no legal right was violated.
  • Torts provide a remedy in the form of compensation, usually unliquidated damages.
  • The concept of “Injuria Sine Damno” exemplifies situations where legal injury occurs even without physical harm, allowing for legal recourse.

Remedy in Compensation:

  • Unlike criminal law’s focus on punishment or contract law’s specific damages, torts aim to restore parties to their original positions.
  • The remedy in torts is compensation, calculated by the court based on the loss caused.

Recognition of Rights:

  • To claim a remedy in torts, the rights must be recognized by the government and shouldn’t be self-declared or based on previous consent.
  • The government must acknowledge a duty on the part of the defendant that was breached and led to the proximate loss.

Precedents in Torts Law:

  • Torts law heavily relies on precedents and case law as its primary source, lacking specific statutes or acts.
  • Common law judgments become crucial in recognizing rights as a subject of law in torts.

Uncodified Nature of Torts Law:

  • Unlike criminal and contract law, which are codified with written statutes, torts law is uncodified.
  • Changes in torts law occur through precedents and case laws without the need for parliamentary intervention.

In essence, torts deal with civil wrongs, focusing on compensating for violated legal rights, and its development is shaped by precedents rather than written statutes.

Read Also: Essential Elements of Law of Torts

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