DISCHARGE OF TORTS

 

WHAT IS MEANT BY THE PHRASE, ‘DISCHARGE OF TORTS’?

 

Discharge of torts means the termination of torts. It is the end of torts. There will lie no legal action after the tort is terminated. And once the tort is terminated, remedy ceases to operate. In other words, the discharge of torts terminates all consequences followed by the wrongful act. It is the end of the matter. The matter is over. The dispute is finished and thereafter will lie no further legal action. 

 

There are seven different modes in which a tort could be discharged that is to say that the remedy ceases to operate. Where there is a vested right of action for a tort, such a right of action may be discharged by seven methods. These are given below:

1.    Death of Either Party

2.               Waiver

 

3.               Accord and Satisfaction

 

4.               Release

 

5.               Acquiescence

 

6.               Judgement Recovered

7.               Statutes of Limitation

 

All of the above cases are explained in detail below:

 

 

1):Death of Either Party:

 

Either party refers to a plaintiff or a defendant. In other words, in a suit for damages in torts, what is the position of law if the plaintiff dies or the defendant dies? To reword, can the heirs of the deceased plaintiff or defendant continue the suit or does the right of action dies with him. Closely connected with is the liability of a legal person i.e. a corporation. How about the death of a corporation? Remember, a corporation is not a natural person. All of the three issues are hereby framed below:

A.              Death of a Plaintiff: 

B.              Death of a Defendant:

C.              Death of a Corporation:

 

A):DEATH OF A PLAINTIFF:

 

If a plaintiff dies during the pendency of a suit for damages, the action dies with the death of the plaintiff. His/her heirs will have no right to pursue the matter. The opponent party or defendant is liberated from the liability. This is based upon a famous maxim, “Actio Personalis Moritur Cum Persona.” It means, a personal right of action dies with that person. The death of a plaintiff terminates the tort.

 

B):DEATH OF A DEFENDANT:

 

As stated above, death of either party terminates the tort, i.e. the right to sue or to be sued dies. Now, what is the legal position if a defendant dies before or during the pendency of the suit? If such is the case, the law of torts says that there will be no liability either on the heirs of the deceased or on his estate. 

 

C):DEATH OF A CORPORATION:

 

A corporation is a legal person, it does not die its natural death. In case of corporation, death is referred as ‘dissolution’ of the corporation. Once a corporation is dissolved, the law presumes its death. There will lie no legal action after a corporation is dissolved. 

 

EXCEPTIONS TO THE DEATH OF EITHER PARTY PRINCIPLE OR ACTIO PERSONALIS MORITUR CUM PERSONA:

a):Legal Representatives Suits Act: 

 

According to this Act, if a defendant has harmed the estate of a plaintiff i.e. the defendant has committed a tort against the immovable property of a plaintiff and the plaintiff dies during the pendency of the case, the defendant is still liable. The heirs of the plaintiff will step into the shoes of the plaintiff to carry on with the matter. 

b):Fatal Accidents Act:

 

If there is fatal accident and the plaintiff dies at the time or thereafter of the accident, the heirs or representatives of the plaintiff can continue with the legal action. 

c):Succession Act:

 

All rights to prosecute any action existing in favour of a deceased survive to his executors, heirs or administrators. In other words, all criminal cases can be initiated or followed by the heirs, administrators or executors of a plaintiff after his/her death. 

 

 

 

2). WAIVER:

 

Waiver is the second mode of termination of torts. The tort is terminated or discharged when it is waived off. To waive means to abandon, relinquish, give up or refrain from insisting. To make it clearer, if a person has more than one remedy for the same wrong, and choses to pursue one of them, abandoning the others, he/she must stand by his choice. The other remedies are said to have been waived by him/her. So, a waiver is simply a choice between remedies. This example is going to make it clearer. If the injured person has remedies for tort and breach of contract, and he/she choses to sue for the latter, the cause of action in tort is waived off, he/she cannot revert to it in law. 

 

 

3). ACCORD AND SATISFACTION:

 

An accord means, ‘a mutual agreement to pay in return of to do something’. Both parties enter into an agreement, one party pays for the wrong which satisfies the party against whom the wrong is committed. In return the victim or a party against whom the wrong is committed agrees not to pursue the case anymore. Accord and satisfaction operates as a bar to the right of a legal action to sue the other party. Accord and satisfaction can be entered into between the two parties before or during the pendency of the case in court. Once the arrangements are entered into finishes or ends up the matter. It is considered as a patch up of the matter forever.  

 

 

 

4). RELEASE:

 

A release means the surrender of a right of action against a wrongdoer. It is open to an injured party to release the wrongdoer from liability for nothing or for some sort of compensation. 

 

A release is like a contract and is also known as a ‘covenant not to sue’. A voluntary release is valid, it is permitted in law. Any release based on fraud or misrepresentation is void. An individual who signs a release has the obligation to read its contents prior to executing it; the person cannot have the release set aside because he or she has not become familiar with its contents. A release is not void merely because the bargain was unwise.

 

Under the common law, when an individual who had been injured by the wrongful acts of two or more persons—known as joint tortfeasors—executed a release to one of the defendants, the releasor was regarded as having relinquished the claim against all the defendants, unless rights against them were clearly and specifically reserved in the release. This rule proved to be unfair, however, because it forced the injured party to give up an entire claim against all tortfeasors without necessarily being totally compensated. Few jurisdictions still apply this rule. Most states currently permit a plaintiff to continue an action against the remaining joint tortfeasors after one of them has been released from liability unless the plaintiff has made an intentional surrender of the claim or has been totally compensated. An agreement of this type is called a COVENANT not to sue—the plaintiff does not give up the lawsuit but agrees not to enforce the claim against a particular joint tortfeasor although the others are still liable.

 

The execution of release which is in the form of a covenant can also liberate all wrongdoers from the liability. Release is different from Accord and Satisfaction because in the former a wrongdoer can be liberated from liability for free while in case of the Accord and Satisfaction there will always be compensation to be paid to the plaintiff. 

 

5). Statutes of Limitation:

 

A legal action must be brought within the statutory time period. If not, the right to sue is barred. In each jurisdiction, there is a Limitation Act providing different time periods for each legal action. If an action is not brought within the stipulated time period, the case is time-barred. 

 

 

6). Acquiescence:

 

Where a person, who knows that he is entitled to enforce a right, neglects to do so for a length of time, the other party may fairly infer that he has waived or abandoned the right. But to deprive a man of his legal remedies there must be something more than a mere delay. Direct acquiescence takes away a right of action. If an injured person, with full knowledge of his right to bring an action for tort, neglects to do so for a length of time, it may fairly be inferred that he or she has consented and thus it can be inferred that the wrongdoer has been liberated from liability. 

 

A very good example of acquiescence will be when a person has been using your land to access his/her agricultural land and you slumber or sleep over your right to sue. You don’t challenge his/her access to the agricultural land. The person is accessing his/her land openly and uninterruptedly for a continuous time period of twenty years. You consent to or agrees to or acquiesce to such use on his part. Though the person is doing something wrong- using your land- but the law presumes that you have given consent to the person to use your land. This type of behavior is known as ‘Acquiescence’ which discharges or terminates a tort. 

 

Another good example would be when some has been operating a factory in your neighborhood for twenty years. The factory creates nuisance- smoke and noise. You are unable to sleep. If you go to the court and try to enforce your right, the court will be reluctant to enforce your right on the basis of your acquiescence. Though the wrongdoer is doing something unacceptable, however, your laziness - to sleep over your right to have been enforced in due course of time - has helped the wrongdoer and thus results in the termination or discharge of torts through ‘Acquiescence’. 

 

 

 

7). Judgement Recovered:

 

The last mode to terminate or discharge a tort is called, ‘Judgement Recovered’. You are allowed by law to enforce your right once. The law does not permit you to enforce your right time and again for the same cause of action. So, once you have enforced your right and the court pronounces a judgement and issues a decree in your favour and the decree is executed. The court recovers and delivers you compensation, this is called ‘Judgement Recovered’. Recovering compensation through court, thus bars you from enforcing your right for the second time for the same cause of action. This operates as the discharge or termination of tort. 

 

On the basis of the above, there will not lie more than one action on the same cause of action. To this rule, there are following exceptions. 

 

·      When the same cause of action violates two distinct rights, you can enforce your right more than once. For example, in a car accident, there is damage to the car of a non-faulty-driver, and he suffers personal injuries too. He recovers damages, in the first suit, for the harm to his car. Later on, he sues again for his personal injuries. The court will entertain his suit because two distinct rights have been violated through the same cause of action – damage to his car and damage to his body. 

·      In cases of continuing trespass, there will lie continuing action. It is based upon the principle of ‘de die in diem’. Action de die in diem is a Latin term. It means ‘from day to day.’ In early days, the term was used to refer to an action occurring from day to day. It referred to a continuing right of action. For example, if a person wrongfully places something on another person’s land and leaves it there, that act is not a single act of trespass. Instead, is a continuing action giving rise to fresh cause of action de die in diem.

·      In cases of continuing nuisance, there will lie continuing action. If someone is creating nuisance in continuation, there will lie more than one action.