INTRODUCTION TO LAW OF TORTS

 

               INTRODUCTION TO LAW OF TORTS

     

                

 

What is a wrong?

Wrong is something, which is :

Ø Illegal

Ø Socially or morally opposed

Ø Harmful to others

Ø Unacceptable to the society etc.

 

Wrongs may vary from:

Ø Culture to culture

Ø Society to society

Ø Religion to religion

Ø Country to country etc.

 

For example:  Drinking wine in the west is allowed, but prohibited in Muslim societies. Similarly, eating cow meat in Indian society may be considered as a wrong, however, it’s pretty normal in Pakistani society.

 

 

 

Classification of wrongs:

Wrongs may be classified into:

Ø Criminal wrongs: also known as crimes/offences.

Ø Civil wrongs: it is further divided into :

1)   Breach of contract.      2) Breach of trust.

                         3).Torts

 

 

WHAT IS MEANT BY RIGHT-IN-REM AND RIGHT-IN-PERSONAM?

 

Right-In-Rem:

Ø These are the rights available to an individual against the public at large/whole society.

Ø For example, Your right not to be defamed, your right not to be tortured, your right of privacy not to be violated etc are the rights available to you against the public at large.

 

Right-In-Personam:

Ø This right is available to you against specific induvidual (party).

Ø For example, Right to fulfill a contract.

 

 

 

WHAT IS A TORT?

Ø Tort is a civil wrong, not a crime. It is the violation of right-in-rem and not a right-in-personam. It is therefore, different from breach of contract.

Ø It normally, not always results in some corporeal damage/harm.

Ø It is a wrong in which a plaintiff may sue a defendant for damages (compensation in money).

 

 

ESSENTIALS OF A TORT:

1)  Civil wrong:

Ø Civil wrongs are against, generally speaking, an individual.  Public wrong is against state/government/society.

Ø Civil wrongs do not pose any threat to the state/society. Public wrongs (crimes) pose threat to the security of the state.

Ø Civil wrongs are, therefore, passively dealt by the civil admin of justice. Since, public wrongs pose threat to the public at large, therefore, they are actively dealt by the criminal administration of justice.

 

 

 

 

 

2)  Infringement Of Right-In-Rem:

A tort is an infringement of right-in-rem and not of a right-in-personam. A right-in-rem is a right available to a person against the society/pubic at large.  For example, one's right not to be assaulted or defamed.

 

 

3)  Right fixed by law:

The right infringed must be a right which is recognized/fixed by the law.

 

4)  Common law Action:

The action available in respect of such a violation should be a common law action.

 

5)  Remedy:

The remedy should be by means of damages(compensation in money). In torts, mostly damages are awarded , however, other remedies like injunction, reception etc may also be granted.

 

 

 

 

 

 

DIFFERENCES BETWEEN A TORT AND A CRIME:

1)  Infringement;

In torts, there is a violation of private right, while in crime public right is infringed.

 

2)  Wrong:

Tort is a civil wrong, while crime is a criminal wrong.

 

3)  Procedure:

Ø In torts, the injured party brings an action and is dealt by civil courts under civil procedure code.

Ø In crimes, proceedings are conducted in the name of sovereign and the guilty person is punished by the state under criminal procedure code.

 

4)  Remedy:

Ø In torts, the wrong doer has to compensate the injured party in money (damages).

Ø In criminal wrongs, the wrong doer is punished by the state either with fine or imprisonment or with death.

 

5)  Negligence:

In torts, normally, there is a slight/small negligence. However, in crimes there is a gross negligence.

6)  Parties:

Ø Torts: Plaintiff vs Defendant

Ø Crime: Accused vs Prosecution of the state.

 

7)  Origin:

  Law of crimes is later in origin than the law of torts.

 

 

 

DIFFERENCES BETWEEN A TORT AND A BREACH OF CONTRACT:

 

1)  Infringement:

Ø Torts: violation of right-in-rem .

Ø Breach of contract: violation of right-in-personam.

 

2)  Duty:

Ø Torts: duty is imposed by the law.

Ø Contract: duty is imposed by the contract.

 

 

3)  Privity:

Ø Torts: No probity exist in torts.

Ø Contract: there always exist probity between the parties.

 

4)  Damages:

Ø Torts: Damages are not limited/fixed and it can be exemplary.

Ø Breach of Contract: Exemplary damages are not awarded, only stipulated money is recovered.

 

5)  Consent:

Ø Torts: obligation arises independently of any consent.

Ø Breach of Contract: obligation is founded on the consent of the parties.

 

 

 

 

                             THE END