The law of torts in India is based on English law and its origin is linked with the establishment of British Courts in India.   

The word tort has been derived from the Latin term 'tortum', which means 'to twist. It includes that conduct which is not straight   or lawful, but which is twisted, crooked or unlawful. It is French equivalent of the English word 'wrong'. This branch of law consists in various 'torts' or wrongful acts whereby the wrongdoer violates some legal right vested in another person. The law imposes a duty to respect the legal rights vested in the members of the society and the person making a breach of that duty is said to have done the wrongful act. As 'crime' is a wrongful act, which results from the breach of a duty recognised by criminal law, a 'breach of contract' is the non-performance of a duty undertaken by a party to a contract, similarly, 'tort' is a breach of duty recognised under the law of torts. For example, violation of a duty to injure the reputation of someone else results in the tort of defamation, violation of a duty not to interfere with the possession of land of another person result in the tort of trespass to land and the violation of a duty not to defraud another results in the tort of deceit.   

So far no scientific definition has been possible which could mention certain specific elements, the presence of which could constitute a tort. To provide a workable definition in general terms, a tort may be defined as a civil wrong, independent of contract for which the appropriate remedy is an action for unliquidated damages.   

The basic idea which is indicated by these definitions is:  

(1)Firstly, tort is a civil wrong, and secondly, every civil wrong is not tort.  

(2)There are other civil wrongs also.  

The other civil wrongs are :  

(i)  a breach of contract and (ii) breach of trust.  

The person committing a tort or wrong is called a tort-feasor or wrong-doer and his misdoing is a tortuous act. The general aim of the law of torts is compensation of victims or their dependants. Grant of exemplary damages in certain cases will show deterrence to the wrong-doers.   

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When some wrongful act has been done, it has got to be seen first whether it is civil or a criminal wrong. If the wrong is “found to be a civil one”, we have to see whether it exclusively belongs to any other recognised category of civil wrong like breach of contract or breach of trust. If we find that it is not exclusively any of the other civil wrongs, then we can say that it is a tort.   

ESSENTIALS OF TORTS :   

(1)    Tort is a civil wrong;      |  

(2)    This civil wrong is other than a mere breach of contract  or breach of trust;   

(3)    This wrong is redressible by an action for unliquidated damages.   

1.TORT IS A CIVIL WRONG   

Tort belongs to the category of civil wrong. The basic nature of civil wrong is different from a criminal wrong. A tort is an infringement or privation of the private or civil rights belonging to individuals, whereas a crime is a breach of public rights and duties which affect the whole community. In the case of a civil wrong, the victim institutes civil proceedings against the wrongdoer. In such a case, the main remedy is damages. The victim is compensated by the wrongdoer for the injury caused to him. In the case of a criminal wrong, on the other hand, the criminal proceedings against the accused are brought by the State. Generally in case of a criminal  wrong,  the victim  of  the crime  is not compensated. Justice is administered by punishing the wrongdoer in such a case. Criminal courts are authorized within certain limits and in certain circumstances to order payment of a sum as compensation to the person injured out of the fine imposed on the offender. The compensation so awarded resembles the award of unliquidated damages in a tort action but there is a marked difference. It is, however, possible that the same act done by a person may result in two wrongs, a crime as well as a tort, at the same time. In such case, both the civil and the criminal remedies would concurrently be available. There would be civil action requiring the defendant to pay compensation as well as a criminal action awarding punishment to the wrongdoer.   

Mental element is an essential element in most of the forms of crime. Generally, under criminal law, mere act of a person is not enough to create his liability. Mens rea or a guilty mind is also required. A man, therefore, is not ordinarily punishable for something which he never meant, or the consequences of which he could not foresee.   

In order to make a person liable for a tort, he must have done    some act which he was not expected to do, or, he must have omitted to do something which he was supposed to do. Either a positive wrongful act or an omission which is illegally made will make a person liable.   

It may be noted that the wrongful act or a wrongful omission must be one recognised by law. If there is a mere moral or social wrong,   there   cannot be a liability for the same. For example, if somebody fails to help a starving man or save a drowning child, it is only a moral wrong and, therefore, no liability can arise for that unless it can be proved that there was   a legal duty to help the starvingm an or save the drowning child.   

2.TORT, CONTRACT, TRUST AND QUASI CONTRACTS   

There   is difference between a contract and a tort. A contract is based on consent: a tort is inflicted against without consent. A contract necessitates privity between the parties to it: in tort no privity is needed.   

Tort is that civil wrong which is not exclusively any other kind of civil wrong. If we find that the only wrong is a mere breach of contract   or  breach of  trust,  then obviously it would  not  be considered to be a tort. Thus, if a person agrees to purchase a Television and thereafter does not fulfil his obligation, the wrong will be a mere breach of contract. A contract is an infringement of a right in personam i.e. only against some determinate person or body and in which the community at large has no concern. In the case of a tort the duty is one imposed by the law and is owed to the community at large. In the case of a contract the duty is fixed by the will and consent of the parties and it is owed to a definite person or persons.   

It is now accepted that there may be concurrent contractual and tortuous duties owned to the same plaintiff who has a choice of proceeding either in tort or contract. For, example, if A delivers his horse to B for safe custody for a week and B allows the horse to die of starvation, B's act amounts to two wrongs— breach of contract of bailment and commission of tort of negligence. Since both the wrongs are civil wrongs and damages is the main remedy for any kind of civil wrong, the plaintiff can claim damages either under the law of torts for negligence, or for the breach of contract of bailment. He cannot claim damages twice.   

TORT AND BREACH OF TRUST DISTINGUISHED   

In  the  case  of  breach-of  trust  by,  the  trustee,  the  beneficiary  can  claim  such compensation which depends upon the loss that the trust property has suffered. The amount of damages being ascertainable before the beneficiary, brings the action the damages, in the case of a breach of trust, are liquidated. On the other hand, damages in a tort are unliquidated. But a much better way of differentiating tort from breach of trust is to regard the whole law of trust as a division of the law of property which is fairly detachable from other parts of our law. The reason for the classification is mere historical. The law of torts has its origin as a part of Common Law whereas breach of trust could be redressed in the Court of Chancery.   

TORT AND QUASI CONTRACT DISTINGUISHED   

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 entitled. When a person gains some advantage or benefit to which some other person was entitled to, or by such advantage another person suffers an undue loss, the law may compel the former to compensate the latter in respect of advantage so gained. The  law  of  quasi-contract  covers  such  obligations.  It  signifies  inability,  not exclusively referable to any other head of the law, imposed upon a particular person to pay money to another person on the ground of unjust benefit. The law implies a contract on the part of the person so gaining the advantage to compensate the other party even though, in fact, there is no such contract. For example, A, a tradesman, leaves goods at B's house by mistake. B treats the goods as his own. He is bound to pay A for them. Similarly, if A and B jointly owe 100 rupees to C, A pays the amount to C, B not knowing this fact, pays 100 rupees over again to C, C is bound to repay the amount to B.   

Another distinctive point is that in a quasi-contract the duty is always towards a particular  person,  whereas  under  the  law  of  torts,  the  duty  is  towards  persons generally.   

(3)UNLIQUIDATED DAMGES   

Damage means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act of another. The sum of money awarded by court to compensate is called damages.   

Damages  is  the  most  important  remedy  for  a  tort.  After  the  wrong has been committed, generally it is the money compensation which may satisfy the victim. After the commission of the wrong,   it is generally not possible to undo the harm which has already been caused. If, for example, the reputation f a person has been injured, the original position cannot be restored back. The only thing which can be done in such a case is to see what is the money equivalent to the harm by way of defamation and the sum so arrived at is asked to be paid by the wrongdoer to the victim. There are other remedies also which could be available when the tort is committed. It is also just possible that sometimes    the    other remedies may be more effective than the remedy by way of damages. 'For example, when a continuing wrong like nuisance is being committed, the victim may be more interested in the remedy by  way of  'injunction' to stop the continuance  of  nuisance  rather  than claiming compensation from time to time. The idea of mentioning the remedy by way of damages in the definition is just to explain the nature of the wrong. Apart from that, the fact that damages is the most important remedy for tort, and generally   it is    the    only   remedy   after   the tort   is committed, indicates that the wrong is a civil wrong, rather than a criminal wrong.   

Damages in the case of a tort are unliquidated. It is this fact which enables us to distinguish tort from other civil wrongs, like breach of contract or breach of trust, where the damages may be liquidated. Liquidated damages means such compensation which  has  been  previously  determined  or  agreed  to  by  the  parties.  When  the compensation has not been so determined but the determination of the same is left to the discretion of the court, the damages are said to be unliquidated. It is possible in the case of a contract that the contracting parties, at the time of making of the contract, may make  stipulation as regards the amount of compensation payable by either of the parties in the event of a breach of the contract. If it is genuine pre-estimate of the compensation for the breach of the contract, it will be known as liquidated damages. There is no possibility of any such predetermination of damages by the parties in the case of a tort. Generally, the parties are not known to each other until the tort is committed and moreover, it is difficult to visualise beforehand the  quantum of loss in the case of a tort and, therefore, the damages to be paid are let to be  determined  at  the  discretion  of  the  court.  Such  damages,  therefore,  are unliquidated.   

The real significance of legal damage is illustrated by two maxims, namely injuria sine damno and damnum sine injuria.   

By damnum is meant damage in the substantial sense of money, loss of comfort, service, health or the like. By injuria is meant a tortuous act, it need not be willful and malicious  for though  it  is  accidental  if  it  be  tortious  an  action  will  lie. Any unauthorized interference however trivial with some absolute right conferred by law on a person, is an injury e.g. the right of excluding others from one’s house or garden.   

In cases of injuria sine damno i.e. the infringement of an absolute private right without any actual loss or damage, the person whose right is infringed has a cause of action. For example if a person commits house trespass and without harm leave the house, although no harm is caused still the action can lie against the wrongdoer.   

In cases of damnum sine injuria i.e. actual and substantial loss without infringement of any legal right no action lies. For example if anybody opens a shop and by opening a new shop, the person already running the shop incur loss then the person incurring loss cannot sue as there was no infringement of legal right.   

For an action under Law of Torts, for compensation the plea of stranger to contract is irrelevant.   

In order to be successful in an action for tort, the plaintiff has to prove that there has been a legal damage caused to him. In other words, it has got to be proved that there was a wrongful act, an act or omission, causing breach of a legal duty or the violation of a legal right vested in the plaintiff. Unless there has been violation of a legal right, there can be no action under law of torts. If there has been violation of a legal right, the same is actionable whether, as a consequence thereof, the plaintiff has suffered any loss or not. 

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