• Lex Specialis


Niyati Nagar


The Law of Torts is not an importation from the western common law countries but has been embodied in the Indian corpus of law as a prodigious concept of “duty”. As a limb of the law, it proscribes the civil wrongdoings. The whole of the concept in the tort law is embodied in the circumstances i.e., the exemplar situations and not in the black texts. There is no one form of tort and it includes from negligence to assault, actions that are ‘twisted’ as is the literal annotation of tort. It is therefore that the term used is the Law of Torts and not the Law of Torts.

Law of Torts in its most basic sense is a law of responsibility. It makes persons accountable for the injury that they have inflicted on others. It sometimes requires the element of intention while it can also bring the injurer to the court system without proving intention. Damages under the law of torts can be of property, health, life, or it can be of the pure financial nature. Speaking of utility, every reduction in the utility level of an individual is damage under torts. The rules of tort law focus on the just and fair demarcation between the virulent events that should award damages in the form of compensation and others for which the damage should lie where it falls.

The remedies in the law of torts differ with the wishes of the victim. In the majority of cases, claimants seek monetary compensation emphasising on the allocation of loss as a function of torts. On the other hand, the preventive function of torts is operational when the victim demands an injunction against the wrongdoer’s continuing act of injury, for example in economic torts. The Law of torts can be said as the performer of all three tasks namely, vindication, deterrence, and appeasement. Rees v. Darlington Memorial Hospital NHS Trust.

The dharma and the torts

As submitted before tort is what the concept of duty is in India. In ancient India, the tort could be set analogous to the private action brought by the plaintiff against the injurer known as ‘Vadikrat’. The ancient law of torts had its basis in the concept of dharma which entails the duty of an individual towards the other. Winfield has also put the notion of duty at the forefront when he says that “tortious liability arises out of breach of a duty primarily fixed by the law where the duty is towards persons generally breach of which renders an action for unliquidated damages.”

The state liability under the common tort law is expressed as the supreme dharma or Rajadharma in ancient Indian texts. Legal and Constitutional History of India.

In India, section 9 of the Code of Civil Procedure, 1908 empowers the courts to try all civil wrongs, and in Union Carbide Corporation vs Union Of India, the Madhya Pradesh High Court held that the courts have jurisdiction on torts as principles of justice, equity, and good conscience. It is hereby established that torts may have an element of intention as is the requirement to prove a crime but still hold the nature of civil wrong. Being a civil wrong it could have been placed under the head of the law of contracts but was not. Therefore, requiring the need for distinction as follows:

Torts and Crime

Tort and crime overlap. There are many torts that also qualify the elements of offenses that are criminal in nature. Example battery and assault. The only difference between the tort of battery and the crime of battery is the element of intention and motive. There are few crimes that emerged from the torts namely, defamation, nuisance, deceit, etc. The primitive differentiation of crime and torts engages a difference based on the reaction of the society towards the particular wrong. Accordingly, if society reacts to the wrong in the form of retaliation and with the purpose of deterrence or neutralization, the wrong is a crime. On the contrary, if the society reacts only to exact compensation for the victim, the wrong is considered as a tort.

In the broad arena of torts and crime, the intentional invasions run collateral to certain “effects” produced by conduct which is inherently culpable in nature. The commensurability of the proscribed effects in concurrence with the relative modern principles and attitudes disclose the platform of the two fields- an individual and community. Thus, the damage requirement in the tort law serves to sort out only those facts that in a way constitute harm to particular persons and therefore place the standard of moral culpability at secondary importance. The situation in case of the penal law is such that the pecuniary damage is irrelevant and the principles endorsing culpability are the predominant factors which are taken into due consideration. The most difficult ground for the distinction of the two fields is seemingly simple “assault”. Here the term is hardly suspected to be ambiguous because of the form it acquires in a single given situation. The term assault has diverse connotations. Some of them tend to put a person under the apprehension of the battery immediately whereas the others take indecent liberties and menaces. Decisions that vastly oversimplify the problems of assault in the interaction of both the fields, i.e., torts and crime indiscriminately mark that every possible combination of facts and ratio can be found in either class of case law. Whatever else may be discovered regarding this complex body of law, it is certain that the assertion that the “same facts” constitute tort and crime is clearly indefensible. The difference between the two fields lies in the nature of the act, the tort law applies when there is a breach of individual’s rights which are less damaging to the society and are a result of accident and negligence. Taking into account these factors damages are awarded as a means of compensation and there are no actions taken for deterrence. However, in the matter of criminal law the acts are grave and dangerous not only for the individual but the society as a whole and therefore, imprisonment is awarded to the offenders for the commission of grave offences keeping the best interest of the society preserved.

Torts and Contract

In reading into Indian context Justice Sahai while delivering the judgment in Jai Lakshmi Salt Works (P) Ltd v State of Gujarat observed morality as the foundation for the torts. This morality is furthered with the principle that no one possesses the right to harm or injure even innocently. While similarly the law of contract also entails promissory obligation in morals as they characteristically emerge from the promises exchanged.

The fundamentals of these contract obligations set them aside from the other private legal obligations like in torts. The most basic difference is that of a chosen obligation in contract against the consequential obligation arising out of action in torts. The choice of action considering the foreseeable consequences does exist in torts but in the contract, the obligation is itself chosen.

The obligation in torts even for intentional torts and negligence are fault-based. This submits that an injurer will be held responsible only when the harm is done because of the actions of the wrongdoer, wherein there are justifications present for unreasonableness, unforeseeability, etc. On the contrary, the law of contracts establishes strict liability when the party has entered into a promise and breaches it they are strictly responsible hence, not based on fault.

Furthermore, under the common law system, the word tort has not been defined given it is based on decided cases, the law of tort grew through the complicated procedure, and is still growing hence, no satisfactory definition can be attributed to it. On the other hand, the Law of the contract is codified including the specifications for quasi-contracts. It also provides for the remedies for breach and the enforcement to some extent. The concerning differences between the breach of contract and tort can be focussed by analyzing the nature of the right violated i.e. whether the right is a public right (right in rem) affecting the public at large or it is a breach of private obligation and hence, a right in personam. The nature of the duty which is being violated forms the parameter of distinction. In certain categories of torts, motive plays a pivotal role while motive is irrelevant in terms of breach of the contract as he will be liable to pay the damages for the breach. The damages envisaged in tort are usually unliquidated and they cannot be actual, in terms of contract damages may be liquidated or unliquidated they can be computed based on the contract per se.

It is not that, both of the systems of law only differ. They have overlapping provisions for the reason that before the abolition of the forms of action, the threads of contract and torts were inextricably woven together. The remedies available for the breach of contract like the action of assumpsit were common to contract and torts. Thus, there is a lot of overlap between the tort and contract, analyzing the difference Hon’ble High Court of Bombay in Dr. Sharadvait v. Pentro, observed the tortious liability under the Doctor-patient relationship. The court clarified that a patient comes to a doctor not to enter into a contract with them but simply to avail of the medical services. If the doctor is negligible while rendering the services it is the attribution of tort in absence of express contract between the patient and doctor. Doctors action cannot be classified as a breach of the terms of the contract without there being an express contract however, this not attributability under contract law should not leave the patient vulnerable and therefore, there exist the law of torts imparting justice through good conscious. The shutter between contract and torts is overlapping and there is a need to make the propositions clear.


It is perhaps unkind to call tort the dustbin of the law of obligations, but it is certainly the great residuary category. No one theory explains the whole of the law. In order to attract the litigants in the King’s Court the law of torts in England was carefully nurtured and tailored. Right to claim unliquidated damages seemed one of the most distinguishable characteristics. The English law of torts developed in the circumstances that were different in the country like India. Even so, in the garb of ‘justice, equity and good conscience’, they were translated into the framework of India during the advent of British rule. The Dharmashastras laid great emphasis on duties rather than rights of the individuals. The relaxation of the attitude of the law towards the cases of perjury and frivolous claims have perhaps led to relatively more frequent abuse of the process of law. The law in modern times also provides civil remedies to the aggrieved parties, while in the ancient period, punishment to the wrongdoer was considered to be a viable option. Indeed the knowledge of the availability of civil remedies made the courts more tolerant towards the process of abuse of law. This can be evidenced by the fact of the increasing number of suits filed to claim damages for malicious prosecution.

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