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Torts Bullet Notes

The document outlines the key differences between torts and contracts, emphasizing that contracts require free consent while torts occur without consent. It explains that torts involve violations of rights against the public, whereas contracts are agreements between specific parties, and highlights the legal remedies available in tort cases, including compensation for harm. Additionally, it distinguishes torts from crimes, noting that torts affect individual rights and are pursued by the injured party, while crimes are prosecuted by the state.

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5 views

Torts Bullet Notes

The document outlines the key differences between torts and contracts, emphasizing that contracts require free consent while torts occur without consent. It explains that torts involve violations of rights against the public, whereas contracts are agreements between specific parties, and highlights the legal remedies available in tort cases, including compensation for harm. Additionally, it distinguishes torts from crimes, noting that torts affect individual rights and are pursued by the injured party, while crimes are prosecuted by the state.

Uploaded by

Narnolia's
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Difference Between Tort and Contract

• Free consent is necessary to give rise to a contract. A tort is inflicted


without consent.

• There is no doctrine of privity in tort. It is essential in a contract,


and no third party can make decisions regarding a contract.

• Tort is a violation of right in rem( right against the world at large)


and breach of contract is an infringement of right in personam (right
against a person or a body).

• Motive is often taken into consideration in Tort but not in a


contract.

• The measure of damages in tort is not strictly limited. For a


breach of contract, the measure of damages is generally more or
less determined by stipulations(something required as a part of
agreement) of the contracting parties.

• Contracts and Torts--P.H. Winfield‘s definition helps clarify the


distinction between contracts and torts.
• According to Winfield, tort liability arises when a legal obligation
owed to all people is violated and the violation can be addressed
through legal action seeking unliquidated damages.

• On the other hand, a contract is an agreement between parties that


establishes a specific legal obligation.

• The contract’s nature, substance and implications are determined


by the agreement reached between the parties.

• Salmond views contract as a result of individuals exercising the


independent legislative power granted by the law to define their
respective rights and duties.

• Quasi-Contract and Tort--Instances, where a person is held


responsible to another party without a formal agreement for money
or rightful benefits, fall into the category of a quasi-contract.

A tort is distinguished from a crime in the following manner-

• A tort affects the private rights of a person. A crime on the other


hand affects the whole society.

• In tort, compensation is recovered from the wrongdoer. A person


committing a crime is punished by the State.

• In tort, action is brought in by the injured party. In crime,


proceedings are conducted by the State.

The nature and characteristics of torts are:

• Civil Wrong--A tort is a civil wrong, as opposed to a criminal


offence. It involves a violation of a legal duty owed by one person to
another, resulting in harm, injury or damage.

• Breach of Duty--A tort occurs when there is a breach of duty. The


person committing the tort fails to fulfil their legal obligation or duty
towards another person, whether it is a duty to exercise reasonable
care, respect someone’s property rights or refrain from committing
intentional harm.

• Harm or Injury--A tort results in harm, injury or damage to the


person, property, reputation or economic interests of another
individual. This harm can be physical, emotional or financial in
nature.

• Causation--A tort requires a causal link between the wrongful act


or omission and the harm suffered. The breach of duty must be the
direct cause of the harm or injury suffered by the victim.
• Legal Remedy--Torts provide a basis for seeking legal
remedies.The injured party, known as the plaintiff, can file a lawsuit
seeking compensation for the damages suffered, including monetary
compensation, injunctions and declaratory relief.

• Compensation--One of tort law’s key objectives is to compensate


the victim for the harm suffered. The compensation aims to restore
the injured party to the position they would have been in had the
tortious act not occurred. The compensation awarded is determined
based on the nature and extent of the harm suffered.

• Fault-Based Liability--In most tort cases, liability is based on fault.


The person committing the tort must have acted negligently,
intentionally or recklessly. However, certain torts, such as strict
liability, do not require proof of fault and hold the defendant liable
regardless of their intent or level of care.

• Individual Rights--Torts protect individual rights and interests.


They provide a legal mechanism for individuals to seek redress and
hold others accountable for the harm caused. Torts encompass a
wide range of rights, including personal integrity, property rights,
privacy rights and economic interests.

• Civil Proceedings--Tort claims are typically resolved through civil


proceedings in a court of law. The burden of proof lies with the
plaintiff, who must establish that the defendant’s actions or
omissions caused the harm suffered. The defendant is given an
opportunity to present a defence against the allegations.

• Preponderance of Evidence--In tort cases, the standard of proof


is generally based on a preponderance of the evidence. This means
that the plaintiff must prove that it is more likely than not that the
defendant’s actions caused the harm suffered. It is a lower standard
of proof compared to the “beyond a reasonable doubt” standard
used in criminal cases.

• Tort and Crime--Historically, torts were closely connected to


criminal law and even today, certain aspects of damage laws
include punitive elements. However, it’s important to recognize that
torts are a specific type of civil wrong or injury. Civil and criminal
wrongs are distinguished based on the available legal remedies.

• The test for the wrongful act is to check the prejudice effect on the
legal right of another. The Burden of Proof of which lies on the
plaintiff.
• From the point of view of presumption of damage, rights are
classified into

• 1. Absolute right – It is actionable per se. When these rights are


violated, Law conclusively presumes damages without any actual
pecuniary loss. Only violation of legal right has to be proved.
(Ashby v White)

• 2. Qualified right – Here plaintiff has to prove violation of legal


right as well as the injury caused. There is no presumption as to
legal damage. It is actionable only on proof of damage.

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