Tort :
In broad terms, a tort occurs where there is breach of a general duty fixed by civil law. According to Dr. Winfield ”tortious liability” i.e., liability in torts arises from the breach of duty primarily fixed by law, such duty is towards persons generally and its breach is repressible by an action for unliquidated damages. At a very general level, however, we may say that tort law is concerned with allocating responsibility for certain types of losses.
Contract: a contract is an agreement enforceable by law. it is defined as an agreement between two or more parties, who intend to create legal obligations, to perform some work or service. Contracts may be oral or written, although today it is most often in written form.
Crime: a crime is wrong which is punished by the state. it is an offence not only against an individual but also against the society as a whole.
Difference between contract and tort
a. Sources of duty:
Tort: in tort duties are usually owed to people in general .it was Winfield’s view that tortious duties exist by virtue of the law itself and are not dependent upon the agreement or consent of the persons subjected to them . E.g
Preservation of life
Preservation of religion
Preservation of property
Contract: in contract duties are usually owed to the other contracting party and is fixed by the will and consent of the parties. contractual liability and liability on bailment exist independently of the parties, or atleast of the defendant’s agreement or consent.
b. Aims of contract:
Tort: aims principially at the prevention or compensation of harm suffered
Contract: the core of contract is the idea of enforcing promises
c. Minor issue:
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In case of torts, minor can be sued and damages are paid out of his property. |
In contract, minority is a good defense as a minors contract is void-ab-ignition and no rule of estoppel applies. (rule of estoppel / another to believe a certain state of things exists which in fact is not true, then in such a case he is not afterwards allowed to deny it). |
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A tort is inflicted without or against the consent of the party i.e. the obligation arises without any consent. |
In a contract, obligation is founded on the consent of the parties i.e. consent is the essence of a contract. |
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In torts, tort is a violation of infringement of a right in Rem . i.e. rights available against the world at large. |
In case of contract it is violation of a right in persona i.e. a right available and enforceable against a particular persons. |
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Contract |
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In torts, motive is often taken into consideration. |
In contract, the ,motive for the breach is immaterial
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In torts, damages awarded may be, exemplary unliquidated or contemptuous no need to proof |
In contract fixed and liquidated damages are awarded. In contract cases court has to foresee. |
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The period of limitation in case of torts usually is 1 year but some cases extend to 10 years as well. |
In contract , the period of limitation rems from the date of the breach
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In tort there is uncodified law which is governed by common law judges (judgement by courts)
Law relating to contract has been codified.
Concurrent liability in tort and contract:
A defendant can be liable in both contract and tort. For example, if a house holder is injured by building work done on their home. It may be possible to sue in tort for negligence and for breach of a contractual terms to take reasonable care. As happened in Donoghue v Stevenson
Difference between tort and crime
a.
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Tort is infringement of a private right or civil right of an individual i.e. it is a private wrong affecting the interest of private individual. |
Crime is a breach of invasion of public rights and duties or invasion of public rights and duties affecting the society at large. |
a. The parties in a civil suit for tort are individuals. i.e. Individual v/s Individual. And the aim is to compensate the victim for the harm done.
In case of crime the state is always a party, as the state takes an action against the wrongdoer as crime is a public wrong. Therefore, it is State v/s Individual.
object of the law of torts is to compensate the person whose legal right has been infringed by the wrongdoer.
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bject of the law of torts is to compensate the person whose legal right has been infringed by the wrongdoer. |
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c. Prosecutors must prove the guilt of a defendant beyond a reasonable doubt to obtain a conviction in a criminal case.
the plaintiff’s evidence must show that it is more likely than not that a defendant caused plaintiff to suffer injuries. In tort the evidence is recorded on the basis of issue.
d.
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In Torts, intention is immaterial to hold a person responsible for civil wrong men’s rea e.g. Guilty mind is not required. |
In crime, intention is important. Without men’s rea there is hardly any crime to hold a person responsible for a crime usually men’s rea i.e. guilty mind or mental element is necessary. |
e. Burden of proof lies on the complainant/ injured. in civil case plaintiff is not compelled to bring evidence it is dependent on defense that how to prove.
In crime, Burden of proof lies on the State. The injured becomes a witness only.
f. Criminal prosecutions cannot be filed unless there is a statue or law enacted by the legislature criminalizing the conduct of which a defendant is accused. E.g goods act, Terrorist act and custom act. It is codified
Tort law, in contrast, is primarily derived from common or judge-made law as opposed to legislation. It is uncodified.
g. In crime there in no defense of necessity.
In tort there is a defense of necessity, for e.g airplane luggage holders might pull through some luggage to save the plane from crash.
h. In tort case no ex-post facto is committed.
In crime has a retrospective (ex-post facto) increase of the punishment for a criminal act
Concurrent liability in tort and crime:
There are some cases in which the same incident may give rise to both criminal and tortious prceedings. An example would be a car accident, in which the driver might be prosecuted by the state for dangerous driving, and sued by the victim for the injuries caused.
