Define the word “Tort” what are its essentials or its ingredients?
Preface
Tort is a violation of some civil duty. A tort is a civil wrong committed by one party against other party, in which the injured party can take legal action for recovery of damages. Tort has two main objectives, one is compensation of the person wronged for any damages and second objective is recover money from wrong doer which is financial punishment for him.
Such wrong against which no compensation is recoverable, is not a tort. The law of tort is based on common law
Meaning of tort
- The word tort has been derived from Latin word “Tortum” which means to conduct
Oxford Dictionary meaning
- Tort is a private or civil wrong
Definition of Tort
A tort is an act which injures someone in some way and accordance with the injured person can take legal action against wrong doer for recovery of damages
Wrongs which are not tort
Following wrongs are not tort while these come under crime category
- Criminal wrongs
- Breach of contracts
- Breach of trust
Example
- If A enters into the land of B without permission of B. A has committed tort of trespass.
Kinds of torts
Following are the three kinds of torts. Details are as under
- Intentional tort
When a wrong doer intentionally commits a civil wrong against other person is called intentional tort
- Tort based on negligence
Negligent tort is not deliberate actions, when one fails to perform reasonably and becomes reason of civil wrong is called negligence tort
- Strict liability torts
Holding of an individual liable for damages without proof is called strict liability torts. It is possible to hold responsible when plaintiff feels that he was under dangerous situation by defendant
Essentials of tort
Following are the essentials of tort
- Wrongful act
Wrongful act is an essential of tort. It must be proved that the act done by the wrong doer was a wrongful act. The violation of religious, social or moral rights does not come under the category of torts
- Legal damage
Legal damage is an essential of tort. Wrongful act done by wrong doer must result in legal damages of the other person such as act must be resulted into violation of legal rights of another person.
- Legal remedy
Legal remedy is an essential of tort. Legal remedy enables injured person to receive compensation from wrong doer through the court of law
- Civil wrong
The tort is civil wrong. Violation should be civil violation it should not be criminal violation because in case of criminal violation. The offender is not punishable under the law of tort
- Right legally recognized
The right which has been violated must be a legally recognized right. If it has not been legally recognized it will not be actionable according to the law of tort
- Nature of tort
It is difficult to define the nature of law of tort. The law of tort is a part of civil law, that’s why it has no remedy for all wrongs and for all losses
According to its nature, law of tort determine that when law should grant compensation for damages and when law should not grant compensation for damages
Position in Pakistan
Law of tort has not been a front line subject of our law. Injured person cannot rely on this law and whenever they wanted remedy against violation of their rights. This has not been the position in Pakistan alone, many other underdeveloped countries including India show the same picture and law of tort also is not being given importance.
Objectives
The purpose or objectives of law of tort is the protection of the rights of persons, right of property and right of reputation are included in this law.
- The primary objective of the law of tort is to compensate the injured person by the wrong doer against the violation of his legally recognized right
- The secondary objective of the law of tort to build a financial pressure on wrong doer by taking compensation in the form of money for injured person
- The third objective of the law of tort is to stop those who intentionally or negligently violates the right of others
Sources of law of tort
Following are the main sources of law of torts
- Case laws
Such law which has been created by judicial decisions of former cases is called case law
- Statutory provision
When a state or federal legislature passes a law. It is called statutory provisions
- Latin Maxims
Such well-known sayings, which expresses a general truth about life or a rule about behavior is called Latin maxims
Preclude
The law of tort helps to protect the civil rights of the people which has been legally recognized by the law of the state, and enables the injured person to receive compensation from wrong doer. The tort is a civil wrong if wrong which is criminal wrong in this case wrong doer will be punished under the criminal proceedings. The act done by the person must be wrongful act and must give rise to legal damage as well as legal remedy. The remedy should be imposed through court of law and compensation should be in the form of money.
Discharge of tort
The right of injured person to take legal action for compensation against wrong doer comes to an end is called discharge of tort
Modes of discharge of tort
Following are the modes of discharge of tort. Details are as under
- Death of the party
By death of the parties the tort comes to an end. Death of the injured person, against whom the tort is committed. Death of the wrong doer who has committed tort. In case of death of injured person the legal heirs can take legal action against wrong doer for proprietary wrong. But for personal tort, wrong doer cannot be sued. In case of death of wrong doer the legal heirs of the deceased are not responsible for personal tort of wrong doer. Personal torts are those torts which are affecting mind, body of person etc.
- Waiver by election
Where an injured person has more than one remedy for a tort and he select one of them for legal action, giving up others, the other remedies are waived. He cannot pursue them if he fails in the one elected. Waiver means to give up. The injured person discharged his right of action against the wrong doer for some reason and is not ready to proceed in the court of law.
- Accord and satisfaction
Accord is mutual agreement between injured person and wrong doer by which injured person agrees to discharge his right of legal action against any compensation offered by the wrong doer. The amount for compensation by wrong doer to injured person is called satisfaction. The right to take legal action against the wrong doer will be discharged when injured person and wrong doer enters into accord and satisfaction
- Release
A release is the discharging the right of action which injured person has against wrong doer But this release should be voluntary and should not be obtained by threat, or force. The injured person does not proceed in court of law against wrongdoer once he has released his right of legal action.
- When release is not valid
Following are the reason when release in not valid
- When release executed by mistake
- When release executed by fraud
- When release executed by undue influence
Judgment
A judgment is the discharging the right of action which injured person has against wrong doer. According to it the injured person cannot take legal action against wrong doer again and again for the same tort. More than one action cannot be taken against any person on the same tort. It is the also the major reason of discharge of the tort
Time limitations
The law prescribes time limit within which an action should be taken for the wrong and if this proscribed period is over, the right of action will be expired and compensation will not be made to injured person. Law helps those who care their rights because delay defeat justice. Law will not help to those who were sleeping over on the violation of their right for long time.
The object of the time limitation enables injured person to take legal action against wrong doer as soon as possible
Incapability of injured person
This shows an incapability of injured person. When the injured person do not proceed in court of law because of his own incapacity e.g. if he has no money to pay an advocates fee, or he don’t have time to go court of law and to take legal action for compensation. Where a person who knows that he has right to take legal action, neglects to take legal action for a long period of time, in this case such kind of delay also will become the reason of discharge of the tort and all rights will be snatched from injured person against wrong doer
Kinds of torts
Following are the three kinds of torts. Details are as under
- Intentional tort
When a wrong doer intentionally commits a civil wrong against other person is called intentional tort
- Tort based on negligence
Negligent tort is not deliberate actions, when one fails to perform reasonably and becomes reason of civil wrong is called negligence tort
- Strict liability torts
Holding of an individual liable for damages without proof is called strict liability torts. It is possible to hold responsible when plaintiff feels that he was under dangerous situation by defendant
Wrongs which are not tort
Following wrongs are not tort while these come under crime category
- Criminal wrongs
- Breach of contracts
- Breach of trust
- Illustration
If A enters into the land of B without permission of B. A has committed tort of trespass.