Questions
1. Define Torts. Discuss the difference between torts and breach of contract.
Definition of Torts
- A "tort" refers to a civil wrong, other than a breach of contract or breach of trust, which is recognized by law as grounds for a lawsuit, permitting the injured party to claim damages against the wrongdoer.
- The purpose of tort law is to protect individual persons or property from wrongful actions or omissions that cause harm, whether intentionally or negligently.
- Torts include a wide range of wrongful acts, such as negligence, assault, defamation, trespass, nuisance, and strict liability offenses like supplying defective products.
- Tort law is primarily judge-made and is a constantly evolving branch of law, not codified like many statutory provisions.
Core Features of Tort Law
Legal Duty Imposed by Law
- The duty breached in tort arises not from any agreement but is imposed by law itself for the protection of certain interests of individuals and society.
Independence from Contract
- A tort represents an injury or wrong that is unrelated to contract. It does not require any prior consent or agreement between the parties.
Right in Rem
- Torts generally protect rights held against the world at large (right in rem) rather than specific individuals.
Remedies
- The primary remedy in tort law is compensation (damages) for the injury suffered, which may be nominal, general, or punitive, and may also include equitable remedies like injunctions.
Examples of Torts
- Acts of negligence (such as accidents)
- Defamation (libel and slander)
- Trespass to property
- Malicious prosecution
- Assault and battery.
Definition of Breach of Contract
- A breach of contract is the failure to perform any term of a contract, written or oral, without a valid legal excuse.
- It occurs when one party to a legally binding agreement fails to fulfill their contractual obligations, either wholly, partially, or in a way not prescribed in the contract.
- Breach may be "actual" (on the date performance is due) or "anticipatory" (when a party indicates beforehand their intention not to perform).
- The law of contract deals with enforcement of promises and agreements legally binding on the parties.
Core Features of Contract Law
- Legal Duty Originates from Agreement
- The duty violated in contract law arises specifically from the mutual and voluntary agreement between parties, setting terms and expectations.
- Right in Personam
- Contractual rights are enforceable only against specific individuals (right in personam) who are party to the contract.
- Privity of Contract
- Only parties to the contract can enforce rights or seek remedies. Strangers to the contract have no standing for breach claims.
- Consent of Parties
- All contracts require express or implied consent of the parties, and the obligations are voluntarily accepted.
- Remedies
- The damages for breach of contract are usually liquidated or compensatory, as specified in the contract or determined by law, and may include specific performance or rescission of the contract.
- Examples
- Non-delivery of goods
- Non-payment for services
- Failure to perform contractual obligations.
Pointwise Differences Between Tort and Breach of Contract
Aspect | Tort | Breach of Contract |
1. Source of Duty | Imposed by law, independent of agreement | Created through voluntary agreement between parties |
2. Nature of Duty | Duty owed to society or persons in general | Duty owed only to contracting parties |
3. Consent | Consent not required; can be strangers | Based on mutual consent |
4. Privity | Not necessary; any injured party may sue | Essential; only parties to contract may sue |
5. Right Enforced | Right in rem (against the world) | Right in personam (against specific persons) |
6. Remedies | Damages unliquidated, may be punitive or equitable (injunction) | Damages usually liquidated or compensatory, may include specific performance or rescission |
7. Purpose | To compensate losses, protect rights | To enforce promises, maintain contractual certainty |
8. Damages | Can be nominal, general, punitive; not predetermined | Predetermined, compensatory; punitive rare |
9. Defences | Consent, necessity, contributory negligence | Frustration, undue influence, misrepresentation, mistake |
10. Minor’s Liability | Minors can be sued for torts | Contract with minors void; minors are not liable |
11. Statute/Codification | Judge-made, evolving common law | Codified; e.g., Indian Contract Act |
Illustrative Examples
- Tort Example:
- If A's reckless driving injures B, B can sue A for negligence under tort law, even if they were complete strangers and never entered any agreement.
- Contract Example:
- If A contracts with B to sell goods and fails to deliver them, B can sue A for breach of contract, but only B (the party to the contract) has this right.
Remedies and Damage Calculation
- Torts
- The court decides the amount of compensation, which may not be predetermined and can include punitive damages for egregious conduct.
- Equitable remedies like injunctions (to prevent ongoing harm) can also be awarded in some cases.
- Breach of Contract
- Damages are typically specified in the contract or calculated to restore the injured party to the position had the contract been performed.
- Specific performance (court orders to fulfill contract), rescission (cancelling contract), or restitution (restoring benefits received) are frequent remedies.
Conclusion
- Tort law and contract law serve critical but distinct roles in civil jurisprudence.
- Torts arise from the breach of duties fixed by law and offer compensation for harm suffered, regardless of prior relationship.
- Breach of contract arises from failure to ful-fill obligations voluntarily undertaken, with remedies aimed at enforcing agreements and commercial certainty.
- Understanding the distinction between the two helps apply suitable legal principles and seek appropriate remedies.