Simply, “Tort” means a civil wrong. The word “Tort” itself a French word comes from Latin word “Tortum” which corresponds to the Roman word “Delict” and English word “Twist” or “Bent”. So we can say that, tort is a matter that comes only where something is not on the way or out of line which is its regular route. But in the legal sense tort means a wrong of civil nature.
Basis of Tort:
Tort is a wrong of civil nature and it is a concept of Roman legal system. The idea of tort is based on following two maxims –
1. Alterium non leadere: The meaning of this Roman maxim is “do not violate anyone’s legal right by word or work”. The intention of this maxim is preventive in nature and expresses a command for not to do any act by which others legal right shall be violated.
2. Ubi jus ibi remedium: The meaning of this Roman maxim is “where there is a violation of legal right, there is a remedy”. The intention of this maxim is punitive in nature and expresses a declaration for certainty of remedy where anyone’s legal right is violated.
Definition of Tort:
Simply, tort is a civil wrong. It is impossible to give a unique and universal definition of tort. The various jurists on tort are given the definition of tort according to their own views. Some of them are given bellow –
Ratanlal and Dhirajlal: A tort is a civil wrong, independent of contract, for which the appropriate remedy is an action for damages.
Prof. Salmond: Tort is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or breach of a trust or other merely equitable obligation.
Prof. Clerk and Lindsell: Tort is a wrong, independent of contract, for which the appropriate remedy is a common law action.
Prof. Fraser: Tort is an infringement of right in rem of a private individual giving a right of compensation at the suit of the injured party.
Keeton and Keeton: Tort Law is a body of law concerned with granting or denying claims of individuals or impersonal legal entities against each other for wards of damages or other forms of legal relief.
Lord Denning: The province of tort is to allocate responsibility for injurious conduct.
Burdick: Tort is an act or an omission which unlawfully violates a person’s right created by law, and for which the appropriate remedy is a common law action for damages.
Prof. Winfield: Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is repressible by an action for unliquidated damages.
Features of Tort:
The followings are the features of tort –
- Tort is a wrong.
- It is a wrong of civil nature.
- It is a wrong independent from contract. It means where there is contact, there is no tort.
- It is a wrong of violation of right in rem.
- It is an infringement of right fixed by law.
- The remedies for tort are a Common Law action.
- It is remediable by damages.
- The nature of damages for tort is unliquidated.
- It is remediable by civil court.
- In many cases it is remediable without proof of damage (actionable per se)
- Some torts both have civil and criminal nature (Felonious tort)
- There is no separate and specific statute in respect of tort in Bangladesh.
Kinds of Tort:
- Wrong to person
- Wrong to property
- Wrong to reputation
- Wrong to legal proceeding
- Miscellaneous tort
Felonious Tort is a wrong of both civil and criminal nature. According to Lord Denning “where an act is both a tort and a crime, it is called a felonious tort”.
Distinction between ‘Tort’ and ‘Breach of Contract’:
|SL||Title||Tort||Breach of Contract|
|1||Mutual consent||Mutual consent absent||Mutual consent present|
|2||Damages||The remedy is unliquidated damage||The remedy is liquidated damage|
|3||Nature of right||Violation of right in rem||Violation of right in personam|
Elements of Tort
Tort is a civil wrong. There are some important ingredients of tort, which constitute a tort. The elements are as follows –
- Wrongful act or wrongful omission
- Mens rea
- Violation of legal right to another
- Legal Damage
- Direct consequences
- Legal remedy