Meaning and Idea of Tort

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 –

1. Tort is a wrong.
2. It is a wrong of civil nature.
3. It is a wrong independent from contract. It means where there is contact, there is no tort.
4. It is a wrong of violation of right in rem.
5. It is an infringement of right fixed by law.
6. The remedies for tort are a Common Law action.
7. It is remediable by damages.
8. The nature of damages for tort is unliquidated.
9. It is remediable by civil court.
10. In many cases it is remediable without proof of damage (actionable per se)
11. Some torts both have civil and criminal nature (Felonious tort)
12. There is no separate and specific statute in respect of tort in Bangladesh.

Kinds of Tort:

1. Wrong to person
2. Wrong to property
3. Wrong to reputation
4. Wrong to legal proceeding
5. Miscellaneous tort

Felonious 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’:

Elements of Tort

Tort is a civil wrong. There are some important ingredients of tort, which constitute a tort. The elements are as follows –

1. Wrongful act or wrongful omission
2. Mens rea
3. Violation of legal right to another
4. Legal Damage
5. Direct consequences
6. Legal remedy