Tort is a word which is derived from the Latin term ‘tortum’ which means ‘to twist’. So basically tort means twisted, crooked or unlawful. There is no specific definition which talks about the elements of torts and the main reason for it is that the wrongs which come under this law are not of the same nature in fact they are diverse in nature, they have their different origins. Tortious liability arises when the person don’t perform the duty or violates the right imposed by the law. Defamation, battery and trespass are some of the examples of the Law of torts. Law of torts is an ever growing branch of law.
There are some definitions given by different scholars:
- “Tortious liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”- WINFIELD
- “It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party”- FRASER
In a simple layman language tort is a civil wrong and all civil wrongs are not tort. When a wrong has been committed then it has got to be seen first that the wrong committed is a civil wrong or a criminal wrong. If the wrong is a criminal wrong then it is to be governed under criminal law and if the wrong is a civil wrong then it is to be checked that whether the wrong belongs to some category of civil wrongs like breach of contract or breach of trust and if does not belong to any category of civil wrong then it is considered as a tort.
Is it Law of tort or Law of torts?
Law of tort means that every wrongful act done which has no justification or no explanation is considered to be a tort.
Law of torts means that the wrongs which come under specific wrongs and if any wrong is outside the wrongs mentioned, then it is not considered to be law of torts.
Winfield and Salmond are the two most famous legal scholars who had different opinions regarding Law of tort and Law of torts. Winfield supported the first theory of Law of tort and Salmond supported the second theory of Law of torts. They both had different point of view, because of this reason only Winfield’s book is based on the theory of Law of tort and Salmond’s book is based on the theory of Law of torts. Some of the other scholars supported Winfield’s theory and some supported Salmond’s theory.
At the end, Winfield concluded and gave a statement that both the theories are correct in different ways. The first theory is from a broader point of view and the second theory is from a narrower point of view.
Essentials of a tort
When we talk about tort then there is some basic essentials which we always keep in our mind:
- That there should be some act or omission done by the defendant on his part which means that either the defendant has done something which is not accepted under the law or he must have omitted to do something which he was expected to do.
- Legal damage must have been caused to the plaintiff by the act or omission of the defendant. To check whether the legal damage has happened to the plaintiff two legal maxims are to be considered, the first one is Injuria Sine Damnum which means injury without legal damage and the second maxim is Damnum Sine Injuria which means damages without injury.
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