How Tort is different from Contract

Tort

The tort is a civil wrong that is derived from the Latin term “torture” which means a twisted act or crooked act. The person who commits the tort is known as ‘Tort feasor’ and the person who suffered injury/damage by the tort feasor is known as the injured/aggrieved person.

According to Section 2(m) of the Limitation Act:-

“Tort means a civil wrong which is not exclusively a breach of contract or breach of trust”.

According to Professor 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 the breach of a trust or other merely equitable obligation.”

According to Professor Winfield:-

“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.”

Thus, we may conclude that –

Tort is a civil wrong, which is redressible by an action for unliquidated damages which is other than a mere breach of contract or breach of trust.

Contract

According to Section 2(h) of the Indian Contract act, 1872:-

An agreement enforceable by law is a contract.

 It is a set of promise/promises which is legally enforced between parties. These are enforceable if any party is affected or injured then they are allowed to access legal remedies.

A contract consists of offer, acceptance of offer and considerations and mutual agreements. According to contract law, it recognizes and governs rights and duties which arise from agreements or contracts between parties.

Some contracts can be orally binding. Formalities in most contracts are signing, entering date of signed contract.

Difference between Tort and Contract

1. Tort is a set of legal remedies whereas Contract is a set of laws the law can enforce

2.  In tort, duties are determined by the law and In Contract, parties determine the duties.

3. In Law of Torts, Minors can be sued and damages can be recovered from them while minors have limited liability in Contracts.

4.   Right to sue exists against the whole world in torts but the Right to sue exists only for the parties in the agreement of a Contract.

5. Law of Tort is not codified in India. It is applicable through rulings and judicial decisions while A codified law is present for the enforcement of Contract i.e. The Indian Contract Act, 1872.

6. In an action for tort, damages are always unliquidated but in a breach of contract, damages may be liquidated.

Comparison Table: Tort and Contract

BasisTortContract
MeaningSet of legal remedies entitling a victim to recover from losses, injuries or damagesSet of laws the law can enforce
Rights and ObligationsResult from the common law and are created by the courtResult from the acts of agreement between parties
DutiesLaw determines the dutiesParties determine the duties
MinorsCan be sued and damages recovered from their propertiesLimited in liability
PrivityPrivity must existPrivity does not need and it is needed
Violation of RightViolation of right in remViolation of right in persona
CodificationUncodifiedCodified in Indian Contract Act,1872
ConsentTort is committed without consentContracts are totally based on free consent of the parties
MotiveTaken into considerationCompletely irrelevant
DamagesNot fixedFixed by the court
OriginThe common law of England, or English JudgmentsBy Indian Contract Act, 1872
Limitation periodwill run from the time the damage was donethe period runs from the day date the contract was breached.
PartiesNot knownKnown

Conclusion

The major interrelationships between contract law and tort laws are based on how the damages are evaluated and awarded. In addition, there are other distinctions based on the rights and obligations, presence and absence of privity, the duties of each party, as well as how both laws treat minors. All in all, the two are laws and can be tied together based on the terms, how the damages were done, and anything else at the court’s discretion.
To conclude, tort and a breach of contracts are two different terms but in the eyes of law, both are considered civil wrongs. And the law provides the remedy for both civil wrongs. Both torts and contracts are essential in our lives. We should know both these terms and use them accordingly. The court helps the affected party to seek redressal and they help them to avail of compensation from the other party. And in breach of a contract, the parties decide the remedy. Tort and contract are important aspects. Tort and contract both are interconnected topics, but they are different branches of law. In my opinion, nowadays public has gained confidence on the courts. And more tort and contract cases are registered in the courts and the claimant most probably seeks the remedy. The court has the legal obligation to conduct the cases and propose the judgments according to justice, equity and fairness. The key aspect of this article is to differentiate the difference between the two. And various factors such as consent, nature, meaning, Limitation period, etc. differentiate them and they also have some common factors with them. Both have their own ingredients and damages. They both have their own significance and their own principles.

References:

1. Brown, Sarah. “Difference Between Contract and Tort.” Difference Between Similar Terms and Objects, 24 June, 2019, http://www.differencebetween.net/miscellaneous/legal-miscellaneous/difference-between-contract-and-tort/.

2. https://www.legalkatta.in/2021/12/difference-between-tort-and-contract.html

3. .R.K. Bangia Law of Torts, 26th Edition 2021 by Allahabad Law Agency

4. M.N. Shukla The Law of Torts 18th Edition Central Law Agency

5. 6. THE LAW OF TORTS by Dhirajlal & Ratanlal 28th Edition LexisNexis Publication

7. Contracts by Avtar Singh  21st Edition EBC Publications

Aishwarya Says:

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