By: Chaudhry Omar Ejaz
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1. INTRODUCTION:
Tort is breach of some civil duty independent of contract for which compensation may be recoverable. If there is an injury for which no compensation is recoverable is not tort. The law of tort is based on common law. It is still growing. It is not the part of statue law.
2. MEANING:
The word tort is derived from Latin word “Tortum” which means to twist or ‘conduct’ which is twisted.
3. DEFINITION:
> Salmond:
According to 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 trust or other merely equitable obligation.
> Oxford Dictionary:
Tort is a private or civil wrong.
> Philip James:
Tort is a private or civil wrong independent of contracts for which appropriate remedy is an action for unliqidated damages.
4. DISTINGUISH BETWEEN TORT AND CONTRACT:
I. AS TO RIGHTS:
> Law of tort protects right in rem available against the whole world.
> Law of contract protects rights in personam which means against a particular individual.
II. AS TO DAMAGES:
> In tort, damages are unliquidiated.
> In contract damages are liquidiated.
III. AS TO CONSENT:
> Tort is always inflicted against consent of the person.
> Contract is always founded on consent of a person.
IV. AS TO CODIFICATION:
> Law of tort is not codified.
> Law of contract is codified.
V. AS TO FIXATION OF RIGHT AND DUTIES:
> Rights and duties are fixed by law in law of tort. > Rights and duties are fixed by parties in contract.
VI. AS TO DEFENCE:
> In law of tort necessity is a defence. > In contract, necessity is no defence.
VII. AS TO DOCTRINE OF VICARIOUS LIABILITY:
> Principle or doctrine of vicarious liability applies.
> Principle or doctrine of vicarious liability does not apply.
VII. AS TO LIMITATION:
> Limitation of time is one year in tort. > Limitation of time is three years in contract.
IX. AS TO POSITION OF MINOR:
> In law of tort a minor person can sue and can be sued.
> In contract a minor person can not sue and can not be sued.
5. DISTINGUISH BETWEEN LAW OF TORT AND CRIMINAL LAW:
I. AS TO PARTIES:
> In tort parties are known as plaintiff and defendant.
> In criminal law, parties are known state and accused.
II. AS TO PUNISHMENT:
> Tortfeasor has to pay damages.
> Criminal are sent to prison.
III. AS TO PROCEDURE:
> In tort, proceedings are regulated by civil procedure code 1908.
> Proceeding are regulated by the criminal procedure code 1898.
IV. AS TO INTENTION:
> Intention is not relevant in tortiuous act.
> Intention is always relevant in criminal act.
V. AS TO DEFENCE:
> Necessity is a defence in tortiuous act.
> Necessity is not a defence in criminal act.
VI. AS TO COMPROMISE:
> In tort, compromise is permissible.
> Compromise is not permissible in criminal law.
VII. AS TO PROCEEDINGS:
> Proceedings are conducted by injured person in law of tort.
> Proceeding are conducted by the state in criminal law.
VIII. AS TO CODIFICATION:
> Law of tort is not codified.
> Codified in Pakistan penal code.
IX. AS TO POSITION OF MINOR:
> A person under seven year is tortuously liable in tort.
> A person under seven year is not criminally liable.
6. CONCLUSION:
To conclude I can say that law of tort is different from law of contract and criminal law.
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