Law of Torts: Torts Meaning: It denotes a civil wrong. It is a french word, equivalent to the word wrong in English. A human being is a gregarious (a social) animal. Gregarious animals tend to move in a flock. Due to this factor, there might have been nomadic tribes in primitive times. When we live in a society, errors are certain to happen. Some errors happen to be violating certain rights which amount to breach which is civil. For example, nuisance, breach of contract, defamation, etc. Law of Torts depends entirely on liabilities of the persons. If a person happens to a mistake which simultaneously harms a person. Now, the person (plaintiff) who is harmed can institute a lawsuit against the person (defendant). Kinds of Torts: 1- non-feasance, omission of some act which a person is bound by law to do 2- misfeasance, being the improper performance of some lawful act, 3- malfeasance, being commission of som act which is in intself unlawful (such as rash driving, or undertaking car at a motorway whereat it is forbidden, etc) Elements of torts (those essential elements which constitute a tort, if they are missing, tort is deemed to not have been committed): 1- Intention: Foreknowledge with which an act is done. 2- Malice : Some ill-will. 3- Motive : Consequences of the foreknowledge with which an act is done. 4- Damage : Loss to a person. To understand abovementioned elements, let us consider following case-laws: Banker Refusing Customers cheque : An action will lie against a banker, having sufficient fund in his hands belonging to a customer, for refusing to honour his cheque. Althought the customer did not thereby sustain any actual loss or damage. (1830) 1 B & Ad. 415. In cases of damnum sine injuria i.e. the actual and substantial loss without infringement of any legal right, no action lies. Summing up, there has to be a motive and damage that consititute a tort. Ceasing to offer food to idol: Where the servant of a Hindu temple had a right to get the food offered to the idol, but the person who was under an obligation to the idol to offer food did not do so, and the servants brought a suit against for damages. It was held that the defendant was under no LEGAL obligation to supply food to the temples loss to the plaintiff. It was danum absque injuria, and could not entitle the plaintiffs to maintain a suit. (1920) 22 Bom. L R 1107. Aforementioned case-laws may define that due to the absence of damage and motive in the first case law, and in the second the absence of a legal damage (and also the liability), torts could not be claimed. Thanks, Naveeda Shaikh
Posted on: Sat, 08 Feb 2014 12:40:54 +0000
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