6 Characteristics of tort and 4 Wrongs which are not tort

The word “Tort” is of a French origin which has been further derived from the Latin word “Tortum” meaning “to twist” and implies conduct which is tortious⁴or twisted. It is a species of civil injury or wrong.
A tort is a wrongful act or an infringement of a right (other than under contract) leading to legal liability and for which civil courts award compensation.
Section 2 of Limitation Act 163 defines it as ‘a civil wrong which is not exclusively the breach of contract or breach of trust’.
Example: To stop or obstruct a person to perform his legal right is a tort. (Case Ashby v. White)

This theory was proposed by Salmond and Sir Frederick Pollock supported it.
It proposes that the law of tort can be considered as a neat set of pigeon holes, each containing a specific tort. If the defendant’s act does not fit in any of these pigeon holes, he has not committed any tort.
This theory is approved in case Allen v. Flood.
Critics said that if this theory is accepted then the categories of liability in torts would be closed< Due to which the Courts would not be allowed to recognize any new torts. In that case, there would be no justice to the plaintiff only on the ground that there is no similar case in the past which is recognized as a tort. Court also observed that torts are infinitely various and not limited or confined.

i) Wrongs which are exclusively criminal

Detention, conversion and wrongful dismissal are civil wrongs. Hence they are a tort. In such cases remedy can be obtained from civil courts in form of damages and compensation.
Dacoity, murder, and forgery are exclusively criminal acts. The remedy is a criminal prosecution in criminal courts. The primary object of the criminal court is to punish the offender.

ii) Civil wrongs which are exclusively breaches of contract.

Wrong resulting out of breach of contract is not a tort. If any one party of the contract fails to honour the contract performs wrong to the other party. It is a civil wrong but not a tort.
In such case, the remedy can be obtained in the form of compensation in civil courts.

iii) Breaches of trust or other equitable obligations.

Trust is a matter of confidence. Hence breaches of trust are neither a breach of contract nor a tort.

iv) Wrongs which are quasi-contractual.

The claims for liquidated damages not arising out of an express contract are sometimes classified as quasi-contractual. They are neither contracts nor tort but forms another category called ‘restitution’.

i) A tort is a civil wrong:

Legal wrongs can be classified into two types, civil wrongs, and criminal wrongs. Civil wrongs are further classified into three types viz. breach of contract, breach of trust and torts.
It should be noted that the remedies for breach of contract or the breach of trusts are governed by statutes, whereas the remedies for a tort can be decided using common law.

ii) Tort is an infringement of a right in rem.

Right in Rem: A right in rem is available against the world at large; it is a right available against persons generally. This right is available against everybody. Examples are rights of possession and ownership.
Right in Personam: A right in personam is available only against a determinate person or persons, corresponds to a duty imposed on determinate individuals. These rights are personal to both of them (the plaintiff and the defendant). Outsiders are not concerned with them. Examples of right in personam are the right to receive compensation for false imprisonment or defamation; or the right to recover a debt from the person who owes me the money. Rights under a contract are rights in personam for only the parties thereto are bound.
A right to do an occupation peaceful on a farm is right in rem, while the right to receive rent from a tenant is right in personam. The right to liberty and reputation is right in rem, while the right to receive compensation for false imprisonment or defamation is right in personam.
Tort is an infringement of a right in rem and not a right in personam.

iii) Tort deals with the cases related to the legal rights.

The law of torts deals only when the legal rights are violated and the law works independent of the consent of parties.

iv) Common law action:

In India, there is no Common Law but in England, it is used. Thus the working of the law of tort is the common law action.
In India, such suits can be filed in Civil Courts.

v) Remedy:

vi) A tort is committed only when legal private rights of individual are violated

A tort is constituted due to the occurrence of a “wrongful act or omission” by any person. The term ’act’ must include both positive as well as negative acts i.e. acts and omissions. To be considered as a tort the act must be done “intentionally, deliberately, or emphatically” to cause “legal” damages to the other party.
For any legal injury, there is a legal remedy to the injured party which is usually in the form of “unliquidated” damages. Hence there is a creation of tortious liability.
For example: X drives his car carelessly with the result that it mounts the pavement and hits Y (to walk on pavement with a safety is a legal right), a pedestrian, causing Y personal injuries. The act is X driving the vehicle carelessly (to drive carelessly is a legal wrong). This act has caused damage to Y. The damage was as a result of X’s carelessness, i.e. his fault. The injury suffered by Y, personal injury, is recognized by law as attracting liability. A will be liable to Y in the tort of negligence and Y will be able to recover damages.
Thus to drive a car with care and obeying the rules is fixed by the law. X breached those rules and injured Y physically and legally. Hence a tortious liability is created.

Right in rem	Right in Personam
A right in rem is available against the world at large.	A right in personam is available only against a determinate person or persons, corresponds to a duty imposed on determinate individuals.
it is a right available against persons generally.	These rights are personal to both of them (the plaintiff and the defendant). Outsiders are not concerned with them.
Rights in rem are almost always negative. It is a right to be left alone. It is a right that people should not interfere with anyone’s ownership.	Rights in personam are usually positive. It is acquired because the subject stands in some special relationship towards another person as in the case of a contract. Rights in personam may also be negative as in the case of sale of goodwill
Rights in rem are known as real rights	Rights in personam as personal rights.
Examples are the right of not to be defamed and not to be assaulted.	Examples of right in personam are the right to receive compensation for false imprisonment or defamation; or the right to recover a debt from the person who owes me the money.

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