Nature and Definition of Torts Under Law Of Torts - jetty study


The word tort originates from the French language. It is equivalent to the English word “wrong” and Romanian law’s term “delict”. It is derived from the Medieval Latin word “tortum” which means “wrong” or “injury” which itself was further developed from the Old Latin word “torquere” which means “to twist”. It is a breach of duty which amounts to a CIVIL WRONG. A tort arises when a person’s duty towards others is affected, an individual who commits a tort is called a TORTFEASOR, or a WRONGDOER. And where there are multiple individuals involved, then they are called JOINT TORTFEASORS. Their wrongdoing is called as a TORTIOUS ACT and they can be sued jointly or individually. The main aim of the Law of Torts is the compensation of victims.

SECTION 2(M) OF THE LIMITATION ACT,1963, Addresses tort as being a Civil Wrong which is not just exclusively a breach of contract or a breach of trust.

According to JOHN SALMOND, He addresses tort as being only a civil wrong which has unliquidated damages (those damages for which there is no fixed amount) in the form of remedy and which is not just exclusively the breach of contract or the breach of trust or breach of merely fair and impartial obligation.

According to RICHARD DIEN WINFIELD, Tortious liability emerges from the breach of a duty primarily fixed by the law, this duty is towards the other people generally and its breach is redressible by an action for unliquidated damages.

According to FRASER, A tort is an infringement of a right in rent of a private individual giving a right of compensation at the suit of the injured party.


According to WINFIELD, tort law is a growing subject and many new torts add up. Hence it is law of tort.  Salmond however was of the view that it is law of torts.


The essential elements of torts are as follows:

  • WRONGFUL ACT - When a person is under some legal duty, and he fails to perform it causing some loss to the victim, the person has committed a wrongful act.  A wrongful act invades the following private rights of the victim- Good Reputation, Bodily safety and Legal rights.
  • LEGAL DAMAGE - There is a difference between legal damage and actual damage.  In torts, injuria sine damno is actionable but damnum sine injuria isn’t.  Injuria sine damno means an infringement of a legal right even if there is no actual damage. Damnum sine injuria means damage without injury. 

In Ashby v. White, the plaintiff was prevented from exercising her right to vote. It was held that the plaintiff was entitled to damages. 

In the Gloucester Grammar School Case, a rival school was set up near that of the plaintiff. It was held that the plaintiff could not get compensation as there was no legal injury.

  • LEGAL REMEDY- The damage in tort should be actionable. There cannot be a tort if there is no legal remedy.


  • ACT OR OMISSION- There should be a wrongful act in order to constitute tort. It can be an act of omission or that of commission. They should not be beyond human control.
  • VOLUNTARY OR INVOLUNTARY- The wrongful act can be voluntary or involuntary.
  • INTENTION, MOTIVE, NEGLIGENCE AND RECKLESSNESS- The act may have an intention or motive or may arise due to negligence or recklessness.
  • MALICE– Malice isn’t essential in all kinds of torts. It is essential in the following- defamation, malicious prosecution, malicious damage to property, slander,etc.
  • MALFEASANCE, MISFEASANCE, NONFEASANCE- Malfeasance means commission of an unlawful act. Misfeasance means performing a lawful act in a wrong manner. Nonfeasance means failure to perform an act where there was an obligation to perform it.
  • FAULT- A fault which violates the right of a person gives rise to tort.


A tort is distinguished from a contract in the following manner-

  1. Free consent is necessary to give rise to a contract. A tort is inflicted without consent.
  2. There is no doctrine of privity in tort. It is essential in a contract, and no third party can make decisions regarding a contract.
  3. Tort is a violation of right in rem( right against the world at large) and breach of contract is an infringement of right in personam (right against a person or a body).
  4. Motive is often taken into consideration in Tort but not in a contract.
  5. The measure of damages in tort is not strictly limited. For a breach of contract, the measure of damages is generally more or less determined by stipulations of the contracting parties.


A tort is distinguished from a crime in the following manner-

  1. A tort affects the private rights of a person. A crime on the other hand affects the whole society.
  2. In tort, compensation is recovered from the wrongdoer. A person committing a crime is punished by the State.
  3. In tort, action is brought in by the injured party. In crime, proceedings are conducted by the State.


A wrongful act can be either morally wrong or legally wrong and can also be both at the same time.

A legal wrongful act is one which affects one’s legal right, the wrongful act must be one recognized by law, the act must be in violation of the law to be a legal wrongful act. An act which seems Prima facie (based on the first impression) innocent may also end up infringing somebody else’s legal right, innuendo (Where a statement is said by an individual which may be Prima facie innocent but may also have a secondary meaning which can harm the reputation of another in the eyes of the public or the person who comes to know of such information) is an example of this. Liability for a tort arises when the wrongful act being complained of amounts to an infringement of a legal private right or a breach or violation of a legal duty. i.e. If a person is prevented from voting by another, even if the candidate he was going to vote for, wins, his legal right to vote has been violated.

For example, if someone whose religion does not allow him/her to eat non-vegetarian food, still eats it then he/she will be morally wrong but not legally wrong. And if a person whose religion doesn’t allow him or her to eat non-vegetarian and he or she strictly follows that religion is forcefully fed by someone then it is a legal wrong on the part of the person forcing the other one to eat that food which he or she does not want to eat.


A duty of care is one which is imposed on every individual and requires a standard of reasonable care that he could see as being harmful towards others. Hence, a duty imposed by law is a duty which is legally enforceable in the Indian courts.


Literal meaning of damage- to affect injuriously.

The term “damages” is often confused with the term “damage”, while they may look similar, they have different meanings and are significantly distinct from each other, “damages” refers to the compensation sought for, while “damage” refers to actual loss or injury.