This article is written by Bidisha Datta, a student of 2nd year ( 3rd Semester ) under the BA LLB 5 years course, in Department of Law, University of Calcutta.
ABSTRACT
Tort, crime, contract and quasi-contract are very important terms in legal studies which we come across very often. Though there are many similarities between these terms, they are completely different from each other and sometimes may get confusing. This article very precisely articulates the similarities and differences between the terms.
Keywords: tort, contract, crime, quasi-contract, differences, civil, wrong, liabilities
INTRODUCTION
Man lives in the society for their own interests. Some specific interests are protected by the society or government and these interests are called rights. On the other hand, violation of these rights amounts to wrong. Wrongs can be broadly categorised into civil wrongs and crimes. Crime affects the entire society while civil wrong affects an individual only. Moreover, the gravity or degree of offence depends upon the nature of the offence. There are several types of civil wrongs which are particularly distinguished like breach of contract, breach of trust, breach of equitable obligations etc. A tort is a civil wrong which does not fall in the ambit of these specific civil wrongs. The remedy for tort is compensation in the form of unliquidated damages whereas in breach of contract, compensation is in the form of liquidated damages. In the case of crime, punishment is given to the wrongdoer. Quasi-contracts are those where no express contracts are made, but liabilities arise due to obligations imposed by law, the breach of which entails compensation usually in the form of liquidated damages.
TORT AND CRIME
Though both terms denote any wrongdoing of a person and can be confusing at times, tort and crime are two different concepts in legal terminology.
A tort is a civil wrong where there is a violation or infringement of the legal rights of an individual or group of individuals. It is a private wrong that forms a ground for lawsuits to compensate an aggrieved party for any damage or injuries suffered. The law of torts in India has developed and evolved from the law of torts in the English common law. It is not a codified law and is not supported by any statute. It has been mainly derived from judicial precedents in the United Kingdom. Tort law focuses on interpersonal wrongdoings between private persons. A tort is an action or omission or conduct of a person that causes injury or harm to another and amounts to a civil wrong for which Courts can impose liability.
On the other hand, a crime is an unlawful act committed by an individual against society in general, which causes harm or disturbs public order. A crime is considered an offence against the State and prosecuted by the government. Though the concept and idea of crime, and what exactly constitutes it, is different in the laws of different countries, it is widely considered a public wrong that entails penal punishment. It aims to protect the rights and safety of the individuals in society, deter future criminal behaviour, bring forth a sense of justice towards the victims and their close ones, and also rehabilitate offenders back into society through appropriate measures.
The main differences between a tort and a crime are:
| Tort | Crime |
| It is a civil wrong which gives rise to civil proceedings | It is a public wrong which gives rise to criminal proceedings |
| The main remedy in the case of torts is compensation in the form of unliquidated damages to the victims | 2. The main remedy in the case of crime is the punishment of the wrongdoers imposed by the State |
| Tort cases do not require a motive or criminal intent | 3. Criminal cases require a criminal intent or guilty mind (mens rea) |
| Tort law is uncodified | 4. Criminal law is codified |
| Seeks to compensate victims for injuries suffered by culpable action or inaction of others | 5. Seeks to provide justice to the victim by punishing the offenders and deterring future criminal activities and behaviour |
| It is the infringement of the legal rights of individuals | 6. It is a violation of the law embodied in the statutes |
| The case is dependent upon the preponderance of probabilities | 7. The case has to be proved beyond reasonable doubt by the prosecution |
| The burden of proof is upon the claimant | 8. The burden of proof is upon the prosecution |
| Since tort is considered a private wrong, the injured party himself can bring a suit against the wrongdoer | 9. Since crime is a public wrong, criminal proceedings are brought against the wrongdoer by the State |
| Tort cases can be settled by the wrongdoer and aggrieved party between themselves | 10. Criminal cases cannot be settled the wrongdoer and the victim between themselves, barring certain exceptions given under Section 320 CrPC 1973 (compoundable offence) |
However, in some cases, the same set of facts can constitute both a tort and a crime. In such cases, remedies are not alternative but concurrent. Examples of some wrongs which are both tort and crime are defamation, assault, negligence, nuisance etc. The wrongdoer may be required to pay compensation under the law of torts, and also be held liable under criminal law. For instance, if A digs a ditch in the middle of a public road, causing inconvenience to the public at large, A has committed the crime of public nuisance under Section 268 of IPC. If X, a passerby falls into the ditch and gets injured, A’s act will be a private nuisance towards X. Not only will A be punished under criminal law for the offence of public nuisance, but he will also be liable to compensate X under the law of torts.
TORT AND CONTRACT
Though the remedy for both tort and breach of contract is compensation for damages, tort and contract are fundamentally different concepts.
A tort is a civil wrong and is associated with an act or omission or conduct which is in contravention of the legal duties imposed by the law, which harms or violates the legal rights of another person. In the case of a tort, the parties do not agree to fulfil or abide by any obligations, they are bound by law to fulfil certain duties towards other people. The remedy for a tort is compensation to the victim in the form of unliquidated damages.
On the other hand, a contract is an agreement between parties to perform mutual obligations. The essentials of a contract include free consent and an intention to create a legal relationship between the parties. Duties are not imposed upon the parties by law, but they are bound by contractual obligations. In case of breach of contract, the party that suffers from the violation of such breach is entitled to compensation in the form of liquidated damages.
The main differences between a tort and a contract are:
| Tort | Contract |
| A tort is a civil wrong which is associated with an act or omission or conduct which causes harm to another | 1. A contract is an agreement between parties to fulfil certain mutual obligations |
| It is a breach of legal duty imposed by the law | 2. Legal duty is imposed upon the parties by the provisions of contract |
| In tort, there is no intention of the victim and wrongdoer to create any legal relationship | 3. Intention to create a legal relationship is an essential of a contract |
| Law of torts is uncodified | 4. Law of contracts and provisions relating to breach of contracts are codified. |
| A tort is a violation of a right in rem i.e., a right vested in some particular individual and available against the public at large. | 5. A breach of contract is a violation of a right in personam i.e., a right available against some particular person or party. |
| The remedy for torts is compensation in the form of unliquidated damages, i.e., damages not pre-determined and assessed by the Courts depending on the degree of harm caused to the aggrieved party | 6. The remedy for breach of contracts is in the form of liquidated damages, i.e., damages already pre-determined by the parties in the contract |
| Actual harm has to be caused for claiming compensation | 7. Compensation can be claimed in the case of breach of contract, even if no actual damage has occurred |
| In a tort, duties imposed are not towards any specific individual but they are towards the world at large | 8.In a contract, the duty is based on the privity of contract and each party owes a duty only towards the other contracting party |
However, there are certain cases where the same set of facts can constitute both a tort and a breach of contract. For example, if A delivers a horse to B for safekeeping, and B allows the horse to die of starvation, B commits both breaches of the contract of bailment and the tort of negligence. Since both are civil wrongs and the damages is the main remedy for any civil wrong, the plaintiff can claim damages either under the law of torts for negligence or for the breach of contract of bailment. He cannot claim damages twice.
TORT AND QUASI-CONTRACT
Though in the case of both tort and quasi-contract, the duty is imposed by law, there are certain differences between the two.
In the case of tort, liability arises out of a breach of legal duty towards any person in general. It is a wrongful act or omission which causes harm to another. The remedy available to the aggrieved party is mainly in the form of unliquidated damages, or injunctions and specific performance.
When a person gains some advantage or gain to which some other individual was entitled to, or by such advantage, another person suffers an undue loss, the law may compel the former to compensate the latter in respect of the advantage so gained.[1] This type of obligation which arises between two or more specific parties in the absence of any real contract, is called quasi-contract. The remedy available to the aggrieved party is only in the form of a pre-determined amount of money.
The differences between tort and quasi-contract are:
| Tort | Quasi-contract |
| The law of torts, apart from a right to damages, grants other remedies too. Moreover, a claim for damages under the law of torts is always unliquidated | 1.Under the law of quasi-contract, a right only with respect to money is given, and generally, it is a liquidated sum of money |
| Under the law of torts, duty is towards the public in general | 2.Under quasi-contracts, duty is towards a specific individual or individuals |
| The amount for damages is not fixed | 3.The amount of damages is fixed |
CONCLUSION
The minute differences between the different terms are what set them apart. Tort and crime are different mainly because tort is civil in nature and does not necessarily penalise the wrongdoer with punishment, it aims to make good the loss suffered by the victim through compensation. Tort and contract are different mainly because in case of breach of contract, compensation is in the form of liquidated damages as opposed to torts, and a defaulting party to a contract can be held liable only by the other party to the contract, and not by anyone else. Tort and quasi-contract are different because, under quasi-contracts, the duty of a person is towards a specific person and remedy is in the form of a liquidated sum of money.
References:
1. Law of Torts: Dr. R.K.Bangia Pg. 9, 10,11, 12, 15 Allahabad Law Agency
2. Law of torts notes (part 1) – iPleaders
3. Difference between crime, tort, breach of contract and breach of trust – iPleaders
[1] R.K.Bangia: Law of Torts Pg 15 Allahabad Law Agency
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