TABLE OF CONTENTS
Sr No. Contents
1 Introduction 1
1.1 History of Torts 1-2
2. Law of Torts 3-4
2.1. Essentials of Torts 4
3 Crime 5-6
3.1. Essentials of Crime 6-7
4. DISTINCTION BETWEEN LAW OF TORTS AND CRIME 8-9
5. CONCLUSION 10
1.1.History of Torts
Torts and crimes at common law originate in the Germanic system of compensatory fines for wrongs, with no clear distinction between crimes and other wrongs. In Anglo-Saxon law, most wrongs required payment in money to the wronged person or their clan. W?te (literally ‘blame, fault’) was paid to the king or holder of a court for disturbances of public order. Weregild, which was a murder fine based on a victim’s worth, was intended to prevent blood feuds. Some wrongs in later law codes were botleas ‘without remedy’ (e.g. theft, open murder, arson, treason against one’s lord), that is, unable to be compensated, and those convicted of a botleas crime were at the king’s mercy. Items or creatures which caused death were also destroyed as deodands. Assessing intention was a matter for the court, but Alfred the Great’s Doom Book did distinguish unintentional injuries from intentional ones, whereas culpability depended on status, age, and gender.
After the Norman Conquest, fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as a tort or trespass, and there arose a division between civil pleas and pleas of the crown. The petty assizes (i.e. of novel disseisin, of mort d’ancestor, and of darrein presentment) were established in 1166 as a remedy for interference with possession of freehold land. The trespass action was an early civil plea in which damages were paid to the victim; if no payment was made, the defendant was imprisoned. The plea arose in local courts for slander, breach of contract, or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so that in the 1250s the writ of trespass was created and made de cursu (available by right, not fee); however, it was restricted to interference with land and forcible breaches of the king’s peace. It may have arisen either out of the "appeal of felony", or assize of novel disseisin, or replevin. Later, after the Statute of Westminster 1285, in the 1360s, the "trespass on the case" action arose for when the defendant did not direct force. As its scope increased, it became simply "action on the case". The English Judicature Act passed 1873 through 1875 abolished the separate actions of trespass and trespass on the case.
In 1401, the English case Beaulieu v Finglam imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle. Negligently handling fire was of particular importance in these societies given capacity for destruction and relatively limited firefighting resources. Liability for common carrier, which arose around 1400, was also emphasized in the medieval period. Unintentional injuries were relatively infrequent in the medieval period. As transportation improved and carriages became popular in the 18th and 19th centuries, however, collisions and carelessness became more prominent in court records. In general, scholars of England such as William Blackstone took a hostile view to litigation, and rules against champerty and maintenance and vexatious litigation existed. The restriction on assignment of a cause of action is a related rule based on public policy.
2.Law of Torts
The word Tort was derived from the Latin term Tortum which means something that is twisted.
Definitions of torts by various jurists:
Section 2(m) of Limitation Act, 1963: "Tort means a civil wrong which is not exclusively a breach of contract or breach of trust."
Fraser: “A tort is an infringement of a legal right in rem of a private individual, giving a right of compensation of the suit of the injured party”.
Clark and Lindsell: "Tort is a wrong independent of contract for which the appropriate remedy is a common law action."
Sir John Salmond: "Tort as a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.”
Prof. P H Winfield: “Tortious Liability arises from breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages”.
A tort, in common law jurisdictions, is a civil wrong that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act.
Tort law, where the purpose of any action is to obtain a private civil remedy such as damages, may be compared to criminal law, which deals with criminal wrongs that are punishable by the state. Tort law may also be contrasted with contract law which also provides a civil remedy after breach of duty; but whereas the contractual obligation is one chosen by the parties, the obligation in both tort and crime is imposed by the state. In both contract and tort, successful claimants must show that they have suffered foreseeable loss or harm as a direct result of the breach of duty.
2.1 Essentials of Torts
For an act to be considered a Tort, there will be two essential elements:
There must be some act or omission on the part of the defendant
The act or omission should result in legal damage (injuria), i.e., violation of a legal right vested in the plaintiff.
The word crime is derived from the Latin root cern?, meaning "I decide, I give judgment". Originally the Latin word cr?men meant "charge" or "cry of distress."
Many prominent jurists have made attempts to define Crime.
1. Sir William Blackstone – "An act committed or omitted in violation of Public Law forbidding or commanding it".
2. Sir James Stephen – "Crime is an act forbidden by law and revolting to the moral sentiments of the society".
3. Kenny – "Crimes are wrongs whose sanction is punitive and in no way remissible by an private person, but is remissble by the Crown alone, if remissible at all"
4. Stephen – "Crime is an act which is forbidden by law and revolting to the moral sentiments of the society".
5. Paul W. Tappen – "An intentional act or omission in violation of criminal law, committed, without defense or justification and sanctioned by law as felony or misdemeanor."
6. Elliot and Merill – “A crime ipso facto implies a disturbance in a social relationship and a social definition as to what such disturbance is.”
7. Barners and Teeters – “The term crime technically means a form of anti-social behavior that has violated public sentiment to such an extent as to be forbidden by statute.”
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term "crime" does not, in modern criminal law, have any simple and universally accepted definition, though statutory definitions have been provided for certain purposes. The most popular view is that crime is a category created by law; in other words, something is a crime if declared as such by the relevant and applicable law. One proposed definition is that a crime or offence (or criminal offence) is an act harmful not only to some individual but also to a community, society or the state ("a public wrong"). Such acts are forbidden and punishable by law.
The notion that acts such as murder, rape and theft are to be prohibited exists worldwide. What precisely is a criminal offence is defined by criminal law of each country. While many have a catalogue of crimes called the criminal code, in some common law countries no such comprehensive statute exists.
The state (government) has the power to severely restrict one’s liberty for committing a crime. In modern societies, there are procedures to which investigations and trials must adhere. If found guilty, an offender may be sentenced to a form of reparation such as a community sentence, or, depending on the nature of their offence, to undergo imprisonment, life imprisonment or, in some jurisdictions, execution.
Usually, to be classified as a crime, the ;act of doing something criminal; (actus reus) must – with certain exceptions – be accompanied by the ;intention to do something criminal; (mens rea).
While every crime violates the law, not every violation of the law counts as a crime. Breaches of private law (torts and breaches of contract) are not automatically punished by the state, but can be enforced through civil procedure.
3.1. Essentials of Crime
There are two essentials of crime:
Mens Rea – (intention of mind) – Mens rea refers to the crime’s mental elements of the defendant’s intent. This is a necessary element—that is, the criminal act must be voluntary or purposeful. Mens rea is the mental intention (mental fault), or the defendant’s state of mind at the time of the offense, sometimes called the guilty mind. It stems from the ancient maxim of obscure origin, "actus reus non facit reum nisi mens sit reas" that is translated as "the act is not guilty unless the mind is guilty." For example, the mens rea of aggravated battery is the intention to do serious bodily harm. Mens rea is almost always a necessary component in order to prove that a criminal act has been committed. Mens rea varies depending on the offense. For murder, the mental element requires the defendant acted with "malice aforethought". Others may require proof the act was committed with such mental elements such as "knowingly" or "willfulness" or "recklessness". Arson requires an intent to commit a forbidden act, while others such as murder require an intent to produce a forbidden result. Motive, the reason the act was committed, is not the same as mens rea and the law is not concerned with motive.
Actus Rea – (physical involvement in crime) – All crimes require actus reus. That is, a criminal act or an unlawful omission of an act, must have occurred. A person cannot be punished for thinking criminal thoughts. This element is based on the problem of standards of proof. How can another person’s thoughts be determined and how can criminal thoughts be differentiated from idle thoughts? Further, the law’s purview is not to punish criminal ideas but to punish those who act upon those ideas voluntarily.
Unlike thoughts, words can be considered acts in criminal law. For example, threats, perjury, conspiracy, and solicitation are offenses in which words can constitute the element of actus reus.
The omission of an act can also constitute the basis for criminal liability.
4. DISTINCTION BETWEEN LAW OF TORTS AND CRIME
Tort is infringement of a private right or civil right of an individual i.e. it is a private wrong or harm affecting the interest of private individual.
Crime is a breach of invasion of public rights and duties or invasion of public rights and duties affecting the society at large e.g. it is a social harm
In Torts, intention is immaterial to hold a person responsible for civil wrong mens rea e.g. Guilty mind is not required.
In crime, intention is important. Without mens rea there is hardly any crime to hold a person responsible for a crime usually mens rea i.e. guilty mind or mental element is necessary.
The purpose of law of torts is compensate the victim i.e. The wrongdoer has to compensate the injured party.
In crime the purpose is to punish the offender. The offender is punished by the state in the interest of the society and with the aim to deter the offender from committing it again.
The parties in a civil suit for tort are individuals i.e. Individual v/s Individual.
In case of crime the state is always a party, as the state takes an action against the wrongdoer as crime is a public wrong. Therefore, it is State v/s Individual.
The yardstick for measuring liability in torts is the magnitude of harm caused. The greater the harm, greater is a the amount of compensation awarded/ to be paid.
In crime, while deciding the punishment to be given to the offender one factor is taken into account that is motive of wrongdoer.
In torts action is brought by an injured party and the tortfeasor is sued in a civil court.
In crime, the proceedings are conducted in the name of the state and the guilty person is punished by the state. The guilty person i.e. criminal is prosecuted in a criminal court.
Wrongs divisible in two species, Private and public. The Private wrongs deal with the civil rights belonging to the individuals, public wrongs deal with the infringement of public rights and duties injuring the society as a whole. While there is a line of distinction between torts and crime, there are various points where they intersects. For e.g. – Assault, Defamation, Negligence, Conspiracy and Nuisance.
Generally when wrong is a serious one or affects a large number of members of the public, it is placed under criminal law. But when it affects only an individual or does not disrupt public peace at large it may be categorised as torts.