law of tort

This article is written by Sharat Gopal, studying BA LLB in 2nd year at Delhi metropolitan Education. Here it discusses short intro of tort law of tort, contract law, criminal law and concept of quasi-contract and difference between them.  


Law is a system of rules and regulations, which were created for the betterment and well being of human beings. It is a rule of conduct developed for a certain territory for proper governance of that territory. There is no specific definition for law.

Law of Tort

 Tort in simple terms means Civil Wrong. It roots back to the common law and word “Tort” itself was first used in 1580s. The word “Tort” is derived from a Latin word “tortum” which in simple terms means twisted or crooked.  


 According to Salmond, tort is a civil wrong for which the remedy is charging unliquidated damages (an amount that cannot be foreseen by a fixed formula)  caused to the person. But this is very much different from breach of contract or breach of trust or other merely equitable obligations.    

On the other hand, Winfield states that the tortious liability arises from the breach of duty which is primarily fixed by law. And the duty is towards the general public and the breach of this duty is redressable by an action for unliquidated damages.

Both these views are contrary to each other. Salmond’s definition is accepted more by people as it is more practical in nature. On the other hand, Winfield’s definition is more theoretical in nature.    

Law of tort

Law of tort is not codified in India. It was adopted from the English Common Law. In India, unlike other countries, moral wrong is not punishable. In countries like Canada, who follow common law, have moral value laws known as Samaritan Law. In these countries the moral wrong is punishable. Example-  Not giving water to a thirsty man, when you are carrying water with you, is morally wrong. This is punishable in countries like Canada, but not in India. 

Law of torts had a slow development in India with respect to other countries and has its own reasons for this-

  1. Low Illiteracy rate in India.
  2. Poverty in India.
  3. Very little knowledge about the judiciary in common people. 
  4. High expenses on legal services.

Torts law in India mainly deals with the violation of legal rights and duties. It usually believes in compensation more than punishment. Its focus is on bringing the victim back to the position he was before the commission of the tort.

Law of Contract

Law of Contract is a codified law in India dealt under the Indian Contract Act, 1872.  Now, when we think of the word ‘contract’ all that comes to mind is paperwork and a lot of complications through provisions. But under Indian contract act, 1872, it is as simple as difficult it sounds.

 Basically, it follows through some steps. Starting with the first step that is a person making an offer/proposal to other person attached with some consideration, which is communicated to another person through some means, now it can be expressed as well implied under Indian Contract Act. Then, that offer or proposal is accepted by the other person to whom that offer or proposal is made. When that acceptance gets communicated to the person making the offer/ proposal, there is a formation of promise. That formed promise is called an agreement. Now, that agreement becomes legally enforceable by law, is called a Contract. Hence, all contracts are agreements but all agreements are not contracts. Only those agreements which are enforceable by law are called contracts.

Now, when it comes to breach of contract, parties to a contract can sue the person breaching the contract in the civil court and can claim remedy to it which is liquidated damage.


This at very first was recognised by English law as a quasi-contractual obligation which later the framers of the Indian constitution modified and placed it in the Indian contract act. Hence, it is almost similar to that of English quasi-contract. 

Though in India, Quasi-contract has not been specifically defined and is said to be as resembling those of contracts.

Quasi-contract is basically an obligation created not by the parties mutually but by a court for the sake of justice. It is an obligation imposed by law on the parties because of the previous relationship between the parties or due to the fact that one of them might have enriched some profits from the loss of the other. And such obligations are termed as quasi-contractual obligations.

Law of crime

Now criminal laws by the term are clear i.e., it is the law governing crimes.  It is generally referred to the offences that are either against the state or acts which are prohibited by law or can be both. In India, criminal laws are governed according to the codified law i.e., Indian Penal Code, 1860 drafted by Macaulay. 

Under IPC, it deals with almost all types of crimes and establishes its punishment that shall be reasonable for those types of crimes. Crimes are mostly categorized as felonies based on their nature and the maximum punishment imposed on them. These crimes are prosecuted in the criminal courts.  

Difference between tort and contract law

                TORT LAW                   CONTRACT LAW
Tort is an uncodified law

Contract law is a codified law as Indian contract law, 1872.
In tort, there is a duty fixed by law In contract law, duty is not fixed by law but is mutually given by parties to each other.
In tort, duty is towards every person. Which is also known as “right in rem”.
Under contract law, duty is only for the parties to that specific contract. This is also known as “right in personam”.
In tort law remedy given is unliquidated damages.While in contract law remedy provided for a breach of contract is liquidated damages.
Tort is committed without consentContracts are totally based on the free consent of the parties.
Motive is often taken into consideration in case of tort.
Motive is completely irrelevant in cases of breaches of contract.
Measures of damages in the case of tort are not predictable.
Measures of damages are generally more or less predictable.

Difference between tort and crime

              Tort law                        Criminal law 
Tort is a civil wrong or a private wrong.

Crime is said to be done against a state and it harms not just the victim of that crime but the whole society. Hence it is a public wrong.
And hence is dealt under civil courts. And therefore is dealt under criminal courts.
As a result of tort, the remedy given is a compensation which is unliquidated damage. As a result of crime, a convict is provided with a punishment given under IPC and also fine as per the case may be.
The suit of tort is against a person.The suit of crime is against the state.
It is private law.
It is public law.

Difference between tort and quasi-contract

                  Tort law                     Quasi -contract
Damages are not fixed in the tort law i.e., also known as unliquidated damages.Damages to the quasi-contractual obligation are fixed and specified by the court itself.
Duty is imposed toward all people generally and not to a definite person.Duty is towards a definite person from whom the person has enriched wrongful benefits.

Difference between contract and quasi-contract

          Contract law             Quasi-contract
In contract, there is always an agreement between the parties.
In Quasi-Contract, there is not actually an agreement because it is not a real contract but more specifically is a constructive contract.
Here, free consent of both parties is essential.
Consent of the parties is not material in the quasi-contracts, because it is an obligation imposed by courts.
Here liabilities exist by the terms of the parties.Here liabilities exist independent of the agreement and are based on justice, equity and good conscience.
It is in right in rem as well as right in personam.It is only right in personam, as strictly available only against a person and not against the entire society.
If the law in force is required, it must be registered. It is raised through legal fiction.

Difference between contract and crime

        Contract                 Crime 
The injured party has only right for liquidated damages or actual damages caused to him.
the injured party cannot sue for damages as this is a crime against society, the accused will be put to imprisonment or imposed fine or both.
The object of contract law is to protect the rights of parties to a contractThe Objective behind criminal law is to provide peace and harmony in society.
Mens rea for breach of contract is totally irrelevant.Mens rea is an important element in crime
It is dealt under civil court
It is dealt under criminal court.

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