DIFFERENCE BETWEEN TORTS AND CRIME & CONTRACT BY SHIVEN

Distinction between Tort and Crime

Tort Crime Tort occurs when the right available to all the persons in general (right in rem) is violated. Crime occurs when the right available to all the persons in general (right in rem) is violated and it also seriously affects the society. Act is comparatively less serious and affects only the person. Act is comparatively more serious and affects the person as well as the society. Intention is usually irrelevant. In most torts, however there are a few exception such as Malicious prosecution, defamation etc., where motive plays a part and are called intentional torts.

Intention is the most important element in establishing criminal liability. A crime cannot happen without
Mens Rea.

It is a private wrong. It is a public wrong. Since it is a private wrong, the wronged individual himself must file a suit for damages. Since it is a public wrong, the suit is filed by the state. The suit is for damages. The suit is for punishment. Compromise is possible between the parties. For example, a  person who has been defamed, can compromise with the defamer for a certain sum of money. There is no compromise for the punishment. For example, if a person is guilty of murder, he cannot pay money and reduce his sentence. Compounding is possible. Compounding is generally not possible. Justice is met by compensating the victim for his injury and exemplary damages may also be awarded to the victim. In Bhim Singh vs. State of J K AIR 1986 SC 494- the plaintiff was awarded exemplary damages for violation of his rights given by art 21. Justice is met by punishing the aggressor by prison or fine. In some specific cases as given in IPC compensation may be given to the victim. Law of Torts is not codified. Tortious acts (with a few exceptions) are usually not criminal acts. Law of crime is codified. Several criminal acts such as assault and battery are also grounds for tortuous suit.
Tort versus Contracts: A comparative analysis:
1) The nature of a tort is that it is a civil wrong. However, not all civil wrongs are torts. For example, breach of contract and breach of trust are civil wrongs but are not torts because their remedies exist in the contract itself. To determine if a particular act is a tort or not, we must first make sure that it is a civil wrong. We should then make sure that it is NOT a breach of contract or breach of trust.

Distinction between Tort and Contract

Tort Breach of Contract
Tort occurs when the right available to all the persons in general (right in rem) is violated without the
existence of any contract.
A breach of contract occurs due to a breach of a\ duty (right in persona) agreed upon by the parties
themselves. Victim is compensated for unliquidated damages as per the judgment of the judges. Thus,
damages are always unliquidated.
Victim is compensated as per the terms of the contract and damages are usually liquidated. Duty is fixed by the law of the land and is towards all the persons. Duty towards each other is affixed by the contract agreed to by the parties. Doctrine of privity of contract does not apply because there is No contract between the parties. This was held in the case of Donaghue vs. Stevenson 1932. Only the parties within the ambit of ‘privity of contract’ can initiate the suit. Tort applies even in cases where a contract is void. For example, a minor may be liable in Tort. When a contract is void, there is no question of compensation. For example, a contract with a minor is void ab initio and so a minor cannot be held liable for anything. In some torts like malicious prosecution, motive is relevant. Motive is immaterial in contracts. Justice is met by compensating the victim for his injury and exemplary damages may also be awarded to the victim. In Bhim Singh vs. State of J K AIR 1986 – the plaintiff was awarded exemplary damages for violation of his rights given by art 21. Justice is met only by compensating the victim for actual loss.

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