Legal Jargon for Law Students
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| Legal Jargon for Law Students |
Legal Terminology of Torts Law
Tort:
A Tort is a civil wrong, independent of contract, the remedy for which is an action for damages.
Explanation:
Wrongs are of two types which are as;
- The Civil Wrong
- The Criminal Wrongs
The civil wrongs are further divided into two categories, which areas;
1) The Breach of a Contract
2) The Tort
While the criminal wrong is against the state and it is initiated by FIR.
Now a civil wrong, which is not a breach of a contract, is a tort.
Rights:
Rights are of two types;
- Right in Personum
- Right in Rem
Right in Personum:
Right in personum is a right of a person from a specific person or a determinant group of people. This is the performance of a contract been concluded. If this contract is breached, then the second party has the right to file a suit in the court, only and only if, he has faced the loss. The loss in this case is always liquidated.
Right in Rem:
Right in rem is that right of a person for which everyone and even the whole community at large is held responsible to fulfil. For example, the whole world or country or a community is not bound to me to respect at any cost, but they are bound to me not to defame me.
Damages:
Damages in torts are unliquidated and the court fixes it, for no one knows the degree of familiarity or respect of a person. So it is the court which liquidates it.
Infringement of a Legal Right:
Infringement means to violate a legal right. Infringement of a legal right is generally of two types;
- Injuria sine damun
- Damun sine injuria
Injuria Sine Damun:
Injuria means infringement of a legal right, sine means with out and damun means damages. So it means that when a legal right of a person is violated and no damages are made to him, then this is a tort and it is actionable. It means that for a tort only injuria is necessary. In some case if a person himself gives the permission, then no action will be taken as according to a legal maxim that ubi jus ibi remidium, which means that, where there is a legal right, there is a remedy. So if there is remedy for a legal right, then it is actionable.
Damun Sine Injuria:
Damun sine injuria means damages without violation of a legal right.
It is not actionable according to the law of torts.
Example:
If A has milk shop and he sells milk Rs. 100 per Kg. Now B comes to the same market with the intention to down A’s business and sells the milk Rs. 50 per Kg. and B started selling milk Rs. 50 per Kg. Although A faces a greater loss, but legally he cannot take any legal action against B, although B would have expressly said that he had to down A’s business.
Tort vs. Crime:
Some torts are offences as well. For example defamation if punished by PPC, then it is an offence as well.
Difference in Remedy:
Remedy for a tort is damages and it is unliquidated and the court has to liquidate it. If the tort is an offence as well, then there is punishment as well as damages for the aggrieved person.
Tort vs. Breach of Contract:
The following are the main differences between tort and breach of a contract.
1. In a contract both parties are duty bound
While
In a tort the whole world is duty bound.
2. In a contract mutual consent is necessary
While
In a tort there is no mutual consent.
3. In a breach of a contract, damages are liquidated
While
In tort damages are unliquidated.
4. Breach of a contract is violation of right in personum
While
Tort is the violation of right in rem.
Defamation:
Defamation is of two types;
- Libel
- Slander
Libel:
Libel is the defamatory statement in some permanent form as in writing or publications – making defamatory statement when a third person knows that.
Libel is actionable per se, i.e. actionable per committing.
Libel is a tort as well as an offence. It is initiated by a criminal proceeding and if the accused proved guilty, then a civil suit is filed against him.
Slander:
Slander is a defamatory statement against someone in transitory or temporary form as spoken words or caricature or gesture.
It is not actionable per se. Two things are needed for it to make it actionable, which are;
- Committing the wrong,
- Loss.
Innuendo:
Innuendo means doing something else and intending something else by it. For example, if A has lost his mobile and B is with him. Now A narrates the story of his lost mobile to a third person C and tells him that he has lost his mobile and adds that B is very honest person and he has stolen the mobile. Then it is innuendo and it is actionable.
Trespass:
Trespass is entering someone property or premises without his permission or against his will.
Trespass is also actionable per se.
Intention:
Intention means just entering someone premises against his will. For a trespass just intention is necessary.
Motive:
Motive is the ultimate intention. For example, entering someone premises against his will is the intention, but after entering doing some wrong is the motive.
Trespass to a Person:
When a legal right of a person is violated regarding his body as threatening him or injuring him or depriving him of a body organ or when his body part is weakened. All the above mentioned torts are actionable per se, i.e. actionable per committing.
Assault:
Assault is an attempt to do some hurts to someone.
Example:
If A moves towards B showing that A kicks B or gives him a slap and then he does not kick him or does not give him a slap, then, it is just to threaten B. this is assault. It is actionable, only and only if the following two conditions were found;
- Threats to hurt.
- Present ability to carry out the threat.
Exception:
There are also some exceptions from the damages as assault by parents to their children and by teacher to the students as teacher is regarded as Quasi Parental Authority.
Battery:
Battery is applying force hostilely against someone against his will, injuring him or not.
Example:
Touching someone body hostilely against his will, cutting someone hair hostilely against his will or snatching something from someone against his will are some examples of battery.
Mayhem:
When one of the parties is deprived of one of the limbs by applying force, then it is called mayhem.
He may be deprived by the use of a stick or gun or punch or axe or anything else.
The limbs or body part may be detached completely or weakened.
False Imprisonment:
Actually, in a public place, everyone has the liberty to go anywhere. In this situation, if one is locked off from all the directions, then it is a false imprisonment and it is actionable.
Negligence:
Negligence is doing the thing which an ordinary person does not do and not doing the thing which an ordinary person does.
Example:
Driving a vehicle above the speed limit is a board face example of negligence.
Strict Liability:
Strict means absolute and liability means responsibility. So it is the absolute responsibility of a person.
Example:
Land is used for a natural purpose which is dwelling and agriculture. Any use of the land other than this is called unnatural use. For unnatural use one may be held responsible. If one makes a water reservoir in his land, then it is possible that the reservoir may leak out and harms someone’s building or agricultural land. Then the owner of the water reservoir is held responsible for that.
Malice:
Malice is having ill will against someone.
Malice is of two types;
- Malice in Fact
- Malice in Law
Malice in Fact:
It is also called express malice. For example, if someone enters one’s premises against his will and beats him or kills him or does any wrong to him, this is malice in fact. Note that express malice is not actionable unless coupled with an injuria.
Malice in Law:
It is also called implied malice. For example, if A beats his wife in his house and B is his neighbour. Now B enters A’s house without A’s permission to save his wife from him. Then it is a trespass and is actionable as law resumes that every unlawful act is committed maliciously. So it is assumed that a lawful intention cannot justify an unlawful act and a bad intention cannot make a lawful act as unlawful.
