What is a Tort Law?
The word ‘Tort Law’ is derived from the Latin Ortus, meaning ‘Twisted’. It came to mean ‘Wrong’, and it’s still so used in French: ‘J’ai tort Law’; ‘I ‘m wrong.’ In English, the word ‘Law of Tort’ has a purely technical legal meaning – a legal wrong that the law provides a remedy.
Academics have attempted to define Tort law cases, but a glance at all the leading textbooks on the subject will quickly reveal that it’s extremely difficult to arrive at a satisfactory, all-embracing definition. Each writer has a different formulation, and everyone states that the definition is unsatisfactory.
To use Professor Winfield’s definition as a starting point, we are able to explore the difficulties involved:
Tortious liability arises from the breach of an obligation primarily fastened by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.
In order to understand this definition, it’s necessary to distinguish Tort Law from other branches of the law, and in so doing to discover how the aims of tort Cases differ from the aims of other areas of law such as contract law or criminal law. The main emphasis here will be on the distinction between tort law and contract, as these two subjects are closely related. Criminal law will be dealt with.
Tort Law and contract Law
The scope and objectives of tort law as compared with a contract are often discussed in the context of duties fixed by law and the people to whom the duties are owed.
Duties fixed by law
Many liabilities in tort arise by virtue of the law alone and aren’t fixed by the parties. The law, for example, imposes a duty in tort law not to libel people and not to trespass on their land. The details of these duties are fixed by the law itself, and not by the parties. By contrast, the tort law of contract is based notionally on agreements, the terms of which are fixed by the parties.
However, in modern law, it’s unrealistic to suppose that contract and tort are so very different from each other. Terms of contracts are now imposed upon the parties by numerous statutes, quite severally of any ‘agreement’, and indeed, the notion of true agreement has long been discredited in many contractual situations, since few individual consumers have real bargaining power. Moreover, it’s possible for the parties in wrongful to arrive at an agreement to vary the tortious duties which the law imposes. The Contracts (Rights of Third Parties) Act 1999 will allow third parties to enforce contractual terms directly under inbound circumstances.
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Tort Examples and criminal law
The same fact situation, For example, a road accident, may give rise both to criminal prosecutions and to wrongful conduct actions. Tort, as part of civil law, thinks to actions by private individuals against other individuals or legal persons. Criminal law is concerned with prosecutions brought on behalf of the state for breaches of duties imposed upon people for the protection of society. Criminal prosecutions are dealt with by criminal courts, and the standard of proof is a lot tight than in civil cases. the results of a finding of criminal guilt are regarded as more serious for the individual concerned than are the consequences of civil liability.
Both areas of law are concerned with the breach of duties imposed by law, but criminal law has different priorities. It’s concerned with the protection of society by deterring wrongful behavior. It’s also concerned with the punishment of criminals. These concerns may also be found in tort, but are secondary to the main objective of compensation. A motorist who is speeding is far more likely to be worried about being caught by the police than being sued by a person whom he happens to injure if he is negligent. Nevertheless, tort does have some deterrent value.
For example, motorists who have been negligent have to pay higher insurance premiums.
To complicate matters, criminal law does make provision for compensating victims in some cases, by compensation orders or through the Criminal Injuries Compensation Board, but this isn’t the main objective of criminal law.
Similarities and differences may be found between tort Law and criminal law, and, at the very least, Winfield’s definition should’ve made clear that tort is a branch of civil law to be distinguished from criminal law.
There’re some instances in which people have brought civil claims in an effort to encourage prosecutions in criminal law.
For example, the family of a woman who was killed by her former boyfriend succeeded in having him branded as a killer in a successful civil claim for assault and battery heard in the Court in 1998 (Francisco v Diedrich). The Crown Prosecution Service had decided not to prosecute.