law of tort 05 09-16

Law of Tort September 5, 2016

Mohammad Rubaiyat RahmanLecturer

BSMRSTUGopalganj 8100

Private WrongMens Rea Not

NecessarySuit for DamageNot CodifiedThe case is usually

started by state

Public WrongMens rea requiredThe suit is for

punishmentCodifiedCase is usually

started by the individual affected

Distinction between Tort & Contract

Tort Crime

A tort is a wrong committed against a particular person or property

The defendant faces civil action

Standard of proof- ‘balance of probabilities’.

A crime is a wrong committed against the public good

The defendant faces criminal charges

Standard of proof-‘beyond reasonable

doubt’.

Damage & Injury

Injury :

Something done contrary to law or right.

Injury is synonymous to wrong. Legal wrong is violation is law.It is harm or damage that is called damnum.

Damage:Damage is the loss or

harm suffered by a person in circumstances recognized as legally actionable.

It may be caused by breach of any kind of legal action.

Injuria sine damnum Injuria refers to a wrongful act for which the law provides a remedy.

It is a Tort.

Damnum sine injuria is an exception to the maxim injuria sine damnum. [] Where there is neither injury nor damage no action would lie.

Injuria sine damnum= it is a wrongful act

unaccompanied by any damage yet actionable at law.

=This maxim is an extension of the maxim ubi jus ibi remedium.

= it is an exception to injuria sine damnum

Distinction between Tort & Contract

Tort Contract

It is a violation of rights in rem

Duties are fixed by law

Question of privity is out of place here

Intention is sometimes taken into consideration

It is a violation of a right in personam

Duties arise due to voluntary agreement

Question privity is closely connected

In ‘breach of contract’ is of no relevance.

Distinction between Tort & Contract

Tort Contract

Tort is connected with losses.

Contract law is concerned with promises.

Asby v. White Case Brief(1703) 92 ER 126

Fact: Plaintiff was precluded from being able to exercise his right to voteIssue:whether one party may recover damages when one of

his civil rights (right to vote) is hindered by the action of another.

Decision: Plaintiff ought to be allowed to recover, because the

right to vote is a common law right and thus, an obstruction of that right should give rise to a cause of action.

Fact: Defendant lowered prices and offered incentive in an attempt to

drive Plaintiff from the market. Plaintiff sued Defendant for unfair competition.

Issue:  Is there a cause of action for unfair competition when that

competition complained of consists of a price confederation that wants to control shipping of goods by lowering prices?

Held: No. “Competition, however severe and egotistical, if unattended by

circumstances of dishonesty, intimidation, molestation, or such illegalities gives rise to no cause of action at common law.”