TORT 003 Tort Distinguished from Crime Contract Trust Quasi Contract and Constitutional Wrong — Law of Torts Notes for Judiciary

A Tort Distinguished from a Crime, a Breach of Contract, a Breach of Trust, a Quasi Contract, a Breach of Statutory Duty and a Constitutional Wrong

Every one of these is a wrong, and the same facts will often give rise to several of them at once. What separates them is not the seriousness of the conduct but two other things: who fixed the duty the defendant broke, and what remedy the law gives for breaking it. The duty in contract is fixed by the parties; in trust by the settlor and by equity; in a statutory tort by the legislature; in a constitutional wrong by the Constitution; and in a tort by the general law. The remedy in tort is always an action for unliquidated damages, and that single feature marks it off from a debt, from a trust account, and from a claim in restitution.

The six rival categories, and the test that sorts a set of facts between them

1. Tort and Crime

	Tort	Crime
Whom the wrong is against	A private individual	The State, as a wrong against the community
Who brings the proceeding	The injured person, in a civil suit	The State, by prosecution
The object	Compensation for the plaintiff	Punishment of the offender
The standard of proof	The preponderance of probabilities	Beyond reasonable doubt
The remedy	Unliquidated damages, injunction, specific restitution	Imprisonment, fine, forfeiture
Settlement by the parties	The claim may be compromised or waived at will	Only where the offence is compoundable under Section 359 of the Bharatiya Nagarik Suraksha Sanhita, 2023
The court	The civil court	The criminal court
Intention	Required for some torts, irrelevant to others	Ordinarily an essential ingredient, mens rea

The two overlap constantly. Assault, battery, false imprisonment, defamation, trespass, theft and mischief are each both a tort and an offence, and the two proceedings run independently of each other.
An acquittal is no bar to the civil suit, because the standards of proof differ, and a conviction is not conclusive proof in the civil suit either.
The historical division was late. In early law the same proceeding served both functions, and the action in tort is in part the descendant of the private revenge that the appeal of felony replaced.
Compensation has crossed over into criminal law. Section 395 of the Bharatiya Nagarik Suraksha Sanhita, 2023 permits a criminal court to order compensation to the victim out of the fine or otherwise, which blurs a line that was once clear.

2. Tort and Breach of Contract

	Tort	Breach of contract
Who fixes the duty	The law	The parties, by agreement
To whom the duty is owed	Persons generally	A determinate person, the other contracting party
Consent	Not required; the defendant is bound whether he agreed or not	Essential; without agreement there is no duty
Privity	No such requirement	Confines the action to the parties, subject to the recognised exceptions
Damages	Always unliquidated	May be liquidated by the contract, under Section 74 of the Indian Contract Act, 1872
The measure	To restore the plaintiff to his position before the tort	To put the plaintiff in the position he would have occupied had the contract been performed
Remoteness	Reasonable foreseeability, since the Wagon Mound	The two rules in Hadley v. Baxendale, reflected in Section 73 of the Contract Act
Exemplary damages	Available in the recognised categories	Not ordinarily available
Limitation	Ordinarily one to three years, by the tort	Three years, Articles 55 and 113 of the Limitation Act, 1963

The same facts may give rise to both, and the plaintiff may ordinarily sue in either or both. A surgeon who operates carelessly is liable in negligence and for breach of the implied term to exercise reasonable skill.
Donoghue v. Stevenson is the leading illustration of the difference. The consumer had no contract with the manufacturer, and before that decision the absence of privity defeated her. The tort duty owed to persons generally supplied what contract could not.
The measure of damages differs even where both lie, because contract protects the expectation created by the promise and tort restores the position that existed before the wrong.
A contract may exclude or limit liability in tort between the contracting parties, subject to the ordinary rules on exclusion clauses, which is often why the choice between the two matters.

3. Tort and Breach of Trust

A trust is an equitable obligation, historically enforced in the Court of Chancery and not at common law. The trustee holds property for the beneficiary and must account for it.
The claim is for a liquidated sum. The beneficiary claims the trust property itself, or an account of what has become of it. The court does not assess damages at large.
The remedy follows the property. A beneficiary may trace the trust property into the hands of a volunteer or of a person with notice, which no tort remedy allows.
Section 2(m) of the Limitation Act, 1963 excludes it expressly, defining a tort as a civil wrong which is not exclusively the breach of a contract or the breach of a trust.
The Indian Trusts Act, 1882 governs the subject, and Chapter III sets out the duties and liabilities of trustees.
Salmond's definition adds the words "or of other merely equitable obligation", which takes in the fiduciary obligations that are not strictly trusts.

4. Tort and Quasi Contract

	Tort	Quasi contract
The source of the obligation	A wrong: the breach of a duty fixed by law	Unjust enrichment: a benefit received which it would be unjust to retain
The provision	The general law	Sections 68 to 72 of the Indian Contract Act, 1872
What the plaintiff recovers	His own loss	The defendant's gain
The sum	Unliquidated	Liquidated: the value of the benefit received
Is a wrong necessary	Yes, by definition	No. The defendant may have done nothing wrong at all
Typical case	A careless driver injures a pedestrian	Money paid by mistake, Section 72; necessaries supplied to a person incapable of contracting, Section 68

The classification is disputed. Quasi contract is neither contract nor tort, and the Indian Contract Act heads the chapter "Of certain relations resembling those created by contract", which is a careful avoidance of the question.
Waiver of tort is where the two meet. A plaintiff whose goods have been wrongfully taken and sold may sometimes waive the tort and sue instead for the proceeds as money had and received, which is a restitutionary claim.
He recovers a different sum on each footing, his loss on the first and the defendant's receipts on the second, which is why the choice is a real one.

5. Tort and Breach of Statutory Duty

The duty is created by a statute, not by the common law, so the first question is always one of construction: did the legislature intend that a person injured by the breach should have a civil action?
Where the statute provides its own remedy, whether a penalty or a specific procedure, that is a strong indication that no separate civil action was intended, though it is not conclusive.
The plaintiff must be within the class the statute was passed to protect, and the injury must be of the kind the statute was passed to prevent.
He must still prove breach and causation, but not negligence, because the standard is set by the statute and not by the reasonable man.
It is usually treated as a tort in its own right, distinct from negligence, with its own defences and its own measure of duty.
Indian examples include the duties under the Factories Act, 1948, the Mines Act, 1952, and the Environment (Protection) Act, 1986.

6. Tort and Constitutional Wrong

📖 Rudul Sah v. State of Bihar, (1983) 4 SCC 141

Facts The petitioner was acquitted in 1968 but was kept in jail for a further fourteen years. He petitioned under Article 32 for release and for compensation.

Held The Court ordered his release and directed the State to pay compensation. It held that its power under Article 32 extended to awarding monetary compensation where that was the only practicable mode of redress.

Ratio Article 32 is not confined to a declaration or an order of release. Where a fundamental right has been violated, the Court may award compensation in the writ proceeding itself, and the right to claim damages in an ordinary civil suit is not thereby displaced.

📖 Nilabati Behera v. State of Orissa, (1993) 2 SCC 746

Facts The petitioner's son died in police custody. The police said he had escaped and been struck by a train; the mother alleged that he had been beaten to death in custody.

Held It was a custodial death caused by the injuries inflicted by the police. The State was directed to pay Rs. 1,50,000 as compensation.

Ratio Compensation awarded in a petition under Article 32 or Article 226 is a remedy in public law, distinct from the private law remedy in tort, and it rests on the strict liability of the State for the violation of a fundamental right. The defence of sovereign immunity, whatever its place in the private law of tort, has no application to a claim for the violation of a fundamental right.

	Tort	Constitutional wrong
The right violated	A right at common law	A fundamental right under Part III
The forum	The civil court, by suit	The Supreme Court under Article 32, or a High Court under Article 226
Against whom	Any person	The State and its instrumentalities
Sovereign immunity	Historically a defence, and still argued in its narrowed form	No defence at all: Nilabati Behera
The basis of liability	Ordinarily fault	Strict liability for the violation of the right
Court fee and delay	Ad valorem court fee, and the ordinary pace of a civil suit	A summary remedy, which is much of its practical value
The relation between them	The ordinary remedy remains available	The public law remedy is in addition to, and not instead of, the private law remedy

7. Law of Tort or Law of Torts

This is a different question from the ones above, and it is treated fully in the next note. It asks not how a tort differs from other wrongs, but whether the subject is a single principle or a list of separate wrongs.
Winfield's view is that there is a law of tort: all harm is tortious unless there is some justification recognised by law.
Salmond's view is that there is a law of torts: liability arises only where the wrong falls within one of the recognised heads, his pigeon hole theory.
The two are usually reconciled as descriptions of the same law from different standpoints, one looking at how the subject grows and the other at how a case is pleaded today.

8. The Test to Apply

⚠ Ask who fixed the duty, and what remedy follows

Faced with a set of facts, the sorting question is not what the conduct is called but who fixed the duty the defendant broke. If the parties fixed it, it is contract. If the settlor and equity fixed it, it is trust. If a statute fixed it, it is breach of statutory duty, and whether a civil action lies depends on the construction of that statute. If the Constitution fixed it and the defendant is the State, it is a constitutional wrong. If the general law fixed it, it is a tort. And if the defendant broke no duty at all but has received a benefit he ought not to keep, it is quasi contract. Then ask what remedy follows: a tort claim is always for unliquidated damages, and a claim for a sum already ascertained is not a claim in tort, whatever else it may be.

9. The Position Stated Shortly

1. A tort is a civil wrong; a crime is a wrong against the State, prosecuted by the State and punished rather than compensated.

2. The same act may be both, the proceedings are independent, and an acquittal is no bar to the civil suit.

3. In contract the duty is fixed by the parties and owed to a determinate person; in tort it is fixed by law and owed to persons generally.

4. Contract damages may be liquidated and are measured by the expectation; tort damages are always unliquidated and restore the position before the wrong.

5. A breach of trust is an equitable obligation, the claim is for a liquidated sum, and Section 2(m) of the Limitation Act, 1963 excludes it from the definition of a tort.

6. A quasi contract rests on unjust enrichment rather than on a wrong; the plaintiff recovers the defendant's gain and not his own loss, under Sections 68 to 72 of the Contract Act.

7. A breach of statutory duty is actionable only if the statute, on its construction, was intended to give a civil remedy to the class the plaintiff belongs to.

8. A constitutional wrong is the violation of a fundamental right by the State, remedied in public law under Article 32 or Article 226.

9. Sovereign immunity is no defence to a constitutional wrong, and the public law remedy is in addition to the ordinary remedy in tort: Rudul Sah; Nilabati Behera.

10. The sorting test is to ask who fixed the duty that was broken, and then whether the remedy sought is unliquidated damages.