DIFFERENCE BETWEEN TORT AND BREACH OF CONTRACT
DIFFERENCE BETWEEN TORT AND BREACH OF CONTRACT
Author : Arthi M
WHAT IS A CONTRACT?
A contract is an agreement between two or more persons, which obligates on those parties to perform specific acts.
One of the most essential factor to force a contract party must have something of value called as consideration something of money in value.
All parties must know the terms of a contract there must be a mutual agreement between the parties.
Essentials of a valid contract
-the contract made must be for the legal purpose not be illegal
Example;
Contracting to commit a crime of murder is not a valid one
-there must be an agreement between two or more persons
-the offer must be a valid one
-the offer must have been legally accepted
-there must be an exchange of something in return in the form of consideration
-the contract must be in written
-the parties be legally competent
-minors and mentally impaired cannot make a valid contract
-the parties must be a sound mind
-no fraud must have been done
Example in contract
> an offer I will pay you rs 1,000 for 10000 cakes
And acceptance of that offer for 10000 cakes of 10000 rupees
TYPES OF CONTRACT
-Unilateral contract
-Bilateral contract
-Express contract
-Implied contract
Unilateral contract
Is is a type of contract where a single party is involved and where he promises to to give something in value of contract.
This is also called as one sided contract
Bilateral contract
Bilateral contract involves both parties who make a promise of agreeing to exchange or something in value.
This is also known as two sided contract
TYPES OF CONTRACT BASED ON VALIDITY
-Valid contract
-Void contract
-Voidable contract
VALID CONTRACT is an lawful contract which satisfies all the essentials of a valid contract.
VOID CONTRACT is a contract which ceases to be enforceable by law becomes void when it ceases to be enforceable
Example
A agrees to pay B a sum of Rs.5,000 after 5years against a loan of Rs.10000.
Since a dies of a natural causes in 5 years. The contract is no longer valid and becomes void due to the non- enforceability of the agreed terms.
VOIDABLE CONTRACT has been defined under section 2(i)of the Act
Which reads in the following;
‘An agreement which is enforceable by law at the option of the one or more parties thereto, but not at the option of the other or others, is a voidable contract”
ILLEGAL CONTRACT
A contract which opposes to the public policy is a illegal one.
Example
If A agrees to sell narcotics to B
OR
If A agrees to murder B
WHAT IS A TORT?
The word “Tort” id derived from a latin term ‘tortum’ which means ‘twisted’ (not straight or lawful)
This term was introduced in English law by Norman jurists.
This term was since used for certain special wrongs by English courts and later it was starting using in all the civil wrongs.
DEFINITION OF TORT
– TORT means a civil wrong .It is a breach of duty.
According to Salmond definition of TORT;
“A Tort is a civil wrong for which the remedy is a common law action for un liquidated damages and which is not exclusively the breach of a contractor the breach of a trust or other merely equitable obligation”
CHARACTERISTICS OF TORT
– Civil wrong
A tort is a civil wrong not a breach of contract or breach of crime one.
– Infringement of a right in rem
Tort is an infringement of a right in rem it is not a right in personam.
A right in rem is available against the whole world.
– Right fixed by the law
Rights in tort should be only based on the law fixed and it should not be on the basis of parties in tort.
– Remedy
Tort always provides an remedy in the form of compensation or damages also it will given in the form of injunction, restitution of land, ejectment of trespass etc..,
DIFFERENCES
1. A Tort is a civil wrong in which remedy is action for damages.
Whereas breach of contract is a breaching or breaking of a promise which he has do in the agreement of an contract.
2. Tort is a violation of legal right.
Breach of contract is an infringement of a legal right.
3. Damages in tort are always unliquidated.
Whereas in breach of contract the damages is liquidated.
4. In breach of contract the motive will be irrelevant and immaterial.
In tort motive may be taken into consideration.
5. In tort duty Is bound towards the persons
Where as in breach of contract the duty id bound towards a specific person or persons.
6. In breach of contract, nature of damages is compensatory
In tort the damages may be compensatory or even exemplary damages may also be awarded.
Overlapping
There is a lot of overlap between the tort and the breach of contract.
In case of Jennings v Rundal
A minor took a hire to ride for a short journey.it was in the name of a contract of bailment. The minor took a long way of journey and due to some kind of accident she met with an accident. The owner sued the minor stating that it was a tort. And since we know that minor is incompetent party to enter into a contract since she is not an eligible one where she has no capacity to understand the terms of the contract. And she cannot be made legally binding under a contract. And when owner of mare tried to claim damages treating it as law of tort.
And since the court held that that owner cannot convert a breach of a contract by minor into a act of torts and claim damages here and he cannot be sued.
Conclusion
Even in India the high court of Bombay held in Dr. Sharavait v Pentro, that when a patient coming to a doctor it cannot be deemed that patient made a contract with doctor. Since the doctor provides a medical service which he is bond to do his capacity of the job and while in the if the doctor neglects to provide then he would be held responsible for the tort which he has committed. In absence of such contract between the tort and contract the doctor cannot be held responsible.
Though the difference between the tort and the breach of contract is confusing even in the England and was made several discussions by the various jurists in the law courts.
