Difference between Tort & Contract PDF

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The points of distinctions between tort and contract as both are kinds of civil is also a frequently asked question...

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“Punjab University Law College” “Difference between Tort & Contract” 1. Definitions:  Tort: In the words of Salmond tort can be defines as: “A civil wrong, independent of contract, for which the remedy is an action for damages” In the view of Ratanlal it can also be defined as: “It is an act or omission which prejudicially affects a person in some legal private right” There is an exception in which we must note that infliction of all civil injury is not ‘tort’. A civil injury in which an action will not lie is not a tort. Tort can also be defined as: “Tortious liability arising breach of duty primarily fixed by law towards the people generally and for which remedy is an action for un-liquidated damages.”

 Contract: In the words of Merriam Webster Dictionary it can be defined as: “A legal agreement between people, companies, etc.” Contract can also be defined as: “An agreement made between two or more persons which is intended to be enforceable law and is constituted by acceptance of one party of an offer made to him by the other party to do or to abstain from doing some act” (Halsbury’s Law of England Vol. II) According to Black law’s dictionary: “An agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter of a legal consideration mutuality of agreement and mutuality of obligation.” According to Sir William Anson: “A contract is an agreement; an agreement is a promise and a promise is an accepted proposal. Thus every agreement, in its ultimate analysis, is the result of a proposal from one side and its acceptance by the other”

2. Nature of the Right Infringed:  Tort: A tort is a violation of right in rem i.e. a right exercisable against the whole world

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“Punjab University Law College”  Contract: A breach of contract is an infringement of right in personam i.e. a right exercisable against a definite person or persons

3. Duty:  Tort: In the case of a tort the duty is one imposed by law and is owed to the society in general

 Contract: Whereas in the case of a contract the duty is fixed by the will and consent of the parties and it is owed to a definite person or persons.

4. Consent:  Tort: In a tort the obligation arises independently of any consent i.e. a tort is inflicted against consent or without it.

 Contract: In a contract the obligation is founded on the consent of the parties. 5. Privity:  In a contract there must always exist Privity between the parties i.e. a binding legal tie between them; no such Privity can exist in tort which is always inflicted against the will and without the consent of the party injured.

6. Damages:  Tort and crime distinguish on the following three points of damages.  Measures of Damages: In a tort the measure of damages is not limited or fixed with precision. In a breach of contract the measure for damages is determined by the stipulation between the parties.  Remoteness of Damages: In tort a man is many a time held liable for damages arising from special circumstances of which he had no knowledge. If there are special circumstances under which a contract was made and they were wholly unknown to the party breaking the contract, he is not liable for damages due solely to those circumstances.  Exemplary Damages: In breach of contract exemplary damages are not awarded. In tort, exemplary damages can be given.

7. Motive:  In a case of a breach of a contract motive of the defendant is immaterial, while in the case of a tort it is often taken into consideration though not always.

Conclusion: Though, breach of contract and tort are too much different from each other but both are legal terms under civil law and consider to be a civil wrong. So law provides remedies for both civil wrongs and can be helpful in providing peace in the whole society.

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