“DISCHARGE OF TORTS – EXISTENCE OF LIABILTY WITHOUT
FINAL DRAFT SUBMITTED IN THE PARTIAL FULFILLMENT OF THE COURSE
THE LAW OF TORTS
SUBMITTED TO- SUBMITTED BY-
Mrs.SUSHMITA SINGH NAME: SANKET SHIVANSH
TEACHER ASSOCIATE COURSE: B.B.A.L.L.B (Hons.)
ROLL NO- 2036
CHANAKYA NATIONAL LAW UNIVERSITY
NYAYA NAGAR, MITHAPUR, PATNA-800001
I, hereby, declare that the work reported in the BBA.LL.B (Hons.) Project Report entitled “DISCHARGE OF TORTS” submitted at Chanakya National Law University is an authentic record of my work carried out under supervision of Mrs.SUSHMITA SINGH I have not submitted this work elsewhere for any other degree or diploma. I am fully responsible for the contents of my project report.
SIGNATURE OF CANDIDATE
NAME OF CANDIDATE: SANKET SHIVANSH
CHANAKYA NATIONAL LAW UNIVERSITY
I would like to thank my faculty Mrs.SUSHMITA SINGH whose guidance helped me a lot with structuring my project.
I owe the present accomplishment of my project to my friends, who helped me immensely with materials throughout the project and without whom I couldn’t have completed it in the present way.
I would like to extend my gratitude to my parents and all those unseen hands that helped me out at every stage of my project.
NAME: SANKET SHIVANSH
ROLL NO: 2036
TOC o “1-3” h z u 1. INTRODUCTION PAGEREF _Toc525581111 h 52. MODES OF DISCHARGE PAGEREF _Toc525581112 h 7DEATH OF PARTIES PAGEREF _Toc525581113 h 7ACCORD AND SATISFACTION PAGEREF _Toc525581114 h 11RELEASE PAGEREF _Toc525581115 h 12JUDGEMENT PAGEREF _Toc525581116 h 13WAIVER BY ELECTION PAGEREF _Toc525581117 h 13ACQUIESCENCE PAGEREF _Toc525581118 h 14STATUTE OF LIMITATION PAGEREF _Toc525581119 h 143. ANALYSIS PAGEREF _Toc525581120 h 164. CONCLUSION PAGEREF _Toc525581121 h 185. BIBLIOGRAPHY PAGEREF _Toc525581122 h 19
1. INTRODUCTIONThe word Tort was derived from the Latin term Tortum.
Clark and Lindsell: “Tort is a wrong independent of contract for which the appropriate remedy is a common law action.”
Fraser: A tort is an infringement of a legal right in rem of a private individual, giving a right of compensation of the suit of the injured party.
Section 2(m) of Limitation Act, 1963: “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.”
Sir John Salmond: “Tort as a civil wrong for which the remedy is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation.”
Prof. P H Winfield: Tortious Liability arises from breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages.
The legal maxim “Ubi Jus Ibi Remedium” is applicable in law of torts. However there are certain circumstances where there is a liability but there is not remedy such cases fall under the purview of “DISCHARGE OF TORTS”.
Discharge of Torts can be defined as existence of such a situation where there exists a liability
but the remedy does not exist. The meaning of discharge of tort is “coming to an end of tort”. It
is a process by which tort cease to exist and a wrongdoer is not liable for wrong committed by him.
AIMS AND OBJECTIVES:
The researcher aims to fulfill below objectives through this project:
The main aim of this project is to study about discharge of torts.
To study the various ways by which the existing liability of a tortfeasor is ceased.
The Hypothesis for this project is ‘Discharge of torts in certain cases proves to be unjust for the
The researcher will be relying on Doctrinal method of research to complete the project.
What is a tort?
What is discharge of torts?
Different ways by which tort is discharged?
How the legal maxim ‘actio personalis moritur cum persona’ is applicable?
How the maxim “nemo debet bis vexari pro in et edem causa” is applicable?
2. MODES OF DISCHARGEIn discharge of tort, the circumstances are such the liability exists but remedy does not exist. The meaning of discharge of tort is coming to an end of tort. It is a process by which tort cease to exist and a wrongdoer is not liable for wrong committed by him.
There are some reasons grounds for discharge of tort which are as follows:
DEATH OF PARTIES
ACCORD AND SATISFACTION
WAIVER BY ELECTION
STATUTE OF LIMITATION
DEATH OF PARTIESThe common law maxim ‘actio personalis moritur cum persona ‘ which means personal right of action dies with person. There can be two situations in case of death of parties:
1) Death of wronged person against whom the tort is committed.
2) Death of wrongdoer who has committed tort.
In case death of wronged person, the legal heir can claim damages from the defendant for proprietary wrong. E.g. tort against property, in case of nuisance, trespass, negligence, fraud, waste etc. But for the personal tort defendant cannot be sued. Even in case of death of wrongdoer the legal heir of deceased are not liable for personal tort of wrongdoer.
Personal torts are those in which are affecting mind and body of the person. E.g. assault, battery, false imprisonment, defamation etc.
POSITION AT COMMON LAW
According to English Common Law, a personal cause of action against a person came to an end when he died.
The rule was contained in the maxim “Actio Personalis Moritur cum Persona”, which means that a personal cause of action dies with the person.
In common law, where there has been enrichment of the tortfeasor’s estate by the deceased man’s wrongdoing, action can be continued against the estate of the wrongdoer. Thus in Sherrington case the executor of the deceased tortfeasor were held chargeable for one hundred oaks and twenty oxens which the tortfeasor has wrongfully taken away from the claimant’s land.
In India , principle of actio personalis moritur cum persona was applied in Official Liquidator, Supreme Bank v. P.A. Tendolkar. Misfeasance proceedings were taken under the Companies Act against the directors (including P.A.Tendolkar) of a bank. The company judge held that the proceedings could not continue against the legal representatives of the deceased directors as the misfeasance proceedings were of a special nature involving an inquiry into the alleged wrongful conduct of the directors personally. In the case of surviving director, P.A. Tendolkar
In this case, of the surviving director, P.A. Tendolkar, the liability was fixed. Thereafter, pending the grant of his application for certification of fitness for an appeal to the Supreme Court, Tendolkar died. While considering the general question of liability on heirs the legal representatives of the delinquent directors, the Supreme Court considered the effect of actio personalis moritur cum persona, referred to above and observed “Whatever view one may take of justice of the principle it was clear that it would not be applicable to action based on contract or where a tortfeasor’s estate has been benefitted from a wrong done. Its application was generally confined to actions for seduction defamation adultery assault battery etc.
In Balbir Singh Makolv. Sir Ganga Ram Hospital, A complaint was filed against a surgeon, whose blunder resulted in the death of the complainant’s son. While the complaint was still pending, the surgeon concerned died. The National Commission applied the rule “Actio Personalis Moritur Cum Persona” and held that by the death of surgeon, the right of action had come to an end and the surgeon’s legal heirs cannot be held liable in the case.
In E.I. Ltd.v. Klaus Mittelbachert, A co-pilot in airlines stayed in Hotel Oberoi Continental, a 5-Star hotel having the facility of swimming pool. While diving his head hit on the bottom of the swimming pool, which resulted in serious head injuries to the plaintiff. In the single judge decision the plaintiff was allowed Rs. 50 Lakhs as Compensation. The above decision was appealed before the Division Bench. While the appeal was pending, the plaintiff died. It was held that the plaintiff’s suit abated on his death, and therefore, his legal representatives had no right to pursue the case and could not seek substitution in this case. The earlier Single Judge decision granting compensation was reversed.
The following exceptions have been recognized to the above rule:
A. Action under contract
The rule that a cause of action came to an end with the death of either of the parties did not apply to an action under the law of contract. Contractual obligations could be enforced by or against the legal representatives of the parties to the contract. In case of contracts of personal service, such as the painting of a picture, however, the legal representatives could not be bound.
Sections 37 and 40 of the Indian Contract Act also make a similar provision.
S. 37.Obligation of parties to contract: –
The parties to a contract must either perform or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law.
Promise binds the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract.
S. 40.Person by whom promise is to be performed: –
If it appears from the nature of the case that it was the intention of the parties to the contract that any promise contained in it should be performed by the promisor himself, such promise must be performed by the promisor. In other case, the promisor or his representatives may employ a competent person to perform it.
B. Unjust Enrichment of tortfeasor’s estate
If someone, before his death, wrongfully appropriated the property of another person, the law did not allow the benefit of that wrongfully appropriated property to pass on to the legal representatives of the deceased. The person entitled to that property was entitled to bring an action against the legal representatives of the deceased and to recover such property or its value.
The idea behind the rule was that only what actually belonged to the deceased should constitute his estate and his estate should not be unjustly enriched by what does not belong to him.
The Law Reform (Miscellaneous Provisions) Act, 1934 and the position of the maxim
The Common Law rule has been abrogated by the passing of the Law Reform (Miscellaneous Provisions) Act, 1934.
Section 1(1) of the Act provides that:
“On the death of any person…all causes of action subsisting against or vested in him shall survive-against or, as the case may be, for the benefit of his estate.”
The Act recognises an exceptionin respect of cause of action for defamation in which case the cause of action comes to an end, on the death of either of the parties.
Thus, after the passing of the Law Reform Act, 1934, the general rule is that if a cause of action comes into existence in the lifetime of the parties, the death of either the plaintiff or defendant does not affect the cause of action.
In Rose v. Ford, a girl of 23 years was severely injured by an accident, caused by the negligence of the defendant. Two days after the accident, her leg was imputed and four days after the accident, she died. The father of the girl was entitled to claim compensation for the benefit of her estate on account of pain and suffering loss of leg and diminution in the expectation of her life.
ACCORD AND SATISFACTIONAccord means an agreement whereby a person agrees to accept some valuable consideration in lieu of right of action that he has against the other. Satisfaction means actual payment of amount of consideration so agreed to when there is an agreement and it is satisfied by its executors, the agreement is termed as accord and satisfaction and it discharged the tort.
The consideration may be treated in money or a compensation which is accepted by a wronged person or his legal heirs and thereby settled the dispute does not proceed in court of law.
When the agreement is executed and satisfaction has been made the agreement is called accord and satisfaction and operates as a bar to the right of action. An accord and satisfaction in favor of one joint tort-feasor operates in favor of all when the injury is one and indivisible. Where damages are to be recovered, accord and satisfaction is good plea action for libel and personal injuries.
ACCORD AND SATISFACTION MAYBE CONDITIONAL
A man may accept a sum in satisfaction of his rights in respect to the injuries then known, on understanding that if the injury should turn out to be worse than it then appears he is to have rights for further damages, or he may accept a sum in satisfaction only one of his claims.
RELEASEA release is the giving up or discharging the right of action which a man has or may have against another man. The wronged or aggrieved person giving up the entire claim or discharged right which he has against the wrongdoer. This release should be voluntarily and not by threat, compulsion or force. In England the release is with consideration and writing but it is valid even without consideration and in writing. The injured, wronged person does not proceed in court of law against wrongdoer.
According to Section 63, the Indian Contract Act, consideration is not necessary for release, and therefore, it would be open to an injured party to release the wrong-doer without any consideration.
But a release executed under mistake (Hore v. Becher,), or in ignorance of one’s rights (Phelps v. Amcott), or obtained by fraud (Hirschfield v. S.C. Ry. Co.) is not binding.
JUDGEMENT Judgment by the court of law. If the matter is decided conclusively and finally by the competent court then for the same cause of action, between the same parties the matter cannot be reagitated again and further or fresh suit is debarred.
This principal is based on maxim Res –Judicata
Under section 11 of Civil Procedure Code, 1908, means thing once decided cannot be reagitated, more than one action does not lie on the same cause of action. The doctrine of Res-Judicata rests upon the principle that one should not be vexed twice for the same cause and there should be finality of litigation. The object of the principle is to prevent endless litigation. It also prevents a new investigation so that the same person cannot be harassed again and again in various proceedings upon the same cause of action.
It is based on the maxim ‘nemo debet bis vexari pro in et edem causa means no man should be vexed twice over the same cause of action.
In the case of Buckland v Johnson X converted the te plaintiff’s goods by selling the for £ 150, the whole of which was paid to the defendant .The plaintiff sued X for conversion and for money had and received and obtained judgment against him for £ 100. X was unable to satisfy the judgment. So the plaintiff then sued the defendant for money had and received, but it was held that judgment in the earlier action barred the second claim.
WAIVER BY ELECTIONWhere man has more than one remedy for tort and he elect pursue one of them, giving up the others, the other remedies are waived. He cannot pursue them if he fails in the one elected. Waiver is express or implied express when the person entitled to anything expressly and in terms give it up in which case it nearly resembles release; implied, when the person entitled to anything does or acquiesces in something else which is inconsistent with that to which he is so entitled.
In short waiver means to give up; the aggrieved or wronged person gave up his right of action against the wrongdoer. For some reason and do not proceed in court of law.
In the case of Verchures Creameries V Hull And Netherland S.S. Co., the plaintiff’s goods were improperly delivered by the defendant to Beilin, the plaintiff sued Beilin for the price instead of bringing an action for conversion against him, it was held that they could not subsequently sue the defendant for breach of duty inasmuch they had elected to waive the tort.
ACQUIESCENCE This shows an inactivity of person. The aggrieved person does not proceed in court of law because of his own incapacity. i.e. .if he has no money to pay court stamp fee or an Advocates fee, or he doesn’t have time to go in the court of law and file the suit for compensation. Where a person who knows that he is entitled to enforce the right, neglects to do so for a length of time the other party may fairly infer that he has waived of abandoned his right. But to deprive man of his legal remedies there must be something more than delay.
STATUTE OF LIMITATIONThe law prescribes limit within which an action must be brought for the wrong and if this prescribed period is over, expired, the right of action is barred and remedy ceased to operate law helps those only that is diligent about their right. Delay defeat equity .Law will not help to those who were sleeping over their right for pretty long time.
In England the limitation Act, 1939 as amended by law reform (limitation of actions etc.) Act 1954,fixes time during which action of tort must be brought. On the other hand in India. Indian limitation Act 1963, provides the prescribed period during which existing right can be enforced in the court of law. It does not create nor define any cause of action the object of the Limitation Act is to enable the parties to file suit within certain period and forbid them from filing suit after period.
The object of the law of Limitation is to ensure private justice to suppress and perjury and to quicken diligence and to prevent oppression.
3. ANALYSISOn the basis of research performed by the researcher there are certain points which comes out which will be discussed in this section and will check its consistency with the hypothesis.
The position of death of parties is discussed in which we see that the cause of action dies with the death of either of parties, however the cause of action doesn’t end completely, it only ceases for personal torts like defamation, any tort which benefited the defendant, the action against such tort does not cease.
We can analyze that the maxim “Actio Personalis Moritur cum Persona”, which means that a personal cause of action dies with the person is applicable here.
In Accord and Satisfaction the defendant gives consideration to the plaintiff according to the agreement and the tort is hence discharged. The plaintiff is not subjected to anykind of loss as he obtains the compensation in form of consideration arising from the agreement.
Release is way of discharging tort were the plaintiff out of his own mercy or discretion voluntarily frees the wrongdoer from the liability. It cannot be said that the plaintiff bears any loss because of the discharge because he has voluntarily decided not to claim anything from the defendant.
In Judgment the maxim ‘nemo debet bis vexari pro in et edem causa comes in play. A person cannot bring the same case again once it is decided by a competent court, the principle of res judicata is applied here. It cannot be said that injustice has been done to the plaintiff because the case is put up before a competent court and decided accordingly hence no injustice is done.
If against a tort more than one remedy is available then Waiver by Election comes into play. When a person selects a remedy then he waives of the other remedies available to him, once he waives of his right he is precluded from using other remedies afterwards. The plaintiff waives of his rights voluntarily hence if he is unable to avail benefit from other remedies it cannot be said that injustice has been done to plaintiff as the plaintiff only decided that by which way he wants to avail the benefit.
In Acquiescence the person sleeps over his rights as a result the person whose rights are infringed may lose the ability to make a legal claim against the infringer, or may be unable to obtain an injunction against continued infringement. Here due to the plaintiff’s own mistake his rights are ceased hence it cannot be said that injustice has been done.
When a person does not claims his right for a long time then his power to claim ceases, here comes in play Statue of Limitation. In India Indian Limitation Act 1963, provides the prescribed period during which existing right can be enforced in the court of law. In this situation if a person loses his right of claim then he is solely responsible as he was sleeping over his rights for a long time. Delay defeat equity .Law will not help to those who were sleeping over their right for pretty long time.
4. CONCLUSIONThe researcher started the project with the hypothesis that “Discharge of torts in certain cases proves to be unjust for the plaintiff”. However after completing the research and as per the analysis the researcher has concluded that the hypothesis has failed and Discharge of Torts in no way proves to be unjust for the plaintiff. After the research it was found that every time a person loses his remedy it is because of his own mistake and not because of the provisions of laws .
Hence discharge of torts in no way infringes the rights of the plaintiffs.
5. BIBLIOGRAPHYThe researcher used secondary sources of data to complete the final draft.
Secondary sources include all the websites on Torts which the researcher has consulted
while making the project.
Law of Torts by Ratanlal & Dhirajlal
Law of Torts by Dr. Avtar Singh