This article has been written by Tejaswini Kumari, pursuing a Diploma in Technology Law, Fintech Regulations and Technology Contracts and has been edited by Oishika Banerji (Team Lawsikho).
It has been published by Rachit Garg.
Table of Contents
Introduction
While crime is a social evil that affects a large number of people, tort is a civil violation that affects an individual. There are some acts that are regarded as crimes in all countries, but each nation or state has its own defined definition of what constitutes a crime. Simply said, crime is any act that violates the law. Torts are frequently associated with crime. Tort develops when an individual’s private rights are violated. When a person suffers damage as a result of another person’s wrongful behaviour, the affected person has the right to sue for damages under tort law. Furthermore, while on one hand, the conduct of a tortious act is a breach of civil law, on the other, crime occurs when public rights are violated, which is why the act is considered against society. This article is being written with an aim to discuss the fundamental differences between crime, tort, breach of contract and breach of trust, for they all appear similar to each other.
What is crime
- Crime is defined as any act performed or omitted that constitutes an offence and is penalised by law.
- Crime is an illegal conduct that is prohibited and punishable by the state or the law governing that state.
- In other words, everything that endangers public welfare is a crime.
- Crime is defined as human behaviour that is universally condemned by society.
- However, in the current definition, a crime is any conduct that is banned by the applicable criminal law and results in punishment.
Essential elements of crime
- Human being: The first element of crime is a human being. Any wrongful act to be called a crime must be done by a human being . There must be a human being under a legal obligation to act in a particular way, and he or she must also be capable of being punished .
- Mens rea: Mens rea, or guilty mind or evil purpose, is the second basic ingredient of crime. Mens rea refers to the requirement of the mental element for any improper act undertaken by a human being to be labelled a crime.
- When performing an act, there must be an evil purpose.
- There is a well-known maxim “Actus non facit reum nisi mens sit rea”. It means the act itself does not make a man guilty unless his intentions.
- Actus reus: Actus reus is the third element of the offence. To be punished, criminal intent must be manifested in some voluntary act or omission. According to Kenny, an actus reus is an outcome of human behaviour that the law attempts to prohibit, and the act performed must be one that is forbidden or penalised by the law.
- Injury: Injury is the final and most significant ingredient of a crime. It must be caused illegally to another human being, group of individuals, or society at large. Section 44 of the Indian Penal Code, 1860 defines injury as “any harm whatsoever illegally caused to any person on body, reputation, or property”. However, there may be similar crimes that do not do any harm to anyone. For example, driving a car without a driver’s licence is a criminal, even if you do not injure anyone.
Stages of crime
Intention:
The initial step in the conduct of an offence is known as the mental stage. This stage is not punishable under the IPC. “Actus non facit reum nisi mens sit rea” is a latin maxim which translates into an act does not make a defendant guilty without a guilty mentality. It indicates that an act does not become guilty of itself. Actus reus is the physical act performed by a person, and mens rea is the guilty thought with which the crime is done. An act that is not preceded by a malicious purpose is not punished.
Preparation:
The second step is preparation. Preparation is not penalised since there is still time for a person to change his mind. There is one exception to this general rule that is, it is impossible to demonstrate that the planning was directed at the infraction. There are just a few circumstances when the IPC penalises even during the planning stage, as have been laid down hereunder:
- Section 22 punishes a person who is involved in the acquisition of weapons to wage war against the state.
- Section 126 makes it unlawful to commit activities such as assaulting any country at peace with India.
- Section 399 discusses establishing plans to conduct dacoity.
3. Attempt:
This is the third step, often known as preliminary crime. An effort to commit a crime is an action taken with malice. If not halted, this would result in the conduct of the crime. There are three requirements for attempting an act.
- Malicious intent is required.
- An act committed in preparation for the committing of a crime.
- The act performed fell short of the whole offence.
An attempt is punishable under the IPC under the following provisions:
- Section 196 – using or attempting to use any evidence that the person knows to be false as actual evidence .
- Section 239– impediment to the lawful arrest of another person.
- Section 250 – delivery of coin with the knowledge that it is altered.
- Section 385 – putting or attempting to put someone in fear of harm to commit extortion.
- Section 307 – penalise attempt to murder.
- Section 308 – penalise attempt to commit culpable homicide .
- Section 393– Penalise attempt to commit robbery.
4. Accomplishment:
This is the final stage in the commission of a crime. Actus reus is said to be complete in this stage. If the accused succeeds in his endeavour, he will be judged guilty of the full offence. If he fails, he will merely be charged with attempting to commit a crime.
If X fires at Y with the purpose to kill him, X will be found guilty for murder under Section 302 of the IPC. If Y does not die but is harmed, X will be charged with attempted murder under Section 307 of the IPC.
What is tort
The law o torts is concerned with the remedy of civil wrongs. A person is accountable for a harmful conduct committed knowingly or unintentionally. Payment for damages compensates the harmed or aggrieved party. A tort may include bodily or emotional suffering, property damage or loss, and financial loss from past or future inconvenient events. The court determines the amount of compensation in the form of damages. Tort law is divided into three categories:
- Tortious neglect
- Tortious intent
- Tort of strict liability
Accidents are considered negligent torts, whereas theft is an intentional tort, and the manufacturing or supply of faulty products is accountable for damages under strict responsibility. Tort law includes breach of contract and breach of trust.
Breach of contract
A business contract establishes specific obligations that must be met by the parties to the agreement. A breach of contract occurs when one party fails to fulfil any of its contractual obligations. Breach occurs when a party fails to perform on time, in line with the terms of the agreement, or fails to perform at all. A breach of contract is a common sight in both written contract and oral contract. The parties who are involved in a breach of contract may resolve the issue among themselves or can take the assistance of a court of law with competent jurisdiction. There are different types of contract breaches, including a minor or material breach and an actual or anticipatory breach. A breach of contract is neither considered a crime nor a tort and rarely results in extra monetary compensation.
A plaintiff, who initiates a lawsuit before the court with competent jurisdiction, claiming that there has been a breach of contract, has the burden of proof to establish that contract exists between parties. The plaintiff must also show as to how there is negligence on the defendant’s part, while he brings a lawsuit before the court of law.
Breach of trust
A failure to act with responsibility for someone who has given you something to keep safe for example money or a company secret information is considered a breach of trust. Section 405 of the Indian Penal Code, 1860 deals with criminal breach of trust and states that entrustment of property is considered as an essential requirement for the commission of criminal breach of trust. The term “entrusted” as provided under Section 405 of IPC, governs not only the words “with the property” immediately following it but is also inclusive of the phrase “or with any dominion over the property”.
Difference between breach of contract and breach of trust
| BREACH OF CONTRACT | BREACH OF TRUST |
| A breach of contract happens when one party to a contractual agreement fails to deliver on the terms of the agreement. | A trustee’s deliberate misuse of something legitimately handed to him in confidence. |
| A contract violation can occur in both a written and an oral contract. | Breaking a commitment or a trust. |
| A breach of contract can be resolved among the parties concerned or in a court of law. | Any conduct or omission by the trustee that is contrary to the terms of the trust agreement or the law of trusts. |
| A breach might range from a late payment to a more serious infraction, such as failing to deliver promised assets. | For example, A may lend his automobile to his friend B for transportation purposes. B, on the other hand, utilises it to carry illegal commodities such as ivory. In this case, B is guilty of criminally betraying A’s confidence. |
| In contract there is duty towards specific person | Trust is a branch of law of property . |
Difference between tort and crime
| TORT | CRIME |
| A tort is a type of civil wrong which gives rise to civil proceedings . | A crime gives rise to criminal proceedings . |
| The goal of tort law is to defend a person’s rights. | .The goal of criminal law is to keep society in order and to prevent crime. |
| Law of tort is uncodified law. | Law of crime is codified law. |
| An individual’s private rights are violated in tort. | In crime, there is a violation of public rights and obligations, which has an impact on society. |
| In tort, the injured person is known as the plaintiff, and he or she files a lawsuit against the wrongdoer. | In a crime, the victim is the one who submits a police report. |
| In torts, the plaintiff takes action by filing a lawsuit. | In the case of criminality, the state acts through police as spokespeople. |
| In tort, the wrongdoer is responsible for compensation. | In the case of a crime, the criminal faces punishment. |
| In tort, intention generally is not relevant . | In crime, intention is always relevant. |
| Tort amount of compensation is given to the plaintiff. | In crime the amount of fine imposed as punishment is given to the state. |
Conclusion
Generally, there lies a confusion among the discussed terms in this article for they all appear to be interrelated with each other. What differentiates each one of them from that of the other is their nature, purpose and traits, as have been highlighted in this article.
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