This article is written by Parshav Gandhi, a 3rd-year student, Indore Institute of Law. This article mainly discusses how the tort gets discharged i.e. how the right/liability of parties in the suit of a tort, comes to an end.
Meaning of Tort
The word “Tort” is derived from the French word “Tortum” which means “Twisted”.
A tort is an act/conduct that is twisted. It means the violation of a legal right of a person by the act of the other person, i.e. the breach of the legal right of the other person.
The tort is a civil wrong, but all the civil wrong doesn’t come under the ambit of tort. If one person does any civil wrong to another person, and that wrong comes under the ambit of tort then the person against whom the wrong has been done is entitled to get remedy in form of unliquidated damages.
But the law of tort also discusses various methods by which the act of tort gets discharged.
Discharge of Tort
There are seven different modes through which tort is discharged and no remedy will lie for tort. It is a process through which the tort comes to an end. A wrongdoer is not liable for his actions.
Following are the methods of discharge of torts.
Death of the parties
Here the maxim ‘actio personalis moritur cum persona’ applies which means if the person dies his personal right of action dies with him.
Actio personalis moritur cum persona this is the important maxim, it means if the person who commits a tort or the person against whom the tort is committed dies, the personal right or the right to receive the damages or the right of action dies with the person.
There are two situations where this maxim applies
- Death of the person against whom tort was committed i.e., Petitioner.
when the person against whom the tort was committed i.e. the plaintiff who approached the court and filed a case died, so his personal right of action dies with him only.
If A files a case against the act of tort done by B. If A dies during the course of trial and the case is still pending before the court. Due to the death of the A, the tort gets discharged, as the right of action of A dies with him only.
Exceptions to the maxim of ‘Actio personalis moritor cum persona’ with respect to Petitioner
In India there are laws which constitute the exception to the above maxim like;
The Legal Representative Suits Act, 1885
As per this Act, the legal representative or the executors of any person, after his death can represent the deceased person in the court of law.
If A died during the procedure of trial of court. His legal heir or representative can represent him in the court of law.
Similarly, in different laws/act like Fatal accident act, the Indian Succession Act, Workmen Compensation Act etc. the representative of the plaintiff can represent him in the court of law.
- Death of the person who commits tort i.e. Defendant
It means the person who commits the act of tort against any other person i.e. the defendant dies, the tort gets discharged.
If Ram commits the act of tort against Geeta, if Geeta files a complaint against Ram, but if during the course of trial Ram died, then his right of action also dies with him i.e. the discharge of tort.
In this case, the defendant received some amount by misrepresentation of fact, but the defendant died. The High Court of Orissa held that where a money decree was passed against a person in respect of the amount received by him from the decree-holder by misrepresentation of the facts, the liability would be personal and could not be extended to his son under the law, as whatever the relief a decree-holder has against the father ended with the father’s death.
Exceptions to the maxim of ‘Actio personalis moritor cum persona’ with respect to Defendant.
In India there are various laws which constitute the exception to the above maxim like;
The Legal Representative Suits Act, 1885-
As per this act, if any person involved in any type of tortious act, died during the course of the trial. The right of action passes to the legal representative of that person.
If A does an act of trespass to the good against B in past. Now if A dies and it is proved that he was liable for damaging B’s good. So the damages for damaging B’s good has to be paid by his legal representative.
Similarly, in different laws/act like the Fatal Accident Act, Indian Succession Act, Workmen Compensation Act etc. The representative of the defendant has to represent him in the court of law
The second method of discharge of tort is by the waiver. The concept of waiver is when a person has more that one remedy available to him, as a result, he has to elect one of them. He cannot apply for both the remedy except in the case of defamation and assault.
If A files a case against B that B has committed a tort against A. If A has right to get more than one remedy he has to choose any one of them, i.e. if he has the remedy in both tort and contract law, now he has to choose one between them.
The main two principles lying in the doctrine of Waiver are:
- The person has to choose any one remedy.
- If the person fails to get the remedy he chooses, the court of law does not allow him to go back to an alternative remedy.
If A files a case against Z and has two remedies for which he can approach the court of law. If he chooses the first remedy and loses the case. A cannot approach to the court for the alternate remedy i.e., remedy number 2.
The Waiver can be Implied or Express
In Express waiver, the person expressly communicates about his choice in the court of law.
If A file a case and he has the remedy in both, contract as well as Tort. When the court asks him he has to communicate his choice to the court.
In the Implied form of waiver, the person impliedly communicates about his choice for which remedy he is applying.
If A has two remedies available to him like one under contract and one under Tort. if he applies for Contract, it becomes clear, he elects the remedy under the contract.
Accord and Satisfaction
Concept of accord means when the parties of the tort i.e. the person who commits the tort and the person against whom the tort has been committed, come to an agreement and settle the dispute. Such an agreement is known as Accord. In general term, it means settling the issue by accepting some consideration in lieu of the right of action.
Satisfaction means the actual payment of consideration agreed by both, the person who commits a tort and the one against whom the tort committed.
When both the accord and satisfaction once completed, it results in the discharge of tort and the dispute does not proceed in a court of law.
If A dies due to injury caused by B’s car. If A’s family comes to an agreement that B will pay Rs. 1,50,000 as compensation to them, that’s the situation of Accord. When they received the actual payment of 1,50,000 Rs. from B, that’s the situation of Satisfaction. So, by settling the issue and accepting some consideration A’s family lost their right of action and the act of tort discharged.
The only condition in the concept of Accord and Satisfaction is the consent of the party should be free and not from fraud, coercion or undue influence.
If A, a son of a successful businessman brutally hit one of his servant i.e. trespass to the body and if A tries to make his servant enter into accord by using some type of undue influence on him. Due to that influence, the servant gave his consent, this is not considered as free consent and the accord and satisfaction are not valid.
A Release means giving up the right to the action. It means when a person by his own choice discharged the tort. This right is only provided to the person against whom the wrong has been done.
Situation 1: A is the person against whom B does any act of Tort and if A, by his free consent want to release B from the liability, he can do so.
Situation 2: A is the person against whom B and C both commit an act of tort and A by his choice release B from the liability, this does not mean that C is also released from his liability.
The release should be voluntary and given by free consent from the injured person. If the consent is taken by coercion, undue influence, or any other unlawful means then that release should not be counted as a release and the tort is not discharged.
If a person is a police inspector, commits an act of tort against another person. By using his position and by threat, take the consent of the injured person and release himself from the liability, that release is not a valid release.
In this method, the discharge of tort happens by the judgement given by the court. If once the court gives judgement on the matter, the tort gets discharged, no appeal for the same act of tort can be claimed for the same remedy in the court of law.
The concept of this method of discharge of tort is based on the legal maxim of Res-Judicata, it means, if any cause of action decided previously by the court, the same cause of action should not be entertained by the court twice.
If A gets the remedy against B for the accident committed by him previously by the judgement of the court. Later he found that he needs to go through a further operation. He cannot claim another remedy for the same again in the court of law.
In Fitter v. Veal, (1701 12 Mod. Rep. 542)
In this case, the plaintiff files a case against the defendant demanding damages against the act of assault by the defendant and finally he gets the remedy from the defendant as the court of law allows the remedy to him. Later he discovered that he has to go through a number of surgeries. He filed another petition against the defendant demanding more remedy against the act of assault again in the court of law.
The court denied the petition and state that, If once court gives judgement on the matter, no further appeal for the same act of tort can be filed in the court of law as the tort gets discharged.
- If the petition was between the same party but is for different remedy or the action taken in respect to the violation of another right. Then the petition can be allowed.
In this case, the plaintiff was a cab driver and already received compensation against the damage to his cab. Later discovered, due to the injury caused in the accident, he got a fracture in his hand. He has the right to apply for the remedy against the trespass to his body as well.
- If the person who is liable for the act previously does the same act another time.
If A commits the tort of trespass against B previously and held liable by the court of law. If he again commits the same crime against B. If A plea defence that the court cannot punish him for the same offence twice. The defence is not valid because this case was considered as a fresh one.
In this method, the tort gets discharged because of the incapacity of the plaintiff himself i.e. if he has no time to go to court, no money to pay the court fees, or any other incapacity. When any person is entitled to enforce his right, and he doesn’t enforce his right for a long time, this makes other party waived from his liability.
if A is entitled to enforce his right against B. If A neglects to enforce his right for a long time, it automatically waived B from his liability.
Law of limitation
Under this method the tort gets dismissed due to the limitation i.e. when the prescribed time limit to file the case gets over, in this situation the tort gets dismissed and no person is entitled to enforce his right.
Like, in the case of false imprisonment or libel the limit to file a case is 1 year, in case of trespass to immovable property, the limit set is 3 years etc after the time limit gets over, no person can enforce his/her right.
If a tort of trespass to the property has been committed by B against A, if A fails to apply against it within 3 years in the court of law, then he cannot apply as he lost his right to apply due to limitation.
A tort is an act/conduct that is twisted. It means the violation of a legal right of a person by the act of the other person i.e. the breach of the legal right of the other person. But the right of action of the party can become discharged in certain conditions like the death of any of the party, by Waiver, by Accord and Satisfaction, by Release, or by the judgement of the court of law. Through the above methods, the tort becomes discharge and no remedy will lie for tort.