Tort
According to Salmond, A tort may be defined as a civil
wrong, for which the remedy is an action for damages, and which is not solely
the breach of contract or the breach of a trust or other merely equitable
obligation.
Breach of Contract
Failure, without legal excuse, to perform any promise which
forms the whole or part of a contract. Black’s law Dictionary
Difference between tort and breach of contract
Where the breach of duty alleged arises out of a liability
independently of the personal obligation undertaken by contract, it is between
parties, if the duty in fact arises independently of contract. Breach of
contract occurs where that which is complained of is a breach of duty arising
out of the obligation undertaken by the contract.
In tort, the duty is towards persons generally. In contract,
on the other hand, the duty is towards a specific person or persons. That is to
say, the privity of contract does not apply in case of tort because there the
duty is not towards any specific individual or individuals but towards persons
generally.
Tort being a private wrong, the party which suffers injury
is required to file the suit against the defendant and at any stage of the
proceedings may withdraw the suit by entering into any agreement of compromise
with the defendant or even without it.
In a breach of contract, nature of damages is always
compensatory. In tort also, generally the nature of damages is compensatory but
in cases of injury to person or character, exemplary damages may also be
awarded if the facts of the cases reveal malice or fraud.
Another distinction between tort and breach of contract is
that in the former the remedy is an action for unliquidated damages. That is to
say, ion case of tort the actual damages to be awarded depend upon the
discretion of the court and of course depending upon the facts and
circumstances of each case. In an action for breach of contract, generally the
plaintiff “sues for a pre-determined and inelastic sum of money.”
In a breach of contract, motive of the party breaking the
contract is immaterial. In tort also generally motive is irrelevant but
sometimes it may be taken into consideration and in such exceptional cases, the
evil motive of the defendant, if proved, will tip the scales of liability
against him.
A tort is a civil wrong which is not exclusively the breach
of contract. A contract is an agreement enforceable be law. Contractual liability,
therefore, arises out of agreement between the parties Tortious liability, on
the other hand, arises out of a breach of duty which is not a breach of
contract.
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