Law of Torts and Remedies

Understanding Law of Tort with the Remedies Available For a Tort


The term "tort" is the French equivalent of the word from the English language "wrong". The term tort in its original form refers to a crooked or twisted or wrong act. In legal terms, it refers to the conduct which is crooked, twisted, or not straight. For understanding the Tort Meaning or “Wrongs” it can be said that a judge may instruct a jury that the Tort is defined as a wrong for which the law has to provide a remedy more often in the form of financial damages. However, the law need not remedy all wrongs. This definition of tort does not provide the complete meaning of the underlying principles which differentiate the wrongs of the moral sphere from that of the legal sphere. It is important to note the difference. Hurting someone’s feelings would be a more devastating act; however, the tort does not remedy someone’s hurt feelings, and however, if a person has defamed someone behind his back, then he would be remedied against his written or oral defamation.

Thus, tort, by its very origin, is explained by the act of breach, which results in legal liability for the person who has committed the act. Usually, the tortuous act, which may have been a crime, is not necessarily a crime in its true self, as it was most probably caused by the negligence. Thus, for understanding Tort, it is indeed important to understand the acts of breach or misconduct, which results in the plaintiff to call for recovery of his or her damages through financial compensation, injunction, or specific performance from the defendant. Therefore, for better understanding of the International Tort, It is indeed impertinent to understand the remedies available for the tort. Apart from this, it is evident that all rules are remedial as they are, from its very origin, a cure of some kind of a problem. This is also true for the international tort law as the law is, in fact, a remedy for all the problems that exist in the world without law. Therefore, understanding Tort requires an understanding of the remedies itself. Another major argument in defending this position is that substantive law was remedial law. The substantive law of tort is therefore derived to a certain extent of the remedial law. This has led the common law lawyers to see the substantive law of tort and contracts from the viewpoint of remedial law. Therefore, it is important to understand the remedial laws to comprehend its derived extension of substantive law better.

For making this point more clear, it would be necessary to not only provide the understanding of the remedies of tort but also for the Tort itself. Therefore, the preceding sections will exhibit the detailed legal analysis of the law of Tort and the Remedies available for Tort. The argument will then be built upon this analysis.

The Tort Law

As explained in the earlier section, the tort is the act or the omission, but the breach of contract which results in harm or injury to another individual and is thus considered as a civil wrong for which the court enforces liability on the individual responsible for the act. The actions which come under the jurisdiction of Tort law include strict liability, negligence, and intentional torts. The individual elements of each of the tort actions are different slightly from each other. However, each of these is litigated in basically the same manner.

A suit of tort is often confused with a criminal offense. The suit of tort enables the wrong victim to seek remedy for the injury inflicted upon him or her by the person who committed the wrong. Unlike the criminal case, the tort suit is not initiated by the state, but by the victim itself. Moreover, the successful tort results not in a punishment sentence like in criminal cases but a judgment of liability. Such judgment often results in the defendant to provide the plaintiff with financial compensation. Other than this, a tort can also result in punitive damages, injunctions, or specific performance.

Standards of Proof

Civil and Criminal cases have varying standards of proof. In the category of civil cases, there are two separate standards of proof. In terms of the civil tort law cases, the preponderance of the evidence is considered as the standard of proof. The preponderance of evidence suggests that the defendant is more likely responsible for the harm and injuries inflicted upon the plaintiff thus if the plaintiff can provide more than 50% of the evidence, then the jury is needed to must come back to a verdict which is in favor of the plaintiff itself.

Causes of Torts

Most of the Tort Law Cases are caused by Negligence. At its origin, the negligence occurs when the person liable for committing the wrong is not careful and thus therefore responsible for the harm that the carelessness has caused. For any lawsuit for negligence tort to be successful, it is essential to prove all of the four mentioned elements; harm, breach, duty, causation. A simple lawsuit of negligence would require the person to owe a “duty” to another individual, then “breach” it “causing” “harm” to that another individual. Other than this, there are intentional torts as well, which require an intended action to be conducted against a person by the wrongdoer. Some of the intentional torts can also be criminal. Common intentional torts include the battery, assault, conversion, trespass, defamation, false imprisonment, and intentional infliction of emotional distress. Other than this, strict liability includes the abnormal dangerous situation in which the defendant was engaged and regardless of the defendant's intentions or lack of negligence imposed liability on her as a public policy matter. Similarly, the product liability can be based on intentional or else on negligence tort or strict liability arising from defects in the design, manufacturing or condition of the products.

This section has provided a preliminary basic explanation of the Law of Torts. However, for better understanding these wrongs, it is essential to dig deeper into the remedies available to counter these wrongs. For this reason, the following section is built upon the remedies available for the Tort Law.

Remedies in the Law of Torts

Any law imposes itself via three ways; by enacting the substantive laws, by rulings issued by courts, and by imposing sanctions. A particular kind of these rulings is the remedial rulings or the remedies. As explained earlier, all rules were remedial as they provide a cure for a certain problem. This is true for all laws, including the law in general, the contract law, and the tort law. Thus, Remedies are the judicial rulings that are intended to resolve a private law dispute. Thus, the remedial law governs the accessibility and content of the same rulings. Rulings are at their core meaning the instructions which require the defendants to provide distinctive reasons for actions and do things. These reasons are different, usually from those provided by sanctions or rules. The directive rulings or orders can be for injunctions, specific performance, orders to pay debt or damages, recover property or land. Understanding of the directive rulings (orders) is important, thus not only understand the remedial law, but also aiding in understanding the substantive tort law. It has been discussed by Smith that a significant amount of the law that governs the private law defenses is in its very origin remedial in nature. The rules governing the specific relief are also remedial, while the same is true for the rules governing the orders for recovery of property and land or pay the debt. Most importantly, the remedies or the laws of restitution and damages are, in my point of view, a segment of the remedial law.

It is important to analyze the relationship between remedies and substantive rights. Substantive rights are the rights that a person enjoys by virtue for a judicial ruling, tort, or contract. The rubber stamp conception of the remedies shows that the remedies are used to derive the rights. This is also true for the conception where the substantive rights are conceptualities as remedial. However, both of these assumptions have been rejected in the Book as courts, not always award the claimant what is due, and it will often even refuse to award any order even despite evidence of a breach of a still eligible duty arising from substantive rights. 

Remedies are available on the grounds of the common law by three main CoA; rights-threats, wrongs, and injustices. The Rights-threats are used for injunctions, specific performance, order for the sum due, substitutionary damages, land, and property recovery, and not for the restitutionary damages and damages awards in the case the defendant is not willing to fulfill its substantive duty. The Wrongs are proof that the action may happen again. It includes damages for pains, nominal damages, punitive damages, vindicatory damages, which are all issued due to the wrongs which have been proved. Other than this, the injustices are unfair gain or loss, compensatory orders, and restitutionary orders. The concept behind injustice is that it aids in the identification of the undesirable consequences of behavior.

There are two kinds of remedies that are available, replicative remedies are the ones that replicate the substantive duties and rights, and the substitutionary remedies are the indirect form of specific performance, which also replicates the substantive rights. The creative remedies are ones which are free-standing remedies and are not related to the substantive rights and its content. For these, there is no requirement of proving the breach of duty.

The rights-threats arise when the substantive right of the claimant is under threat; more specifically, it arises when it is most possible that the claimant's substantive rights will or is being infringed by the defendant. In this case, the court will call for the defendant to comply with its substantive duty, which is a replicative remedy. While on the other hand, it can also order awarding money, which is the substitutionary remedy. Thus, these actions and their causes result in court rulings of orders for ejectment, recovery of land, injunctions, delivery of chattels, specific performance, the sum due, and some substitutionary damages, which are in lieu of the injunctions. Evidence which provides evidence of part wrongdoing shows the defendant's unwillingness to fulfill the replicative rulings. It has been also discussed that the replicative rulings for the rights-threat can also be ordered as Quia Timet injunction. On the other hand, the mandatory injunctions force someone to do something. These interfere with the liberty of another person. For example, the mandatory injunction is tearing down a building which is trespassing while Quia Timet injunction is preventing someone from building the trespassing building.

Specific Performance's cause of action is the rights-threat. As the Specific performance, Quia Timet rulings are possible, but rare as the imminence of damage is difficult to provide is also more inconsequential. Thus, specific performance is practically the exclusive transfer of the land and unique goods. Furthermore, it is a replicative ruling and can thus replicate the obligation in its entirety. Another remedy available under the Rights-Threats are of Delivery Up of the goods. This may arise in a scenario in which the defendant stole the claimant property, lent goods and not returned, accidental acquisition (tort of conversion), and obtain ownership by contract (Cohen). For orders of the recovery of the chattels or delivery up claimants need to prove, as similar to the ejectment, that the defendant possesses the property by unlawful manners, showing the evidence of the on-going breach. For this, Quia Timet breach does not exist even though in theory, Quia Timet ejectment and sum due are awarded. The remedy of delivery up reflects upon the substantive duty to exclusive possession. This is varying from the ejectment in one aspect. The delivery up is liable to the partial defenses, which also involves the adequacy of the damages. This makes the award of delivery up rare, which is reserved for only meaningful and unique chattel.

Substitutionary Damages in lieu of the specific performance are the sub damages awards, which are monetary substitutes for the specific relief. These are awarded when the prima facie suitable remedy has specifically relied. However, for administrative reasons, financial awards are preferred and more convenient.

Wrong-Based Remedies

Blackstone's three parts link the remedies to wrongs. These include the rights, the wrongs, and the remedies. The theory of continuity rejects it: the sole importance of committing a private wrong is that the substantive duty which is breached by the wrongdoer transforms completely or partly into a substantive duty to otherwise pay the damages. And thus, this theory is often rejected by saying that the rulings to pay the damages are the rights-threats, responses, and thus the wrong does not play any part in remedial law. However, a middle ground is also asserted by Smith as well. That is based on the commission of the tort which leaves the substantive duties and rights of the parties as unchanged and as opposed to the theory of continuity, it does not give rise to the paying of damages as a substantive duty and as opposed to the Blackstone, the wrong is not a reason but a condition of awarding the remedy. The supposition that the unique feature of the damages award is specifically that these are the wrongs responses is, however, very overly broad. The compensatory awards or the damages are not the responses to the wrongs but the injustices. Thus, this concludes that very rare remedies are the responses to the wrongs, including the pain and suffering, vindicatory plus nominal damages, exemplary damages are all the wrongs responses.

Another important point to notice is that if the damages are not plausibly interpreted as the compensatory or sub, then they are most necessarily wrong based damages. The relevant factors which would aid in the identification of the wrong based damages are the level and the nature of the infringement of the rights, the conduct of the defendant while committing of the wrong, and the consequences of the wrongs. There are then different segments in which the wrong based damages fall into. These include the nominal damages, punitive damages, vindicatory damages, waiver damages, market price damages, damages for pain and suffering, compensatory damages, damages for equitable wrongs, etc.

The Argument

Tort law is not merely the system for the specific imposition of the liability in a manner in which it maximizes the goals of the social welfare or the wealth of the society. Nor this is a system for the apportioning of the moral responsibilities or the rectification of the losses. Like any statutory law, the law of tort expresses the rules which guide and direct the citizens on how they should or should not treat the individuals and how they should expect to be treated by other individuals.  By giving these rulings and orders, the appellate courts are enforcing the individuals with duties on how to not treat others in a specific manner and also creating rights of the individuals to be not treated in a particular manner. The web of the duties and rights of the tort law represents the combination of the values which are as broad in its application as are found in the statutory law. As per the law of tort, an individual is entitled to the right of civil recourse or redress against another individual who has been charged with committing a legal wrong against the plaintiff. Thus, the Tort Law provides the plaintiff with a civilized transformation of what is commonly considered as retributive justice. However, this opportunity is only entitled to the plaintiff if the defendant has legally wronged the person, and thus it exists only when the defendant has committed a wrong against the plaintiff by violating her legal right. Therefore, the remedy available to the entitled plaintiff who has been the victim of the legal wrong committed by the defendant against her embodies the retributive justice. However, it is important to note that these wrongs are brought in the court only to settle them with their rightful remedy. Thus, the remedies offer the basis without which wrongs or torts could not be understood clearly.

 The above sections show the Law of Tort, its foundation; its standard of proofs, and its causes along with the remedies available to settle it. It is important to note that all rules, including Tort are, by its very origin, remedial in nature, as it helps in providing cure or remedy for a particular problem. A tort is explained by the breaching act arising in the legal liability of the defendant to compensate for it with the specific liable remedy available. Usually, the tortuous act, which may have been a crime, is not necessarily a crime in its true self, as it was most probably caused by the negligence. Thus, for understanding Tort, it is indeed important to understand the acts of breach or misconduct, which results in the plaintiff to call for recovery of his or her damages through financial compensation, injunction, or specific performance from the defendant. Another argument to justify this position is also mentioned earlier, by which it is stated that all of the substantive laws, including the law of tort are derived from the remedial law. Thus, understanding of remedies is impertinent for understanding the law of tort. This argument is further justified by the fact that the rules followed by the courts for providing the rulings and orders to the defendant against the wrongs committed by them to the plaintiff are endorsing the remedies. The court rulings enable the defendant to compensate its wrongs that it committed against the plaintiff or claiming party by providing them the liable remedy. It has been shown that the understanding of the directive rulings (orders) is important, thus not only understand the remedial law but also aid in understanding the substantive tort law. Therefore, it is thus agreed that for better understanding of the substantive law of tort, the remedies available to it are important to be understood first as well. 

Law of Tort

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