Introduction
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.
