Definition of Tort
Section 2(m) of the Limitation Act, 1963, and the definitions of Salmond, Winfield and Fraser
In one minute
No single definition of tort satisfies every writer. Three are asked in exams: Salmond's, Winfield's and Fraser's. The Limitation Act, 1963 gives the only Indian statutory description.
All of them say the same thing in different words. A tort is a civil wrong, the duty is fixed by law, and the usual remedy is damages that the court measures. Learn each definition word for word, because examiners mark the exact phrases.
Exam focus
- Frequency: Rarely asked
- Usually asked as: Long answer (10 to 15 marks)
Legal provision
- Section 2(m), Limitation Act, 1963: "tort" means a civil wrong which is not exclusively the breach of a contract or the breach of a trust. This is the statutory description.
- No other statute defines tort. The definitions of Salmond, Winfield and Fraser are the views of jurists, and courts treat them as guides.
Meaning and definition
A tort is a civil wrong that the law remedies mainly by an award of damages. The word came into English from French and goes back to the Latin tortum, meaning twisted or wrong.
The definitions below describe the same idea from different angles. Salmond starts from the remedy. Winfield starts from the duty. Fraser starts from the right that is infringed.
Three terms recur in all the definitions. They are explained first.
- Unliquidated damages. Compensation whose amount is not fixed beforehand. The court decides it after hearing the case.
- Right in rem. A right good against the whole world, such as the right to bodily safety.
- Right in personam. A right good only against a particular person, such as the right to be paid under a contract.
Detailed explanation
Step 1: the definition in the Limitation Act, 1963
Section 2(m) says that a tort is a civil wrong that is not exclusively a breach of contract or a breach of trust. It tells you what a tort is not. It does not give a positive test.
The word "exclusively" matters. The same facts can be both a tort and a breach of contract. A repair shop that carelessly damages your scooter may be liable in contract and in tort.
Step 2: Salmond's definition
Salmond defines a tort as a civil wrong for which the remedy is a common law action for unliquidated damages. It is not exclusively the breach of a contract, the breach of a trust, or other merely equitable obligation.
- Civil wrong. The injured person sues. The state does not prosecute.
- Common law action for unliquidated damages. The remedy is a claim in the common law courts for money assessed by the court. This separates tort from equitable wrongs, which equity courts remedied differently.
- Not exclusively contract, trust or equitable obligation. A wrong that is only a breach of those duties is outside tort.
Example. A truck driver in Warangal, driving negligently, hits a cyclist. The cyclist sues for damages in a civil court. The duty to drive with care arises from law, and the damages are unliquidated. This is a tort under Salmond's definition.
Step 3: Winfield's definition
Winfield says that tortious liability arises from the breach of a duty primarily fixed by law. This duty is towards persons generally, and its breach is redressible by an action for unliquidated damages.
- Primarily fixed by law. The law, not the parties, creates the duty. In a contract the parties create the duty by agreement.
- Towards persons generally. The duty is owed to everyone, so it matches a right in rem.
- Redressible by unliquidated damages. The remedy again is damages measured by the court.
Example. A shopkeeper in Vijayawada tells customers that a rival chemist sells fake medicines. The statement is false. The law of defamation, not any agreement, forbids it. The duty is owed to everyone, so the rival chemist has a tort claim for damages.
Step 4: Fraser's definition
Fraser defines a tort as an infringement of a right in rem of a private individual, giving a right of compensation at the suit of the injured party.
- Infringement of a right in rem. The wrong breaks a right that is good against everyone.
- Of a private individual. The right belongs to a person, not to the state. A crime is a wrong to the public.
- Compensation at the suit of the injured party. The victim starts the case and recovers compensation.
Step 5: what the definitions teach, and their limits
- A tort is a civil wrong. It has three features: a duty fixed by law, a duty owed to persons generally, and damages as the usual remedy.
- Salmond's definition defines tort by its remedy. It describes a tort by what the court does after the wrong, and says little about why the law imposes the duty.
- Winfield's definition looks at the duty, which makes it easier to apply to new wrongs. It does not name the right protected.
- No definition covers every case. Some torts allow an injunction as well as damages, and some, like trespass, are actionable without proof of loss.
Don't confuse: the three definitions compared
The definitions are not rivals. Each stresses a different feature. Use the table to quote the right phrase.
| Point | Salmond | Winfield | Fraser |
|---|---|---|---|
| Starts from | The remedy | The duty | The right infringed |
| Key phrase | Common law action for unliquidated damages | Duty primarily fixed by law, towards persons generally | Infringement of a right in rem of a private individual |
| Excludes | Wrongs only of contract, trust or equitable obligation | Duties fixed by the parties themselves | Wrongs against the public (crimes) |
Inside tort. A neighbour's loud factory machinery keeps Latha awake every night. The duty not to cause a nuisance is fixed by law and owed to neighbours generally. All three definitions are met.
Just outside it. A trustee sells trust property below its value and keeps the profit. The duty arises from the trust and is enforced in equity. Under Salmond's definition this is a breach of trust, not a tort.
Common mistakes
- Writing the definitions from memory and changing key words such as "primarily" and "persons generally".
- Saying a tort must always arise without any contract. The same facts can be both, as the word "exclusively" shows.
- Forgetting that unliquidated damages are the remedy. Liquidated damages (fixed in advance) belong to contract.
- Giving the Limitation Act definition as a full definition. It only says what a tort is not.
Apply it
Problem
Imran hands his scooter to a garage in Guntur for service under a written agreement. A mechanic carelessly leaves the brake unfixed. The scooter crashes and Imran is injured. Imran wants to know if his claim is a tort and which definition supports it.
Issue. Is the garage's careless work a tort, even though there was a contract?
Rule. Section 2(m) of the Limitation Act, 1963 describes a tort as a civil wrong that is not exclusively a breach of contract. Winfield's test asks whether a duty fixed by law, owed to persons generally, was broken.
Application. A duty to take reasonable care when doing work that can injure others is fixed by law and owed generally. The contract adds a duty but does not remove the one fixed by law. The injury is not "exclusively" a breach of contract. The remedy sought is damages for personal injury, which are unliquidated.
Conclusion. The careless work is a tort, and it may also be a breach of contract. Imran may claim damages in tort.
Leading case laws
- Donoghue v. Stevenson (1932)
Facts. A decomposed snail was found in a ginger-beer bottle that a friend bought for the appellant. She had no contract with the manufacturer.
Principle. By 3 to 2, the House of Lords held that a manufacturer owes a duty of care to the consumer. The duty arises from law and not from a contract.
Why it matters. It shows Winfield's idea of a duty fixed by law and owed to persons generally.
- Ashby v. White (1703)
Facts. A returning officer refused the vote of a qualified voter. The jury gave him £5 damages.
Principle. The House of Lords held that a person whose legal right is violated may sue for damages.
Why it matters. It shows a right protected by an action for damages, which is the core of Salmond's and Fraser's definitions.
- Rylands v. Fletcher (1868)
Facts. A mill owner's reservoir burst through old coal workings and flooded a neighbouring mine.
Principle. A person who keeps a dangerous thing on his land must keep it in at his own risk.
Why it matters. It shows a duty fixed by law that did not depend on any contract between the neighbours.
How to write this answer in the exam
5-mark answer
- Give the Salmond definition word for word.
- Give the Winfield definition word for word.
- Explain "unliquidated damages" and "right in rem" in one line each.
- Add section 2(m) of the Limitation Act, 1963.
10-mark answer
- Origin of the word and the statutory description in section 2(m).
- Salmond's definition, broken into its parts.
- Winfield's definition, broken into its parts.
- Fraser's definition.
- Comparison of the three in a table.
- Limits of the definitions, and the meaning of "not exclusively".
- Cases: Donoghue v. Stevenson and Ashby v. White.
Key points to remember
- Section 2(m), Limitation Act, 1963: a civil wrong not exclusively a breach of contract or trust.
- Salmond: a civil wrong remedied by a common law action for unliquidated damages.
- Winfield: breach of a duty primarily fixed by law, owed towards persons generally.
- Fraser: infringement of a right in rem of a private individual, with compensation at the injured party's suit.
- The remedy is unliquidated damages, not a sum agreed in advance.
- The same facts can be a tort and a breach of contract.
Quick self-test
1. What does "primarily fixed by law" mean in Winfield's definition?
The law creates the duty. The parties do not create it by agreement.
2. What does the word "exclusively" in section 2(m) allow?
The same facts can be both a tort and a breach of contract or trust. Only a wrong that is exclusively one of those is outside tort.
3. What are unliquidated damages?
Compensation whose amount is not fixed in advance. The court decides it according to the harm.