Tort distinguished from Crime and Breach of Contract

How a tort differs from a crime and from a breach of contract, and when one act is more than one wrong

In one minute

A tort, a crime and a breach of contract are three different wrongs. A tort breaks a duty fixed by law and is remedied by damages. A crime is a public wrong that the State punishes. A breach of contract breaks a duty the parties created by agreement.

One act can be more than one wrong. A reckless driver can face a criminal case and a civil suit at once. Examiners ask for the comparison table and for the statement that all torts are civil wrongs but not all civil wrongs are torts.

Exam focus

Frequency: Rarely asked
Usually asked as: Long answer (10 to 15 marks)

Legal provision

Section 2(m), Limitation Act, 1963: a tort is a civil wrong that is not exclusively a breach of contract or trust.
Bharatiya Nyaya Sanhita, 2023: defines the crimes and their punishments. It replaced the Indian Penal Code from 1 July 2024.
Sections 73 and 74, Indian Contract Act, 1872: compensation for breach of contract, and liquidated damages or penalty named in the contract.
Section 395, Bharatiya Nagarik Suraksha Sanhita, 2023 (earlier section 357, Code of Criminal Procedure, 1973): a criminal court may order that fine money be paid as compensation to the victim. It does not replace a civil suit.

Meaning and definition

A tort is a private civil wrong. A crime is a public wrong made an offence by law. A breach of contract is a failure to perform a promise made by agreement.

All three are wrongs, but the law treats each differently. The difference lies in the source of the duty, in who starts the case, and in what the court does at the end.

Three wrongs and who acts in eachHow to read this: each box is one kind of wrong. The text says who brings the case and what the court gives.

TortThe injured person sues the wrongdoer in a civil court. The court awards damages.

CrimeThe State prosecutes the accused in a criminal court. The court punishes by fine, prison or both.

Breach of contractThe promisee sues the party who broke the promise. The court awards damages or orders performance.

One act can fall in more than one box, for example a drunk driver who injures a pedestrian.
A civil suit does not stop a criminal case, and a criminal case does not stop a civil suit.

Detailed explanation

Step 1: tort and crime

Nature. A tort wrongs an individual. A crime wrongs society, even if a person is the victim.
Who acts. The injured person starts a civil suit and may settle. The State prosecutes a crime, and in serious cases the victim cannot simply withdraw the case.
Purpose. A tort remedy compensates. Punishment and deterrence are the purposes of criminal law.
Proof. A tort is proved on a balance of probabilities, which means that it is more likely than not. A crime must be proved beyond reasonable doubt.
Source. Crimes are defined in the Bharatiya Nyaya Sanhita, 2023 and other statutes. Tort law is mainly judge-made.
Mental element. Most crimes need a guilty mind (mens rea). Many torts, including negligence and strict liability torts, do not.

Example. Ramu hits Sita with a stick in a Hyderabad lane. The State may prosecute Ramu for causing hurt, and the court may fine or imprison him. Sita may separately sue Ramu for damages for battery. The two cases run independently.

Step 2: tort and breach of contract

Source of duty. A tort duty is fixed by law and owed to people generally. A contract duty is fixed by the parties and owed to the other party.
Privity. Only a party to a contract can ordinarily sue on it. In tort, anyone harmed by the breach of the duty can sue, with no prior relationship.
Damages. Tort damages are unliquidated, fixed by the court. Contract damages are usually also decided by the court under section 73, unless the parties fixed a sum in advance (section 74).
Measure. Tort damages aim to put the plaintiff back where he was before the wrong. Contract damages aim to put him where he would have been if the promise had been kept.
Motive. Motive is generally irrelevant in both, with exceptions in torts such as malicious prosecution and defamation.

Example. Lakshmi books a taxi for the airport at 6 a.m. and the driver does not come. She may sue for breach of contract. A passer-by whom the same driver hits in another lane has no contract with him. He sues in tort.

Step 3: where the wrongs overlap

The same facts can support more than one claim.

Tort and crime. Assault, defamation, trespass and negligent driving can be both. A criminal court may also order the accused to pay compensation under section 395 of the Bharatiya Nagarik Suraksha Sanhita, 2023. That does not stop the victim suing in tort.
Tort and contract. A doctor, a carrier or a repairer who is negligent may be liable in contract and in tort. The plaintiff may choose. Section 2(m) of the Limitation Act says a tort is a wrong "not exclusively" a breach of contract.

In White v. John Warwick & Co., a newsagent hired a delivery cycle from a company. The saddle slipped and he was hurt. The Court of Appeal held that the hire agreement's exemption clause did not clearly cover negligence. A claim in negligence could therefore go to trial. The same facts raised a contract claim and a tort claim.

Step 4: all torts are civil wrongs, but not all civil wrongs are torts

Torts are civil wrongs, but there are civil wrongs outside tort. Breach of contract and breach of trust are civil wrongs that are not torts. Section 2(m) of the Limitation Act says so by excluding wrongs that are only a breach of contract or trust.

Don't confuse: tort, crime and breach of contract

Use this table in the exam. Each row gives one test.

Point	Tort	Crime	Breach of contract
Nature of wrong	Private civil wrong	Public wrong against society	Private civil wrong
Source of duty	Fixed by law, owed to persons generally	Fixed by criminal law	Fixed by the parties' agreement
Who sues	The injured person	The State prosecutes	The other contracting party
Purpose	Compensation	Punishment and deterrence	Compensation for the broken promise
Standard of proof	Balance of probabilities	Beyond reasonable doubt	Balance of probabilities
Mental element	Often not needed	Usually a guilty mind	Not needed
Damages	Unliquidated, set by the court	None. Fine or imprisonment	Court-fixed, or a sum agreed in advance

Inside tort. A neighbour's dog, kept without care, bites Deepa. The duty to keep a dangerous animal under control comes from law. Deepa sues the owner for damages in a civil court.

Just outside it (breach of contract). Deepa agrees to buy the neighbour's dog for Rs 10,000 and the neighbour refuses to deliver it. The duty comes only from their agreement. Deepa sues for breach of contract.

Common mistakes

Saying a tort cannot also be a crime. Many acts are both, and both cases may go on together.
Writing that a civil suit must wait for the criminal case. In India, the civil suit is independent.
Saying contract damages are always liquidated. They are usually set by the court, unless the parties agreed a sum.
Forgetting the standard of proof. Tort needs a balance of probabilities and crime needs proof beyond reasonable doubt.
Treating "civil wrong" and "tort" as identical. Breach of contract and breach of trust are civil wrongs that are not torts.

Apply it

Problem

Arjun, a taxi driver in Vijayawada, drives rashly and knocks down Meena, a pedestrian. Meena is badly hurt. Arjun is acquitted in the criminal case because the prosecution could not prove rashness beyond reasonable doubt. Meena now sues Arjun for damages. Can she succeed?

Issue. Does an acquittal in the criminal case bar a civil suit in tort?

Rule. A crime and a tort are separate wrongs with separate proceedings. A crime is proved beyond reasonable doubt. A tort is proved on a balance of probabilities.

Application. The criminal court found only that rashness was not proved to the high criminal standard. The civil court asks whether it is more likely than not that Arjun drove without reasonable care. Meena may prove that.

Conclusion. The acquittal does not bar the suit. Meena can succeed on the lower standard of proof and recover damages.

Leading case laws

White v. John Warrick & Co. Ltd. (1953)
Facts. A newsagent hired a delivery cycle. The saddle slipped and he was thrown and injured. The hire agreement had an exemption clause.

Principle. The Court of Appeal held that the clause did not clearly cover negligence, so a claim in negligence could go to trial.

Why it matters. The same facts gave a contract claim and a tort claim.
Donoghue v. Stevenson (1932)
Facts. A snail was found in a bottle of ginger beer. The drinker had no contract with the manufacturer.

Principle. The House of Lords held by 3 to 2 that the manufacturer owed her a duty of care, though there was no contract.

Why it matters. It shows that a tort duty is fixed by law and does not depend on a contract.
Bhim Singh v. State of Jammu & Kashmir (1985)
Facts. An MLA was arrested and kept in unlawful custody for four days.

Principle. The Supreme Court awarded Rs 50,000 compensation for violation of Articles 21 and 22(2).

Why it matters. The same wrong can be a crime, a tort and a violation of fundamental rights, each with its own remedy.

How to write this answer in the exam

5-mark answer

Define tort in one line (section 2(m), Limitation Act, 1963).
Give the table of tort and crime: nature, who sues, purpose, proof.
Give the table of tort and contract: source of duty, privity.
State that one act can be a tort and a crime.

10-mark answer

Define tort, crime and breach of contract.
Tort and crime: five or six points, with an example.
Tort and breach of contract: source of duty, privity, damages, measure.
Combined comparison table.
Overlaps: negligent driving, and White v. John Warwick & Co.
All torts are civil wrongs, but not all civil wrongs are torts.
Conclusion: separate proceedings can run together.

Key points to remember

Tort is a private wrong and its main remedy is compensation.
Crime is a public wrong and the State prosecutes and punishes.
Tort duty is fixed by law and owed to persons generally. Contract duty is fixed by agreement.
Proof: balance of probabilities for tort and contract, beyond reasonable doubt for crime.
One act can be a tort and a crime, and a civil suit is independent of the criminal case.
The same facts can give rise to tort and contract claims (White v. John Warwick & Co.).
All torts are civil wrongs, but not all civil wrongs are torts.

Quick self-test

1. What are the standards of proof in tort and in crime?

A balance of probabilities in tort, and proof beyond reasonable doubt in crime.

2. Who starts the case in a tort and in a crime?

The injured person starts a tort suit. The State prosecutes a crime.

3. Why are not all civil wrongs torts?

Breach of contract and breach of trust are civil wrongs that are outside tort. Section 2(m) of the Limitation Act excludes them.