Distinguish between tort and a crime A crime is an offense against a law. Examples are murder, rape, assault, and various forms of theft. The police will arrest you for these, and if you are found guilty you will be sent to prison. A tort is a wrong committed against a person or company. It is not against any law, but the result is that someone has been injured. Instead of being arrested, you are served with a summons as the result of the person injured (the plaintiff) filing a lawsuit. The trial is held in civil court, rather than criminal court. The state does not prosecute; rather, both sides tell their stories, usually through their attorneys. There may or may not be a jury, and the requirement of proof is somewhat less. There has to be a “preponderance of evidence” rather han “proof beyond a reasonable doubt”. And the person being sued (the defendant) is not found guilty or not guilty; the judge finds for the plaintiff or defendant, depending on the merits of the case. Instead of being sentenced to prison, the loser is ordered by the court to do something, such as pay damages or hire someone, in order to rectify the wrong that was claimed. Of course, if the loser does not comply with the order of the court, he can be charged with contempt of court, which is a crime, and he could be sent to jail for that. But it is not nearly as serious as being sent to prison for a felony conviction. Tort law in India is a relatively new common law development supplemented by codifying statutes including statutes governing damages. While India generally follows the UK approach, there are certain differences which may indicate judicial activism, hence creating controversy. Tort is breach of some duty independent of contract which has caused damage to the plaintiff giving rise to civil cause of action and for which remedy is available. If there is no remedy it cannot be called a tort because the essence of tort is to give remedy to the person who has suffered injury. Whereas, The law relating to contracts in India is contained in INDIAN CONTRACT ACT, 1872. The Act was passed by British India and is based on the principles of English Common Law. It is applicable to all the states of India except the state of Jammu and Kashmir. It determines the circumstances in which promises made by the parties to a contract shall be legally binding on them. All of us enter into a number of contracts everyday knowingly or unknowingly. Each contract creates some rights and duties on the contracting parties. Hence this legislation, Indian Contract Act of 1872, being of skeletal nature, deals with the enforcement of these rights and duties on the parties in India. Tort law: torts are focused on a "actionable wrong." That is, it is a civil action based on an injury (physical or psychic) inflicted by one party upon another. This is where you find actions such as assault, battery, intentional infliction of emotional distress, and product liability. Whereas, Contract law: contract law deals with the formation, drafting, and consequences of a legally binding agreement between two parties. In contract law you will find issues such as whether a contract was formed, the consequences for breach of the contract, and what elements constitute the contract (I.e., weather outside evidence can be used to understand the will of the parties). Tort law governs your responsibilities to other members of the public. Whereas, Contract law governs your responsibilities to the other party in a contract. Example - your business employs an electrician to do some work in your office.. The electrician does some bad work, and you get electrocuted - that is negligence (a type of Tort). You can sue him for damages in a civil court. The electrician refuses to do the work - you can sue him for breach of contract in a civil court. )CommonlawandEquity Common law may be described as a branch of the law of England which was developed by the ancient common law courts from the customs, usages and usages of the English people. These courts applied the peoples way of life in the settlement of disputes thereby giving such customs the force of law. The courts standardized and universalized customs. The common law was characterized by the writ system and stare decisis. The common law system of administration of justice was rigid, slow, had insufficient remedies, did not recognize trust and was highly technical. The courts could onlyawarddamages. Commonlawactsinrem. Equityordinarilymeansfairnessor justice. It is that branch of the law of England which was developed by the various Lord Chancellors courts to supplement the common law. It developed to mitigate the harshness of the common law as well as fill in the gaps in the common law system. It is therefore an addendum to the common law. Equity was developed by a different system of court and on the basis of different principles namely fairness. Administration of justice was speedy and the system was very flexible. Equity developed the so-called maxims of equity, additional remedies, recognized trusts and enhanced protection of borrowers. Equity acts in personam. If common law and equity conflict equity prevails. Advantages of Delegated Legislation. • Time: Savesparliamentarytime. Theparliamentthereforeprovidesthewhole framework leaving the details to be provided by the subsidiary legislation. • Speed: The parliamentary law making process is slow and some situations may require urgent intervention. Moreover this may happen when the parliament is in recess. • Foresight: Parliament cannot foresee all situations and problems that may require legislation. Moreover they also lack adequate skills and research facilities for all laws. • Less rigid: Delegated legislationcan beamended or repealed easilysincethe process is relatively flexible. • Technicality of subject matter: Technical subject matter is dealt with by expertsinthespecificfielde.g. bylawsaremadebylocalauthoritiestoregulate activities within their administrative areas. Professional bodies make regulation to govern their profession. • Emergencysituations: Incaseofemergency,thepresidentcanusesubsidiary legislation since he does not then need to go through parliamentary procedures. Disadvantages of Delegated Legislation. • Lack of adequate parliamentary control. • Lack of adequate judicial control. • Un-democratic because sometimes the parliament may delegate its law making mandate to none elected body. • Bulkiness since there exists too many statutes made under delegated powers. • Danger of sub-delegation. This arises for example in such powers given to a minister who in turn delegates the power to another person. • Lackofpublicity: Accessto thepublicis noteasy, yetignoranceof lawisno defense. Lord Howard said “A citizen is does not know what it is, he does not know where to find it, he probably would not understand it in relation to law if he found it but he is bound by it”. • Retrospective operation: Most of delegated legislations have retrospective operation. .Explain the key distinctions between common law and equity. Solution: Common Law • This is a branch of the Law of England which was developed by the ancient common law courts from customs, usages and practices of the English people. • Developed as a complete system of law. • Common law act is rem• Developed from customs, usages and practices of the people. • Developed before equity • Common law rights are enforced as of right • Developed on the basis of the writ system and stare decisis • If common law and equity conflict, equity prevails. Equity • This is a branch of the law of England which was developed by the various Lord Chancellor’s courts to supplement the common law. • Was not a complete system. • Equity acts in personam • Developed on the basis of the principal of fairness or justice. • Developed to mitigate the harshness of the common law • Develop additional remedies e.g. injunction, specific performance, tracing etc. • Equitable rights are discretional Developed after the common law.
