Common LawThis essay Common Law is available for you on Essays24.com! Search Term Papers, College Essay Examples and Free Essays on Essays24.com - full papers database.
Autor: amir • November 2, 2011 • 7,490 Words (30 Pages) • 764 Views
Assignment No: 3
Done and submitted by: Hamid ebadi fard
Q1. Define Tort and write a note on differences between contractual and tortuous liability.
Ans) Tort law is a body of law that addresses, and provides remedies for, civil wrongs not arising out of contractual obligations. A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or "liable," for those injuries. Generally speaking, tort law defines what constitutes a legal injury and establishes the circumstances under which one person may be held liable for another's injury. Torts cover intentional acts and accidents. In contrast to criminal law (in which the offense is against the State and the State is the plaintiff), in tort law, the offense is against a person and that person is the plaintiff.
For instance, Alice throws a ball and accidentally hits Brenda in the eye. Brenda may sue Alice for losses occasioned by the accident (e.g., costs of medical treatment, lost income during time off work, and pain and suffering). Whether or not Brenda wins her suit depends on if she can prove Alice engaged in tortuous conduct. Here, Brenda would attempt to prove Alice had a duty and failed to exercise the standard of care which a reasonable person would render in throwing the ball.
One of the main topics of the substance of tort law is determining the "standard of care"--a legal phrase that means distinguishing between when conduct is or is not tortuous. Put another way, the big issue is whether a person suffers the loss from his own injury, or whether it gets transferred to someone else.
Returning to the example above, if Alice threw the ball at Brenda purposely, Brenda could sue for the intentional tort of battery (and the action might also, separately, be a crime against the State). If it was an accident, Brenda must prove negligence. To do this, Brenda must show that her injury was reasonably foreseeable, that Alice owed Brenda a duty of care not to hit her with the ball, and that Alice failed to meet the standard of care required.
In much of the western world, the touchstone of tort liability is negligence. If the injured party cannot prove that the person believed to have caused the injury acted with negligence, at the very least, tort law will not compensate them. Tort law also recognizes intentional torts and strict liability, which apply to defendants who engage in certain actions.
In tort law, injury is defined broadly. Injury does not just mean a physical injury, such as where Brenda was struck by a ball. Injuries in tort law reflect any invasion of any number of individual "interests." This includes interests recognized in other areas of law, such as property rights. Actions for nuisance and trespass to land can arise from interfering with rights in real property. Conversion and trespass to chattels can protect interference with movable property. Interests in prospective economic advantages from contracts can also be injured and become the subject of tort actions. A number of situations caused by parties in a contractual relationship may nevertheless be tort rather than contract claims, such as breach of fiduciary duty.
Tort law may also be used to compensate for injuries to a number of other individual interests that are not recognized in property or contract law, and are intangible. This includes an interest in freedom from emotional distress, privacy interests, and reputation. These are protected by a number of torts such as infliction, privacy torts, and defamation. Defamation and privacy torts may, for example, allow a celebrity to sue a newspaper for publishing an untrue and harmful statement about him. Other protected interests include freedom of movement, protected by the intentional tort of false imprisonment.
The equivalent of tort in civil law jurisdictions is depicting. The law of torts can be categorized as part of the law of obligations, but unlike voluntarily assumed obligations (such as those of contract, or trust), the duties imposed by the law of torts apply to all those subject to the relevant jurisdiction. To behave in 'tortuous' manner is to harm another's body, property, or legal rights, or possibly, to breach a duty owed under statute. One who commits a tortuous act is called a "tortfeasor". Torts is one of the American Bar Association mandatory first year law school courses.
Contractual liability is defined as liability that does not arise by way of negligence, but by assumption under contract or agreement. Although it is frequently misunderstood, this type of liability is critical in the insurance and risk management industries. It is common in business agreements (written or oral), for one party to assume the liability of another. This is sometimes referred to as a hold harmless agreement. The full extent to which one holds another harmless varies from project to project, contract to contract, job to job and so on. To assume liability of another is risky and increases your exposure to loss. That is why insurance is required. Contractual liability insurance is usually provided with commercial liability insurance - but you should always ask your agent to make sure. There will also be some exceptions and limitations, so again ask your agent and thoroughly read through your policy so that you know what is and what is not covered.
Outside of insurance, contractual liability has a broad meaning - it's basically a promise that may be upheld in court. For example, say you agree to build someone a deck for $600 and collect $300 as a retainer prior to starting the job. In the meantime, a higher paying project comes along and you never show up to put on the deck. The other party can take you to court and collect the original $300 that they paid you. You were in breach of contract and therefore they had a justified contractual liability claim.
The role of defenses in the law of tort is to limit the liability of the defendant or in some cases exonerate the defendant completely from tortuous liability. Some defenses to tortuous liability include contributory negligence, consent (or assumption of risk) and illegality. Until recently, common employment was recognized as a defense until it was abolished by the Law Reform (Personal Injuries) Act 1948. The doctrine of common employment provided that an employee impliedly took the risk of any injuries at work caused by the negligence of a fellow employee. The defense of consent (i.e. assumption of risk) or