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- Dictionarytort/tɔːt/
noun
- 1. a wrongful act or an infringement of a right (other than under contract) leading to legal liability: "public nuisance is a crime as well as a tort"
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The meaning of TORT is a wrongful act other than a breach of contract for which relief may be obtained in the form of damages or an injunction. How to use tort in a sentence. Did you know?
- Overview
- Functions of tort
- Punishment and appeasement
- Deterrence
- Compensation
- Loss spreading
- Comparative classification
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tort, in common law, civil law, and the vast majority of legal systems that derive from them, any instance of harmful behaviour, such as physical attack on one’s person or interference with one’s possessions or with the use and enjoyment of one’s land, economic interests (under certain conditions), honour, reputation, and privacy. The term derives from Latin tortum, meaning “something twisted, wrung, or crooked.” The concept encompasses only those civil wrongs independent of contracts.
Other legal systems use different terminology for this wide and amorphous area of the law. Germans, for example, talk of unlawful acts, and French-inspired systems use interchangeably the terms délits (and quasi-délits) and extra-contractual civil responsibility. Despite differences of terminology, however, this area of the law is primarily concerned with liability for behaviour that the legal order regards as socially unacceptable, typically warranting the award of damages to the injured party or, occasionally, an injunction.
It is broadly true to say that most western European and common-law systems tend to regard as actionable the same factual situations. But although the problems encountered are identical and the results reached are often quite similar, the arrangement of the law and the methodology employed often differ significantly between countries, depending on how the law has been conceived and how solutions have been approached in various cultures over time. Thus, the German Civil Code reflects a strong tendency to abstraction and systematization—qualities that betray the code’s university and Roman-law origins and that contrast at least superficially with the more casuistic (case-based) and judge-made law of the common-law systems. By contrast, the 19th-century codifications, which are the products of the natural school of law (see natural law), are marked by their broad sweep and manifesto-like provisions, often making them more readable than their German counterparts but also less precise and accordingly in need of judicial definition. Typical of this approach is the Napoleonic Code of 1804, which became a model for most Romanistic legal systems, including those of Italy and Spain and their derivatives, mainly in Central and South America. Much of the contemporary law in these countries results from the interplay between judicial activity and doctrinal writing.
Tort law, though often viewed as secondary to contract law in the law of civil obligations, spread to many parts of the world after World War II, and its influence was especially notable in continental Europe. At the same time, criticism of it has led to its replacement either partially by specialized schemes or, in rare cases, by complete systems of accident compensation. Criticism has also provoked serious discussion about the impact of the welfare state, modern insurance practices, and the importance of economic analysis in the proper development of the law. For a time it even looked as if these challenges might bring about wholesale reform (such as that adopted in New Zealand in the 1970s) that would threaten rules with very ancient pedigrees. But the 20th century closed with the tort system remaining basically intact, albeit held to a lower status within the entire system of compensation, as the majority of compensation for reparable injuries continued to be paid through social security systems and insurance claims.
Throughout its long history, tort has pursued different aims: punishment, appeasement, deterrence, compensation, and efficient loss spreading of the cost of accidents. None offers a complete justification; all are important, though at different stages one may have been more prominent than the rest.
Originally, tort and criminal law were indistinguishable, and, even when the two branches began to acquire independent identities, the former remained for a very long time in the shadow of the latter. Offenses against the community and the king’s interests increasingly became the subject of criminal law, whereas wrongs against the individual came to be dealt with by the emerging (or, in the case of continental Europe, reemerging Roman-inspired) law of torts. Early tort law, however, was concerned only with the most serious kinds of wrongs—bodily injury, damage to goods, and trespass to land. Not until the 19th century was it extended to cover such conduct as intentional infliction of economic loss. In the 20th century the compensation of negligently inflicted economic loss and other violations of subtler interests (such as psychological injuries and violations of privacy) took centre stage in the wider debate that aimed to set the proper boundaries of tort liability.
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The emancipation of tort law from criminal law resulted from the need to buy off private vengeance and to strengthen law and order during the Middle Ages. Most authors would probably agree that punishment and appeasement are no longer major aims of tort law. Nevertheless, some common-law jurisdictions—notably the United States—retain in their damage awards a strong element of punishment for certain types of tortious conduct. These punitive or exemplary damages, as they are sometimes called, are in England limited to three rather narrow instances. The most troublesome and oft-encountered is the case of an activity calculated by the defendant to make a profit (a term not confined to moneymaking in the strict sense). In these instances it is felt that “it is necessary to teach the wrongdoer that tort does not pay” by making him not only compensate the plaintiff for the latter’s loss but also disgorge any gain he may have made from his conduct. That this is right few would doubt. Less defensible, however, is the resulting windfall for the plaintiff and the loss of important procedural safeguards for the defendant in a situation in which “punishment” is meted out by unpredictable and unguided juries. In England the latter objection was partially countered by the courts’ greater willingness, encouraged by modern statutory rules, to control such jury awards and to keep them within reasonable limits. But the same cannot be said of the United States, where punitive awards, often amounting to millions of dollars, had a significant effect on the tort strategies of litigants.
In its modern, economic sense, deterrence aims at reducing the number of accidents by imposing a heavy financial cost on unsafe conduct. A distinction is necessary between specific and general deterrence. The former depends largely on the admonitory effect of tort law. This, however, is limited where insurance cushions the defendant from the economic consequences of an adverse judgment (though insurance premiums may subsequently be increased). This deterrent element, however, almost completely evaporates in the case of traffic accidents, where harm is statistically inevitable and in most cases results from momentary inattention, the occurrence of which no tort award can ever prevent. Tort law is, therefore, in some cases the second best means of preventing accidents after criminal law. Its greater (deterrent) influence may be in cases involving damage to property and tortious harm resulting from intentional activities.
Very different was the theory of general deterrence principally argued by the U.S. legal scholar and judge Guido Calabresi in The Cost of Accidents (1970). In Calabresi’s words, general deterrence involves deciding
what the accident costs of activities are and letting the market determine the degree to which, and the ways in which, activities are desired given such costs. Similarly it involves giving people freedom to choose whether they would rather engage in the activity and pay the costs of doing so, including accident costs, or, given the accident costs, engage in safer activities that might otherwise have seemed less desirable.
Calabresi’s approach reflected the belief that the market mechanism not only achieves the optimum allocation of resources but also ensures that most of society’s decisions vis-à-vis accident-causing activities are left to the cumulative choice of individuals rather than to imposition by government.
Compensation is arguably the most important contemporary function of tort law, and modern insurance practice has made it easier to satisfy the injured without financially crushing the injurer. The welfare state, however, is now the main source of accident compensation. But even where tort law plays a major compensatory role—for example, in the most...
Compensation in its crudest form meant that the cost of an accident was shifted from the victim to the tortfeasor. For a long time the only plausible excuse for such a shift was deemed to be the tortfeasor’s fault. Certainly it seemed right to make wrongdoers pay. The corollary, that he who is not at fault need not pay, also appealed to 19th-centur...
Although the common law of torts is in many ways wider than the modern European law of delict, in practice it hides a tendency to deal with tort problems under different headings of the law, such as contract, property, inheritance, or even crimes. For example, in English common law tort has served such modern problems as product liability or liability for negligent statements, whereas French and German law has traditionally relied on contractual solutions. In contrast, the German Civil Code has a basic (tort) provision excluding compensation for negligently inflicted pure economic loss that, along with a narrow rule of vicarious liability, has encouraged the expansion of the law of contract. Defamation also is regarded primarily as a tort in the common law but as a crime in civil-law systems, though in some of the latter it is now seen as a potentially important heading of civil liability. Another difference exists between what the common law describes as trespass to land and the tort of nuisance and what civil lawyers have seen primarily as part of the law of immovable property.
The choice regarding which part of the (wider) law of obligations is to be used as a solution to emerging legal problems will often depend upon historical factors or doctrines, such as the common-law doctrine of consideration, which nonetheless makes the expansion of contract notions impossible to meet new situations. Conversely, there may be obstructive provisions in the law of tort that make recourse to the law of contract inevitable. This is the case with the German Civil Code, which adopts a weak rule of vicarious liability, allowing masters to exculpate themselves from the wrongs committed by their employees if they can show that they selected and supervised them properly. In such circumstances, some systems (such as the German) have found that recourse to contract provisions may make the imposition of liability easier (even though it may give rise to different problems). See also labour law.
Tort is a civil wrong that involves harmful behaviour, such as physical attack, economic loss, or invasion of privacy. Learn about the history, functions, and types of tort law in common law and civil law systems.
- Basil S. Markesinis
A tort is an action that is wrong but not criminal and can be dealt with in a civil court. Learn more about the meaning, types, and examples of torts from Cambridge Dictionary.
Aug 19, 2015 · Tort law is the area of law that deals with the wrongful actions of an individual or entity that cause harm to another person or entity. Learn about the types of tort, the elements of a tort claim, and the tort reform movement.
Jul 30, 2013 · What is a Tort? The word tort comes from the Latin tortum, meaning “wrong, injustice.” The purpose of tort law is not to punish wrongdoers; it is to provide damages to victims as compensation for their losses.
A tort is a civil wrong that causes injury or harm to another and may lead to liability in court. Learn about the types of torts, such as intentional, negligent, and strict liability, and the remedies available, such as damages and injunctions.
A tort is a wrongful act that causes harm or damage to someone or something. Learn how to use the word "tort" in a sentence and browse other legal terms and resources on Justia.
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