Constituents of Torts

The vested legal right creates a legal duty. Legal rights are the rights that are conferred by
law on a particular party or person. To constitute a tort, the following three conditions
must be met:

1- The defendant must have done some act or omission.

2- The act or omission should have resulted in legal harm (injuria), i.e. infringement of the
claimant’s legal right.

3- The wrongdoing or commission must be of such a nature that a legal remedy can be
found.

1) First Constituent of Tort

There must be an omission or some act on the part of the defendant.

 An act or omission shall be wrong if the person sought to be held liable was under a
legal duty.
 The relevant act or omission should be recognized by law. It should not be a moral
or social mistake.
 It may be intentionally or negligently committed.
Illustration: Committing a trespass or publishing a statement, defaming another person or
mistakenly detaining another person, may be liable, as the case may be, for trespass,
defamation or false imprisonment.

Glasgow corporation v. Taylor

In this case, a company fails to put proper fencing in order to keep the children away from a
poisonous tree and a child plucks and eats fruit from the poisonous tree and dies. The
company is liable for such an omission.

2) Second Constituent of Tort

The act or omission should result in legal damage (injuria). “Damage” means the harm or
loss suffered or presumed by someone else as a result of wrongful act/omission. In all cases
of torts, the complainant is required to compulsorily prove that legal damage has occurred
to him as a result of the defendant’s action/omission. Legal damage is only possible if the
complainant’s legal right has been infringed. Under tort, no action/damage is possible if no
legal right is infringed. The maxim “damnum sine injuria” expresses this proposition. From
the perspective of damage presumption, rights are divided into two categories:
  Absolute

If an absolute right is infringed, the law definitively presumes damage even if the
wrongdoer has not suffered any loss of money. Violation of absolute law is enforceable in
itself, that is, without any evidence of damage. The presumed damage is called legal
damage. Illustration: right to land infringement is actionable even if no damage was caused
by the infringement.

 Qualified

There is no presumption of damage in the case of qualified rights, and the violation of such
rights can only be applied on the basis of the proof of damage.

Illustration: If a landlord makes improvements to the property leased without the right to
do so, the landlord is liable for damages, even if the property can be improved and made
more valuable by the changes.

Injuria Sine Damnum

 Injuria
means an infringement of a right conferred on the complainant by law or
unauthorized interference with the right of the complainant, however trivial it
may be.
 Damnum means substantial money, comfort, health, loss or damage.

 Sine means without.

Thus, injuria sine damnum means an infringement of the law without causing the plaintiff
any harm, loss or damage.

Bhim Singh v. State of J. & K , the petitioner, a Jammu & Kashmir M.L.A., was wrongly
arrested by the police while attending the session of the assembly. In addition, he was not
produced within the required period before the Magistrate. As a result, he was deprived of
his constitutional right to attend the session of the Assembly. The fundamental right to
personal freedom guaranteed under Article 21 of the Constitution had been violated. By the
time the Supreme Court ruled on the petition, Bhim Singh had been released, but
exemplary damages amounting to Rs. 50,000 were granted by way of consequential relief.

3) Third Constituent of Tort

The wrongdoing or omissions are of such a nature that a legal remedy can be found.
Legal remedy is the third necessary remedy for a tort action. In tort, the wrongdoing must
fall within the category of wrongs for which the remedy is a civil damages action. Civil
injury is a tort, but not all civil injuries are torts. The essential remedy for torture is an
action for damages, but other remedies may also be obtained, for example, in addition to
damages in certain cases of wrongs or the complainant’s own action without going to court,
i.e. self-help.

What is crime

 Crime is defined as any act performed or omitted that constitutes an offence and is
penalized by law.
 Crime is an illegal conduct that is prohibited and punishable by the state or the law
governing that state.
 In other words, everything that endangers public welfare is a crime.

 Crime is defined as human behavior that is universally condemned by society.

 However, in the current definition, a crime is any conduct that is banned by the
applicable criminal law and results in punishment.

Essential elements of crime

1. Human being: The first element of crime is a human being. Any wrongful act to
be called a crime must be done by a human being . There must be a human being
under a legal obligation to act in a particular way, and he or she must also be
capable of being punished .
2. Mens rea: Mens rea, or guilty mind or evil purpose, is the second basic ingredient
of crime. Mens rea refers to the requirement of the mental element for any
improper act undertaken by a human being to be labelled a crime.

 When performing an act, there must be an evil purpose.

 There is a well-known maxim “Actus non facit reum nisi mens sit rea”. It means the
act itself does not make a man guilty unless his intentions.

3. Actus reus: Actus reus is the third element of the offence. To be punished,
criminal intent must be manifested in some voluntary act or omission. According
to Kenny, an actus reus is an outcome of human behaviour that the law attempts
to prohibit, and the act performed must be one that is forbidden or penalised by
the law.
4. Injury: Injury is the final and most significant ingredient of a crime. It must be
caused illegally to another human being, group of individuals, or society at
large. Section 44 of the Indian Penal Code, 1860 defines injury as “any harm
whatsoever illegally caused to any person on body, reputation, or property”.
However, there may be similar crimes that do not do any harm to anyone. For
 example, driving a car without a driver’s licence is a criminal, even if you do not
injure anyone.

Stages of crime

Intention:

The initial step in the conduct of an offence is known as the mental stage. This stage is not
punishable under the IPC. “Actus non facit reum nisi mens sit rea” is a latin maxim which
translates into an act does not make a defendant guilty without a guilty mentality. It
indicates that an act does not become guilty of itself. Actus reus is the physical act
performed by a person, and mens rea is the guilty thought with which the crime is done. An
act that is not preceded by a malicious purpose is not punished.

Preparation:

The second step is preparation. Preparation is not penalised since there is still time for a
person to change his mind. There is one exception to this general rule that is, it is
impossible to demonstrate that the planning was directed at the infraction. There are just a
few circumstances when the IPC penalises even during the planning stage, as have been
laid down hereunder:

1. Section 22 punishes a person who is involved in the acquisition of weapons to

wage war against the state.
2. Section 126 makes it unlawful to commit activities such as assaulting any country
at peace with India.
3. Section 399 discusses establishing plans to conduct dacoity.
3. Attempt:

This is the third step, often known as preliminary crime. An effort to commit a crime is an
action taken with malice. If not halted, this would result in the conduct of the crime. There
are three requirements for attempting an act.

 Malicious intent is required.

 An act committed in preparation for the committing of a crime.

 The act performed fell short of the whole offence.

An attempt is punishable under the IPC under the following provisions:

 Section 196 – using or attempting to use any evidence that the person knows to be
false as actual evidence .
 Section 239– impediment to the lawful arrest of another person.
  Section 250 – delivery of coin with the knowledge that it is altered.

 Section 385 – putting or attempting to put someone in fear of harm to commit

extortion.
 Section 307 – penalise attempt to murder.

 Section 308 – penalise attempt to commit culpable homicide .

 Section 393– Penalise attempt to commit robbery.

4. Accomplishment:

This is the final stage in the commission of a crime. Actus reus is said to be complete in this
stage. If the accused succeeds in his endeavour, he will be judged guilty of the full offence. If
he fails, he will merely be charged with attempting to commit a crime.

If X fires at Y with the purpose to kill him, X will be found guilty for murder under Section
302 of the IPC. If Y does not die but is harmed, X will be charged with attempted murder
under Section 307 of the IPC.

Difference between breach of contract and breach of trust

BREACH OF
BREACH OF TRUST
CONTRACT

A breach of contract
happens when one
A trustee’s deliberate misuse of
party to a contractual
something legitimately handed to
agreement fails to
him in confidence.
deliver on the terms
of the agreement.

A contract violation
can occur in both a Breaking a commitment or a
written and an oral trust.
contract.

A breach of contract
Any conduct or omission by the
can be resolved
trustee that is contrary to the
among the parties
terms of the trust agreement or
concerned or in a
the law of trusts.
court of law.

A breach might range For example, A may lend his

from a late payment automobile to his friend B for
to a more serious transportation purposes. B, on
 the other hand, utilises it to carry
infraction, such as illegal commodities such as ivory.
failing to deliver In this case, B is guilty of
promised assets. criminally betraying A’s
confidence.

In contract there is
Trust is a branch of law of
duty towards specific
property .
person