What are the various modes of Discharge of tort.
Introduction:
1. The term “discharge of torts” refers to the termination or resolution of a tortious claim or legal
action. It signifies that the legal liability associated with a tort has been extinguished or ended.
2. When a tort is discharged, the party who committed the wrongful act is no longer held legally
responsible for their actions and the injured party loses the right to seek further remedies or
damages for the tort.
3. There are seven methods through which torts can be discharged and in these instances, no
remedy can be sought for the tortious act.
The following are the modes of discharge of torts:
1. Death of the parties
The maxim “actio personalis moritur cum persona” is a crucial principle, indicating that if either the
person who commits a tort or the person against whom the tort is committed passes away, the
personal right or the right to seek damages or take legal action ceases to exist.
There are two scenarios in which this maxim applies:
(i) Death of the person against whom the tort was committed (i.e., the plaintiff)
When the individual against whom the tort was committed approaches the court and files a case
but subsequently dies, their personal right of action also perishes.
(ii) Death of the person who commits the tort (i.e., the defendant)
When the person responsible for committing a tort against another individual dies, the tort is
discharged.
In the case of Prusti v. Mohanty:
The Orissa High Court held that a money decree arising from misrepresentation is a personal
liability of the defendant and does not pass to his legal heirs. Since such liability is not inheritable,
the defendant’s son cannot be held responsible, and the decree-holder's claims against the
deceased defendant are extinguished upon his death.
In India, various laws provide exceptions to the maxim, such as:
The Legal Representative Suits Act, 1885:
Under this act, if a person involved in a tortious act dies during the trial, the right of action passes
to their legal representative.
Similarly, different laws and acts like the Fatal Accidents Act, the Indian Succession Act and the
Workmen’s Compensation Act require the representative of the defendant to act on their behalf in
a court of law.
2. Accord and Satisfaction:
The concept of accord refers to an agreement between the parties involved in a tort, namely the
person who commits the tort and the person against whom the tort is committed, to settle their
dispute. This agreement is known as an accord. In essence, it involves resolving the issue by
accepting some form of consideration in exchange for the right of action.
Satisfaction, on the other hand, entails the actual payment of the agreed consideration by both
parties involved in the tort, i.e., the person who committed the tort and the one against whom it
was committed.
Once both accord and satisfaction have been fully carried out, the tort is discharged and the
dispute no longer proceeds in a court of law.
3. Release:
A Release means giving up the right to the action. It means when a person by his own choice
discharged the tort. This right is only provided to the person against whom the wrong has been
done. The release should be voluntary and given by free consent from the injured person. If the
consent is taken by coercion, undue influence, or any other unlawful means then that release
should not be counted as a release and the tort is not discharged.
4. Judgment:
In this method, the discharge of tort occurs through a court judgment. Once the court delivers a
judgment on a matter, the tort is discharged and no further appeal can be made for the same tort
in a court of law.
This method is based on the legal principle of Res Judicata, which means that if the court has
already decided a cause of action, the same cause of action should not be entertained by the court
again.
In Fitter v. Veal, the court ruled that once a judgment is delivered and a remedy is granted for a
tort, the claim is discharged, and no further petition for additional remedies can be entertained for
the same assault.
5. By Waiver
The next method of discharging a tort is through the waiver. Waiver occurs when a person has
multiple available remedies and must choose one of them. They cannot seek both remedies
simultaneously, except in the case of defamation and assault.
The key principles underlying the doctrine of waiver are:
1. The person must choose one remedy
2. The waiver can be either implied or expressed.
3. In the implied form of waiver, the person’s choice is implied by their actions or conduct.
6. Acquiescence
In this method, the tort is discharged due to the plaintiff’s own incapacity, such as lack of time to
go to court, inability to afford court fees or any other incapacity. When a person entitled to
enforce their right fails to do so for an extended period, it implies a waiver of the other party’s
liability
7. Law of Limitation
Under this method, the tort is discharged due to the expiration of the prescribed time limit for
filing a case. Once the time limit has passed, no person is entitled to enforce their right.
For example, in cases of false imprisonment or libel, the time limit to file a case is one year. In
cases of trespass to immovable property, the limit is three years. After the time limit has elapsed,
no person can enforce their right.
Conclusion
Discharge of torts can be done on the death of the parties, accord and satisfaction, release,
judgment, waiver, acquiescence and the law of limitation. The consequences of discharging torts
include the termination of legal liability, closure and finality of the legal dispute, preservation of
judicial resources, limitation of remedies, impact on legal precedent, deterrence and compliance
and the protection of rights.
