Differences between Damnum sine injuria and injuria sine damnum

Definition of Tort.

A tort, in common law jurisdictions, is a civil wrong, which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortuous act, called a tortfeasor. Although crimes may be torts, the cause of legal action is not necessarily a crime, as the harm may be due to negligence which does not amount to criminal

The word Tort was derived from the Latin term Tortum

Prof. P H Winfield, TortuousLiability arises from breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redress-able(compensated) by an action for unliquidated(not settled) damages.

According to Prof Winfield's definition a tort consists of the following;-

     1.  breach of a duty primarily fixed by law

     2.  duty is towards persons generally

     3 . an action for unliquidated damages.

Sir John Salmond defined Tort as a civil wrong for which the remedy(correction)is common law action for unliquidated damages and which is not exclusively the breach of contract or the breach of trust or other merely equitable(fair) obligation. 

According to Salmond's definition a tort consists of the following;-

•  Civil wrongs
• An action for unliquidated damages
• Which is not exclusively the breach of contract or the breach of trust or other merely equitable(fair) obligation

 Fraser: A tort is an infringement(breach) of a legal right in rem of a private individual, giving a right of compensation of the suit of the injured party.

Rogers vs Rajendro Dutt (1860) 8 MIA 103: Judicial Committee of Privy Council: Tort is an act or omission which prejudicial affects, another and some legal right giving him a right to claim damages.

PURPOSE OF LAW OF TORT

 Is to offer or provide compensation to any wrongs and harm done by one party to another's person, property or other protected interests.

CRIME ; denotes an unlawful act punishable by the state.

THE DIFFERENCE BETWEEN TORT AND CRIME

TORTS:

• A tort is a wrongful act that injures or interferes with another's person or property.
• A tort case is a civil court proceeding.
• The accused is the "defendant" and the victim is a "plaintiff."
• The charges are brought by the plaintiff.
• If the defendant loses, the defendant has to pay damages to the plaintiff.
• Tort is a breach of private rights or duties.
• Purpose of law of tort is compensation.

CRIMES:

1. A crime is a wrongful act that the state or federal government has identified as a crime.
2. A criminal case is a criminal proceeding.
3. The accused is also called a 'defendant".
4. The victim is the person who has been hurt or the state of Georgia or other governmental entity.
5. The charges are brought by the government.
6. If the defendant loses, the defendant must serve a sentence.
7. A fine is paid to the government and there is possible restitution to the victim.
8. Crime is the breach of public rights or duties. Purpose of Criminal law is punnishment in the interests of the society.

There is a situation where by a tort is also a crime, when a person commit a act which is both crime and tort, this person can be sued in both criminal court and civil court.

CONTRACT

is an agreement having a lawful object entered into voluntarily by two or more parties, each of whom intends to create one or more legal obligations between them. The elements of a contract are "offer" and "acceptance" by "competent persons" having legal capacity who exchange "consideration" to create "mutuality of obligation."

DIFFERENCE BETWEEN TORT AND CONTRACT

CONTRACT

Contract law is that body of rules that govern contractual agreements between persons or merchants. A contract is basically an agreement between parties outlining their duties and responsibilities to one another.  Contracts can be formed for nearly any type of interaction.  Thus, contract laws may address various transactions for the sale of goods and services.  Contract laws outline what a person can or cannot include in a contract, and what the remedies are if a party breaches their contractual duties.

TORT

In contrast, tort laws govern situations where one person has harmed or injured another person.  Tort laws cover violations where the party intentionally harmed the other person, such as in a battery claim.  Tort laws also address incidents where the party may be held liable even if they did not act intentionally, such as in negligence claims or strict liability claims.  Tort laws usually result in the liable party paying the victim monetary damages to compensate for their losses.

BREACH OF TRUST;- An offense committed by a person in a position of trustor the failure of a trustee to fulfill his or her obligations, which amounts to a civil wrong

DIFFERENT BETWEEN TORT AND BREACH OF TRUST

Torts

1. Tort is a civil wrong. Civil proceedings shall be instituted.

2. It is not codified law.

3. Motive is irrelevant.

4. The law of torts in its origin is a part of the common law.

5. The plaintiff and the defendant may or may not know each other previous to the incidence of tortuous liability.

6. The legal remedy for a tortuous liability is unliquidated damages.

Breach of Trust (Equitable Obligation)

1. Breach of Trust and other equitable obligations are criminal offenses, and are liable for punishment with imprisonment, or fine or both.

2.. It is a codified law.

3. Motive is relevant.

4. Breach of Trust and other obligations fell exclusively within the jurisdiction of equity.

5. The plaintiff and the defendant know each other from the beginning. In fact the law of the trust is depended upon the trust on each other.

6. Injunctions, specific restitution of property, and the payment of liquidated sums of money by way of penalty, etc. are legal remedies available to the plaintiff. Besides them, the defendant is also liable for fine or imprisonment or both under” the criminal proceedings.

A QUASI-CONTRACT OR CONSTRUCTIVE CONTRACT;- is a fictional contract created by courts for equitable, not contractual, purposes. A quasi-contract is not an actual contract, but is a legal substitute formed to impose equity between two parties.

DIFFERENT BETWEEN TORT AND QUASI- CONTRACT

Tort

1. The plaintiff is entitled to get unliquidated damages.

2. In the law of torts, the duty is towards persons generally. Every person is under certain obligations against other public, i.e. not to cause injury or harm, etc. These duties and rights of every person is “rights in rem.”

3. In tortuous liability, the plaintiff and the defendant may or may not knew each other before the tortuous liability arises.

Quasi-contract

1. Injunctions, specific restitution of property, and the payment of liquidated damages of money by way of penalty, etc. are the legal remedies available for plaintiff under quasi-contracts.

2. There is a contract implied by the law, and therefore contractual liability is imposed upon the defendant. The plaintiffs rights against the defendant are “rights in personam.”

3. In quasi-contractual obligations, generally, the plaintiff and defendant know each other from the beginning, and then it ripens into contractual liability.

GENERAL CONDITIONS(ELEMENTS) FOR LIABILITIES

1- WRONGFUL  ACT

2- LEGAL DAMAGE

3- LEGAL REMEDY

1- WRONGFUL ACT 

 Any action, error, misstatement or omission etc that is in violation of the law, especially the civil law. The act of the defendant becomes wrongful act only when there is violation of legal right of another. Violation of moral, social and religious duties does not come under category of tort.

2- LEGAL DAMAGE 

 Damage means the harm done to a person by the wrongful act of the defendant's act , While Damages means the financial or monetary compensation awarded to a plaintiff for the breach of contract.

 Not every damage is damage in the eyes of law, in the law of tort to get damage you must prove that you have suffered from the damage, if you cause damage to somebody though he hasn't suffered from that you must compensate that. This means there may be violation of legal rights without legal damages but there can not be legal damages without violation of legal rights.

LEGAL DAMAGE CAN BE ILLUSRATED BY TWO MAXIMS(statements, motto);-

A) DAMNUM SINE INJURIA

B) INJURIA SINE DAMNUM

A)DAMNUM SINE INJURIA (uharibifu bila kuvunja sheria) – Damnum Sine Injuria comes from the Latin term literally meaning condemnation(damage) without injury. It refers to a legal situation in which plaintiff's right is not respected by another but where the breach of plaintiff's right does not cause damage. A finding of damnum sine injuria can be the basis for a finding of nominal damages.

E.g;- If am running a mill(factory) at my place and my neighbor also establish a same mill in his place, this reduces income to my mill, I can not file a case for compensation against him although it causes monetary harm to me, but if he obstruct(block) the flow of water to my mill, then I will have right to take action against him as it violates my legal right.

Cases;-

The Mayor of Bradford v Pickles (1895) AC 587

{ Pickle alikua anamiliki ardhi ambayo maji yanapita na kusambaa kwenda kwenye jiji la Bradford, Pickle aliweka kizuizi ambacho kilisababisha maji yasifike kwenye hilo jiji ili kulilazimisha hilo jiji linunue ardhi yake au jiji liyalipie yale maji kwake. Mayor wa jiji aliamua kumshtaki Pickle kwa kitendo hicho cha kulisababishia jiji madhara} [ Madai ya Mayor yalikataliwa kwakua Pickle anahaki ya kufanya chochote kwenye Ardhi yake ]

Facts;

Pickles owned a piece of land under which water flowed - water that flowed down to springs which were used to supply Bradford with water. Pickles sunk a shaft into his property to divert the flow of water allegedly to force the city to either buy his land or pay him for the water. The city of Bradford brought suit to have an injunction entered against his actions. The respondent was successful at the lower court

Issue;

Can a use of property which would be legal if due to a proper motive become illegal because it is prompted by a motive which is malicious(evil)?

Decision;

Appeal denied.

Reasons;

The court held that as long as Pickles had a right to take an action on his property, there is no way that can be converted to an illegal action, no matter what his motives. There was no reason why he should not demand that the city pay for his interests in the water beneath his land.

Ratio;

A legal action which a person has a right to perform cannot be converted to an illegal action by an individual's motive.

B) INJURIA SINE DAMNUM (kuvunja sheria bila kusababisha uharibifu) – This is the violation of legal rights without any damage to plaintiff.

Case;-

Ashby v. White (1703) 2 LD RAMONDS 938

{ Ashby alikua na haki ya kumpigia kura mbunge wa jimbo lake, White ambae alikua ni ofisa wa kusimamia upigaji kura, alimzuia Ashby kupiga kura, pamoja na kumzuia Ashby asipige kura, mbunge aliekua anataka Ashby ampigie kura alishinda, Ashby alifungua madai ya fidia ya kuzuiwa kupiga kura. White alijitetea kua pamoja na kumzia lakini mbunge wake ameshinda sasa fidia ya nini..?? } [ Madai ya Ashby yalikubaliwa, Mahakama iliamua Ashby alipwe fidia na White kwakua White alimnyima haki yake ya kupiga kura]

Facts; In this case the plaintiff was a voter in a parliamentary election. The defendant who was the returning officer wrongful refused the plaintiff to vote, in spite of this the candidate had won election. The plaintiff sue the defendant for the damages, the defendant contended that the plaintiff had suffered no damages.

Held;-

It was held that the defendant was liable to pay damages to to the plaintiff as had violated his legal rights(right to vote) whether he had suffered any loss or not.

4- LEGAL REMEDY – UBI JUS IBI REMEDIUM, Where there is a right there is remedy. If you prove to the court that you have suffered even if the tort doesn't exist the court will award you damage(compensation).

Ubi Jus Ibi Remediumis a Latin legal maxim which means "where there is a right there is a remedy". The basic principle contemplated in the maxim is that, when a person's right is violated the victim will have an equitable remedy under law. The maxim also states that the person whose right is being infringed has a right to enforce the infringed right through any action before a court. All law courts are also guided with the same principle of Ubi Jus Ibi Remedium.

Case;-

Ashby v. White (1703) 2 LD RAMONDS 938

Facts;

In this case the plaintiff was a voter in a parliamentary election. The defendant who was the returning officer wrongful refused the plaintiff to vote, in spite of this the candidate had won election. The plaintiff sue the defendant for the damages, the defendant contended that the plaintiff had suffered no damages.

Held;-

It was held that the defendant was liable to pay damages to to the plaintiff as had violated his legal rights(right to vote) whether he had suffered any loss or not.