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DISCHARGE OF TORTS[1]

                                                  QUESTION BANK

Q.1. Explain the various modes of discharge of a tort briefly.

Q.2. What are the various ways by which the liability in tort may be extinguished?

Q.3. In how many ways can a tort be discharged? Explain.

Q.4. Explain the maxim ‘Actio personalis moritur cum persona’.

SHORT NOTES

1. Discharge of torts.
2. Accord and satisfaction.

SYNOPSIS

        Discharge of torts.

1. Death of either party.
3. Accord and satisfaction.
5. Acquiescence
6. Judgment recorded.
7. Statute of Limitation.

Discharge of Torts: –

                  A right of action for a tort may come to an end or be discharged in certain circumstances. If such circumstance exists, there lies no action in tort. Circumstances in which an action for tort comes to an end are as follows.

1]     Death of either party: –

                  The common law maxim ‘actio personalis moritur cum persona’ means the personal right of action dies with that person. The question comes as to the position in law if –

1. Plaintiff or a wronged person dies,
2. Defendant or wrongdoer dies.
3. In the case of the Death of a wronged person, the plaintiff or the legal heir can claim damages from the defendant for the proprietary wrong,e. tort against property, e.g. trespass, nuisance, negligence, fraud, waste, etc. However, for personal torts, the defendant can not be sued. Personal torts are those torts that affect the mind and body of the person, i.e., assaults, battery, false imprisonment, defamation, etc.

In Rose V/s Ford[2]

Facts: The plaintiff was the father and the administrator of the estate of his daughter, who was seriously injured in a motor car accident because of the negligent driving of the defendant. She was unconscious for four days. Her right leg was imputed, and she died after the fourth day.

Held: The court allowed damages to the father for i) pain and suffering, ii) for the loss of a leg, and iii) for the shortening of reasonable expectations of her life.

1. In the case of a wrongdoer’s death, the wrongdoer’s legal heirs are not liable for personal torts, but legal heirs are liable for proprietary torts.

2]     Waiver[3]–

                  If the man has more than one remedy for the same wrong and elects to pursue one of them, abandoning the others, he must stand or fall by his election. He is said to have waived the other remedies. In short, a waiver is simply an election between alternative remedies. For instance, if the injured person had remedies in tort as well as for breach of contract and the plaintiff elects to sue for the latter (i.e. for breach of contract), the cause of action in tort is waived, and he can not afterwards file suit in tort.

3]     Accord and satisfaction[4].

                  The third ground for discharge of a tort is Accord and satisfaction. ‘Accord’ means a mutual agreement to pay or to do something as consideration. ‘Satisfaction’ means actual satisfaction of the mutual agreement, i.e. actual payment of the sum or doing the thing agreed upon (i.e. payment of consideration); when such an agreement is executed, and satisfaction has been made, the agreement is called Accord and satisfaction and operates as a bar to the right of action.

        Thus, if a person is injured in a train accident, he may agree to accept a specific sum of money as compensation and not sue the railway authorities for his injuries.

4]     Release[5]: –

                  A release means surrendering or giving up the right of action against the wrongdoer. The injured party can release the wrongdoer from liability. A release closely resembles Accord and satisfaction, with the difference that it is usually embodied in a formal document.

                  According to English Law, a release of right must be either supported by consideration or by a formal document that is signed, sealed, and delivered. A covenant not to sue the tortfeasor would operate as a release and may be put up in defence in the 0tort action. However, a Release executed under a mistake, in ignorance of one’s rights, or obtained by fraud is not binding.

5]     Acquiescence[6]: –

                  Where a person who knows he is entitled to enforce his right neglects to do so for a long time, the other party may reasonably infer that he has waived or abandoned his right. But to deprive a man of his legal remedies, there must be something more than mere delay.

        Direct Acquiescence takes away the right of action.

6]     Judgment Recovered[7]: –

                  This is substantially the rule of res-judicata when a suit has been filed and decided, a second suit can not be filed on the same cause of action. This is because more than one action would not lie on the same cause of action (S. 11 of the Civil Procedure Code.)

        But where the injury is of a continuing nature, the recovery of damages for the preparation of the original wrong does not prevent the injured party from bringing fresh action for the continuance of the injury. In such cases, a right of action arises whenever the tort is committed.

Illustration

        ‘A’ has recovered Judgment against ‘B’ for assault. But ‘B’ again assaulted ‘A’; now ‘A’ can bring another action.

7]     Limitation[8]: –

                            Action for tort should be brought within the prescribed statutory period; otherwise, the right to sue bars.

In India, The Limitation Act has laid down the various periods within which an owner must sue for different torts. For example, a suit to recover compensation for false imprisonment becomes time-barred after one year from the date such imprisonment ends.

 

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[1] अपकृत्यापासून मुक्तता [अपकृत्य से मुक्ति]

[2] 1938 K. B

[3] सोडून देणे [ छोड़ देना]

[4] मोबदला देवून तडजोड [ मुआवजे देकर समझौता]

[5] दस्त-ऐवज अथवा मोबदला घेवून अधिकार सोडून देणे [ दस्त-ऐवज या प्रतिफल में अधिकारों का त्याग]

[6] मुक संमती [मौन सहमति]

[7] पूर्वीचा निकाल [पिछला परिणाम]

[8] दाव्यासाठी कालमर्यादा [दावे के लिए समय सीमा]