Define the term Tort and its ingredients. Distinguish between contractual liability and tortuous liability.

Introduction

In our daily life we come into the contact with different person and for this some conflicts occur between us which can be either intentionally or unintentionally. In our daily life some damages occur by other person for which that person may not be directly related but for the damage tort law has been introduced to protect the human rights[1] of a person so that victims are compensated for their loss and also the person who does something illegally have a punishment to prohibit him from doing such things continuously.

  1. Tort

1.     Definition of Tort

Tort is civil a wrong[2] for which the court will grant a remedy other than breach of contract. The word comes from Latin word ‘tortuous’ which means twisted.[3]  Tort is a wrongful conduct. A tort is a common law jurisdiction which is a civil wrong[4].  Tort is not an act which is illegal but it causes harm and for this tort law offers the victim to recover the loss.[5] Tort law deals with situations where a person’s actions have wrongly caused someone else to undergo loss or harm. Some torts are also crimes punished by with custody but the main aim of tort law is to give relief for the injure incurred and discourage others from commending the same troubles[6]. The wounded person can prosecute for monetary damages or to prevent the prolongation of the tortuous conduct in future.[7]

1.1. Comparison to Crime[8]
Tort is not a crime but one action can be both tort and crime[9]. A crime occurs when person subject to prosecution and punishment. Crime is a prosecution to protect the public where victim is not compensated but tort law is created to compensate the victim.[10]

1.2. Comparison to Breach of Contract[11]
It is a contract agreement[12] between parties where it means the deviation from terms of agreement but tort is obligation imposed by legal system. Breach occurs when conduct falls below the standard created by society.[13]

2. Classification of Tort:

Tort can be classified based on wrongfulness.

        2.1. Intentional Tort

Intentional tort means intentionally mind to injure a person.[14] As people interact during daily life, they are likely to come into physical contact with other people. For example, if a person bumped on other unintentionally then it is not a tort as no harm occurs. When harm is knowingly caused, like if that person purposely punched in the face of other then an intentional tort will take place. The person who punched is responsible for any damage caused by the act. Intentional torts occur when someone consciously comes into get in touch with another individual or his or her belongings where damage is done.[15]

2.2. Negligence

Negligence means careless acts which causes injuries to a person.[16] For example, it can be an accident by failing to obey traffic rules. Negligent torts occur when the defendant’s actions were unfairly unsafe. Unintentional tort is not planned by the party, but one party due a duty to the other and failed to practically implement that duty.[17] If someone do not take care of his front porch in bus and for this someone get hurt can be negligence.

2.3. Strict Liability:

Strict liability means wrong doing minimal or nonexistent[18]. For example, liability for making and selling defective products to customers.[19] Manufacturer may be unknown to this defective product but he is liable if damage occurs. Manufacturer will be affected for the damage as he is the advisor if someone gets hurt.[20] For example glass bottles producers can be sued if a bubble get in the glass and it explodes hurting someone then manufacturer will be accused though he was not Negligent.

 2.1. Ingredients of Intentional Tort:

Intentional torts can be classified as three basic forms:

2.1.1        Tort Against Person

2.1.2        Tort against Property

2.1.3         Tort against Competition and Employment relation

 2.1.1. Tort against person:

2.1.1.1. Battery:

Battery is intentional offensive touch which is tort. It is a criminal crime connecting illegal physical contact.[21] The key is when touch is unwanted. It can be also transferred intention means
defendant intends to harm one person but actually harms another. Touch of things attached to person can be battery. For example touch of clothing, kick cane, bumping car with passengers
In this case victim need to be aware.[22]

2.1.1.2. Assault

Assault[23] means intentionally placing person in apprehension of battery where no physical contact necessary. It is done for the purpose of causing a harmful contact with another or under situation that make such contact significantly certain to occur. Victim must be aware and feel threatened.[24]
Defendant must have apparent present ability to carry out threat in assault for this threat made by phone calls is not assault.[25] Moreover, assault can occur without battery or battery can occur without assault. Thus throwing a rock at someone for the purpose of hitting him is a battery if the rock in fact strikes the person and is an assault if the rock misses. The fact that the person may have been unaware that the rock had been thrown at him is irrelevant under this definition of assault.[26]

2.1.1.3. False Imprisonment

False imprisonment means intentional conferment of another. False imprisonment[27] is a command of a person in a surrounded area without explanation or permission. Victim must be aware about the restricted area. There is no minimum amount of time means that greater the time restricted greater the damage.[28] This can be done through threats or force. False arrest is also a form of false imprisonment. It can be by arrest without reasonable cause or without warrant, lawful arrest but detained beyond lawful limits.

2.1.1.4. Intentional Infliction of Emotional Distress

Intentional infliction means outrageous misconduct resulting in severe emotional distress by outrageous conduct by defendant or severe emotional distress by plaintiff.[29]  It will occur when defendant acted intentionally or recklessly or conduct was extreme and outrageous where defendant’s act is the cause of the distress. Also claimant suffers severe emotional distress as a result of defendant’s conduct.[30]

 2.1.1.5. Defamation communication:

Defamation of communication means injuring another’s reputation by communications which means holds up one to contempt or ridicule or causing victim to be shunned or avoided. [31]

  • Plaintiff can be living person or corporation, partnership or association.
  • Communication has to be a third party who may be communicated by slander or oral communication or by libel published in permanent form.
  • Writing includes pictures signs statutes radio and TV probably fit libel. Proof of damages for slander is following by general rule means plaintiff must establish monetary damages like losing customer.
  • Slander per se means no proof of monetary damages. Categories for slander per se is the accusation of serious crime involving moral turpitude or having loathsome disease or action affecting victim’s business reputation or by serious sexual misconduct. Proof of non monetary damages can be by humiliation and mental anguish.
  • Defenses for defamation are truth, absolute privileges means discharging of certain duties, conditional privileges. If plaintiff is public figure plaintiff must prove additional burden that defendant.

 2.1.1.6. Invasion of privacy

Invasion of privacy[32] means one is not left alone. There are four types of invasion of privacy which are intrusion, public disclosure of private fact, false light means publishing of false material designed to make plaintiff look bad. It is quite similar to defamation. Invasion of privacy can occur by using person’s name, picture or likeness without consent for commercial advantage. For example, impersonating or stealing ones identity

2.1.2.           Torts against property

2.1.2.1. Trespass to Realty

Trespass to realty means intentional invasion of another’s real property without consent. Real property can be land and immovable items attached which can be occurred by direct physical invasion.[33] Ownership includes on land, above land means minimum level which airplanes are permitted to fly and below land.[34]

2.1.2.2. Conversion

Conversion means intentional taking of another’s personal property which can be movable,[35] tangible or intangible. Conversion has no intent of conscious wrong doing on part of defendant. Conversion is accomplished by acquisition of property without justification (theft, fraud or mistake) or may be by refusal to surrender goods to rightful owner.[36] The remedy of conversion is made of claimant’s choice by forcing sale of property to defendant or by returning of goods.

2.1.2.3. Injurious falsehood

Injurious falsehood means plaintiff’s property is disparaged which is a personal tort accomplished by false statements affecting one’s ownership interest in real property or personal property or by disparagement of quality of goods.[37] Plaintiff must prove stamen is false, malicious and caused money damages.[38]


2.1.3. Torts against Competition and Employment Relation:

2.1.3.1. Interference with Economic Relation

Interference with economic relation means intentionally interfering with another’s contract. This usually involves force or persuasion.[39] Tortuous interference occurs when a person intentionally damages another person’s contractual relationships or other business relationships. The victim can file a claim against the person who adversely affects a business contract or the enjoyment of the property right under each situation. For example, diverting customers by destroying entrance, erecting closed sign, or deliberately cutting prices to drive out competition can be inference with economic relation.

                          2.1.3.2. Appropriation of trade secrets:

Appropriation of trade secrets[40] means formula, pattern, device or compilation of information used in one’s business and which gives competitive advantage. [41]

                                 2.1.3.3. Wrongful discharge of employee                       :

 Wrongful discharge means improper discharge from employment which is a concept of ‘at will’ replaced by termination for cause concept. Example can be whistle blower who informs government of employers illegal act means employee who is terminated because of the job injury.

2.2. Defenses to Intentional Tort:

Defenses also exist for intentional torts[42]. They can be applied to all the intentional torts which related to person and property. There are limits on all the defenses.
1. Mistake: It should appears necessary for defendant to act quickly to protect a right (honest mistake) but some situations do not allow for the defense like arrest of wrong person or on trespass on land mistakenly.
2. Consent: Here, plaintiff invites conduct expressly[43] and implied consent but there is a limit of the consent itself as it expresses limits and reasonably implied limits. [44]
3. Self defense: Self defense is necessary for self protection. Verbal provocation is insufficient for use of force. In tort law force must be reasonable, here amount is necessary to ward off assailant means deadly force can be used to self defendant which is permissible if fear of loss of life and grave bodily harm.[45]
4. Defense of property: Defense of property can be use of reasonable force but it can be never deadly.
5. Defense of third parties: Defense of third party is same test as self defense.[46] Situation can involve mistakes like split in courts. Majority situations are intervener in ‘shoes’ of person defending, minority situations are intervener’s actions are lawful as long as mistake is reasonable.[47]
6. Necessity: Defense of intentional tort can be also the protection of public at large. Protection can be also for personal reasons.

3.                 The Aims of Law of Tort

  • Appeasement
  • Justice
  • Deterrence
  • Compensation
  • The Influence on Insurance
  • The Influence of Human Rights
  • Concern about Compensation Culture

4.                 Modern Influences on Tort

  1. Ingredients of Negligence:

Negligence is a tort which depends on the survival of a breach of the obligation of concern allocated by one individual to another. It is one kind of breach of legal duty to compensate the plaintiff.[48] Negligence can be divided into four component parts which must be proved by the plaintiff. The permissible burden of establishing these fundamentals falls upon the plaintiff and several varieties of confusion or conceptual mistakes have sometimes occurred. The essentials in shaping the accountability for negligence are:

  • The plaintiff was owed a Duty of care
  • There was a Dereliction or breach of that duty
  • The tortfeasor directly caused the injury but for the defendant’s actions, the plaintiff would not have suffered an injury
  • The plaintiff suffered damage as a result of that breach
  • The damage was not too remote

1.1.  Duty of care

The first ingredient of negligence is the authorized duty of care. This is the connection between the defendant and the claimant. The claim must be such that there is a commitment upon the defendant to take appropriate care to pass up causing injury to the claimant in all the conditions of the case.[49] Special relationship may be within employer to employee, doctor to patient or between the manufacturers to consumer.

1.2. Carelessness or Violation of that Duty

Negligence of duty usually refers to a disappointment to obey the rules of one’s duty differ by the responsibilities involved.[50]  If a person fails to perform assigned work in a satisfactory way then negligence can occur. Employer to employer varies the disciplinary action taken against the employee who does not follow the rules.[51]

1.3. Injury directly caused by the tort easer

By how much injuries occurred the negligent act will be based upon that.[52]

1.4. Damage as a result of that breach

Damage is a compulsory element of the tort.[53] So it should be not the intention to win a tort case but the plaintiff must demonstrate the injuries and claim the damages which may be both direct and indirect proof so that plaintiff can seek compensation against it.

  1. Comparison between Tortuous Liability and Contractual Liability:

Tortuous Liability

“Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is repressible by an action for unliquidated damages.[54]

A tortuous liability[55] occurs when there is no contractual liability between two persons conflicting and it is related to the duty of care, and negligence of that duty.

How Tort Law Works[56]

Tort law in operation includes following queries:

1.1.  When are claims for compensation made?

1.2. How is compensation claims dealt with?

1.3. Cost and delay?

1.4. The cost adequacy of tort damages?

1.5. Who pays damages?

Contractual Liability

In contractual liability[57] two or more parties mutually make a contract consisting of promises to each other before starting something and after the contract if there is any breach of contract each parties can sue each other for violation of that contract. A housekeeper is committed to clean the house and the owner of the house is committed to pay the house keeper an agreed amount. This is contractual liability and if either party fails on the agreement then legal remedies are available to the ‘injured’ party.[58]  It is often misinterpreted as this type of liability is complicated in the insurance and risk management industries. Contractual liability is common in business agreements which can be written or oral.

How Contract Liability Works:

  • Offer
  • Acceptance;
  • Consideration (although note the position in relation to Scotland below); and
  • Intention to create legal relations.

‘Acceptance’ of an offer occurs when there is an unqualified acceptance of all the offered terms and from there the contractual liability occurs. However, this is unusual and there will normally be a period of negotiation. New terms and conditions introduced through negotiation in effect amount to a series of counter offers to the original offer, cancelling the terms of the original offer.[59]

Contractual Liability vs. Tortuous Liability:

It is considered by some authors that liability for injuries caused to the consumers would be a contractual one. In contractual if there is an agreement validly concluded, liability will be triggered off by contractual grounds. Nevertheless, most authors suggest that life, health, corporal reliability are tort liability not contractual negotiation where we only may appeal to the judicial norms.[60]

There are few characteristics concerning the delimitation of tort and contractual liability for products. Tort liability and contractual liability both of them are structure of municipal liability, having the fundamental idea of making compensation for patrimonial injury and the non-patrimonial injury caused by the prohibited perform out of responsibility by a certain individual.

Contractual is based on terms of a contract and contract means an agreement (usually signed) between one or more parties. Other case liability (in the case) means how much a party is responsible for due to damage or non-performance. Whereas the law of tort covers many matters of life, and the law of contract is similarly extensive. Contractual liability insurance that covers liability transferred in a wide variety of business contracts.

There is no indispensable variation between these two type and in order to involve any of these type, the occurrence of a few fundamentals is mandatory.[61]

  • The continuation of an unlawful act but some requirement is infringed. For this it affect a basic right of a customer negatively.
  •  The pull off out of blame of this act as a prejudiced component of liability which more attributes to the contractual liability. The draft of the new civil code offers that within the edictal area the accountability for products should apply apart from the fault of the producer.
  • There is an existence of a damage;
  • There is a relation of contributory between the illegal act and the damage[62]

The tort liability is the commitment of a person to mend the injury caused in an unlawful extra contractual act. The area of liability for defective products where the product purchased endangered the life, health or the patrimony of the buyer who can be damaged both direct or indirect purchase then tort liability will be applied. In case of  contractual liability where an\ product has inbuilt flaws and purposely do not match the requirements which is orally or in written agreed and not incur any of the threat aforesaid, contractual liability is necessitate.

Tort liability is the common right of civil liability whereas contractual liability is a liability with a special critical character. If an individual does not deal with contractual liability, the rules regarding tort liability shall be functional.

The contractual and tort liabilities permit saying that they survive within the area of unity of the civil liability. By setting up certain restrictions to the functions of tort or contractual liabilities the lawgiver determines which one of the two structures permits for a more efficient control upon the contributor in the civil contact.  The lawgiver chooses the form of liability taking into justify the functional precise of contractual and tort liability. Regarding the improvement of the consumer’s protection the matter is very important to identify. [63]

Contractual law and tort law both prescribe certain conduct but the person charged with a crime committed wrongful act against all in society or a responsibility which was expected from him according to the agreement.[64] Here the victim does not generally compensated unless there is a contractual clause in the agreement but victim can seek the compensation from the charged person by suing civility in tort.

When a contract is breached, a tort is committed or a law is violated issues of liability immediately arise. The party commiting tort is liable for the damage done. A master is liable for the torts of servants who were acting within the scope of their employmnent. The party hiring an independent contractor usually is not liable for the torts of that independent contactor. [65]

Though every state in the combination needed auto accountability reporting but some states function under a tort organism. This allows anyone injure by another to bring lawful action for illegal behavior. When this occurs, the case goes to court, and a judge and jury evaluate the facts and determine whether or not the damage was a result of intentional carelessness on the part of the defendant[66]. If so, liability coverage kicks in, pays for the damage and protects the insured from suffering irreparable financial harm and devastation.

Tort Liability and Contract Liability comparison[67]

  Tort Liability Contractual Liability
Who is Offended? Injured Party Injured Contracting Party
Who brings action? Injured Party Injured Contracting Party
Primary purpose of action? Compensation Compensation
Jail sentence possible? No No

Conclusion

Tort law has become very famous now days. Modern influence on tort law is the influence of insurance, the influence of human rights and the influence of compensation culture. In the modern world tort law has become very famous as it is protecting the human rights concerning from narrow matters to broad.  In any system, there is always a party who wants to get benefitted by the advantage of the law.[68] For this many states now bounded the situations on which the victim may prosecute and how much money judges may grant in tort cases.

[1] See Human Rights Sepúlveda et al. 2004, p. 3[1]

[2] A civil wrong or wrong is a cause of action under the law of England and Wales. see Glanville Williams. Learning the Law, Eleventh Edition. Stevens. 1982. p. 9

 [3] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.68

[4] A wrong involves the violation of a right because wrong and right are complementary terms. See  Clerk and Lindsell on Torts. Sixteenth Edition. 1989. Sweet and Maxwell. paragraph 1-14 at page 12.

 [5] Sourcebook on tort law, Graham Stephenson, Routledge Cavendish, 2000, paragraph 4, page 14

[6] What is Tort Law? Pearson Rowe Solicitors, Retrieved 18 December 2011.

[7]  Yeats,I.m, Giliker,P and Luckham,M(2005). Law of tort, University Of London: External System, p.26

[8] Crime is the breach of rules or laws for which some governing authority (via mechanisms such as legal systems) can ultimately prescribe aconviction, see Ernest Klein, A Comprehensive Etymological Dictionary of the English Language

[9] Currie, S., & Cameron, D. (2000), “Your Law”, Nelson Thomson Learning, Melbourne, p. 225

[10] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.71

[11] If the party does not fulfill his contractual promise, or has given information to the other party that he will not perform his duty as mentioned in the contract or if by his action and conduct he seems to be unable to perform the contract, he is said to breach the contract, see  “Law Office of Chisholm & Shuttie”

 [12] Willmott, L, Christensen, S, Butler, D, & Dixon, B 2009 Contract Law, Third Edition, Oxford University Press, North Melbourne

 [13] F. Beatty and S. Samuelson (1996) , Business Law, Little, Brown & Company:Canada, P.687

 [14] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.71

 [15] Klar, Lewis. Tort Law. Toronto: Thomson Carswell, 2008, p32.

 [16] “The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeably cause harm to her people.” see  Feinman, Jay (2010). Law 101. New York: Oxford University Press.

[17] F. Beatty and S. Samuelson (1996) , Business Law, Little, Brown & Company:Canada, P.133

[18] See Wikipedia of strict liability from http://en.wikipedia.org/wiki/Strict_liability

 [19] Lee, Cynthia (2009). Criminal Law Cases and Materials. F. Strict Liability Crimes: WEST A Thomas Reuters Business. pp. 219–221;989

 [20] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.86

[21] In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact. see Black’s Law Dictionary Garner, p. 162

 [22] The Sexual Offences Act 2003, section 3

[23] In law, assault is a crime which involves causing a victim to fear violence. The term is often confused with battery, which involves physical contact, .see, Arkansas Code, Title 5, Chapter 13, Subchapter 2, p. 205–207

[24] Arkansas Code, Title 5, Chapter 13, Subchapter 2, § 205–207, see  California Penal Code, Part 1, Chapter 9, p. 240

[25] Lunnery and Oliphant (2010), Tort Law: Text and Materials, Oxford: New York, p.54

[26]See the example take from http://en.wikipedia.org/wiki/Assault

[27]  Taylor v. Johnson, 796 So.2d 11 (La. App. 3 Cir. 2001) see false imprisonment

[28] Lunnery and Oliphant (2010), Tort Law: Text and Materials, Oxford: New York, p.65

 

[29] See emotional distress from http://en.wikipedia.org/wiki/Intentional_infliction_of_emotional_distress

[30] Lunnery and Oliphant (2010), Tort Law: Text and Materials, Oxford: New York, p.69

 [31] Larson,A.’ Defamation, Libel and SlanderLaw’ available from:- http://www.expertlaw.com/library/personal_injury/defamation.html [Accessed 27th March 2012]

[32] The legal term “invasion of privacy” refers primarily to a person’s right to keep his or her life private and free from the intrusion of others. See http://www.wisegeek.com/what-is-invasion-of-privacy.htm

[33] Thrifty-Tel, at 1567

[34]  Thrifty-Tel, Inc. v. Bezenek, 46 Cal.App.4th 1559, 1566-7

 [35] Conversion is a common law tort. A conversion is a voluntary act by one person inconsistent with the ownership rights of another, see taking with the intent of exercising over the chattel an ownership inconsistent with the real owner’s right of possession” (Rolfe B), Fouldes v. Willoughby (1841) 81 M & W 540, 550

[36] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.77

 [37] Lunnery and Oliphant (2010), Tort Law: Text and Materials,8th Edition, Oxford: New York, p.60

 [39] F. Beatty and S. Samuelson (1996) , Business Law, Little, Brown & Company:Canada, P.687

Klar, Lewis. Tort Law. Toronto: Thomson Carswell, 2008, p50

[40] In some jurisdictions, such secrets are referred to as “confidential information” or “classified information”. By comparison, under US law, “A trade secret, as defined under 18 U.S.C. § 1839(3) (A), (B) (1996), has three parts: (1) information; (2) reasonable measures taken to protect the information; and (3) which derives independent economic value from not being publicly known.

[41] In some jurisdictions, such secrets are referred to as “confidential information” or “classified information”.

[42]http://www.jstor.org/discover/10.2307/2026024?uid=3737584&uid=2129&uid=2&uid=70&uid=4&sid=21100689248071

 [43] Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration. See Consent Definition from Merriam-Webster dictionary.

[44] This is frequently summarized by the phrase “volenti non fit injuria” (Latin: “to a willing person, no injury is done” or “no injury is done to a person who consents”).see from http://en.wikipedia.org/wiki/Tort#Defenses

 [45] Lunnery and Oliphant (2010), Tort Law: Text and Materials, Oxford: New York, p.54

 [46] Atiyah, P. S. (1997) The Damages Lottery

 [47] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.79

 [48] Phillip S. James. General Principles of the Law of Torts (2007), see Chapter 2: General Principles of Negligence.

 [49] Cited in Vivienne, Harpwood, Principles of Tort Law, 3rd Edition, p-191

 [50]  “The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeably cause harm to other people.” Seef Feinman, Jay (2010). New York: Oxford University

[51] But does not prevent state licensing of broadcasting, television or cinemas.

[52] Klayman, Bagby, Ellis (1994), Irwin’s Business Law, irwin: illinois, p.140

 [53] Lunnery and Oliphant (2010), Tort Law: Text and Materials, Second Edition, Oxford: New York, p.147

 [54] St?tescu, C. Bârsan, Tratat de drept civil. Teoria General? a Obliga?iilor, Ed. Academiei (Civil Law Treaty.General Theory of Obligations) R.S.R., 1981, pag, 146 – 228

[55] Revista Dreptul (The Law Journal) – no. 1/1986, p. 72

[56] Lunnery and Oliphant (2010), Tort Law: Text and Materials, Second Edition, Oxford: New York, p.947

 [57] Revista Dreptul (The Law Journal) – no. 4/1988, p. 69

 

[58] Baciu, R., R?spunderea civil? delictual? pentru prejudiciile cauzate de fapta lucrului, Ed. Lumina Lex, (Tort  liability for the injuries caused by activities) Bucure?ti, 2000, pp. 11-13, 138.

[59]See formation of contract, from http://www.out-law.com/page-396

[60] Judicial Immunity is a form of legal immunity which protects judges and others employed by the judiciary from lawsuits brought against them for official conduct in office, no matter how incompetent, negligent, or malicious such conduct might be, even if this conduct is in violation of statutes.

 

 [62]  The notion of activity and persons between which liability is engaged, damages caused by activities nr. 10/1996, p. 34.

 [63] F. Beatty and S. Samuelson (1996) , Business Law, Little, Brown & Company:Canada, P.687

Klar, Lewis. Tort Law. Toronto: Thomson Carswell, 2008, p190.

[64]  Contributions to the study of tort liability Ed Cordial Lex, Cluj-Napoca, 1997, pg. 15-17, 227-232.[65] Klayman, Bagby, Ellis (1994), Irwin’s Business Law, Irwin: Illinois, p.137-142

 [66] Fair and accurate reports of public meetings; local authority meetings; meetings of public companies; proceedings before statutory tribunals and inquiries.

[67] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.70

 [68]  It is for the judge to decide whether the occasion is privileged one, and whether a reasonably jury could find that the author’s dominant motive was malice. The jury will decide whether any allegation of malice has been proved.

Define the term Tort and its ingredients. Distinguish between contractual liability and tortuous liability.

Introduction

In our daily life we come into the contact with different person and for this some conflicts occur between us which can be either intentionally or unintentionally. In our daily life some damages occur by other person for which that person may not be directly related but for the damage tort law has been introduced to protect the human rights[1] of a person so that victims are compensated for their loss and also the person who does something illegally have a punishment to prohibit him from doing such things continuously.

  1. Tort

1.     Definition of Tort

Tort is civil a wrong[2] for which the court will grant a remedy other than breach of contract. The word comes from Latin word ‘tortuous’ which means twisted.[3]  Tort is a wrongful conduct. A tort is a common law jurisdiction which is a civil wrong[4].  Tort is not an act which is illegal but it causes harm and for this tort law offers the victim to recover the loss.[5] Tort law deals with situations where a person’s actions have wrongly caused someone else to undergo loss or harm. Some torts are also crimes punished by with custody but the main aim of tort law is to give relief for the injure incurred and discourage others from commending the same troubles[6]. The wounded person can prosecute for monetary damages or to prevent the prolongation of the tortuous conduct in future.[7]

1.1. Comparison to Crime[8]
Tort is not a crime but one action can be both tort and crime[9]. A crime occurs when person subject to prosecution and punishment. Crime is a prosecution to protect the public where victim is not compensated but tort law is created to compensate the victim.[10]

1.2. Comparison to Breach of Contract[11]
It is a contract agreement[12] between parties where it means the deviation from terms of agreement but tort is obligation imposed by legal system. Breach occurs when conduct falls below the standard created by society.[13]

2. Classification of Tort:

Tort can be classified based on wrongfulness.

        2.1. Intentional Tort

Intentional tort means intentionally mind to injure a person.[14] As people interact during daily life, they are likely to come into physical contact with other people. For example, if a person bumped on other unintentionally then it is not a tort as no harm occurs. When harm is knowingly caused, like if that person purposely punched in the face of other then an intentional tort will take place. The person who punched is responsible for any damage caused by the act. Intentional torts occur when someone consciously comes into get in touch with another individual or his or her belongings where damage is done.[15]

2.2. Negligence

Negligence means careless acts which causes injuries to a person.[16] For example, it can be an accident by failing to obey traffic rules. Negligent torts occur when the defendant’s actions were unfairly unsafe. Unintentional tort is not planned by the party, but one party due a duty to the other and failed to practically implement that duty.[17] If someone do not take care of his front porch in bus and for this someone get hurt can be negligence.

2.3. Strict Liability:

Strict liability means wrong doing minimal or nonexistent[18]. For example, liability for making and selling defective products to customers.[19] Manufacturer may be unknown to this defective product but he is liable if damage occurs. Manufacturer will be affected for the damage as he is the advisor if someone gets hurt.[20] For example glass bottles producers can be sued if a bubble get in the glass and it explodes hurting someone then manufacturer will be accused though he was not Negligent.

 2.1. Ingredients of Intentional Tort:

Intentional torts can be classified as three basic forms:

2.1.1        Tort Against Person

2.1.2        Tort against Property

2.1.3         Tort against Competition and Employment relation

 2.1.1. Tort against person:

2.1.1.1. Battery:

Battery is intentional offensive touch which is tort. It is a criminal crime connecting illegal physical contact.[21] The key is when touch is unwanted. It can be also transferred intention means
defendant intends to harm one person but actually harms another. Touch of things attached to person can be battery. For example touch of clothing, kick cane, bumping car with passengers
In this case victim need to be aware.[22]

2.1.1.2. Assault

Assault[23] means intentionally placing person in apprehension of battery where no physical contact necessary. It is done for the purpose of causing a harmful contact with another or under situation that make such contact significantly certain to occur. Victim must be aware and feel threatened.[24]
Defendant must have apparent present ability to carry out threat in assault for this threat made by phone calls is not assault.[25] Moreover, assault can occur without battery or battery can occur without assault. Thus throwing a rock at someone for the purpose of hitting him is a battery if the rock in fact strikes the person and is an assault if the rock misses. The fact that the person may have been unaware that the rock had been thrown at him is irrelevant under this definition of assault.[26]

2.1.1.3. False Imprisonment

False imprisonment means intentional conferment of another. False imprisonment[27] is a command of a person in a surrounded area without explanation or permission. Victim must be aware about the restricted area. There is no minimum amount of time means that greater the time restricted greater the damage.[28] This can be done through threats or force. False arrest is also a form of false imprisonment. It can be by arrest without reasonable cause or without warrant, lawful arrest but detained beyond lawful limits.

2.1.1.4. Intentional Infliction of Emotional Distress

Intentional infliction means outrageous misconduct resulting in severe emotional distress by outrageous conduct by defendant or severe emotional distress by plaintiff.[29]  It will occur when defendant acted intentionally or recklessly or conduct was extreme and outrageous where defendant’s act is the cause of the distress. Also claimant suffers severe emotional distress as a result of defendant’s conduct.[30]

 2.1.1.5. Defamation communication:

Defamation of communication means injuring another’s reputation by communications which means holds up one to contempt or ridicule or causing victim to be shunned or avoided. [31]

  • Plaintiff can be living person or corporation, partnership or association.
  • Communication has to be a third party who may be communicated by slander or oral communication or by libel published in permanent form.
  • Writing includes pictures signs statutes radio and TV probably fit libel. Proof of damages for slander is following by general rule means plaintiff must establish monetary damages like losing customer.
  • Slander per se means no proof of monetary damages. Categories for slander per se is the accusation of serious crime involving moral turpitude or having loathsome disease or action affecting victim’s business reputation or by serious sexual misconduct. Proof of non monetary damages can be by humiliation and mental anguish.
  • Defenses for defamation are truth, absolute privileges means discharging of certain duties, conditional privileges. If plaintiff is public figure plaintiff must prove additional burden that defendant.

 2.1.1.6. Invasion of privacy

Invasion of privacy[32] means one is not left alone. There are four types of invasion of privacy which are intrusion, public disclosure of private fact, false light means publishing of false material designed to make plaintiff look bad. It is quite similar to defamation. Invasion of privacy can occur by using person’s name, picture or likeness without consent for commercial advantage. For example, impersonating or stealing ones identity

2.1.2.           Torts against property

2.1.2.1. Trespass to Realty

Trespass to realty means intentional invasion of another’s real property without consent. Real property can be land and immovable items attached which can be occurred by direct physical invasion.[33] Ownership includes on land, above land means minimum level which airplanes are permitted to fly and below land.[34]

2.1.2.2. Conversion

Conversion means intentional taking of another’s personal property which can be movable,[35] tangible or intangible. Conversion has no intent of conscious wrong doing on part of defendant. Conversion is accomplished by acquisition of property without justification (theft, fraud or mistake) or may be by refusal to surrender goods to rightful owner.[36] The remedy of conversion is made of claimant’s choice by forcing sale of property to defendant or by returning of goods.

2.1.2.3. Injurious falsehood

Injurious falsehood means plaintiff’s property is disparaged which is a personal tort accomplished by false statements affecting one’s ownership interest in real property or personal property or by disparagement of quality of goods.[37] Plaintiff must prove stamen is false, malicious and caused money damages.[38]


2.1.3. Torts against Competition and Employment Relation:

2.1.3.1. Interference with Economic Relation

Interference with economic relation means intentionally interfering with another’s contract. This usually involves force or persuasion.[39] Tortuous interference occurs when a person intentionally damages another person’s contractual relationships or other business relationships. The victim can file a claim against the person who adversely affects a business contract or the enjoyment of the property right under each situation. For example, diverting customers by destroying entrance, erecting closed sign, or deliberately cutting prices to drive out competition can be inference with economic relation.

                          2.1.3.2. Appropriation of trade secrets:

Appropriation of trade secrets[40] means formula, pattern, device or compilation of information used in one’s business and which gives competitive advantage. [41]

                                 2.1.3.3. Wrongful discharge of employee                       :

 Wrongful discharge means improper discharge from employment which is a concept of ‘at will’ replaced by termination for cause concept. Example can be whistle blower who informs government of employers illegal act means employee who is terminated because of the job injury.

2.2. Defenses to Intentional Tort:

Defenses also exist for intentional torts[42]. They can be applied to all the intentional torts which related to person and property. There are limits on all the defenses.
1. Mistake: It should appears necessary for defendant to act quickly to protect a right (honest mistake) but some situations do not allow for the defense like arrest of wrong person or on trespass on land mistakenly.
2. Consent: Here, plaintiff invites conduct expressly[43] and implied consent but there is a limit of the consent itself as it expresses limits and reasonably implied limits. [44]
3. Self defense: Self defense is necessary for self protection. Verbal provocation is insufficient for use of force. In tort law force must be reasonable, here amount is necessary to ward off assailant means deadly force can be used to self defendant which is permissible if fear of loss of life and grave bodily harm.[45]
4. Defense of property: Defense of property can be use of reasonable force but it can be never deadly.
5. Defense of third parties: Defense of third party is same test as self defense.[46] Situation can involve mistakes like split in courts. Majority situations are intervener in ‘shoes’ of person defending, minority situations are intervener’s actions are lawful as long as mistake is reasonable.[47]
6. Necessity: Defense of intentional tort can be also the protection of public at large. Protection can be also for personal reasons.

3.                 The Aims of Law of Tort

  • Appeasement
  • Justice
  • Deterrence
  • Compensation
  • The Influence on Insurance
  • The Influence of Human Rights
  • Concern about Compensation Culture

4.                 Modern Influences on Tort

  1. Ingredients of Negligence:

Negligence is a tort which depends on the survival of a breach of the obligation of concern allocated by one individual to another. It is one kind of breach of legal duty to compensate the plaintiff.[48] Negligence can be divided into four component parts which must be proved by the plaintiff. The permissible burden of establishing these fundamentals falls upon the plaintiff and several varieties of confusion or conceptual mistakes have sometimes occurred. The essentials in shaping the accountability for negligence are:

  • The plaintiff was owed a Duty of care
  • There was a Dereliction or breach of that duty
  • The tortfeasor directly caused the injury but for the defendant’s actions, the plaintiff would not have suffered an injury
  • The plaintiff suffered damage as a result of that breach
  • The damage was not too remote

1.1.  Duty of care

The first ingredient of negligence is the authorized duty of care. This is the connection between the defendant and the claimant. The claim must be such that there is a commitment upon the defendant to take appropriate care to pass up causing injury to the claimant in all the conditions of the case.[49] Special relationship may be within employer to employee, doctor to patient or between the manufacturers to consumer.

1.2. Carelessness or Violation of that Duty

Negligence of duty usually refers to a disappointment to obey the rules of one’s duty differ by the responsibilities involved.[50]  If a person fails to perform assigned work in a satisfactory way then negligence can occur. Employer to employer varies the disciplinary action taken against the employee who does not follow the rules.[51]

1.3. Injury directly caused by the tort easer

By how much injuries occurred the negligent act will be based upon that.[52]

1.4. Damage as a result of that breach

Damage is a compulsory element of the tort.[53] So it should be not the intention to win a tort case but the plaintiff must demonstrate the injuries and claim the damages which may be both direct and indirect proof so that plaintiff can seek compensation against it.

  1. Comparison between Tortuous Liability and Contractual Liability:

Tortuous Liability

“Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is repressible by an action for unliquidated damages.[54]

A tortuous liability[55] occurs when there is no contractual liability between two persons conflicting and it is related to the duty of care, and negligence of that duty.

How Tort Law Works[56]

Tort law in operation includes following queries:

1.1.  When are claims for compensation made?

1.2. How is compensation claims dealt with?

1.3. Cost and delay?

1.4. The cost adequacy of tort damages?

1.5. Who pays damages?

Contractual Liability

In contractual liability[57] two or more parties mutually make a contract consisting of promises to each other before starting something and after the contract if there is any breach of contract each parties can sue each other for violation of that contract. A housekeeper is committed to clean the house and the owner of the house is committed to pay the house keeper an agreed amount. This is contractual liability and if either party fails on the agreement then legal remedies are available to the ‘injured’ party.[58]  It is often misinterpreted as this type of liability is complicated in the insurance and risk management industries. Contractual liability is common in business agreements which can be written or oral.

How Contract Liability Works:

  • Offer
  • Acceptance;
  • Consideration (although note the position in relation to Scotland below); and
  • Intention to create legal relations.

‘Acceptance’ of an offer occurs when there is an unqualified acceptance of all the offered terms and from there the contractual liability occurs. However, this is unusual and there will normally be a period of negotiation. New terms and conditions introduced through negotiation in effect amount to a series of counter offers to the original offer, cancelling the terms of the original offer.[59]

Contractual Liability vs. Tortuous Liability:

It is considered by some authors that liability for injuries caused to the consumers would be a contractual one. In contractual if there is an agreement validly concluded, liability will be triggered off by contractual grounds. Nevertheless, most authors suggest that life, health, corporal reliability are tort liability not contractual negotiation where we only may appeal to the judicial norms.[60]

There are few characteristics concerning the delimitation of tort and contractual liability for products. Tort liability and contractual liability both of them are structure of municipal liability, having the fundamental idea of making compensation for patrimonial injury and the non-patrimonial injury caused by the prohibited perform out of responsibility by a certain individual.

Contractual is based on terms of a contract and contract means an agreement (usually signed) between one or more parties. Other case liability (in the case) means how much a party is responsible for due to damage or non-performance. Whereas the law of tort covers many matters of life, and the law of contract is similarly extensive. Contractual liability insurance that covers liability transferred in a wide variety of business contracts.

There is no indispensable variation between these two type and in order to involve any of these type, the occurrence of a few fundamentals is mandatory.[61]

  • The continuation of an unlawful act but some requirement is infringed. For this it affect a basic right of a customer negatively.
  •  The pull off out of blame of this act as a prejudiced component of liability which more attributes to the contractual liability. The draft of the new civil code offers that within the edictal area the accountability for products should apply apart from the fault of the producer.
  • There is an existence of a damage;
  • There is a relation of contributory between the illegal act and the damage[62]

The tort liability is the commitment of a person to mend the injury caused in an unlawful extra contractual act. The area of liability for defective products where the product purchased endangered the life, health or the patrimony of the buyer who can be damaged both direct or indirect purchase then tort liability will be applied. In case of  contractual liability where an\ product has inbuilt flaws and purposely do not match the requirements which is orally or in written agreed and not incur any of the threat aforesaid, contractual liability is necessitate.

Tort liability is the common right of civil liability whereas contractual liability is a liability with a special critical character. If an individual does not deal with contractual liability, the rules regarding tort liability shall be functional.

The contractual and tort liabilities permit saying that they survive within the area of unity of the civil liability. By setting up certain restrictions to the functions of tort or contractual liabilities the lawgiver determines which one of the two structures permits for a more efficient control upon the contributor in the civil contact.  The lawgiver chooses the form of liability taking into justify the functional precise of contractual and tort liability. Regarding the improvement of the consumer’s protection the matter is very important to identify. [63]

Contractual law and tort law both prescribe certain conduct but the person charged with a crime committed wrongful act against all in society or a responsibility which was expected from him according to the agreement.[64] Here the victim does not generally compensated unless there is a contractual clause in the agreement but victim can seek the compensation from the charged person by suing civility in tort.

When a contract is breached, a tort is committed or a law is violated issues of liability immediately arise. The party commiting tort is liable for the damage done. A master is liable for the torts of servants who were acting within the scope of their employmnent. The party hiring an independent contractor usually is not liable for the torts of that independent contactor. [65]

Though every state in the combination needed auto accountability reporting but some states function under a tort organism. This allows anyone injure by another to bring lawful action for illegal behavior. When this occurs, the case goes to court, and a judge and jury evaluate the facts and determine whether or not the damage was a result of intentional carelessness on the part of the defendant[66]. If so, liability coverage kicks in, pays for the damage and protects the insured from suffering irreparable financial harm and devastation.

Tort Liability and Contract Liability comparison[67]

  Tort Liability Contractual Liability
Who is Offended? Injured Party Injured Contracting Party
Who brings action? Injured Party Injured Contracting Party
Primary purpose of action? Compensation Compensation
Jail sentence possible? No No

Conclusion

Tort law has become very famous now days. Modern influence on tort law is the influence of insurance, the influence of human rights and the influence of compensation culture. In the modern world tort law has become very famous as it is protecting the human rights concerning from narrow matters to broad.  In any system, there is always a party who wants to get benefitted by the advantage of the law.[68] For this many states now bounded the situations on which the victim may prosecute and how much money judges may grant in tort cases.

[1] See Human Rights Sepúlveda et al. 2004, p. 3[1]

[2] A civil wrong or wrong is a cause of action under the law of England and Wales. see Glanville Williams. Learning the Law, Eleventh Edition. Stevens. 1982. p. 9

 [3] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.68

[4] A wrong involves the violation of a right because wrong and right are complementary terms. See  Clerk and Lindsell on Torts. Sixteenth Edition. 1989. Sweet and Maxwell. paragraph 1-14 at page 12.

 [5] Sourcebook on tort law, Graham Stephenson, Routledge Cavendish, 2000, paragraph 4, page 14

[6] What is Tort Law? Pearson Rowe Solicitors, Retrieved 18 December 2011.

[7]  Yeats,I.m, Giliker,P and Luckham,M(2005). Law of tort, University Of London: External System, p.26

[8] Crime is the breach of rules or laws for which some governing authority (via mechanisms such as legal systems) can ultimately prescribe aconviction, see Ernest Klein, A Comprehensive Etymological Dictionary of the English Language

[9] Currie, S., & Cameron, D. (2000), “Your Law”, Nelson Thomson Learning, Melbourne, p. 225

[10] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.71

[11] If the party does not fulfill his contractual promise, or has given information to the other party that he will not perform his duty as mentioned in the contract or if by his action and conduct he seems to be unable to perform the contract, he is said to breach the contract, see  “Law Office of Chisholm & Shuttie”

 [12] Willmott, L, Christensen, S, Butler, D, & Dixon, B 2009 Contract Law, Third Edition, Oxford University Press, North Melbourne

 [13] F. Beatty and S. Samuelson (1996) , Business Law, Little, Brown & Company:Canada, P.687

 [14] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.71

 [15] Klar, Lewis. Tort Law. Toronto: Thomson Carswell, 2008, p32.

 [16] “The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeably cause harm to her people.” see  Feinman, Jay (2010). Law 101. New York: Oxford University Press.

[17] F. Beatty and S. Samuelson (1996) , Business Law, Little, Brown & Company:Canada, P.133

[18] See Wikipedia of strict liability from http://en.wikipedia.org/wiki/Strict_liability

 [19] Lee, Cynthia (2009). Criminal Law Cases and Materials. F. Strict Liability Crimes: WEST A Thomas Reuters Business. pp. 219–221;989

 [20] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.86

[21] In the United States, criminal battery, or simply battery, is the use of force against another, resulting in harmful or offensive contact. see Black’s Law Dictionary Garner, p. 162

 [22] The Sexual Offences Act 2003, section 3

[23] In law, assault is a crime which involves causing a victim to fear violence. The term is often confused with battery, which involves physical contact, .see, Arkansas Code, Title 5, Chapter 13, Subchapter 2, p. 205–207

[24] Arkansas Code, Title 5, Chapter 13, Subchapter 2, § 205–207, see  California Penal Code, Part 1, Chapter 9, p. 240

[25] Lunnery and Oliphant (2010), Tort Law: Text and Materials, Oxford: New York, p.54

[26]See the example take from http://en.wikipedia.org/wiki/Assault

[27]  Taylor v. Johnson, 796 So.2d 11 (La. App. 3 Cir. 2001) see false imprisonment

[28] Lunnery and Oliphant (2010), Tort Law: Text and Materials, Oxford: New York, p.65

 

[29] See emotional distress from http://en.wikipedia.org/wiki/Intentional_infliction_of_emotional_distress

[30] Lunnery and Oliphant (2010), Tort Law: Text and Materials, Oxford: New York, p.69

 [31] Larson,A.’ Defamation, Libel and SlanderLaw’ available from:- http://www.expertlaw.com/library/personal_injury/defamation.html [Accessed 27th March 2012]

[32] The legal term “invasion of privacy” refers primarily to a person’s right to keep his or her life private and free from the intrusion of others. See http://www.wisegeek.com/what-is-invasion-of-privacy.htm

[33] Thrifty-Tel, at 1567

[34]  Thrifty-Tel, Inc. v. Bezenek, 46 Cal.App.4th 1559, 1566-7

 [35] Conversion is a common law tort. A conversion is a voluntary act by one person inconsistent with the ownership rights of another, see taking with the intent of exercising over the chattel an ownership inconsistent with the real owner’s right of possession” (Rolfe B), Fouldes v. Willoughby (1841) 81 M & W 540, 550

[36] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.77

 [37] Lunnery and Oliphant (2010), Tort Law: Text and Materials,8th Edition, Oxford: New York, p.60

 [39] F. Beatty and S. Samuelson (1996) , Business Law, Little, Brown & Company:Canada, P.687

Klar, Lewis. Tort Law. Toronto: Thomson Carswell, 2008, p50

[40] In some jurisdictions, such secrets are referred to as “confidential information” or “classified information”. By comparison, under US law, “A trade secret, as defined under 18 U.S.C. § 1839(3) (A), (B) (1996), has three parts: (1) information; (2) reasonable measures taken to protect the information; and (3) which derives independent economic value from not being publicly known.

[41] In some jurisdictions, such secrets are referred to as “confidential information” or “classified information”.

[42]http://www.jstor.org/discover/10.2307/2026024?uid=3737584&uid=2129&uid=2&uid=70&uid=4&sid=21100689248071

 [43] Consent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration. See Consent Definition from Merriam-Webster dictionary.

[44] This is frequently summarized by the phrase “volenti non fit injuria” (Latin: “to a willing person, no injury is done” or “no injury is done to a person who consents”).see from http://en.wikipedia.org/wiki/Tort#Defenses

 [45] Lunnery and Oliphant (2010), Tort Law: Text and Materials, Oxford: New York, p.54

 [46] Atiyah, P. S. (1997) The Damages Lottery

 [47] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.79

 [48] Phillip S. James. General Principles of the Law of Torts (2007), see Chapter 2: General Principles of Negligence.

 [49] Cited in Vivienne, Harpwood, Principles of Tort Law, 3rd Edition, p-191

 [50]  “The core idea of negligence is that people should exercise reasonable care when they act by taking account of the potential harm that they might foreseeably cause harm to other people.” Seef Feinman, Jay (2010). New York: Oxford University

[51] But does not prevent state licensing of broadcasting, television or cinemas.

[52] Klayman, Bagby, Ellis (1994), Irwin’s Business Law, irwin: illinois, p.140

 [53] Lunnery and Oliphant (2010), Tort Law: Text and Materials, Second Edition, Oxford: New York, p.147

 [54] St?tescu, C. Bârsan, Tratat de drept civil. Teoria General? a Obliga?iilor, Ed. Academiei (Civil Law Treaty.General Theory of Obligations) R.S.R., 1981, pag, 146 – 228

[55] Revista Dreptul (The Law Journal) – no. 1/1986, p. 72

[56] Lunnery and Oliphant (2010), Tort Law: Text and Materials, Second Edition, Oxford: New York, p.947

 [57] Revista Dreptul (The Law Journal) – no. 4/1988, p. 69

 

[58] Baciu, R., R?spunderea civil? delictual? pentru prejudiciile cauzate de fapta lucrului, Ed. Lumina Lex, (Tort  liability for the injuries caused by activities) Bucure?ti, 2000, pp. 11-13, 138.

[59]See formation of contract, from http://www.out-law.com/page-396

[60] Judicial Immunity is a form of legal immunity which protects judges and others employed by the judiciary from lawsuits brought against them for official conduct in office, no matter how incompetent, negligent, or malicious such conduct might be, even if this conduct is in violation of statutes.

 

 [62]  The notion of activity and persons between which liability is engaged, damages caused by activities nr. 10/1996, p. 34.

 [63] F. Beatty and S. Samuelson (1996) , Business Law, Little, Brown & Company:Canada, P.687

Klar, Lewis. Tort Law. Toronto: Thomson Carswell, 2008, p190.

[64]  Contributions to the study of tort liability Ed Cordial Lex, Cluj-Napoca, 1997, pg. 15-17, 227-232.[65] Klayman, Bagby, Ellis (1994), Irwin’s Business Law, Irwin: Illinois, p.137-142

 [66] Fair and accurate reports of public meetings; local authority meetings; meetings of public companies; proceedings before statutory tribunals and inquiries.

[67] Clerk, Kinder and Hotchkiss (2005), Law and Busines Third Edition. McGraw Hills:United States, P.70

 [68]  It is for the judge to decide whether the occasion is privileged one, and whether a reasonably jury could find that the author’s dominant motive was malice. The jury will decide whether any allegation of malice has been proved.