Law of Torts

                             Law of Torts

Q # 01: Define the word “Tort” what are its essentials or its ingredients?

1)     Preface

·  Tort is a violation of some civil duty. A tort is a civil wrong committed by one party against other party, in which the injured party can take legal action for recovery of damages. Tort has two main objectives, one is compensation of the person wronged for any damages and second objective is recover money from wrong doer which is financial punishment for him. Such wrong against which no compensation is recoverable, is not a tort. The law of tort is based on common law

2)     Meaning of tort

·  The word tort has been derived from Latin word “Tortum” which means to conduct

Ø               Oxford Dictionary meaning

Tort is a private or civil wrong

3)     Definition of Tort

·  A tort is an act which injures someone in some way and accordance with the injured person can take legal action against wrong doer for recovery of damages

4)     Wrongs which are not tort

Following wrongs are not tort while these come under crime category

1)  Criminal wrongs

2)  Breach of contracts

3)  Breach of trust

Ø               Example

·  If A enters into the land of B without permission of B. A has committed tort of trespass.

5)   Kinds of torts

Following are the three kinds of torts. Details are as under

1.   Intentional tort

·  When a wrong doer intentionally commits a civil wrong against other person is called intentional tort

2.   Tort based on negligence

·  Negligent tort is not deliberate actions, when one fails to perform reasonably and becomes reason of civil wrong is called negligence tort

3.   Strict liability torts

·  Holding of an individual liable for damages without proof is called strict liability torts. It is possible to hold responsible when plaintiff feels that he was under dangerous situation by defendant

6)   Essentials of tort

Following are the essentials of tort

1.   Wrongful act

·  Wrongful act is an essential of tort. It must be proved that the act done by the wrong doer was a wrongful act. The violation of religious, social or moral rights does not come under the category of torts

2.   Legal damage

·  Legal damage is an essential of tort. Wrongful act done by wrong doer must result in legal damages of the other person such as act must be resulted into violation of legal rights of another person.

3.   Legal remedy

·  Legal remedy is an essential of tort. Legal remedy enables injured person to receive compensation from wrong doer through the court of law

4.   Civil wrong

·  The tort is civil wrong. Violation should be civil violation it should not be criminal violation because in case of criminal violation. The offender is not punishable under the law of tort

5.   Right legally recognized

·  The right which has been violated must be a legally recognized right. If it has not been legally recognized it will not be actionable according to the law of tort

7)   Nature of tort

·  It is difficult to define the nature of law of tort. The law of tort is a part of civil law, that’s why it has no remedy for all wrongs and for all losses

·  According to its nature, law of tort determine that when law should grant compensation for damages and when law should not grant compensation for damages

8)   Position in Pakistan

·  Law of tort has not been a front line subject of our law. Injured person cannot rely on this law and whenever they wanted remedy against violation of their rights. This has not been the position in Pakistan alone, many other underdeveloped countries including India show the same picture and law of tort also is not being given importance.

9)   Objectives

·  The purpose or objectives of law of tort is the protection of the rights of persons, right of property and right of reputation are included in this law.

·  The primary objective of the law of tort is to compensate the injured person by the wrong doer against the violation of his legally recognized right

·  The secondary objective of the law of tort to build a financial pressure on wrong doer by taking compensation in the form of money for injured person

·  The third objective of the law of tort is to stop those who intentionally or negligently violates the right of others

10)   Sources of law of tort

Following are the main sources of law of torts

1.   Case laws

·  Such law which has been created by judicial decisions of former cases is called case law

2.   Statutory provision

·  When a state or federal legislature passes a law. It is called statutory provisions

3.   Latin Maxims

·  Such well-known sayings, which expresses a general truth about life or a rule about behavior is called Latin maxims

11)   Preclude

·  The law of tort helps to protect the civil rights of the people which has been legally recognized by the law of the state, and enables the injured person to receive compensation from wrong doer. The tort is a civil wrong if wrong which is criminal wrong in this case wrong doer will be punished under the criminal proceedings. The act done by the person must be wrongful act and must give rise to legal damage as well as legal remedy. The remedy should be imposed through court of law and compensation should be in the form of money.

Q # 02: How is a tort discharged? Discuss at least three incidents which led to extinction of liability in tort.

1)     Preface

·  Discharge is the death of the tort. There are a lot of circumstances which become reason of the discharge of the tort. There are two parties in every case, plaintiff and defendant, if injured person does not receive any compensation; in this case, law assumes that injured person has no damage. In case of discharge of tort liability exist but the remedy does not exist. And injured person cannot take legal action or cannot receive compensation from wrong doer

2)   Meaning of tort

·  The word tort has been derived from Latin word “Tortum” which means to conduct

Ø               Oxford Dictionary meaning

Tort is a private or civil wrong

3)   Definition of discharge of tort

·  The right of injured person to take legal action for compensation against wrong doer comes to an end is called discharge of tort

4)   Modes of discharge of tort

Following are the modes of discharge of tort. Details are as under

1.   Death of the party

·  By death of the parties the tort comes to an end. Death of the injured person, against whom the tort is committed. Death of the wrong doer who has committed tort. In case of death of injured person the legal heirs can take legal action against wrong doer for proprietary

wrong. But for personal tort, wrong doer cannot be sued. In case of death of wrong doer the legal heirs of the deceased are not responsible for personal tort of wrong doer. Personal torts are those torts which are affecting mind, body of person etc.

2.   Waiver by election

·  Where an injured person has more than one remedy for a tort and he select one of them for legal action, giving up others, the other remedies are waived. He cannot pursue them if he fails in the one elected. Waiver means to give up. The injured person discharged his right of action against the wrong doer for some reason and is not ready to proceed in the court of law.

3.             Accord and satisfaction

·  Accord is mutual agreement between injured person and wrong doer by which injured person agrees to discharge his right of legal action against any compensation offered by the wrong doer. The amount for compensation by wrong doer to injured person is called satisfaction. The right to take legal action against the wrong doer will be discharged when injured person and wrong doer enters into accord and satisfaction

4.   Release

·  A release is the discharging the right of action which injured person has against wrong doer.

But this release should be voluntary and should not be obtained by threat, or force. The injured person does not proceed in court of law against wrongdoer once he has released his right of legal action.

Ø               When release is not valid

Following are the reason when release in not valid

1)  When release executed by mistake

2)  When release executed by fraud

3)  When release executed by undue influence

5.   Judgment

·  A judgment is the discharging the right of action which injured person has against wrong doer. According to it the injured person cannot take legal action against wrong doer again and again for the same tort. More than one action cannot be taken against any person on the same tort. It is the also the major reason of discharge of the tort

6.   Time limitations

·  The law prescribes time limit within which an action should be taken for the wrong and if this proscribed period is over, the right of action will be expired and compensation will not be made to injured person. Law helps those who care their rights because delay defeat justice. Law will not help to those who were sleeping over on the violation of their right for long time.

·  The object of the time limitation enables injured person to take legal action against wrong doer as soon as possible

7.   Incapability of injured person

·  This shows an incapability of injured person. When the injured person do not proceed in court of law because of his own incapacity e.g. if he has no money to pay an advocates fee, or he don’t have time to go court of law and to take legal action for compensation. Where a person who knows that he has right to take legal action, neglects to take legal action for a long period of time, in this case such kind of delay also will become the reason of discharge of the tort and all rights will be snatched from injured person against wrong doer

5)   Kinds of torts

Following are the three kinds of torts. Details are as under

1.   Intentional tort

·  When a wrong doer intentionally commits a civil wrong against other person is called intentional tort

2.   Tort based on negligence

·  Negligent tort is not deliberate actions, when one fails to perform reasonably and becomes reason of civil wrong is called negligence tort

3.   Strict liability torts

·  Holding of an individual liable for damages without proof is called strict liability torts. It is possible to hold responsible when plaintiff feels that he was under dangerous situation by defendant

6)   Wrongs which are not tort

Following wrongs are not tort while these come under crime category

1)  Criminal wrongs

2)  Breach of contracts

3)  Breach of trust

Ø               Illustration

·  If A enters into the land of B without permission of B. A has committed tort of trespass.

7) Preclude

·  Tort is a civil wrong in which wrong doer is liable to pay compensation to injured person . Such compensation which has been made through court of law is called legal remedy for wrong or tort. In case of discharge of tort, injured not remain able to take legal action against wrong doer and there are a lot of reason which are becoming the reason of the discharge of the tort. There is a bug in the law of tort which is that if a person who is wealthy can committee wrong with other person and can release himself by paying compensation to injured person

Q # 03: Make out a list of general defence’s in tort and discuss briefly.

1)     Preface

·  In case of a tort case there are two parties’ plaintiff and defendant. Plaintiff is the person whose rights have been violated and goes to the court seeking remedy. On the other hand defendant is a person who has violated the rights of the other person. In general defence, the person who commits wrong he himself wrong doer and liable for the tort committed by him. Tort is defensible, justifiable and excusable under some circumstances the detail is being provided as under.

2)   Meaning of tort

·  The word tort has been derived from Latin word “Tortum” which means to conduct

Ø               Oxford Dictionary meaning

Tort is a private or civil wrong

3)   Definition of general defence

·  In civil proceeding of court, the denial of the injured person’s claim by wrong doer is called general defence in tort

4)   General defences in tort

Following are the general defences in tort. Details are as under.

1.   Consent

·  In very limited situations an accused can claim that the victim consented to the accused’s act

·  For example, you are a viewer of a cricket match , the batsman hits a six, and the ball lands on your head, but you cannot claim for compensation either from the stadium authorities or the batsman because when you took a seat in the stadium, you accepted the risks while sitting in the stadium. Because wrong doer can prove that the injured person voluntarily put himself in that situation.

2.   Injured person himself wrong doer

·  In such case where injured person did something wrong which become reason of his injury? If injured person did something wrong in this case he cannot claim damages from someone else for the injury.

·  For example, if a person goes into someone's house and if it is written on the gate that

‘beware of dog', the dog bites him then the injured person entered the house after knowing the risk, as a result he cannot ask for compensation, because he himself is a wrongdoer.

3.   Inevitable accident (Unavoidable )

·  When an injury is caused to a person by an accident that can’t be avoided even with reasonable care

·  For example, if a person accidently injured and happening of that accident can’t be avoided even with reasonable care. After all, how can an injured person blame for someone else for this accident

4.             Act of God

·  Act of God means if an injured person who has accidental injury from unexpected natural event. Injury caused by natural forces and such natural forces which are unexpected to happen as well as unavoidable by care.

·  For example if a person who has injury by storm, he cannot ask for compensation to any one and he cannot any legal action in this regard

5.             Acts of state

·  If an act has been done under the authority of a state that is a valid defence.

·  For example, if there is a railway line near your house and the noises of the train passing disturbs then you have no remedy because the construction of the railway line is authorized by the state. However, this does not give the authorities the license to do what they want unnecessarily; they must act in a reasonable manner

6.   Private defence

·  Private defence is a valid defence. Because every individual has the right to protect his life and his property from wrong doer and during this protection he can use certain amount of force if necessary. The law of torts recognizes this right and any injury which is caused by the personal protection will not give to legal remedy or compensation

Ø             Types of private defence

Private defence is of two types

1)  Private defence of person

2)  Private defence of property

7.   Contributory negligence

·  If a person was injured due to his own negligence, the injured person cannot collect any compensation from another party who supposedly caused the accident. Under this rule, a badly injured person who was only slightly negligent could not win in court against a very negligent person

8.   Mistake

·  In mistake, wrong doer will have to prove that the wrong done was performed mistakenly. This is not a very valid defense because it is very hard to prove that a wrong done which has been committed by wrong doer was purely based on mistaken. It will be considered as mistake when genuinely wrong doer does not know the reaction of his action and such act become the reason of injury to other person

9.   Exercise of common rights

·  Exercise of common rights is a valid defence. If a person is enjoying his legally recognized rights and his usage becomes a cause an injury to other. In such condition the injured person cannot take legal action for any compensation against that person who is using is rights lawfully

10.   Necessity

·  In necessity, wrong doer will have to show that the act he did was necessary under certain situation. If wrong doer success to prove his necessity in this case wrong doer will not be sued by injured person and that is a valid defence.

·  For example, if wrong doer enters into your private land in order to collect water from your

well to put out a fire from his house. The level of necessity should be very high. If damage is caused to avoid a greater damage, it becomes a good defense

5)  Objectives of law of tort

·  The purpose or objectives law of tort is the protection of the rights of persons, right of property and right of reputation are included in this law.

·  The primary objective of the law of tort is to compensate the injured person by the wrong doer against the violation of his legally recognized right

·  The secondary objective of the law of tort to build a financial pressure on wrong doer by taking compensation in the form of money for injured person

·  The third objective of the law of tort is to stop those who intentionally or negligently violates the right of others

6)  Position in Pakistan

·  Law of tort has not been a front line subject of our law. Injured person cannot rely on this law and whenever they wanted remedy against violation of their rights. This has not been the position in Pakistan alone, many other underdeveloped countries including India show the same picture and law of tort also is not being given importance.

7)  Preclude

·  An action which has been performed under lawful provision, it has not been sued by injured person in any court of law. The law of tort has been defined those circumstances where tort is justifiable and excusable. As well as the law of tort does not give permission to anyone to perform unreasonable acts under the statutory provision or in accordance with general defence because such kind of act will be sued by injured person

Q # 04: What is trespass to person and what are its kinds. Discuss in detail false imprisonment as the one.

1)     Preface

·  False imprisonment is the unlawful restraining of freedom of a person. It a tort as well as a crime. The object of this tort is to provide protection to a person against attack upon his liberty which is legally recognized by state as a fundamental right. False imprisonment is an intentional tort. A tort is wrongful act which can harm injured person physically , psychologically or it may be harm property of the injured person. In false imprisonment the burden of proof lies on the wrong doer to prove the existence of reasonable cause

2)   Meaning of imprisonment

·  Keeping someone in jail and total restraint of his liberty as lawful punishment however short a time

3)   Definition of false imprisonment

·  Unlawful restraining of freedom of a person without legal prove and against his will ,is called False imprisonment

4)   Kinds of imprisonment

Kinds of imprisonment are us under

1.   Actual imprisonment

·  Governments provides that certain crimes are against the law, they set a maximum punishments against certain crimes, and when a criminal is sent to jail and deprived of his liberty under these rules, is called actual punishment

2.   Constructive imprisonment

·  It is also called beneficial imprisonment. It occurs when any person is under any threat of violence from other person, so in this situation keeping a person in a particular place in order to keep him safe is called constructive imprisonment

5)   Essential elements of false imprisonment

Following are the essential elements of the false imprisonment

1.   Restraint of liberty

·  The first element of the false imprisonment is restraint of liberty. Keep a person in jail and his liberties should be restraint

2.   Unlawful restraint

·  Second element of the false imprisonment is unlawful restraint. The person should be unlawfully restrained in a jail without proving legal evidences is called unlawful restraint

6)   Definition of trespass to person

·  Trespass to a person means an intentional unlawful interference with a person's liberty and such trespass which in itself a breach

7)   Kinds of trespass to person

Following are the kinds of trespass to person

1)  Assault , if a person is being attacked by other person is called assault and this is a trespass to person

2)  Battery, intentional unpermitted act which may harm to other person is called battery and this is trespass to person

3)  False imprisonment , if a person who is falsely imprisoned by other person is called false imprisonment and this is trespass to person

4)  Wounding , if a person who is bodily harmed by other person is called wounding and this is a trespass to person

5)  Mayhem , if a person is bodily injured which result the removal of fighting ability by other is called mayhem and this is a trespass to person

6)  Maiming , if a part of the body is permanently damaged by other person is called maiming and this a trespass to person

8)   General defences of false imprisonment

False imprisonment can be defended by any of following general defences

1.   Partial restraint

·  There is no defence for false imprisonment. If a person has been partially restrained. He cannot take legal action for false imprisonment against defendant. Because for this plaintiff will have to prove before the court of law that defendant had put the complete restraint upon his liberty

2.   Consent to confinement

·  There is no defence for false imprisonment. If a person willingly gives his consent to the confinement. The plaintiff cannot take legal action for false imprisonment against defendant

3.   Lawful authority

·  There is no defence for false imprisonment if defendant who arrests a person under the directions of a superior officer. He will not be held responsible for his act which he acted on the behalf of his officer against plaintiff

4.   Lawful imprisonment

·  There is no defence for false imprisonment. If a person was confined for lawful cause. The plaintiff cannot take legal action against defendant. The burden of proof falls on the defendant in this case

9)   Remedies for false imprisonment

Following are the remedies for false imprisonment. Details are as under

1.   Writ of habeas corpus

·  It is a form of legal remedy. Under this writ the person who has been falsely imprisoned can take legal action and can claim for damages of mental disgrace and liberty.

·  This writ lies down that the Court will decide whether the imprisonment is unlawful or not. If the arrest made is found unlawful and the defendant will be made liable for false imprisonment.

2.             Action for damages

·  Action for damages is also a remedy for a person who has unlawfully confined, after his release from false imprisonment can take legal action for damages under the law of tort against the person who have false imprisoned him

3.   Search warrant

·  Search warrant is also a remedy for a person who has been falsely imprisoned. Search warrant is a document that authorizes police officer to search an actual person so that false imprisoned may be released from confinement

4.   Self help

·  Self-help is also a remedy for a person.By using reasonable force, the person who is under arrest can make attempts to free himself. This is a type of extra-judicial remedy that can be brought into use without approaching the Court of law. The use of unreasonable violence in the name of self-help shall not be accepted

10)   Preclude

·  False imprisonment one of the important kind of trespass to person. The tort of false imprisonment is actionable under the law of tort. It is the responsibility of the plaintiff to prove his unlawful restraint in order to get compensation from defendant by using this he can recover his damages or compensation from defendant. For compensation there are a lot of remedies for the person who has been falsely imprisoned such as action of damages, writ of habeas corpus, search warrant and self-help are the remedies for damages against the defendant

Q # 05: Write a comprehensive note on vicarious (Indirect) liability.

1)   Preface

·  As a matter of justice, one who commits wrong is a wrong doer and he will be held responsible for that wrong. There are some circumstances where one is held responsible for the wrongs done by the others. And this rule is called vicarious liability (indirect) liability. Generally an employer will be held responsible if his employee does something wrong during the performance his duties within the firm or outside of the firm. It also comes into the category of tort. Vicarious liability shows any relationship between wrong doer and the other person who is being held responsible for the wrong. Relationship is necessary element for this tort such as owner of vehicle and the driver

2)   Meaning of liability

·  An action for which someone is legally responsible is called liability

3)   Definition of vicarious liability

·  Vicarious liability is a liability when someone is held responsible for the wrongs of another person. In a workplace context, an employer will be liable for the wrongs of his employees which has been committed by them during the course of employment

4)   Kinds of liability

Following are the kinds of liability

1)  Civil liability

2)  Criminal liability

3)  Remedial liability

4)  Vicarious liability

5)  Strict liability

5)   Vicarious liability in civil law

·  Vicarious liability is not common in civil law. A person cannot be punished for a crime committed by other person. But this theory of liability allows the court to hold responsible a person who did not directly committed the wrong.

·  But the section 34 and section 149 of PPC holds responsible a person for the wrongs of other person

6)   Vicarious liability in criminal law

·  The legal theory of liability that allows the court to hold a person responsible for the acts of other. Under this theory a person can be held responsible for a criminal act of others if he helped out in some way to commit crime

·  For example, in a criminal context, vicarious liability if assigns guilt to a person for wrongful acts committed by someone else.

7)   Basis of vicarious liability

Existence of the following things is the basis of the vicarious liability

1)  There must be wrong done for vicarious liability

2)  There must be two or more person one is wrong doer and second is who gave order

3)  There should be relationship between wrong doer and second who is imposed liable

8) Reasons give arise to vicarious liability

Following are the reasons which may give arise the vicarious liability

1.   Ratification (Approval)

·  Under the law of tort a person will be held responsible for the wrongs committed by other. Following are the three ways which may allow the court to hold responsible to a person who directly did not commit the wrong

1)  When a person gives approval to do particular act with the full knowledge that it is tortious

2)  When a person gives approval to do particular act even knowing that by doing particular act, responsibility surely will arise against that person

3)  When a person to do particular act on the behalf of his employer

In the ratification, the relationship is a necessary element between the two or more persons

2.             Abetment (to help out)

·  Under the law of tort a person will be held responsible for the wrongs committed by other if he helps to commit the wrongs to others. In such case, court will hold responsible for such person who helps to wrong doer for doing unlawful acts against others

3.   Relationship

·  There should be relationship between the wrong doer and the person who gave the order. Relationship is the bigger and essential element to hold vicarious liability. Relationship may be of Master-Servant, Principle-Agent etc.

Following are the kinds of relations between the persons. Details are as under

a.  Master and servant

·  A master is responsible to every act of his servant which has been committed by his servant during the course of his employment. Any negligence of servant which may harms to others in such case court of law holds responsible to master for the wrongs of his servant

Ø             When master is not liable

1)  When servant does not follow the instructions of his master

2)  When act is done outside of the course of the employment

3)  When servant has been performed his duties and latterly he did wrong

4)  When servant did wrong outside the authority of his master

b.   Principle and agent

·  A principle is responsible to every act of his agent which has been committed by his agent on behalf of his agency. Any negligence of agent which may harms to others in such case court of law holds responsible to principle for the wrongs done by his agent

c.   Company and director

·  In case of offence by company. Director of the company will be held responsible for the wrong done by the company if the company works against the policies of the company such kind of violence makes the director vicarious liable for the wrong done

d.   Firm and partner

·  Under the law of tort, all the partners of the firm are liable for wrong committed by any of

the partner during the course of business of the firm. The relationship of the partners is interlinked that’s why each partner is liable for the act of the fellows.

e.   Guardian and ward

·  Under the law of tort, the guardian are not personally responsible for the wrong committed of those minors who are under his charge but guardian also can take legal action against the minors that they done some certain act on his behalf

9) Preclude

·  Any person is always liable for that act which directly has been performed by his own but there are some circumstances when a person is being held responsible for the acts which have not been committed by him directly such theory is called vicarious liability or joint liability. Major essential of vicarious liability is a relationship between the wrong doer and the person who has been held responsible on the place of wrong doer. Relationship has different kinds such as master and servant, principle and agent, company and director, partner and firm etc. Following of the three main reasons which become reason of vicarious liability such as ratification, relationship and abetment etc

Q # 06: Explain the judicial remedies in tort.

1)     Preface

·  As a matter of justice an injured person may have several possible remedies available under tort laws and he can take legal action against wrong doer if his tort has been legally recognized. There are two types of remedies in law of tort, legal remedy by which injured person is compensated by the wrong doer in the form of money against his damage through the court of law. 2nd is an injunction is an order of the court of the law which prohibits

wrong doer from doing something wrong in future again. Both of above are the legal remedies in favor of injured person for his injury by wrong doer

2)   Meaning of remedy

·  Judicial order to someone to make payment for damage is called remedy

3)   Definition of remedy

·  It is such penalty when injured person is compensated by the wrong doer against violation of his right through court of law is called remedy

4)   Kinds of remedies

Following are the two kinds of remedies

Ø         Judicial remedies

Ø         Extra judicial remedies

1.   Judicial remedies

·  Judicial remedy also called legal remedy , these are those remedies which are being enforced by the court of law in shape of penalty in favor of injured person against wrong doer

Following are the sub types of judicial remedies

a.   Damages

·  In law of tort, damage is the compensation of money to injured person by the wrong doer through court of law is called damage

Ø             Kinds of damages

Following are the kinds of damages

1)  Special damages,

2)  General damages

3)  Exemplary damages

4)  Real damages

5)  Nominal damages

6)  Contemptuous damages

b.   Injunction

·  In law of tort, an injunction is a court order which prohibits wrong doer from doing something wrong in future again

Ø             Kinds of injunctions

Following are the kinds of injunctions

1)  Preliminary injunction , it is an initial injunction by the court in order to restrain a party for doing something until the case has been decided

2)   Temporary injunction, it is a temporary injunction by the court in order to

restrain a party for doing something for a short period

3)   Permanent injunction , it is a final order by the court in order to restrain a party for doing something permanently

c.   Specific restitution of property (Compensation)

·  In law of tort, this theory is based on recovery; it is contrasted with the theory of compensation. This is the situation when court gives order to wrong doer to return the things to injured person which has been snatched or gained by him through illegal ways

2.   Extra judicial remedies

·  In law of tort, these are those remedies which are not connected with court but has been accepted by the court of law where injured person has right to use force on his own without the help of law

Following are the kinds of extra judicial remedies

a.   Self Help

·  In law of tort, self-help is an extra judicial remedy. When one found himself in danger from other person. In this case each and every person has right to use of reasonable force for the protection of himself or his family

b.   Re-entry of land

·  In law of tort, self-help is an extra judicial remedy. When one found his property under illegal control of another person. In this case each and every person has right to use of reasonable force in order to get his property free from trespasser

c.   Expulsion of trespasser

·  In law of tort, expulsion of trespasser is an extra judicial remedy; trespasser is a person who commits an act of trespassing on a property without the permission of the owner. In this case owner can expel a trespasser or trespassing animal without the help court in order to keep them away from re entering

d.   Reception of goods

·  In law of tort, reception of goods is an extra judicial remedy, if a person who has been deprived from his property or things he has right of repossesses them without the help of court

e.   Abatement of nuisance

·  In law of tort, abatement of nuisance is an extra judicial remedy, if a person is being irritated by an object in this case he has right to remove (abate) the nuisance without the help of court

5)   Objectives of remedy

·  The objectives of remedy in law of tort is the protection of the rights of persons, right of property and right of reputation are included in this law.

·  The primary objective of remedy in the law of tort is to compensate the injured person by the wrong doer against the violation of his legally recognized right

·  The second objective of remedy in the law of tort to build a financial pressure on wrong doer by receiving an amount for compensation in the form of money for injured person

·  The third objective of remedy in the law of tort is to stop those who intentionally or

negligently violates the right of others

·  The fourth objective of the remedy is the satisfaction of the injured person

6)   When remedy is not applicable

Following wrongs are not tort while these come under crime category and there is no legal remedy for such kind of violations because these are punishable crimes

1)  Criminal wrongs

2)  Breach of contracts

3)  Breach of trust

Ø               Example

·  If A enters into the land of B without permission of B. A has committed tort of trespass.

7) Preclude

·  There is not wrong without remedy. The law of torts provides two kinds of remedies which are judicial and extra judicial remedies. The judicial remedies are those remedies which have been enforced by the court of law in order to compensate the injured person by the wrong doer. The extra judicial remedies are those remedies which are not connected with the courts but have been accepted by the courts of law. But in this case injured person has been entitled to use of force or he can take action on his own without the help of court

Q # 07: Discuss different kinds of damages in tort.

1)     Preface

·  Damages are a legal or judicial remedy in the law of tort. It is duty of court to grant damages to the injured person by wrong doer against the violation of rights recognized by the law. Damages in law of tort is usual remedy it is the money compensation which being paid by wrong doer at the time when injured person claims for loss or violation of his rights. It is also called compensatory damages and details of its different kinds are being provided as under

2)   Meaning of damages

·  Damages is the compensation in the form of money

3)   Definition of damages

·  It is such penalty when injured person is compensated in form of money by the wrong doer against violation of his right through court of law is called damages

4)   Objectives of damages

Following are the main objectives of the damages

·  The objectives of damages in law of tort is the protection of the rights of persons, right of property and right of reputation all are included in

·  The primary objective of damages in the law of tort is to compensate the injured person by the wrong doer

·  The second objective of damages in the law of tort is to build a financial pressure on wrong doer

·  The third objective of remedy in the law of tort is to stop those who intentionally or negligently violates the right of others

·  The fourth objective is the satisfaction of injured person

5)   Difference between damage and damages

Following is the difference between damage and damages. Details are as under

1.   Damage

·  Damage means loss which a person suffers in result of wrong done against him, loss may be of money, reputation, goodwill, health or service

2.   Damages

·  It is such penalty when injured person is compensated in form of money by the wrong doer against violation of his right through court of law is called damages

6)   Kinds of damages

Following are the kinds of damages. Details of all kinds are being given below

1.   General damages

·  General damages are those damages which cannot be calculated with the value of money, such as pain, enjoyment of life, general damages are compensation for past, present and future losses.

·  In this case, the compensation in the form of money is paid by wrong doer to the injured person against violation of his rights which legally has been recognized

2.   Special damages

·  Special damages are those damages which can be calculated with the value of money, such as medicine bills, or repair cost etc. and special damages are compensation for past, present or future losses

·  In this case, the compensation in the form of money is paid by wrong doer to the injured person against violation of his rights which legally has been recognized

3.   Exemplary damages

·  Exemplary damages are those damages when injured person is not compensated for his loss because object of this damage is to punish the wrong doer for his wrongful act against

injured person as well as keep him away from committing future wrongs. Sexual harassment or fraud schemes come under this category

4.   Real damages

·  Real damages are those damages which actually have occurred as a result of wrongful act and those damages can be easily measured with the value of money are called real damages

·  In this case, the compensation in the form of money is paid by wrong doer to the injured person against violation of his rights which legally has been recognized

For example, loss of income because of injury in the shape of medical expenses etc.

5.   Nominal damages

·  Nominal damages are those damages when there is no actual injury or money loss. But court takes a legal action against violation of legal rights because the object of these damages is to provide protection to a person from repeated violation of his rights by wrong doer.

6.   Contemptuous damages

·  Contemptuous damages are those damages which are very small in value such as one cent or one rupee that occurred after the wrongful act of wrong doer. In this case when injured person sue in the court for compensation of his loss and it is not possible to convert the damages in significant sum of money is called contemptuous damages. But in different countries a various rules have been set up for contemptuous damages

7)   Measure of damages

·  The law of tort has not defined any method for measurement or assessment of damages. It depends upon circumstances, or nature of loss or nature of injury for a particular case. Keeping in view above mentioned all scenario’s court measures the depth of the damages as well as compensate to the injured person by wrong doer against his loss suffered

8)   Importance of remedy of damages

·  The nature of the damages is compensatory. It is more important to award injured person for his loss or violations of his rights which has been legally recognized by the law of the state. It is compensation in the form of money to the injured person and such compensation builds a financial pressure upon wrong doer which stops him to commits wrongs in future

9)   When damages is not applicable

Following wrongs are not tort while these come under crime category and there is no legal remedy for such kind of violations because these are punishable crimes

1)  Criminal wrongs

2)  Breach of contracts

3)  Breach of trust

Ø               Example

·  If A enters into the land of B without permission of B. A has committed tort of trespass.

10)   Nature of tort

·  It is difficult to define the nature of law of tort. The law of tort is a part of civil law, that’s why it has no remedy for all wrongs and for all losses. According to its nature, law of tort determine that when law should grant compensation for damages and when law should not grant compensation for damages

11)   Preclude

·  Damages are the amount of compensation in the shape of money which is given by the wrong doer through the court of law against violation of rights of others. Such kind of compensation helps the injured person to sustain his position same as before the commission of the wrongful act. These damages are helping injured persons and helps to stop wrong doer for committing wrongs in future it only can be possible by making a financial pressure in the form of compensation by money through the court

Q # 08: Discuss in detail contributory negligence and negligence.

1)   Preface

·  Negligence is a tort in the eye of law which occurs when someone fails to pay his required attention for doing something. Contributory negligence is not a tort. Contributory negligence is a special defense available to defendant under the law of tort. It is just a defense which is available to defendant because contributory negligence express that the person who suffered damages was also responsible for that damages as much as defendant For example, a pedestrian crossing a road negligently and hit by a driver who was driving negligently, in this situation both will be responsible because both of they were negligent

2)   Definition of negligence

·  If someone fails to give enough care for doing something that he was responsible for, is called negligence

3)   Types of negligence

Following are the two types of negligence

1.   Advertent negligence (willful)

·  Advertent negligence is willful negligence. It is more serious negligence which shows a complete lack of interest of a person in respect with safety of others for example, hospital staff does not change a patient’s bandage for several days which may result in serious infection

2.   Inadvertent negligence

·  Inadvertent negligence is not willful negligence. It is less serious than advertent negligence. For example drunkard is walking on the road and he breaks the window of the shop, in this case it will be inadvertent negligence

4)   Definition of contributory negligence

·  If a person gets injured due to his own contributed negligence, in this case injured person is not entitled to recover damages from other party who supposedly caused the accident

5)   Types of contributory negligence

Following are the types of contributory negligence. Details are as under

1.   Pure contributory negligence

·  Pure contributory negligence is such negligence where injured party cannot recover any damage if it is even 1% at fault. If court finds that both of the parties are caused for accidental injuries to one another in this case, no one can claim for damages against one another

2.   Modified contributory negligence

·  Modified contributory negligence is such negligence where injured party can recover a little percentage of damages or no damages. Because it depends on the decision of the court of law

6)   Defenses in negligence

Following are the defenses in negligence in which wrong doer will not be held responsible for

the injuries t others

1)  That the injury was result of consent of the injured person

2)  That the injured person himself wrong doer

3)  That the injury was unavoidable

4)  That the injury was result of an act of God

5)  That the injury was result of an act of state

6)  That the injury was result of contributory negligence

7)  That the injury was result of private defense

8)  That the injury was result of mistake

7) Situations of negligence

Following are the three situations of the cases of negligence

1)  When defendant is proved completely negligent

2)  When plaintiff is proved completely negligent

3)  When both of plaintiff and defendant are proved negligent

8)   Burden of proof

·  In contributory negligence the burden of proof is always on the defendant. The defendant has to prove the negligence of plaintiff

9)   Difference between negligence and contributory negligence

Following are the differences between contributory negligence and negligence. Details are as under

1.   As to nature

Ø         Contributory negligence is not a tort in nature. But it is a defense

Ø         Negligence is a tort in its nature

2.   As to burden of proof

Ø         In contributory negligence the burden of proof is always on injured person

Ø         In negligence the burden of proof is always on wrong doer

3.   As to scope

Ø         Negligence has wider scope

Ø         Contributory negligence has less in scope because it also has been derived from negligence

4.   As to duty of care

Ø         In contributory negligence the duty of care is impose on both the parties

Ø         In negligence the duty of care is impose on wrong doer

10)   Essentials of a suit for negligence

Following are the essential of a suit for negligence

1.   Legal duty

·  Every person has a legal duty to act in a reasonable manner keeping in view the safety measures. If some get fails to perform his duty carefully he will be held responsible and legal action will be taken against him

·  For example, doctor have a duty to treat their patients carefully if he fails to treat them carefully he will be held responsible

2.   Breaches the duty

·  If someone breaches his duty and fails to an act in reasonable manner towards other. Legal action will be taken against him

·  For example, a doctor prescribed wrong medicine and patient get hospitalize, doctor will be held responsible in this regard.

3.   Failure to perform duty

·  If someone fails to perform his duty in reasonable manner so in this condition a legal action shall be taken against by him

4.   Damages

·  If someone fails to perform his duty reasonably and such failure become reason of an injury in this situation the injured person is liable to take legal action against wrong doer and sue for compensation

11)   Preclude

·  Contributory negligence is a complete defense which is completely in favor of wrong doer because in this respect, both of the parties are contributed in accident and it is not a tort. In contributory negligence the burden of proof is always on the wrong doer who has to prove the injured person wrong or has to prove the contribution of injured person in accident. But the negligence which has two types , advertent negligence and inadvertent negligence, first one is worse than second type of negligence

·  In negligence the burden of proof is always on the injured person who has to prove the wrong doer responsible for the act

·  These are two different things under the law of tort

Q # 09: Discuss the following statement, every person can sue and be sued in tort.

1)   Preface

·  Every person living in civilized society has been given certain rights as a general rule all person have capacity to sue and be sued in tort. There are certain person or bodies who cannot sue as well as there are certain persons or bodies who cannot be sued under the law of torts. Law of torts is describing limitations for suing or to be sued a person before the court

2)   Definition of sue

·  When someone takes legal action through court against someone for doing something wrong or illegal in order to get money, is called sue.

3)   General rule

·  As a general rule a person who suffers tort can sue. Similarly a person who commits a tort will be sued in law of tort.

4)   Basis of general rule

·  The general rule that a person has capacity to sue and be sued in tort is based on the principle of equality of law.

5)   Persons who cannot sue

Following are the persons and bodies who cannot sue through court against someone’s tort

1.   Alien enemy

·  An alien enemy is an individual who has been captured during the time of war.

·  An alien enemy cannot sue in British courts unless he got the license from the queen for sue.

·  In Pakistan alien enemy can sue with the permission of central government of Pakistan under civil procedure code.

Ø               Example

·  But an indian citizen cannot sue in Pakistan for enforcement of his fundamental rights

2.   Infants

·  Minor cannot sue for injuries suffered by him when he was in the womb of his mother for example, if a women was injured in railway accident and the child when born, is disable, in this case child cannot sue in English law

3.   Convict

·  In law of tort, the person who has been convicted by the court of law and punishment has been given to him against any crime, he cannot sue for injuries suffered by him

4.   Husband and wife

·  Before the amendment in this article, a married woman was unable to sue for any tort committed by the third person without making her husband as party. But after changing this rule, a women can sue against any person even husband and wife can sue each other

Ø               Position in Pakistan

·  In Pakistan husband and wife can file suit against one another because both of husband and wife are considered separate personalities

5.   Bankrupt

·  A bankrupt person whose property has been ceased by the bank or by the agent, he cannot sue against bank or agent for caption of his property,

·  But in case of personal wrong such as defamation, he can sue against violation of his fundamental rights

6.   Foreign state

·  A foreign state cannot sue in any court unless the state has been recognized by her superior authority. In Pakistan according to civil procedure code a foreign state can sue in any court with the permission of central government of Pakistan

7.   Unincorporated association

·  Unincorporated association cannot sue on his own behalf. These are those companies which have not been registered under the ordinance 1984 or not registered under the partnership act 1932 are not eligible to sue.

6)   Who cannot be sued

Following are the persons and bodies who cannot be sued through court against any tort

1.   Foreign sovereign

·  Foreign sovereign cannot be sued. Because it is an international law that king cannot do wrong. According to this international law all kings have privilege from legal proceedings against them

2.   Ambassadors

·  According to an international law an ambassadors cannot be sued in a country where they are posted. Due to this internally recognized law all ambassadors have privilege that they will not be sued for torts committed by them

3.   Public officials

·  Public officials as well as their representatives cannot be sued for the torts committed by them. Because public official always do their job under government of the state and all act which are being performed by them are on the behalf of his government

4.   Infants and lunatics

·  Infants and lunatics cannot be sued for the torts committed by them. Because both of these are come under the category of minor and in law of torts, minors are free from to be sued

5.   Corporation

·  The companies registered under companies ordinance 1984 cannot be sued for tort in the course of their business. Because these are registered and legal companies in the eye of the law

6.   Trade union

·  Trade union registered under industrial Relation Ordinance 2008 cannot be sued for torts committed by them in the course of industrial dispute

7.   Crown

·  King or his servant cannot be sued for torts committed by them. Because both of they have privilege from to be sued in law of tort

Ø               Position in Pakistan

·  Under constitution of Pakistan 1973, the president, Prime Minister, Governors. Chief Ministers cannot be sued for torts committed by them while they are in service

7)   Preclude

·  If someone takes a legal action through court against someone for doing something wrong or illegal in order to get money is called sue. Because it is a general rule that all persons have capacity to sue and are liable to be sued. But there are certain condition or limitation due to them some persons who cannot sue and cannot be sued for torts committed by them Alien enemy, infants, foreign state, bankrupt, convicted by court, unregistered companies and husband and wife cannot sue. Foreign sovereign, ambassador, infant and lunatics, corporations, trade unions, crown, and public official cannot be sued for torts

Q # 10: What are the main ingredients of a tort of defamation? Give a detailed answer to this question

1)   Preface

·  Defamation is a civil or criminal tort. It is an intentional false statement which can be written and spoken. Written statements are called libel and spoken statements are called slander. If

a person has been defamed by other person, he will sue him and will receive damages from him through the court of law. Defamation catches all these statements which hurt someone’s reputation. Defamation is not a crime but it is a tort. Defamation directly effects

the persons’ reputation in the eye of the society. One saying related to it” When wealth is

lost, nothing is lost; when health is lost, something is lost; when character is lost, all is

lost”

2)   Meaning of Defamation

·  To damage the reputation of a person by written or spoken statements which are not true, is called defamation

3)   Definition of defamation

·  Defamation is the publication of a false statement which lows someone’s reputation in the eye of the members of the society

4)   Essential of defamation

Following are the essential of defamation. Let’s look each of these elements in detail

1.   Statement must be false

·  The statement must be false. The words which has been spoken or written in order to

defame someone’s reputation must be false. If the words published will be proved false, in this situation the defamed person can take legal action in order to receive legal damages from wrong doer through the court of law

2.   Reference to the plaintiff

·  The words must refer to the plaintiff in the tort of defamation. It is not necessary that the statement refers to the plaintiff by name. A wrong doer can publish defamatory material in the form of a story that story may refers to imaginary characters, but relevant person would understand that a particular story is only referring him

3.   Publication

·  The word must be publicized. Publication means that a third person must heard or read the statements other than that person who made the statement or other than the person against whom it is made

·  Publication is not only through a printing it can be through television, radio, speeches or even loud conversation. It also can be written in magazines, books as well as newspapers

4.   And accusation should harm the reputation

·  In order to establish defamation, if the statement of defamation has been given in order to harm the reputation of other person, in this case wrong doer will be liable for punishment against his criminal act

5)   Kinds of defamation

Following are the two kinds of the defamation. Details are as under

1)  Libel

2)  Slander

1.   Libel

·  When one makes a false statement in order to hurt someone’s reputation in the eye of the society by using different methods of printing, writing, pictures and by using any other physical form is called libel

Ø               Ingredients of libel

Following are the ingredients of libel

1)  Written statement

2)  False

3)  Defamatory

4)  Injurious

5)  Relates to the plaintiff

6)  Publication

2.   Slander

·  When someone makes false statements in order to hurt someone’s reputation in the eyes of the society by using the method of oral conversation is called slander

Ø               Ingredients of slander

Following are the ingredients of slander

1)  Oral statement

2)  False

3)  Defamatory

4)  Injurious

5)  Relates of the plaintiff

6)  Publication

6) Defenses in action of defamation

Following are the defenses in defamation. Detail are given as under

1.   Truth of the Statement

·  Truth statement is a defense in defamation. If the statement given is true and correct it will be a complete defense, in this situation the statement giver will not be sued before the

court by defamed person

2.   Statement of opinion

·  A statement of opinion is also a defense in defamation. It means that if someone says something in opinion giving manner it will be considered as statement of opinion.

·  For example one told someone that “I think that Harold beat up his girlfriend last Saturday,” and, as a result, Harold lost his job. You were only giving your opinion; you didn’t say,

“Harold beat up his girlfriend.” But you said that “I think.” The word “ I think” is a statement of opinion

Ø               Conditions

1)  Statements must be fair

2)  Statements must be within the limits

3)  There should not hatred

4)  There must not be blame

5)  Expression of opinion

3.   Consent

·  Consent of the plaintiff is rare but bigger defense in defamation. If defendant can prove that the plaintiff has given his consent to the statement, in an interview, or in a written, in this situation the statement giver will not be sued through the court of law. It is not easy to

prove consent of defamed person

4.   Privileges

·  A privilege is a common defense in defamation. There are two types of privileges; details of those are being given below.

a)   Absolute privilege

·  Absolute privilege allows the statement giver to give defamatory statements without fear of legal action even if those statements are untrue, false. This kind of privilege has been given under a few proceedings

Ø               Conditions for absolute privilege

Following are the conditions under which a person can give defamatory statements

1)  Parliamentary proceedings

2)  Judicial proceedings

3)  Navel proceedings

4)  Military proceedings

5)  State proceedings

b)   Qualified privilege

·  Qualified privilege allows the journalists to publish defamatory statements but these should be published without hatred and should be purely for the interest of the state

Ø               Conditions for qualified privilege

Following are the conditions under which a journalist can publish defamatory statement

1)  Report should be accurate

2)  Statement should be published in protection of common interest

3)  Statement should be without hatred

7) Conclusion

·  Defamatory statement is purely a tort under the law of tort. Because defamation lows someone’s reputation in the eye of the law. It has two types, if it is spoken it will be called slander and it has been printed then it will be called libel. There are four kinds of privileges who protects defendant from legal proceeding

Q # 11: Discuss the law of nuisance in detail.

1)   Preface

·  Nuisance is a wrongful act and it is actionable tort. It is the thing or act which may hurts or annoyance or discomfort to others. If you have a problem where a neighbor is doing something wrong that you feel is causing you a nuisance, you may wish to take some action to try to stop it. In short, nuisance is a such act which legally has not been permitted to do in any condition because it violations the freedom of the other

2)   Meaning of Nuisance

·  The word nuisance has been derived from Latin word “nuis” which means to “do hurt” or “to annoy”

3)   Definition of nuisance

·  A nuisance is an act which interferes and violates the rights of others and it becomes cause to hurt or annoyance to others

4)   Essential elements of nuisance

Following are the necessary elements of the nuisance. Details are being given

1.   Unlawful interference

·  In law of tort, unlawful interference is an essential element of nuisance, there must be unlawful interference which must violate the right of others and it is a civil wrong

2.   Damage

·  In law of tort, damage is an essential element of nuisance without damage a person cannot sue someone. Damage means loss which a person suffers in result of wrong done, loss may be of money, reputation, goodwill, health or service

3.   Physical discomfort

·  In law of tort, physical discomfort is an essential element of nuisance, it means if a person who is physically being teased by other will be called physical discomfort and can sue against wrong doer

5)   Kinds of nuisance

Following are the two kinds of nuisance. Details are as under

I.   Private nuisance

II.   Public nuisance

6)   Definition of private nuisance

·  A private nuisance is an act which interferes with a person's enjoyment and use of his land which has been legally recognized by the state.

7)   Definition public nuisance

·  Public nuisance is an act which is affecting the public at large, with the interference of their rights as health, safety of community etc

8)   Remedies for nuisance

Following are the remedies for nuisance. Details are as under.

1.   Abatement of nuisance

·  In law of tort, abatement of nuisance is an extra judicial remedy, if a person is being irritated by an object in this case he has right to remove (abate) the nuisance without the help of court

2.   Damages

·  In law of tort, damage is the compensation of money to injured person by the wrong doer through court of law is called damages

3.   Injunction

·  In law of tort, an injunction is a court order which prohibits wrong doer from doing something wrong in future again

4.   Civil remedy

·  In law of tort, if someone is facing nuisance from others in this situation injured person can take legal action against wrong doer in the shape of civil remedy

5.   Criminal remedy

·  A person committing public nuisance, he can be sued under criminal law because public nuisance is a criminal act

9)   Defenses for nuisance

Following are the defense for nuisance. Details are as under.

1.   Consent

·  Under law of tort in this situation injured person cannot sue, if the consent of the injured person has been taken for nuisance. It is a best defense for defendant. But consent should be free from undue influence.

2.   Statutory authority

·  Under the law of tort. If a person is performing an act which is nuisance in its nature on the behalf of statutory authority. It is a defense for defendant

3.   Prescription

·  Under the law of tort, if defendant has acquired the right of easement through prescription, so in this case injured person cannot sue against wrong doer

10)   Difference between private and public nuisance

Following are the differences between private and public nuisances

1.   As to violation

Ø         Private nuisance violates the individual rights

Ø         Public nuisance violates the public rights at large

2.   As to injury

Ø         Private nuisance causes injury to an individual

Ø         Public nuisance causes injury to public at large

3.   As to prosecution

Ø         In private nuisance a private person can prosecute

Ø         In public nuisance a private person cannot prosecute but lawyer

4.   As to offence

Ø         Private nuisance is a civil wrong

Ø         Public nuisance is a criminal wrong

5.   As to remedy

Ø         In private nuisance a remedy can be made by compensation

Ø         In public nuisance a remedy can be made by criminal prosecution

6.   As to proof

Ø         In private nuisance proof of damage is required

Ø         In public nuisance proof of damage is not required

7.   As to right

Ø         Private nuisance is relate to private right

Ø         Public nuisance is relate to public right

8.   As to prescription

Ø         In private nuisance easement can be acquired by prescription

Ø         In public nuisance easement cannot be acquired by prescription

9.   As to scope

Ø         The scope of private nuisance is less

Ø         The scope of public nuisance is wider

11)   Preclude

·  The public nuisance and the private nuisance are the kinds of nuisance. Nuisance is such term according to which when someone hurts others by unlawful interference with the right of other and enjoyment of use of land which causing damage. But private nuisance is not a criminal act it is purely an act of tort but public nuisance is purely an act of criminal proceedings

Q # 12: What is tort and crime and difference between tort, crime and contract.

1)   Preface

·  Tort is a violation of some civil duty. A tort is a civil wrong committed by one party against other party, in which the injured party can take legal action for recovery of damages. Tort has two main objectives, one is compensation to the injured person for any damages and second objective is recovering money from wrong doer which is financial punishment for him. Such wrong against which no compensation is recoverable, is not a tort. The law of tort is based on common law

2)   Meaning of tort

·  The word tort has been derived from Latin word “Tortum” which means “to conduct”

Ø               Oxford Dictionary meaning

Tort is a private or civil wrong

3)   Definition of Tort

·  A tort is an act which injures someone in some way and after getting injury the injured person can take legal action against wrong doer for recovery of damages

4)   Difference between tort and contract

Following are the differences between the tort and contract. Details are as under

1.   As to rights

Ø         Law of tort protects the rights available to the person against the whole world

Ø         Law of contract protects the rights of both the parties only

2.   As to damages

Ø         In tort, damages are necessary to pay

Ø         In contract, damages are not necessary to pay

3.   As to consent

Ø         In tort, there is no concept of consent because tort is violation of right

Ø         In contract, consent of the parties is always needed

4.   As to codification

Ø         Law of tort is not codified

Ø         Law of contract is codified and all term and conditions has been prescribed in contract act

5.   As to rights and duties

Ø         Rights and duties are fixed by law in law of tort

Ø         Rights and duties are fixed by the parties in contract

6.   As to defense

Ø         In law of tort, necessity is a defense

Ø         In contract necessity is no defense

7.   As to limitation of time

Ø         Limitation of time is one year in tort

Ø         Limitation of time is three years in contract

8.   As to position of minor

Ø         In law of tort, a minor person can sue and be sued

Ø         In contract, a minor person cannot sue and cannot be sued

9.   As to aim

Ø         In law of tort, aim to compensate to the injured person

Ø         In contract, aim to enforce the promise

5)   Difference between tort and crime

Following are the differences between law of tort and criminal law. Details are as under

1.   As to parties

Ø         In law of tort, parties are known as plaintiff and defendant

Ø         In criminal law, parties are knows as state and accused

2.   As to punishment

Ø         In tort, tortfeasor has to pay damages

Ø         In criminal law, criminal are sent to prison

3.   As to procedure

Ø         In tort, proceedings are regulated by civil procedure

Ø         In criminal law, proceedings are regulated by criminal procedure

4.   As to intention

Ø         Intention is not relevant in tortious act

Ø         Intention is always relevant in criminal act

5.   As to defense

Ø         Necessity is a defense in tortious act

Ø         Necessity is not a defense in criminal act

6.   As to compromise

Ø         In tort, compromise is permissible

Ø         In criminal law, compromise is not permissible

7.   As to prosecution

Ø         In law of tort, legal action is taken by injured person

Ø         In criminal act, legal action is taken by state

8.   As to codification

Ø         Law of tort is not codified

Ø         Criminal law is codified in Pakistan penal code

9.   As to position of minor

Ø         In tort, minor is liable for tortious act

Ø         In criminal act, minor is not liable for criminal act who is under seven year

10.   As to wrong doer

Ø         Wrongdoer is called tort feasor

Ø         Wrongdoer is called criminal

6)   Objectives

·  The purpose or objectives of law of tort is the protection of the rights of persons, right of property and right of reputation are included in this law.

·  The primary objective of the law of tort is to compensate the injured person by the wrong doer against the violation of his legally recognized right

·  The secondary objective of the law of tort to build a financial pressure on wrong doer by taking compensation in the form of money for injured person

·  The third objective of the law of tort is to stop those who intentionally or negligently violates the right of others

7)   Preclude

·  Law of tort is completely different from law of contract and criminal law. In law of tort, the person who commits tort is called tort feasor and in criminal law a person who commits wrong is called criminal as well as in contract act who commits breach is called accused. Keeping in view above all references which shows the difference between all of them

                   Easement Law

Q # 01: Define easement. Briefly discuss different kinds of easement.

1)   Preface

·  An easement is a right of use the land of other person for a specific purpose without possessing it. In other words, when someone is granted an easement, he is granted to use the land but the title of ownership remains with the owner of the land. Actually an

easement is a right of way; according to this a person can use other person’s land to access to the main road. Easement can only be taken if the person who has been granted easement, is an owner of home locked land, in this situation he can take easement otherwise he is not eligible to take easement

2)   Meaning of easement

·  An easement is a right of use the property of other person for a specific purpose without possessing

3)   Definition of easement

·  When someone is granted an easement, he is granted to use the land but the title of ownership remains with the owner of the land and the person who is granted easement can use the land without possessing it

4)   Persons who can grant easement

Following are the persons who grant the easement. Details are as under

1)  Owner

2)  Limited owner

3)  Apparent owner

4)  Lessee

5)  Possessor

6)  Mortgager

5) Persons who can acquire easement

Following are the persons who can acquire the easement. Details are as under

1)  Co-owner

2)  Co-tenants

3)  Lesser

4)  Trespasser

5)  Possessor

6)  Mortgager

6)      Kinds of easement

Following are the kinds of easement. Details are as under

1.   Continuous easement

·  Continuous easement is such easement which can be acquired without the permission from other individuals and these easements remain continue and following elements comes

under this category such as air, light and drains etc.

2.   Discontinuous easement

·  Discontinuous easement is such easement which can be acquired with the permission of other individuals and these easement not remains continue such as right of way with the permission of owner of the land

3.   Apparent easement

·  Apparent easement is such easement which is free from human interference and it can be acquired without the permission from other individuals for example, paved track, a footpath and flow streams comes under this category

4.   Non-apparent easement

·  Non-apparent easement is such easement which is not free from human interference and it only can be acquired with the permission from other individuals for example right of way or use of property of someone else

5.   Positive easement

·  Positive easement is such easement which can be acquired with the permission of the owner in which easement holder can discharge water from well, can use the kitchen situated on the land of owner and can receive other benefits from the land but easement holder cannot earn money in the shape of money or other than this

6.   Negative easement

·  Negative easement is such easement where easement holder is restricted to use the land in specified ways such as easement holder cannot construct a building in the land of other person

7.   Urban easement

·  Urban easement is such easement when one person seeks the access to reach to the main road, urban easements are related with houses, building, plazas and shopping centers in the cities

8.   Rural easement

·  Rural easement is such easement when one farmer seeks the access to reach his land by using other former’s land for the purpose of cultivation of the land. And this kind of easement cannot be taken without the consent of the owner of the land

9.   Permanent easement

·  Permanent easement is such easement which can be acquired on permanent basis by the easement holder

10.   Limited easement

·  Limited easement is such easement which can be acquired only for the specified duration of time by the easement holder

11.   Easement by necessity

·  Easement by necessity is such easement which can be acquired from the permission of court of law when owner of the landlocked property has no access to reach to the public right of way such as street or highway comes under the category of easement by necessity

12.   Quasi easement

·  Quasi easement is such easement when both tracts of the land are owned by a single person and it will become quasi easement if an owner of the two tracts sells one of the tracts to other person

13.   Customary easement

·  Customary easement is such easement which can be acquired by virtue of local customs. By the custom of a certain village such as every farmer of the village can pass his cattle through the common fields

14.   Public easement

·  Public easement is such easement when someone grants a certain area of land for public use for example a person who provides a certain area of land for park is called public easement

7)         Preclude

·  An easement is a basically rule according to which a person can use someone else land without possession it for a specified purposes. There are certain types of easement such as permanent and limited continue and discontinue, mentioned all easement requires the permission of real owner or some of them require the judicial approval for use of the land of other person. Easement holder cannot earn money in the shape of profit from the land of other and easement holder is not permitted to construct builds on the land of owner and is not allowed to make other changes on the land of the owner. Easement holder only can use the land but the title of the ownership will remain with the real owner of the property

Q # 02: Define easement. Explain the modes of acquisition of easement and who can acquire easement.

1)   Preface

·  An easement is a right of use the land of other person for a specific purpose without possessing it. In other words, when someone is granted an easement, he is granted to use the land but the title of ownership remains with the owner of the land. Actually an easement is a right of way; according to this a person can use other person’s land to access to the main road. Easement can only be taken if the person who has been granted easement, is an owner of home locked land, in this situation he can take easement otherwise he is not eligible to take easement

2)   Meaning of easement

·  An easement is a right of use the property of other person for a specific purpose without possessing which is not yours

3)   Definition of easement

·  When someone is granted an easement, he is granted to use the land but the title of ownership remains with the dominant tenement and the dominant owner only can use the land without possessing it

4)   Examples of right of easement

Following are the examples of right of easement. Details are as under

1)  Right of way, a person who is possessor of a piece of land has a right of way.

2)  Right of air, a person who is possessor of a piece of land has a right of air.

3)  Right of free access to air, a person who is possessor of a piece of land has a right free access of air.

4)  Right of light, a person who is possessor of a piece of land has a right of light.

5)  Right of privacy, a person who is possessor of a piece of land has a right of privacy.

6)  Right of water flow, a person who is possessor of a piece of land has a right of water flow that his used water to be flowed without any issue

7)  Common rights, a person who is possessor of a piece of land has a lot of common rights which have been recognized by the law.

8)  Right of support, a person who is possessor of a piece of land has a right of support means that he is to be provided safety

9)  Right of prospectus, a person who is possessor of a piece of land has a right of prospectus that if a person wants to publicize his business he can acquire this right

5)   Modes of acquisition of easement

Following are the modes of acquisition of easement

1.   By Express grant

·  Express grant is a mode of acquisition of easement. Express grant is such grant which is given by making a written agreement between the dominant tenement and dominant owner for a specific purpose.it must be in writing and must be signed by both parties. But the title of the land will remain with the dominant owner

2.   By Implied grant

·  Implied grant is a mode of acquisition of easement. Implied grant is such grant which has been given without making any written agreement between dominant tenement and dominant owner. There is no written document

3.   By Prescription

·  Acquisition of an easement by prescription means when one person gains the title of rights of use of a certain land against the real owner under the legal rules. But dominant owner will have to prove before the court that he is using the piece of land since a long time

4.   By custom

·  Acquisition of an easement by custom is also a mode of acquisition. Such easement which can be acquired by virtue of local customs. By the custom of a certain village such as every farmer of the village can pass his cattle through the common fields such acquisition of rights is called acquisition by custom

6)   Persons Who can acquire easement

Following are the persons who can acquire easement. Details are being given below

1.   Co-owner

·  Under the easement act one of Co-owners can acquire an easement from the other coowners of immoveable property without their consent for the beneficial enjoyment of

the property. But in case of co-owner, he cannot transfer his rights to others without the consent of co-owners

2.   Co-tenants

·  Under the easement act one of co-tenants can acquire an easement from other coowners without their consent for the beneficial enjoyment of the property. But in case

of co-tenants, he cannot transfer his rights to others without the consent of other cotenants

3.   Lesser

·  Under the easement act, a lesser being a possessor of the property can acquire easement from his lessee for the beneficial enjoyment of the property

4.   Trespasser

·  Under the easement act, trespasser is a such person who is using the land of someone else since a long period of time without any interruption, under the easement act, a trespasser can acquire easement for the beneficial enjoyment of the property

5.   Possessor

·  Under the easement act, if a person who is using the piece of land for the time being and a he is person is possession, he can acquire the easement without the consent of real owner of the land for the beneficial enjoyment of the property

6.   Mortgagee

·  Under the easement act, a mortgagee being a possessor of the property can acquire easement from his mortgager for the beneficial enjoyment of the property

7)   Kinds of easement

Following are the kinds of easement. Details are as under. Continuous easement Discontinuous easement Apparent easement Non-apparent easement Positive easement Negative easement

Urban easement Rural easement Permanent easement Limited easement Customary easement Public easement Quasi easement Easement by necessity

8)   Preclude

·  An easement is a basically rule according to which a person can use someone else land without possession it for a specified purposes. There are certain types of easement such as permanent and limited continue and discontinue, mentioned all easement requires the permission of real owner or some of them require the judicial approval for use of the land of other person. Easement holder cannot earn money in the shape of profit from the land of other and easement holder is not permitted to construct builds on the land of owner and is not allowed to make other changes on the land of the owner. Easement holder only can use the land but the title of the ownership will remain with the real owner of the property

Q # 03: What is meant by easement? How it can be extinguished?
Dominant owner (Who is other than real owner Dominant tenement (who is owner of property

1)   Preface

·  An easement is a right of use the land of other person for a specific purpose without possessing it but it also extinguishable under some circumstances. Easement can be extinguished, if dominant owner is making profit in shape of money or other than this from the property of dominant tenement, in this case dominant tenement will extinguished the easement. Actually extinction of an easement is to take the beneficial enjoyment of the property back from dominant owner. Under the easement act, there are different modes of extinguishing the right of easement

2)   Meaning of extinction of easement

·  Due to some reasons when easement granter extinguishes the right of easement from easement holder is called extinction of easement

3)   Definition of Extinction of easement

·  When dominant tenement extinguishes the right of beneficial enjoyment of the property from dominant owner due to some valid reasons, it is called extinction of easement

4)   Modes of extinction of easement

Following are the modes of extinction of easement. Details are as under.

1.   Extinction by release

·  Under the easement act, an easement is extinguished when the dominant tenement expressly or impliedly releases the right of dominant owner, , in this case the further beneficial enjoyment of the property will not be possible for dominant owner

2.   Extinction by revocation (cancel)

·  Under the easement act, an easement is extinguished when the dominant tenement uses his power of cancellation the right of dominant owner, , in this case the further beneficial enjoyment of the property will not be possible for dominant owner

3.   Extinction by dissolution

·  Under the easement act, an easement is extinguished when the dominant tenement dissolves the right of dominant owner under some circumstances, , in this case the further beneficial enjoyment of the property will not be possible for dominant owner

4.   Extinction by termination of necessity

·  Under the easement act, an easement is extinguished when the necessity comes to an end on behalf of which easement has been taken, in this case the further beneficial enjoyment of the property will not be possible for dominant owner

5.   Extinction by expiry of time period

·  Under the easement act, an easement is extinguished when the decided time period comes to an end on behalf of which easement has been granted, in this case the further beneficial enjoyment of the property will not be possible for dominant owner

6.   Extinction by happening

·  Under the easement act, an easement is extinguished when something has been happened on behalf of which easement was granted , in this case the further beneficial enjoyment of the property will not be possible for dominant owner

7.   Extinction by change of dominant tenement

·  Under the easement act, an easement is extinguished when the dominant tenement is died and ownership gets change, in this case the further beneficial enjoyment of the property will not be possible for dominant owner

8.   Extinction by destruction of either owner

·  Under the easement act, an easement is extinguished when either the dominant tenement or dominant owner is totally destroyed, , in this case the further beneficial enjoyment of the property will not be possible for dominant owner

9.   Extinction by unity of ownership

·  Under the easement act, an easement is extinguished when both of the dominant tenement and dominant owner becomes the owner of the same property, in this case the further beneficial enjoyment of the property will not be possible for dominant owner

10.   Extinction by suspension of easement

·  Under the easement act, an easement is extinguished when easement suspended due to any reason, in this case the further beneficial enjoyment of the property will not be possible for dominant owner

11.   Extinction when easement becomes useless

·  Under the easement act, an easement is extinguished when it does not remain beneficial for the dominant tenement, in this case the further beneficial enjoyment of the property will not be possible for dominant owner

5)   Easement can be extinguished by the court

·  If one takes a legal action for his right under an easement, the other party can apply to the court to for extinguishing the easement.

·  Keeping in view the cases filed from both parties the court of law will make the orders under the easement act

6)   Examples of right of easement

Following are the examples of right of easement. Details are as under

1)  Right of way, a person who is dominant owner of a piece of land has a right of way.

2)  Right of air, a person who is dominant owner of a piece of land has a right of air.

3)  Right of free access to air, a person who is dominant owner of a piece of land has a right free access of air.

4)  Right of light, a person who is dominant owner of a piece of land has a right of light.

5)  Right of privacy, a person who is dominant owner of a piece of land has a right of privacy.

6)  Right of water flow, a person who is dominant owner of a piece of land has a right of water flow that his used water to be flowed without any issue

7)  Common rights, a person who is dominant owner of a piece of land has a lot of common

rights which have been recognized by the law.

8)  Right of support, a person who is dominant owner of a piece of land has a right of support means that he is to be provided safety

9)  Right of prospectus, a person who is dominant owner of a piece of land has a right of prospectus that if a person wants to publicize his business he can acquire this right

7) Preclude

·  Extinction of the easement is the end of the beneficial enjoyment of the property which unable the dominant owner to further use of the property. Under the easement act, there are different modes of extinction of the easement under different circumstances. There are a lot of examples of the rights of easement such as right of air, right of free access to air, right of light, right of water flow, right of privacy, right of support, right of prospectus, common rights, etc