• Mr. Mir Adil Rashid

Discharge of Torts

Updated: Mar 26, 2021

INTRODUCTION

Discharge of torts is a process by which tort ceases to exist and the wrongdoer is not held liable for the wrongs committed by him. There are 7 different types through which tort is discharged which include:

  1. Death of parties

  2. Accord and satisfaction

  3. Release

  4. Judgement

  5. Law of limitation

  6. Waiver by-election

  7. Acquiescence


Death of parties

A common law Maxim "actio personalis moritur cum persona" which means the personal right of action dies with a person, applies here. Actio personalis moritur cum persona is important Maxim which means that person who commits a tort dies the personal right or right of action dies with the person. But there are two situations via this maxim applies

  1. Death of the person against whom tort was committed i.e., petitioner.: When a person or petitioner against whom tort was committed approached the court and filed a case, his personal right of action dies with him only. For instance, if A files a case against B if A dies during the trial and the case is still pending before the court. The tort gets discharged due to the death of A as the right of action of A dies with him only.

  2. Death of the person who commits tort i.e. Defendant: It means if the defendant dies or the person who committed the act of tort against any other person the tort gets discharged. For instance, if Ram committed the act of tort against Geeta. Geeta filed a suit against Ram, but Ram died during the course of the trial, his right of action also died with him.

In case of death of a wronged person and where a tort was committed against property in case of nuisance, trespass, negligence, fraud etc. His legal heir can claim damages from the defendant for proprietary wrong. But as for his personal tort is concerned the defendant cannot be sued even in case of death of the wrongdoer The legal heir of the deceased is not liable for the personal tort of the wrongdoer.


Accord and Satisfaction

When the parties to the tort i.e. the person who commits the tort and the person against whom tort has been committed come to an agreement and try to settle the dispute by the agreement, such agreement formed between the parties is known as accord. Generally, it means settling the issue by accepting some consideration in lieu of the right of action.


Satisfaction means actual payment of the amount of consideration agreed between the parties i.e. the person who commits a tort and the one against whom the tort is committed and it is satisfied by its executors.


Once both this accord and satisfaction is completed it results in the discharge of tort and the dispute does not proceed in a court of law or it operates as a bar to the right of action.

Release

Release means when a person by his own choice discharges the tort or when a person gives up the right to action which a man has or have against another man. This release should be given by free consent and voluntarily and not by compulsion, undue influence, coercion, threat or force. For instance, if A is the person against whom B does any act of tort and if A wants to release B from the liability by his free consent, he can do so. The release is with consideration and writing in England but it is valid even without consideration and in writing. The person who is injured by the act of the wrongdoer does not proceed in a court of law against the wrongdoer.


Judgement

This principle is based on Maxim Res-Judicata means things once decided cannot be re-agitated and on another maxim Nemo debet bis vexari pro in et edem causa means no man should be vexed twice over the same cause of action and there should be the finality of litigation. The object of the Principle of Res-Judicata is to prevent endless litigation and to prevent new investigation in the same cause of action so that the same person cannot be harassed again and again in various proceedings.


In the Case of Fitter v. Veal (1701 12 Mod. Rep. 542) in this case, a suit was filed by the plaintiff against the defendant demanding damages against the act of assault and finally the defendant provides the remedy to the plaintiff as the court of law allows the remedy to him. He later discovered that he has to go through a number of surgeries and for this, he filed another petition against the defendant demanding more remedy for the same act of assault.

The court denied the petition that was made by the plaintiff a second time for the same cause of action it was held by the Court if once the judgement is provided on the matter, no further appeal can be filed in the court of law for the same act of tort as the tort gets discharged.


Law of limitation

Delay defeat equity law helps those only who are diligent about their rights, law will not help those who are sleeping over their rights for a pretty long time. The law prescribes a time limit within which an action must be brought for the wrong or tort committed and if an action is not brought within the prescribed period of time. The right of action is barred and remedy ceases to operate and tort gets dismissed due to the limitation. For instance, A committed a tort of trespass against B. If B fails to apply against it within a period of 3 years in the Court, he cannot apply afterwards as he lost his right to apply due to limitation. In India The


Limitation act 1963 provides a period during which existing right can be enforced in the Court of Law. The main aim and object of the limitation act is to ensure private Justice to suppress and to quicken diligence and to prevent oppression.


Waiver by Election

Waiver is one another method of discharge of tort. The concept of waiver means when a person has more than one remedy available as a result he has to choose one of them, and he cannot apply for both the remedies except in the case of defamation and assault. In simple words, waiver means to give up i.e. when an aggrieved person on account of some reason gave up his right of action against the wrongdoer and does not proceed in a court of law. There are two main principles in the doctrine of waiver, they are;

  • Person has to choose any one remedy.

  • And if the person fails to get the remedy he elects/ chooses, the court of law does not allow him to go back to an alternative remedy.

Illustration: Person A files a suit against person Z and has two remedies available. If he chooses the first remedy and loses the case, later he cannot approach the court of law for an alternative remedy.


Acquiescence

When a tort gets discharged because of an aggrieved person's own incapacity i.e. he has no money to pay stamp fee, Advocates fee or he does not have time to go before the court and file the suit for compensation. When a person is entitled to enforce his right and for a long time he does not enforce his right. The other party may have an impression that he has abandoned or waived is right. For instance, if person A is entitled to enforce the right against B. But A for a long time neglect to enforce this right against person B. It automatically waived B from his liability.


The author is pursuing BA.LLB at School of Legal Studies, Central University of Kashmir.

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