Discharge of Tort

     

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Discharged of tort is differs from justification. Justifications are exceptions, under circumstances the wrong is justified in doing it.

Definition -

         In discharge of tort, the circumstances are such the liability exists but remedy does not exist.  The meaning of discharge of tort is coming to an end of tort.  It is a process by which tort cease to exist and a wrongdoer is not liable for wrong committed by him.

There are some reasons grounds for discharge of tort which are as follows

Following are the grounds for discharged of tort.

A) Death of the parties -

            The common law maxim 'actio personalis moritur cum persona ' which means personal right of action dies with person.

   1) Death of wronged person against whom the tort is committed.

   2) Death of wrongdoer who has committed tort.

         In case death of wronged person, the legal heir can claim damages from the defendant for proprietary wrong. E.g. tort against property, in case of nuisance, trespass, negligence, fraud, waste etc. But for the personal tort defendant cannot be sued. Even in case of death of wrongdoer the legal heir of deceased are not liable for personal tort of wrongdoer.

Personal torts are those in which are affecting mind and body of the person. E.g. assault, battery, false imprisonment, defamation etc.

B) Accord and satisfaction -

              Accord means an agreement whereby a person agrees to accept some valuable consideration in lieu of right of action that he has against the other. Satisfaction means actual payment of amount of consideration so agreed to when there is an agreement and it is satisfied by its executors, the agreement is termed as accord and satisfaction and it discharged the tort.

The consideration may be treated in money or a compensation which is accepted by a wronged person or his legal heirs and thereby settled the dispute do not proceed in court of law.      

      When the agreement is executed and satisfaction has been made the agreement is called accord and satisfaction and operates as a bar to the right of action. An accord and satisfaction in favor of one joint tort-feasor operates in favor of all when the injury is one and indivisible. Where damages are to be recovered, accord and satisfaction is good plea action for libel and personal injuries.

C) Release -

         A release is the giving up or discharging the right of action which a man has or may have against another man. The wronged or aggrieved person giving up the entire claim or discharged right which he has against the wrongdoer. This release should be voluntarily and not by threat, compulsion or force. In England the release is with consideration and writing but it is valid even without consideration and in writing. The injured, wronged person does not proceed in court of law against wrongdoer. A lease executed under mistake, or in ignorance of one's right or obtained by fraud is not valid. A convenient not to sue one of the two joint tort -feasors, doesn't operates as a release so as to discharge the other.

D) Judgment -

            Judgement by the court of law. If the matter is decided conclusively and finally by the competent court then for the same cause of action, between the same parties the matter cannot be reagitated again and further or fresh suit is debarred.

This principal is based on maxim Res -Judicata

Res -Judicata -

              

                U/s.11 of civil procedure Code, 1908, Means thing once decided cannot be reagitated, more than one action does not lie on the same cause of action. The doctrine of Res-Judicata rests upon the principle that one should not be vexed twice for the same cause and there should be finality of litigation. The object of the principle is to prevent endless litigation. It also prevents a new investigation so that the same person cannot be harass again and again in various proceedings upon the same cause of action.

It is based on the maxim 'nemo debet bis vexari pro in et edem causa means no man should be vexed twice over the same cause of action.

E) Law of limitation -

                  The law prescribes limit within which an action must be brought for the wrong and if this prescribed period is over, expired, the right of action is barred and remedy ceased to operate law helps those only that is diligent about their right. Delay defeat equity .Law will not help to those who were sleeping over their right for pretty long time.

                   In England the limitation Act, 1939 as amended by law reform (limitation of actions etc.) Act 1954,fixes time during which action of tort must be brought.  On the other hand in India. Indian limitation Act 1963, provides the prescribed period during which existing right can be enforced in the court of law. It does not create nor define any cause of action the object of the Limitation Act is to enable the parties to file suit within certain period and forbid them from filing suit after period.

The object of the law of Limitation is to ensure private justice to suppress and perjury and to quicken diligence and to prevent oppression.

 F) Waiver by Election -

             Where man has more than one remedy for tort and he elect pursue one of them, giving up the others, the other remedies are waived. He cannot pursue them if he fails in the one elected. Waiver is express or implied  express when the person entitled to anything expressly and in terms give it up in which case it nearly resembles release ;implied, when the person entitled to anything does or acquiesces in something else which is inconsistent with that to which he is so entitled.

In short waiver means to give up; the aggrieved or wronged person gave up his right of action against the wrongdoer. For some reason and do not proceed in court of law.

G) Acquiescence -

         This shows an inactivity of person. The aggrieved person does not proceed in court of law because of his own incapacity. i.e. .if he has no money to pay court stamp fee or an Advocates fee, or he don't have time to go in the court of law and file the suit for compensation. Where a person who knows that he is entitled to enforce the right, neglects to do so for a length of time .the other party may fairly infer that he has waived of abandoned his right. But to deprive man of his legal remedies there must be something more than delay.