Difference
between Tort and Breach of contract
Tort
According to Salmond, A tort may
be defined as a civil wrong, for which the remedy is an action for damages, and
which is not solely the breach of contract or the breach of a trust or other
merely equitable obligation.
Breach of Contract
Failure, without legal excuse, to
perform any promise which forms the whole or part of a contract. Black’s law
Dictionary
Where the breach of duty alleged
arises out of a liability independently of the personal obligation undertaken
by contract, it is between parties, if the duty in fact arises independently of
contract. Breach of contract occurs where that which is complained of is a
breach of duty arising out of the obligation undertaken by the contract.
In tort, the duty is towards
persons generally. In contract, on the other hand, the duty is towards a
specific person or persons. That is to say, the privity of contract does not
apply in case of tort because there the duty is not towards any specific
individual or individuals but towards persons generally.
Tort being a private wrong, the
party which suffers injury is required to file the suit against the defendant
and at any stage of the proceedings may withdraw the suit by entering into any
agreement of compromise with the defendant or even without it.
In a breach of contract, nature
of damages is always compensatory. In tort also, generally the nature of
damages is compensatory but in cases of injury to person or character,
exemplary damages may also be awarded if the facts of the cases reveal malice
or fraud.
Another distinction between tort
and breach of contract is that in the former the remedy is an action for
unliquidated damages. That is to say, ion case of tort the actual damages to be
awarded depend upon the discretion of the court and of course depending upon
the facts and circumstances of each case. In an action for breach of contract,
generally the plaintiff “sues for a pre-determined and inelastic sum of money.”
In a breach of contract, motive
of the party breaking the contract is immaterial. In tort also generally motive
is irrelevant but sometimes it may be taken into consideration and in such
exceptional cases, the evil motive of the defendant, if proved, will tip the
scales of liability against him.
A tort is a civil wrong which is
not exclusively the breach of contract. A contract is an agreement enforceable
by law. Contractual liability, therefore, arises out of agreement between the
parties Tortious liability, on the other hand, arises out of a breach of duty
which is not a breach of contract.
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