Discharge of Torts

• 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 ceases to exist and a wrongdoer is not liable for
wrong committed by him. A right of action for a tort may come
to an end in one of the following ways: Death of parties;
Waiver; Acquiescence; Release; Accord and Satisfaction;
Statutes of Limitation.
• A) Death of the parties -
• The common law maxim 'actio personalis moritur cum persona '
which means personal right of action dies with person i.e. a
personal cause of action against a person came to an end when
he died.
• 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.
• A complaint was filed against a surgeon, whose blunder resulted in
the death of the complainant ’s son. While the complaint was still
pending, the surgeon concerned died. The National Commission
applied the rule “Actio Personalis Moritur Cum Persona” and held
that by the death of surgeon, the right of action had come to an
end and the surgeon’s legal heirs cannot be held liable in the case.
• In E.I. Ltd. v. Klaus Mittelbachert , AIR 2002 Delhi 124 A co-pilot in
airlines stayed in Hotel Oberoi Continental, a 5-Star hotel having
the facility of swimming pool. While diving his head hit on the
bottom of the swimming pool, which resulted in serious head
injuries to the plaintiff. In the single judge decision the plaintiff was
allowed Rs. 50 Lakhs as Compensation. The above decision was
appealed before the Division Bench. While the appeal was
pending, the plaintiff died. It was held that the plaintiff ’s suit
abated on his death, and therefore, his legal representatives had
no right to pursue the case and could not seek substitution in this
case. The earlier Single Judge decision granting compensation was
reversed.
• Exceptions: The following exceptions have been recognized to
the above rule: Action under contract. The rule that a cause of
action came to an end with the death of either of the parties
did not apply to an action under the law of contract.
Contractual obligations could be enforced by or against the
legal representatives of the parties to the contract. In case of
contracts of personal service, such as the painting of a picture,
however, the legal representatives could not be bound.
• Sections 37 and 40 of the Indian Contract Act also make a
similar provision. S. 37. Obligation of parties to contract : - The
parties to a contract must either perform or offer to perform,
their respective promises, unless such performance is
dispensed with or excused under the provisions of this Act, or
of any other law. Promise bind the representatives of the
promisors in case of the death of such promisors before
performance, unless a contrary intention appears from the
contract.
• Illustrations: A promises to deliver goods to B on a certain day on
payment of Rs. 1,000. A dies before that day. A ’s representatives
are bound to deliver the goods to B, and B is bound to pay the Rs.
1000 to A’s representatives. Mr. A, promises to paint a picture for B
by a certain day at a certain price. Mr. A, dies before the day. The
contract cannot be enforced either by A ’s representatives or by B.
• Person by whom promise is to be performed : – If it appears from
the nature of the case that it was the intention of the parties to
the contract that any promise contained in it should be performed
by the promisor himself, such promise must be performed by the
promisor. In other case, the promisor or his representatives may
employ a competent person to perform it. Illustrations: A
promises to pay B a sum of money. A may perform this promise,
either by personally paying the money to B by another, and if A
dies before the time appointed for payment, his representatives
must perform the promise, or employ some proper person to do
so. A promises to paint a picture for B. A must perform this
promise personally.
• Unjust Enrichment of tortfeasor ’s estate. If someone, before
his death, wrongfully appropriated the property of another
person, the law did not allow the benefit of that wrongfully
appropriated property to pass on to the legal representatives
of the deceased. The person entitled to that property was
entitled to bring an action against the legal representatives of
the deceased and to recover such property or its value. The
idea behind the rule was that only what actually belonged to
the deceased should constitute his estate and his estate
should not be unjustly enriched by what does not belong to
him. The Law Reform (Miscellaneous Provisions) Act, 1934 and
the position of the maxim. The Common Law rule has been
abrogated by the passing of the Law Reform (Miscellaneous
Provisions) Act, 1934. Section 1(1) of the Act provides that: on
the death of any person…all causes of action subsisting against
or vested in him shall survive-against or, as the case may be,
for the benefit of his estate.”
• The Act recognizes an exception in respect of cause of action for
defamation in which case the cause of action comes to an end, on
the death of either of the parties. Thus, after the passing of the Law
Reform Act, 1934 , the general rule is that if a cause of action comes
into existence in the lifetime of the parties, the death of either the
plaintiff or defendant does not affect the cause of action.
Illustration: If a person is injured in an accident, he may suffer loss in
the form of medical expenses, loss of income during or after
confinement as a result of being incapacitated from doing his
normal work, pain and suffering or the reduction in the expectation
of his life. He can obviously bring an action for the same. If,
unfortunately he dies, the legal representatives of the deceased are
entitled to pursue the same action.
• Rose v. Ford , (1937) A.C. 826 . A girl of 23 years was severely injured
by an accident, caused by the negligence of the defendant. Two days
after the accident, her leg was imputed and four days after the
accident, she died. The father of the girl was entitled to claim
compensation for the benefit of her estate on account of pain and
suffering loss of leg and diminution in the expectation of her life.
• 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
way not to sue one of the two joint tort -feasors, doesn't operates as a
release so as to discharge the other. It is open to an injured party to release
the wrong-doer from liability for compensation. According to English Law, a
release of rights must be supported by consideration or by a formal
document signed, sealed and delivered . According to Section 63, the Indian
Succession Act , consideration is not necessary for release, and therefore, it
would be open to an injured party to release the wrong-doer without any
consideration. But a release executed under mistake (Hore v. Becher, (1842)
12 Sim 465), or in ignorance of one ’s rights (Phelps v. Amcott, (1869) 21 LT
167), or obtained by fraud (Hirschfield v. S.C. Ry. Co., (1876) 2 QBD 1) is not
binding.
• 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 redecided, more than one action does not lie
on the same cause of action and between the same parties. 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
harassed 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.
• Statutes of Limitation : Action for tort must be brought within
the prescribed statutory period; otherwise the right to sue is
barred. In England, the Limitation Act, 1980 fixes the time
during which actions of tort must be brought. In India, the
Indian Limitation Act, 1963 lays down the respective period
within which to sue for different parts. Section 3 (1) of the
Limitation Act 1963, subject to the provisions contained in
Sections 4 to 24 (inclusive), every suit instituted, appeal
preferred, and application made after the prescribed period
shall be dismissed although limitation has not been set up as a
defence. There is a distinction between wrongs which are
actionable per se and those which are actionable only where
the plaintiff can prove that he has suffered actual damage. The
period of limitation runs, in the first case , from the time when
the wrongful act is committed; in the second , from the time
of the plaintiff ’s first sustaining actual injury.
• F) Waiver by Election -
• Where a man has more than one remedy for tort and he elect
to 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.