In certain circumstances, from an incidence both the contractual liability and tortious liability may arise.
(a) A has obtained a water drum from B on a contract with a condition to return it within two days. A has not re-delivered water drum to B after two days.
A intends to retain it for himself. Thus he makes a breach of contract and also conversion. His act is a breach of contract, because he promised expressly to return water drum.
it is also not merely a breach of contract, and therefore also a tort, because he would have been equally liable for detaining and other man’s property, even if he had made no such contract all.
(b) A is the car owner. B has taken A’s car on hire. There is a contract between A and B. From B, C has taken the car and damaged it.
There is no direct relation between A and C. it is true that apart from the contract between A and B, C is liable to A.
B made a breach of contract. C has put himself in such a situation that ne cannot break the duty. There was omission to take care on the part of C. It is a tort.
Let us see the differences between Tort arid Breach of Contract, which are as follows:—
1. In case of tort, damages are always
unliquidated, or unascertained and invariably they are not, and in fact, cannot be actual.
2 A tort is a violation of a right in rem, i.e. of a right vested in public at large, either personally or as a member of community and available against the world at large.
3. In tort, the duty is imposed by the law, and is owed to the community at large.
4. Sometimes, in tort, motive is an essential factor to determine the liability, e.g. Malicious prosecution.
5. Law relating to tort has not been codified. It is a judge-made law.
6. In tort, a person injured may be entitled for such damages which he has not actually suffered.
7. Exemplary or vindictive damages are awarded ‘ in tort.
8. The factors do not affect on action of tort.
Breach of Contract
1. In case of breach of contract injured party has right only for liquidated damages, i.e. pre-settled or actual damages.
2. A breach of contract is an infringement of a right in personam, i.e. a right available only-against some determinate person or body and in which the community at large has no concern.
3 The duty violated, in the case of a breach of contract, is a specific duty owed by either party to the other alone. It does not owe to the community at large.
4. In breach of contract, the motive is not an essential factor. The defaulting party has to pay the pre-settled and actual damages.
5. Law relating to contract has been codified.
6. In breach of contract, the party is entitled only for actual damages.
7. Exemplary or vindictive damages are not awarded in the breach of contract, except in an action for breach of promise of marriage.
8. No compensation is paid in cases of contracts induced by fraud, misrepresentation, mistake, coercion or undue influence.