Crimes‖ are said to be harms against the society and are therefore, considered as graver wrongs. ―Torts‖ (cases of non-contractual liability) are wrongs against individuals and are treated as lesser wrongs. ―Breaches of contract‖ are also civil wrongs, which result from non-performance of contractual obligation.
―Tort is a private wrong and the remedy available is reparation for the injury suffered and not punishment. ―Breach of contract‖ entails civil liability of the defaulter that may result in forced (specific) performance, cancellation of the contract or payment of damages. But unlike criminal law, the state will not be involved in the dispute or litigation other than legislating the legal framework that facilitates contractual transactions, providing remedies in case of non-performance and adjudicating over the case if the creditor files a suit. Moreover, the remedies unlike criminal law do not involve punishment but performance of obligations and payment of damages.
There are several factors that distinguish torts from crimes. However, torts also include certain harms or damages caused by fault that are designated as offences like assault, defamation, negligence etc. But unlike criminal offences noncontractual liability may arise irrespective of fault (strict liability) or due to harm caused by others for whom a person is answerable (vicarious liability) as in the case of harm caused by one‘s child, one‘s employee in due course of his work, etc.,
Tortious liability is said to be ―strict‖ (or irrespective of fault) in the following instances.
- If it arises from acts that do not constitute fault, or
- Due to harm caused by things owned or possessed by a person namely, animals, buildings, machines, and vehicles and manufactured goods.
Further, faults that result in tortious liability are wider in scope of application than offences, because in addition to offences the term ―fault‖ for the purpose of
―tortious liability‖ may include violations of private law (Art. 2035 ECC), Professional fault (Art. 2031, ECC) and other faults that are considered to be faults on the basis of the ―standard of a reasonable man‘s conduct under similar circumstances‖ (Art. 2030 ECC). In short, criminal liability invariably requires moral guilt (intention or negligence) and personal act or omission while noncontractual liability doesn‘t.
Another important difference lies in the fact that ―analogy‖ is forbidden in criminal cases (Art. 2 (1), The Criminal Code, 2005), but may be permissible in Civil (i.e. contractual and tort) cases where legal provisions embody illustrative (rather than exhaustive) lists. The distinction between the two also lies in the degree of certainty of evidence. Criminal cases require certainty beyond reasonable doubt while the preponderance of evidence in the balance of probability suffices in civil cases.
In addition to these, the following are some more important legal aspects which distinguish these legal wrongs:
Nature of wrong:
Crime is a public wrong i.e. a harm done against the society. A ‗tort‘ is a private wrong committed against an individual generally or the public in a given locality. A ‗breach of contract‘ is committed when any term or condition of an agreement enforceable by law is violated by any one of the parties to the agreement. Therefore, this too is a private wrong committed against a specific individual.
Nature of the Right Violated:
In a crime and a tort there is a breach of ‗right in rem‟ whereas in a breach of contract there is breach of ‗right in personum‟.
Origin and Nature of the Duty:
In a crime the duty not to cause harm is fixed by the state. In tort such Duty is fixed generally by the operation of law where the law of non-contractual liability remains un-codified and by the state where it has been incorporated in codified law (Art.2035ECC).Under criminal law the duty is towards the whole world and it arises on account of the statutory enactments. In case of torts the duty is towards the public generally. Duty either arises on the basis of statutory enactments (Art.2035ECC) or on the basis of general responsibility towards the society and it is independent of any personal obligation under a contract. Whereas, in case of breach of contract the duty is fixed as a result of contractual relationship of the parties and the duty is specifically towards the contracting party. The duty is breached as the result of failure to perform contractual obligation.
Consent of the Victim:
Consent of the victim to the injury caused is a qualified defence in criminal law. (Art 70 Criminal Code). In torts, consent of the plaintiff to the alleged injury nullifies right to remedies. A contract it is founded upon consent. Therefore, if there is consent to the breach of any term or condition of the contract, the plaintiff forgoes his right to claim the remedies.
The Element of Intention:
Intention is an essential element of crime (Art.57 and 58 of Criminal Code). Intention may form one of the ingredients of tort but not an essential precondition for the Tortious liability. In an action for breach of contract whether the breach was intentional, is an irrelevant question.
The Element of Negligence:
Negligence attended with criminal lack of foresight amounts to a crime
(Art.59 Criminal Code). Mere negligence may amount to a tort (Art.2029 ECC). There is no question of negligence in an action for breach of the obligation arising out of a contract.
Relevancy of Motive:
Motive may be a factor for consideration in deciding the quantum of punishment in criminal liability. Motive is taken into consideration in deciding tortious liability. Motive is irrelevant (1717 ECC) in an action for breach of contract. A breach is a breach with whatever motive it was committed.
Initiation of Legal Proceedings:
Criminal proceedings are conducted in the name of the state. The state steps into the shoes of the victim as the protector of interests of its inhabitants. In case of the other two civil wrongs, it is the injured party that brings the action against the wrong-doer.
The criminal is punished by the state. The punishments may range from fine, compensation through imprisonment of different kinds to capital punishment. In torts the remedies available are damages, compensation, restitution and injunction. For breach of contract cancellation of contract, damages, specific performance and forced performance of contract are the available remedies.
All these distinctions show a difference in the legal proceedings, which are taken upon the commission of a wrong. But they do not indicate any essential intrinsic difference in the nature of ‗crimes‘ and ‗torts‘. Some times the same injury such as negligence, defamation, amulet etc, may fall under both the categories. Therefore,
Kenny (year) rightly observes that, ―in a way there is no distinction between crime and tort in as much as a tort harms an individual, where as crime is supposed to harm a society. But then a society is made up of individuals, harm to an individual is ultimately harm to the society‖. Writers on English legal history have often mentioned that in early law there was no clear distinction between criminal and civil offences. The two have been called ‗a viscous intermixture‘, and it has been explained that the affinity between tort and crime is not the least surprising when we remember in the history of law how late in the history of law there emerged any clear conception of difference between them; this is more, not a peculiarity of the English system, as was pointed out by Maine (year). There is indeed no fundamental or inherent difference between a crime and a tort. Any conduct which harms an individual to some extent harms society, since society is made up of individuals; and therefore all that is true to say of crime that it is an offence against society, this does not distinguish crime from tort. The difference is one of degree only, and the early history of the common law shows how words which now suggest a real distinction began rather as symbols of emotion than as terms of scientific classification. Thus the word ‗felony‘ originally indicated something cruel, fierce, wicked or base. As Maitland (year) says: ‗In general it is as bad a word a as you can give to man or thing, and it will stand equally well for many kinds of badness, for ferocity, cowardice, craft.