174-582: The Liaquat–Nehru Pact (or the Delhi Pact ) was a bilateral treaty between India and Pakistan in which refugees were allowed to return to dispose of their property, abducted women and looted property were to be returned, forced conversions were unrecognized, and minority rights were confirmed. The treaty was signed in New Delhi by the Prime Minister of India Jawahar Lal Nehru and
348-412: A Law Commission -sponsored proposal to both unite and codify English and Scots Law, proposed the abolition of consideration. Some commentators have suggested for consideration to be replaced by estoppel as a basis for contracts. A contract is often evidenced in writing or by deed . The general rule is that a person who signs a contractual document will be bound by the terms in that document. This rule
522-518: A botleas crime were at the king's mercy. Items or creatures which caused death were also destroyed as deodands . Alfred the Great 's Doom Book distinguished unintentional injuries from intentional ones, and defined culpability based on status, age, and gender. After the Norman Conquest , fines were paid only to courts or the king, and quickly became a revenue source. A wrong became known as
696-665: A direct result of the breach of duty . Legal injuries addressable under tort law in common law jurisdictions are not limited to physical injuries and may include emotional, economic, or reputational injuries as well as violations of privacy , property, or constitutional rights. Torts comprise such varied topics as automobile accidents , false imprisonment , defamation , product liability , copyright infringement , and environmental pollution ( toxic torts ). Modern torts are heavily affected by insurance and insurance law , as many cases are settled through claims adjustment rather than by trial, and are defended by insurance lawyers, with
870-508: A lawsuit . To prevail, the plaintiff in the lawsuit must generally show that the tortfeasor's actions or lack of action was the proximate cause of the harm, though the specific requirements vary between jurisdictions. Torts and crimes in common law originate in the Germanic system of compensatory fines for wrongs, with no clear distinction between crimes and other wrongs. In Anglo-Saxon law , most wrongs required payment in money paid to
1044-437: A motion to compel discovery. In tort litigation, the availability of discovery enables plaintiffs to essentially carry out a private investigation, subpoenaing records and documents from the defendant. Consequently, commentators in civil law jurisdictions regard discovery destructive of the rule of law and as "a private inquisition." Civil law countries see the underlying objectives of discovery as properly monopolised by
1218-434: A severability clause . The test of whether a clause is severable is an objective test—whether a reasonable person would see the contract standing even without the clauses. Typically, non-severable contracts only require the substantial performance of a promise rather than the whole or complete performance of a promise to warrant payment. However, express clauses may be included in a non-severable contract to explicitly require
1392-467: A tort action based on reliance. Although verbal contracts are generally binding in most common law jurisdictions, some types of contracts may require formalities such as being in writing or by deed . A contract cannot be formed without assent of the two parties to be bound by its terms. Normally this is by written signature (which may include an electronic signature), but the assent may also be oral or by conduct. Assent may be given by an agent for
1566-411: A tort or trespass , and there arose a division between civil pleas and pleas of the crown. The petty assizes (i.e. of novel disseisin , of mort d'ancestor , and of darrein presentment ) were established in 1166 as a remedy for interference with possession of freehold land. The trespass action was an early civil plea in which damages were paid to the victim; if no payment was made, the defendant
1740-522: A case falls into one of three sets of circumstances recognised by precedent while the Singaporean test is independent of precedent. In English tort law, Caparo Industries plc v Dickman established a tripartite test for the existence of a duty of care per which harm must be reasonably foreseeable as a potential result of the defendant's conduct; the parties must be in a relationship of proximity; and it must be fair, just, and reasonable to impose such
1914-407: A certain field. In addition, the court may also imply a term; if price is excluded, the court may imply a reasonable price, with the exception of land, and second-hand goods, which are unique. If there are uncertain or incomplete clauses in the contract, and all options in resolving its true meaning have failed, it may be possible to sever and void just those affected clauses if the contract includes
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#17327903888232088-475: A contract may also state circumstances in which performance of an obligation may be excused. Not all terms are stated expressly, and terms carry different legal weight depending on how central they are to the objectives of the contract. Contracting is a specific phase within procurement . It includes creating, negotiating, and managing contracts. Obligations created by contracts can generally be transferred, subject to requirements imposed by law. Laws regarding
2262-569: A contract use technicalities to satisfy requirements while in fact circumventing them in practice. Typically, this is in the form of "peppercorn" consideration, i.e. consideration that is negligible but still satisfies the requirements of law. The doctrine of consideration has been expressly rejected by the UNIDROIT Principles of International Commercial Contracts on the grounds that it yields uncertainty and unnecessary litigation, thereby hindering international trade. Similarly,
2436-454: A contractual term will become a condition: A term is a condition (rather than an intermediate or innominate term, or a warranty), in any of the following five situations: (1) statute explicitly classifies the term in this way; (2) there is a binding judicial decision supporting this classification of a particular term as a "condition"; (3) a term is described in the contract as a "condition" and upon construction it has that technical meaning; (4)
2610-493: A court order providing for a remedy other than damages is awarded under the CDRA is violated, sections 5-8 of the act require that the plaintiff apply for a 'special direction' to be issued in order to enforce the original remedy and section 9 provides that failure to comply with a special direction is grounds for the court to issue an order excluding the tortfeasor from their residence. Aside from legislatively created remedies such as
2784-623: A criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law , which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract. While tort law in civil law jurisdictions largely derives from Roman law , common law jurisdictions derive their tort law from customary English tort law . In civil law jurisdictions based on civil codes, both contractual and tortious or delictual liability
2958-752: A dangerous escape of some hazard, including water, fire, or animals as long as the cause was not remote. In Cambridge Water Co Ltd v Eastern Counties Leather plc (1994), chemicals from a factory seeped through a floor into the water table, contaminating East Anglia's water reservoirs. The Rylands rule remains in use in England and Wales. In Australian law, it has been merged into negligence. Economic torts typically involve commercial transactions, and include tortious interference with trade or contract, fraud, injurious falsehood, and negligent misrepresentation. Negligent misrepresentation torts are distinct from contractual cases involving misrepresentation in that there
3132-572: A defendant may assert various defences to a plaintiff's case, including comparative fault and assumption of risk. Negligence is a tort which arises from the breach of the duty of care owed by one person to another from the perspective of a reasonable person . Although credited as appearing in the United States in Brown v. Kendall , the later Scottish case of Donoghue v Stevenson [1932] AC 562, followed in England, brought England into line with
3306-474: A defender intentionally harms the pursuer - provided the interest harmed is regarded as reparable - the defender incurs delictual liability'. If the pursuer has suffered loss as the result of the defender's conduct, yet the defender did not intend to harm the pursuer, nor behave so recklessly that intent might be constructively inferred, the pursuer must demonstrate that the defender's conduct was negligent in order to win their case. Negligence can be established, by
3480-421: A duty. Intentional torts are any intentional acts that are reasonably foreseeable to cause harm to an individual, and that do so. Intentional torts have several subcategories: An intentional tort requires an overt act, some form of intent, and causation. In most cases, transferred intent, which occurs when the defendant intends to injure an individual but actually ends up injuring another individual, will satisfy
3654-511: A general harmonised framework for international contracts, independent of the divergences between national laws, as well as a statement of common contractual principles for arbitrators and judges to apply where national laws are lacking. Notably, the Principles reject the doctrine of consideration, arguing that elimination of the doctrine "bring[s] about greater certainty and reduce litigation" in international trade. The Principles also rejected
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#17327903888233828-411: A mixture of Roman-Dutch law and English common law (e.g. South Africa and neighbouring countries). In common law jurisdictions, the formation of a contract generally requires an offer, acceptance , consideration , and mutual intent to be bound . The concept of contract law as a distinct area of law in common law jurisdictions originated with the now-defunct writ of assumpsit , which was originally
4002-510: A mixture of common and civil law jurisprudence either due to their colonial past (e.g. Québec , St Lucia , Mauritius ) or due to influence from multiple legal traditions when their civil codes were drafted (e.g. Mainland China , the Philippines , and Thailand ). Furthermore, Israel essentially codifies common law provisions on tort. In common, civil, and mixed law jurisdictions alike, the main remedy available to plaintiffs under tort law
4176-451: A party. Remedies for breach of contract include damages (monetary compensation for loss) and, for serious breaches only, cancellation. Specific performance and injunction may also be available if damages are insufficient. In order for a legally enforceable contract to be formed, the parties must reach mutual assent (also called a meeting of the minds ). This is typically reached through an offer and an acceptance which does not vary
4350-406: A patient refuses to pay after being examined by a doctor, the patient has breached a contract implied in fact. A contract which is implied in law is sometimes called a quasi-contract . Such contracts are means for courts to remedy situations in which one party would be unjustly enriched were he or she not required to compensate the other. Quantum meruit claims are an example. Where something
4524-466: A patrimonial interest, they will incur Aquilian liability; and, where an individual violates a non-patrimonial interest, they will incur liability stemming from the actio iniuriarum. While broadly similar due to their common origin, the nature of the remedies available under contemporary Scots and Roman-Dutch law vary slightly, although the aquilian action and actio iniuriarum are the primary remedies available under both systems. The primary difference between
4698-478: A pharmaceutical manufacturer, advertised a smoke ball that would, if sniffed "three times daily for two weeks", prevent users from catching the flu . If it failed to do so, the company promised to pay the user £ 100, adding that they had "deposited £1,000 in the Alliance Bank to show [their] sincerity in the matter". When the company was sued for the money, they argued the advert should not have been taken as
4872-422: A pre-existing legal relationship , contract law provides for the creation and enforcement of duties and obligations through a prior agreement between parties. The emergence of quasi-contracts , quasi-torts , and quasi-delicts renders the boundary between tort and contract law somewhat uncertain. Contracts are widely used in commercial law , and for the most part form the legal foundation for transactions across
5046-530: A purported acceptance that varies the terms of an offer is not an acceptance but a counteroffer and hence a rejection of the original offer. The principle of offer and acceptance has been codified under the Indian Contract Act, 1872 . In determining if a meeting of the minds has occurred, the intention of contracting parties is interpreted objectively from the perspective of a reasonable person . The "objective" approach towards contractual intent
5220-634: A reaction in terms of tort reform , which in some cases have been struck down as violating state constitutions, and federal preemption of state laws. Torts may be categorised in several ways, with a particularly common division between negligent and intentional torts. Quasi-torts are unusual tort actions. Particularly in the United States, "collateral tort" is used to refer to torts in labour law such as intentional infliction of emotional distress ("outrage"); or wrongful dismissal ; these evolving causes of action are debated and overlap with contract law or other legal areas to some degree. In some cases,
5394-438: A reasonable construction of the contract. In New South Wales, even if there is uncertainty or incompleteness in a contract, the contract may still be binding on the parties if there is a sufficiently certain and complete clause requiring the parties to undergo arbitration, negotiation or mediation. Courts may also look to external standards, which are either mentioned explicitly in the contract or implied by common practice in
Liaquat–Nehru Pact - Misplaced Pages Continue
5568-648: A result of the influence of its relatively early codification of criminal law, the torts of assault, battery, and false imprisonment are interpreted by Indian courts and the courts of jurisdictions that were formerly part of the British Indian Empire (e.g. Pakistan, Bangladesh) and British colonies in South East Asia which adopted the Indian Penal Code (i.e. Singapore, Malaysia, and Brunei) with reference to analogous crimes outlined in
5742-468: A separate category of strict liability torts. Similarly, cases involving environmental or consumer health torts which other countries treat as negligence or strict liability torts are treated in India as absolute liability torts. In establishing whether a duty of care exists, different common law jurisdictions have developed a variety of distinct but related approaches, with many jurisdictions building on
5916-430: A serious, legally binding offer but a puff . The Court of Appeal held that it would appear to a reasonable man that Carbolic had made a serious offer and determined that the reward was a contractual promise. As decided in the case of Pharmaceutical Society of Great Britain v Boots Cash Cashiers , an offer that is made in response to an invitation to treat, without any negotiation or explicit modification of terms,
6090-472: A similar test in the context of assessing damages for pure economic loss owing to negligence derived from Anns which consists of a two step examination of the existence of a sufficiently proximate relationship between the parties and public policy considerations; however, the Canadian test is more sensitive to the individual circumstances of a given case and the first step is generally deemed to be met where
6264-532: A specific person or persons, and obligations in tort which are based on the wrongful infliction of harm to certain protected interests, primarily imposed by the law, and typically owed to a wider class of persons. Research in business and management has also paid attention to the influence of contracts on relationship development and performance. Private international law is rooted in the principle that every jurisdiction has its own distinct contract law shaped by differences in public policy, judicial tradition, and
6438-455: A term is a condition is determined in part by the parties' intent. In a less technical sense, however, a condition is a generic term and a warranty is a promise. In specific circumstances these terms are used differently. For example, in English insurance law, violation of a "condition precedent" by an insured is a complete defence against the payment of claims. In general insurance law,
6612-430: A threat by a third party or an outside force. Private defence (or self-defence) is conduct directed at the person responsible for the duress or compulsion or threat. There is, therefore, an important distinction between the two. In cases of necessity and private defence, the question is this: Under which circumstances would the legal convictions of the community consider it reasonable to inflict harm to prevent it? The test
6786-750: A tort claim are able to do so in the hope that they will be able to obtain sufficient evidence through discovery. The primary drawbacks of this are that, on one hand, it creates the possibility that a plaintiff filing suit in good faith may not find enough evidence to succeed and incur legal expenses driven upward due to the cost of discovery; and, on the other hand, that it enables plaintiffs arguing in bad faith to initiate frivolous tort lawsuits and coerce defendants into agreeing to legal settlements in otherwise unmeritorious actions. Among common law countries today, there are significant differences in tort law. Common law systems include United States tort law , Australian tort law , Canadian tort law , Indian tort law , and
6960-423: A tort-based action (such as the tort of deceit ) if the misrepresentation is negligent or fraudulent. In U.S. law, the distinction between the two is somewhat unclear. Warranties are generally viewed as primarily contract-based legal action, while negligent or fraudulent misrepresentations are tort-based, but there is a confusing mix of case law in the United States. In modern English law, sellers often avoid using
7134-488: A warranty is a promise that must be complied with. In product transactions, warranties promise that the product will continue to function for a certain period of time. In the United Kingdom, the courts determine whether a term is a condition or warranty, regardless of how or whether the term was classified in the contract. Statute may also declare a term or nature of term to be a condition or warranty. For example,
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7308-433: Is advertised in a newspaper or on a poster, the advertisement will not normally constitute an offer but will instead be an invitation to treat , an indication that one or both parties are prepared to negotiate a deal. An exception arises if the advertisement makes a unilateral promise, such as the offer of a reward, as in the case of Carlill v Carbolic Smoke Ball Co , decided in nineteenth-century England . The company,
7482-405: Is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more parties . A contract typically involves consent to transfer of goods , services , money , or promise to transfer any of those at a future date. The activities and intentions of the parties entering into a contract may be referred to as contracting . In the event of a breach of contract ,
7656-470: Is compensation in damages , or money. Further, in the case of a continuing tort, or even where harm is merely threatened, the courts will sometimes grant an injunction , such as in the English case of Miller v Jackson . Usually injunctions will not impose positive obligations on tortfeasors , but some jurisdictions, such as those in Australia , can make an order for specific performance to ensure that
7830-426: Is concluded, modified or terminated by the mere agreement of the parties, without any further requirement". Assignments are typically subject to statutory restrictions, particularly with regard to the consent of the other party to the contract. Contract theory is a large body of legal theory that addresses normative and conceptual questions in contract law. One of the most important questions asked in contract theory
8004-459: Is considerable academic debate about whether vicarious liability is justified on no better basis than the search for a solvent defendant, or whether it is well founded on the theory of efficient risk allocation. Absolute liability , under the rule in M. C. Mehta v. Union of India , in Indian tort law is a unique outgrowth of the doctrine of strict liability for ultrahazardous activities . Under
8178-433: Is currently no consistent approach to the tort of invasion of privacy. Four provinces (British Columbia, Manitoba, Newfoundland and Saskatchewan ) have created a statutory tort. Ontario has recognised the existence of the tort of " intrusion upon seclusion ", which has also been held to exist under tort law in the United States. British Columbia, on the other hand, has held that the tort does not exist in that province under
8352-531: Is exercised and governed either under common law jurisdictions, civil law jurisdictions, or mixed-law jurisdictions that combine elements of both common and civil law. Common law jurisdictions typically require contracts to include consideration in order to be valid, whereas civil and most mixed-law jurisdictions solely require a meeting of the minds between the parties. Within the overarching category of civil law jurisdictions, there are several distinct varieties of contract law with their own distinct criteria:
8526-577: Is implicit" in Article 21 of the Constitution of India , which guarantees protections for personal liberties. Despite the lack of a tort addressing violations of privacy by private individuals, the Supreme Court recognised privacy as a constitutional right in 2017. Similarly, neither intentional infliction of emotional distress (IIED) nor negligent infliction of emotional distress (NIED)
8700-404: Is no privity of contract; these torts are likely to involve pure economic loss which has been less-commonly recoverable in tort. One criterion for determining whether economic loss is recoverable is the "foreseeability" doctrine. The economic loss rule is highly confusing and inconsistently applied and began in 1965 from a California case involving strict liability for product defects; in 1986,
8874-624: Is no exhaustive list of named delicts in either system; if the conduct complained of appears to be wrongful, the law will afford a remedy even in the absence of precedent pertaining to similar conduct. In South Africa and neighbouring countries, the Roman-Dutch law of delict is in force, having been preserved after the United Kingdom annexed Dutch settlements in South Africa and spread as neighbouring British colonies adopted South African law via reception statutes . Roman-Dutch law also forms
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#17327903888239048-672: Is objective. It requires a balancing of the parties' and of society's interests. The role of the person against whom the defensive conduct is directed is an important factor in determining whether defence or necessity is being pled. An act of necessity is calculated to avert harm by inflicting it on an innocent person, whereas an act of defence is always directed at a wrongdoer. A person acts in "private defence", and therefore lawfully, when he uses force to ward off an unlawful attack against his or someone else's property or person. A person acts in "self-defence" when he defends his own body against unlawful attack by someone else. One therefore cannot invoke
9222-411: Is presumed to incorporate the terms of the invitation to treat. In contract law, consideration refers to something of value which is given in exchange for the fulfilment of a promise. In Dunlop v. Selfridge , Lord Dunedin described consideration "the price for which the promise of the other is bought". Consideration can take multiple forms and includes both benefits to the promisor and detriments to
9396-493: Is recognised as a tort in Indian jurisprudence. While claims seeking damages for infliction of emotional distress were historically an accessory claim in a tort action alleging another distinct tort, the doctrine has evolved in North America into a stand-alone tort while English jurisprudence has evolved to typically recognise only recognised psychiatric injuries as grounds for compensation. Indian courts, while recognising
9570-545: Is referred to as the rule in L'Estrange v Graucob or the "signature rule". This rule was approved by the High Court of Australia in Toll(FGCT) Pty Ltd v Alphapharm Pty Ltd . The rule typically binds a signatory to a contract regardless of whether they have actually read it, provided the document is contractual in nature. However, defences such as duress or unconscionability may enable the signer to avoid
9744-474: Is required to compensate them for any resulting injury, and provides for strict liability where such harm is caused by the violation of a statutory provision aimed at protecting members of the community from harm. Additionally, tort liability exists for the owner of a defective building or structure where such building or structure causes damage, for the driver of an automobile that causes injury, and for individual's responsible for business activities that posed
9918-729: Is restricted on public policy grounds. Consequently, the validity and enforceability of a contract depends not only on whether a jurisdiction is a common, civil, or mixed law jurisdiction but also on the jurisdiction's particular policies regarding capacity. For instance, very small children may not be held to bargains they have made, on the assumption that they lack the maturity to understand what they are doing; errant employees or directors may be prevented from contracting for their company, because they have acted ultra vires (beyond their power). Another example might be people who are mentally incapacitated, either by disability or drunkenness. Specifics vary between jurisdictions, for example article 39 of
10092-451: Is the toleration of the use of reasonable force to expel a trespasser, which is typically also a defence against the tort of battery. In some, but not all, civil and mixed law jurisdictions, the term delict is used to refer to this category of civil wrong, though it can also refer to criminal offences. Other jurisdictions may use terms such as extracontractual responsibility (France) or civil responsibility (Québec). In comparative law ,
10266-509: Is typically outlined in a civil code based on Roman Law principles. Tort law is referred to as the law of delict in Scots and Roman Dutch law , and resembles tort law in common law jurisdictions in that rules regarding civil liability are established primarily by precedent and theory rather than an exhaustive code. However, like other civil law jurisdictions, the underlying principles are drawn from Roman law. A handful of jurisdictions have codified
10440-502: Is typically the default remedy available to plaintiffs, with injunctions and specific performance being relatively rare in tort law cases. Relatively uniquely for a common law jurisdiction, Singapore's Community Disputes Resolution Act 2015 (CDRA) alters the common law by codifying a statutory tort of "interference with enjoyment or use of place of residence" and provides for a variety of remedies beyond damages, ranging from injunctions and specific performance to court-ordered apologies. Where
10614-414: Is used to impose strict liability on certain areas of nuisance law and is strictly "a remedy for damage to land or interests in land" under which "damages for personal injuries are not recoverable", Indian courts have developed this rule into a distinct principle of absolute liability, where an enterprise is absolutely liable, without exceptions, to compensate everyone affected by any accident resulting from
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#173279038882310788-510: Is why contracts are enforced. One prominent answer to this question focuses on the economic benefits of enforcing bargains. Another approach, associated with Charles Fried in his book Contract as Promise , maintains that the general purpose of contract law is to enforce promises . Other approaches to contract theory are found in the writings of legal realists and critical legal studies theorists, which have propounded Marxist and feminist interpretations of contract. Attempts at understanding
10962-503: The Court of the King's Bench is recorded as saying that since the water supply in area was already contaminated, the nuisance was not actionable as it is "better that they should be spoiled than that the commonwealth stand in need of good liquor". In English law, a related category of tort liability was created in the case of Rylands v Fletcher (1868): strict liability was established for
11136-772: The Egyptian Civil Code , modelled after the Napoleonic Code but containing provisions designed to fit Arab and Islamic society. The Egyptian Civil Code was subsequently used as a model for the majority of Arab states. In the 20th century, the growth of export trade led to countries adopting international conventions, such as the Hague-Visby Rules and the UN Convention on Contracts for the International Sale of Goods , bringing
11310-620: The European Union being an economic community with a range of trade rules, there continues to be no overarching "EU Law of Contract". In 2021, Mainland China adopted the Civil Code of the People's Republic of China , which codifies its contract law in book three. While generally classified as a civil law jurisdiction, contract law in mainland China has been influenced by a number of sources, including traditional Chinese views toward
11484-685: The German tradition is characterised by the unique doctrine of abstraction , systems based on the Napoleonic Code are characterised by their systematic distinction between different types of contracts, and Roman-Dutch law is largely based on the writings of renaissance-era Dutch jurists and case law applying general principles of Roman law prior to the Netherlands' adoption of the Napoleonic Code. The UNIDROIT Principles of International Commercial Contracts , published in 2016, aim to provide
11658-654: The Law of Property Act 1925 ). Nonetheless, a valid contract may generally be made orally or even by conduct. An oral contract may also be called a parol contract or a verbal contract, with "verbal" meaning "spoken" rather than "in words", an established usage in British English with regards to contracts and agreements, and common although somewhat deprecated as "loose" in American English . An unwritten, unspoken contract, also known as "a contract implied by
11832-685: The Meiji Restoration , Japan adopted a series of legal codes modelled primarily on German law, adopting its commercial code in 1899. The Japanese adaptation of German civil law was spread to the Korean Peninsula and China as a result of Japanese occupation and influence, and continues to form the basis of the legal system in South Korea and the Republic of China. In 1949, Abd El-Razzak El-Sanhuri and Edouard Lambert drafted
12006-615: The Netherlands and Scotland during the Enlightenment . In both legal systems, when applied in English speaking countries, the term delict is used to refer to tortious liability (unlike, for instance, in Spain where the cognate of the term delict refers to a criminal offence). Unlike in systems based on civil codes or on the English common law, Scots and Roman-Dutch law operate on broad principles of liability for wrongdoing; there
12180-490: The Philippine Civil Code provides a comprehensive overview of the most typical circumstances resulting in lost or diminished juridical capacity: age, mental disability, the state of being a deaf-mute , penalty, absence, insolvency, and trusteeship . Tort law A tort is a civil wrong , other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for
12354-676: The Prime Minister of Pakistan Liaquat Ali Khan on April 8, 1950. The treaty was the outcome of six days of talks sought to guarantee the rights of minorities in both countries after the Partition of India and to avert another war between them . This pact also introduced visa system for refugees and free passage of refugees across border was restricted. Minority commissions were set up in both countries. More than one million refugees migrated from East Pakistan (now Bangladesh ) to West Bengal in India. Bilateral contract A contract
12528-682: The Sale of Goods Act 1979 s15A provides that terms as to title, description, quality and sample are generally conditions . The United Kingdom has also developed the concept of an "intermediate term" (also called innominate terms), first established in Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962]. Traditionally, while warranties are contractual promises which are enforced through legal action, regardless of materiality, intent, or reliance, representations are traditionally precontractual statements that allow for
12702-619: The Ultramares approach or the Restatement approach. The tort of deceit for inducement into a contract is a tort in English law, but in practice has been replaced by actions under Misrepresentation Act 1967 . In the United States, similar torts existed but have become superseded to some degree by contract law and the pure economic loss rule. Historically (and to some degree today), fraudulent (but not negligent ) misrepresentation involving damages for economic loss may be awarded under
12876-502: The United Nations Convention on Contracts for the International Sale of Goods does not require consideration for a contract to be valid, thereby excluding the doctrine with regard to contracts covered by the convention even in common law jurisdictions where it would otherwise apply. The continued existence of the doctrine in common law jurisdictions is controversial. Scots lawyer Harvey McGregor 's " Contract Code ",
13050-417: The defendant carries out certain legal obligations, especially in relation to nuisance matters. At the same time, each legal system provides for a variety of defences for defendants in tort claims which, partially or fully, shield defendants from liability. In a limited range of cases varying between jurisdictions, tort law will tolerate self-help as an appropriate remedy for certain torts. One example of this
13224-420: The insurance policy setting a ceiling on the possible payment. While individuals and corporations are typically only liable for their own actions, indirect liability for the tortious acts of others may arise by operation of law, notably through joint and several liability doctrines as well as forms of secondary liability . Liability may arise through enterprise liability or, in product liability cases in
13398-416: The lex Aquilia' and wrongdoing that results in physical harm to a person may give rise to both an aquilian action and an actio iniuriarum. Additionally, the modern Scots law pertaining to reparation for negligent wrongdoing is based on the lex Aquilia and so affords reparation in instances of damnum injuria datum - literally loss wrongfully caused - with the wrongdoing in such instances generated by
13572-466: The "appeal of felony", or assize of novel disseisin, or replevin . Later, after the Statute of Westminster 1285 , in the 1360s, the "trespass on the case" action arose for when the defendant did not direct force. As its scope increased, it became simply "action on the case". The English Judicature Act passed 1873 through 1875 abolished the separate actions of trespass and trespass on the case. In 1401,
13746-509: The "benefit-of-the-bargain" rule (damages identical to expectation damages in contracts ) which awards the plaintiff the difference between the value represented and the actual value. Beginning with Stiles v. White (1846) in Massachusetts, this rule spread across the country as a majority rule with the "out-of-pocket damages" rule as a minority rule. Although the damages under the "benefit-of-the-bargain" are described as compensatory,
13920-405: The CDRA, courts in common law jurisdictions will typically provide for damages (which, depending on jurisdiction, may include punitive damages ), but judges will issue injunctions and specific performance where they deem damages not to be a sufficient remedy. Legislatures in various common law jurisdictions have curtailed the ability of judges to award punitive or other non-economic damages through
14094-555: The Canadian province of Quebec are mixed law jurisdictions which primarily adhere to French legal tradition with regard to contract law and other principles of private law. Over the course of the nineteenth and twentieth century, the majority of jurisdictions in the Middle East and East Asia adopted civil law legal frameworks based on the Napoleonic, German, or Swiss model. The Napoleonic Code shapes contract law across much of
14268-466: The English case Beaulieu v Finglam imposed strict liability for the escape of fire; additionally, strict liability was imposed for the release of cattle. Negligently handling fire was of particular importance in these societies given capacity for destruction and relatively limited firefighting resources. Liability for common carrier , which arose around 1400, was also emphasised in the medieval period. Unintentional injuries were relatively infrequent in
14442-601: The Middle East, while contract law in Japan, South Korea, and the Republic of China is rooted in the German pandectist tradition. In 1926, Turkey replaced its Ottoman-era mixture of Islamic and secular laws with a secular civil code modelled after that of Switzerland , with its contract and commercial law modelled after the Swiss Code of Obligations , which was in turn influenced by German and French legal traditions. Following
14616-568: The Muslim world during the Middle Ages. Since the nineteenth century, two distinct traditions of contract law emerged. Jurisdictions that were previously British colonies generally adopted English common law . Other jurisdictions largely adopted the civil law tradition, either inheriting a civil law legal system at independence or adopting civil and commercial codes based on German or French law. While jurisdictions such as Japan, South Korea, and
14790-781: The Republic of China modelled their contract law after the German pandectist tradition, the Arab world largely modelled its legal framework after the Napoleonic Code . While the Netherlands adopted a legal system based on the Napoleonic Code in the early 19th century, Dutch colonies retained the precedent-based Roman-Dutch law . British colonies in Southern Africa adopted Roman-Dutch principles in areas of private law via reception statutes adopting South African law, retaining Roman-Dutch law for most matters of private law while applying English common law principles in most matters of public law . Saint Lucia , Mauritius , Seychelles , and
14964-535: The Roman Lex Aquilia . Non-patrimonial interests include dignitary and personality related interests (e.g. defamation, disfigurement, unjust imprisonment) which cannot be exhaustively listed which are addressed in the context of the Roman Actio iniuriarum , as well as pain and suffering which are addressed under jurisprudence that has developed in modern times. In general; where an individual violates
15138-455: The Scots and Roman-Dutch law of delict, there are two main remedies available to plaintiffs: Protected interests which can give rise to delictual liability can be broadly divided into two categories: patrimonial and non-patrimonial interests. Patrimonial interests are those which pertain to damages to an individual's body or property, which both Scots and Roman-Dutch law approach in the context of
15312-551: The U.S. Supreme Court adopted the doctrine in East River S.S. Corp. v. Transamerica Deleval, Inc . In 2010, the supreme court of the U.S. state of Washington replaced the economic loss doctrine with an "independent duty doctrine". Economic antitrust torts have been somewhat submerged by modern competition law . However, in the United States, private parties are permitted in certain circumstances to sue for anticompetitive practices, including under federal or state statutes or on
15486-449: The United States and established the 'tort of negligence' as opposed to negligence as a component in specific actions. In Donoghue , Mrs. Donoghue drank from an opaque bottle containing a decomposed snail and claimed that it had made her ill. She could not sue Mr. Stevenson for damages for breach of contract and instead sued for negligence. The majority determined that the definition of negligence can be divided into four component parts that
15660-407: The United States requires a written contract for tangible product sales in excess of $ 500, and for real estate contracts to be written. If the contract is not required by law to be written, an oral contract is generally valid and legally binding. The United Kingdom has since replaced the original Statute of Frauds, but written contracts are still required for various circumstances such as land (through
15834-405: The United States, market share liability . In certain cases, a person might hold vicarious liability for their employee or child under the law of agency through the doctrine of respondeat superior . For example, if a shop employee spilled cleaning liquid on the supermarket floor and a victim fell and suffered injuries, the plaintiff might be able to sue either the employee or the employer. There
16008-422: The United States, noting that the English law was less generous to the plaintiff in the following ways: contingent fee arrangements were restricted, English judges tried more decisions and set damages rather than juries, wrongful death lawsuits were relatively restricted, punitive damages were relatively unavailable, the collateral source rule was restricted, and strict liability, such as for product liability,
16182-483: The abstraction principle on the grounds that it and similar doctrines are "not easily compatible with modern business perceptions and practice". Contract law can be contrasted with tort law (also referred to in some jurisdictions as the law of delicts), the other major area of the law of obligations. While tort law generally deals with private duties and obligations that exist by operation of law, and provide remedies for civil wrongs committed between individuals not in
16356-427: The actio iniuriarum. The various delictual actions are not mutually exclusive. It is possible for a person to suffer various forms of harm at the same time, which means that a person may simultaneously claim remedies under more than one action. The elements of liability under the actio iniuriarum are as follows: There are five essential elements for liability in terms of the actio legis Aquiliae : In Scots law,
16530-454: The acts of the parties", which can be legally implied either from the facts or as required in law . Implied-in-fact contracts are real contracts under which parties receive the "benefit of the bargain". However, contracts implied in law are also known as quasi-contracts, and the remedy is quantum meruit , the fair market value of goods or services rendered. In commercial agreements it is presumed that parties intend to be legally bound unless
16704-412: The aquilian action has developed more expansively and may be invoked as a remedy for both patrimonial and certain types of non-patrimonial loss, particularly with regard to personal injury. By way of a legal fiction , 'personal injury' is treated as (physical) 'damage done', with the net effect that 'the actio injuriarum root of Scots law infuses the [nominate] delict assault as much as any development of
16878-419: The basis for the legal system of Sri Lanka . The elements of a delict as follows: The elements of harm and conduct are fact-based inquiries, while causation is part-factual and part-normative, and wrongfulness and fault are entirely normative: that is, value-based, in that they articulate a wider societal policy perspective. Delict is "inherently a flexible set of principles that embody social policy." Under
17052-489: The basis of public policy . For example, in the English case Balfour v. Balfour a husband agreed to give his wife £30 a month while he was away from home, but the court refused to enforce the agreement when the husband stopped paying. In contrast, in Merritt v Merritt the court enforced an agreement between an estranged couple because the circumstances suggested their agreement was intended to have legal consequences. If
17226-670: The basis of common law tortious interference , which may be based upon the Restatement (Second) of Torts §766. Negligent misrepresentation as tort where no contractual privity exists was disallowed in England by Derry v Peek [1889]; however, this position was overturned in Hedley Byrne v Heller in 1964 so that such actions were allowed if a "special relationship" existed between the plaintiff and defendant. United States courts and scholars "paid lip-service" to Derry ; however, scholars such as William Prosser argued that it
17400-629: The basis of trade since the dawn of commerce and sedentism during the Neolithic Revolution . A notable early modern development in contract law was the emergence of the hawala system in the Indian subcontinent and the Arab world , under which a series of contractual relationships formed the basis of an informal value transfer system spanning the Silk Road . In the Indian subcontinent,
17574-499: The buyer explicitly expressed the importance of this requirement. The relative knowledge of the parties may also be a factor, as in English case of Bissett v Wilkinson , where the court did not find misrepresentation when a seller said that farmland being sold would carry 2000 sheep if worked by one team; the buyer was considered sufficiently knowledgeable to accept or reject the seller's opinion. According to Andrew Tettenborn et al , there are five differing circumstances under which
17748-409: The categorisation of contracts into bilateral and unilateral ones. For example, the High Court of Australia stated that the term unilateral contract is "unscientific and misleading". In certain circumstances, an implied contract may be created. A contract is implied in fact if the circumstances imply that parties have reached an agreement even though they have not done so expressly. For example, if
17922-471: The code. For instance, assault is interpreted in the context of s.351 per which the following criteria constitute assault: Similarly, battery is interpreted in the context of criminal force as outlined in s.350. An area of tort unique to India is the constitutional tort, a public law remedy for violations of rights, generally by agents of the state, and is implicitly premised on the strict liability principle. In practice, constitutional torts in India serve
18096-470: The common law. Like the United Kingdom and British Columbia, but unlike Ontario and most jurisdictions in the United States, Indian tort law does not traditionally recognise a common law tort of invasion of privacy or intrusion on seclusion . Nevertheless, there is a shift in jurisprudence toward recognising breech of confidentiality as an actionable civil wrong. Proponents of protection for privacy under Indian tort law argue that "the right to privacy
18270-579: The court or other forum in which disputes will be resolved, respectively. Failing express agreement on such matters in the contract itself, countries have rules to determine the law governing the contract and the jurisdiction for disputes. For example, European Union Member States apply Article 4 of the Rome I Regulation to decide the law governing the contract, and the Brussels I Regulation to decide jurisdiction. Contracts have existed since antiquity, forming
18444-619: The court ordered double the original grain restored to the victim to compensate the damages. The Qin Code made some changes to tort liabilities introducing the concept of subjective fault ( fault liability ). In a case where one person borrows farm equipment, compensation would be required for damage to the equipment if the damage is caused by the condition of the equipment when it was borrowed. In addition to fault liability, some defences were developed. A person would not be liable if public property were damaged by fire or other natural forces outside
18618-438: The crew were already contracted to sail the ship. The pre-existing duty rule also extends to general legal duties; for example, a promise to refrain from committing a tort or crime is not sufficient. Some jurisdictions have modified the English principle or adopted new ones. For example, in the Indian Contract Act, 1872 , past consideration constitutes valid consideration, and that consideration may be from any person even if not
18792-567: The defender's culpa (i.e., fault). In any instance in which a pursuer (A) has suffered loss at the hands of the wrongful conduct of the defender (B), B is under a legal obligation to make reparation . If B's wrongdoing were intentional in the circumstances, or so reckless that an 'intention' may be constructively inferred (on the basis that culpa lata dolo aequiparatur - 'gross fault is the same as intentional wrongdoing'), then it follows axiomatically that B will be liable to repair any damage done to A's property, person or economic interest: 'wherever
18966-632: The development of the Accident Compensation Corporation to eliminate personal injury lawsuits, the tort system for medical malpractice was scrapped in New Zealand, both following recommendations from the Royal Commission in 1967 for 'no fault' compensation scheme (see The Woodhouse Report). In the case of the United States, a survey of trial lawyers identified several modern innovations that developed after
19140-412: The development of tort law has spurred lawmakers to create alternative solutions to disputes. For example, in some areas, workers' compensation laws arose as a legislative response to court rulings restricting the extent to which employees could sue their employers in respect of injuries sustained during employment. In other cases, legal commentary has led to the development of new causes of action outside
19314-405: The divergence of English and American tort law, including strict liability for products based on Greenman v. Yuba Power Products , the limitation of various immunities (e.g. sovereign immunity , charitable immunity ), comparative negligence , broader rules for admitting evidence, increased damages for emotional distress , and toxic torts and class action lawsuits. However, there has also been
19488-431: The extent of their enforceability as part of a contract. English common law distinguishes between important conditions and warranties , with a breach of a condition by one party allowing the other to repudiate and be discharged while a warranty allows for remedies and damages but not complete discharge. In modern United States law the distinction is less clear but warranties may be enforced more strictly. Whether or not
19662-429: The formation of binding contracts. On the other hand, Islamic law accepted agency as permissible in not only contract law but in the law of obligations generally, an approach that has since become mainstream in common law, mixed law, and most civil law jurisdictions. Analogously, the transfer of debt , which was not accepted under Roman law, became widely practiced in medieval European commerce, owing largely to trade with
19836-508: The freedom of contract in order to prevent businesses from exploiting consumers. In 1993, Harvey McGregor , a British barrister and academic, produced a "Contract Code" under the auspices of the English and Scottish Law Commissions , which was a proposal to both unify and codify the contract laws of England and Scotland. This document was offered as a possible "Contract Code for Europe", but tensions between English and German jurists meant that this proposal has so far come to naught. In spite of
20010-534: The freedom of contract. For example, the Civil Rights Act of 1964 restricted private racial discrimination against African-Americans. The US Constitution contains a Contract Clause , but this has been interpreted as only restricting the retroactive impairment of contracts. In the late twentieth and early twenty-first century, consumer protection legislation, such as Singapore's Consumer Protection (Fair Trading) Act 2003, progressively imposed limits upon
20184-567: The full performance of an obligation. English courts have established that any intention to make the contract a "complete code", so as to exclude any option to resort to a common law or extra-contractual remedy, must be evidenced in "clear express words": otherwise a "presumption that each party to a contract is entitled to all remedies which arise by operation of law" will be honoured by the courts. Common law jurisdictions typically distinguish three different categories of contractual terms, conditions, warranties and intermediate terms, which vary in
20358-419: The fundamental criterion of reasonableness. They are another expression of the legal convictions of the society. Consent to injury, or Volenti non fit injuria , is a full defence; if successful, there is no delict. As a general defence, it can take two forms: There are five requirements for the defence of consent: Necessity is conduct directed at an innocent person as a result of duress or compulsion, or
20532-492: The government that infringe upon rights enshrined in the Constitution , as well as a system of absolute liability for businesses engaged in hazardous activity as outlined in the rule in M. C. Mehta v. Union of India . Similar to other common law jurisdictions, conduct which gives rise to a cause of action under tort law is additionally criminalised by the Indian Penal Code , which was originally enacted in 1860. As
20706-403: The guardian of a young girl took out a loan to educate her. After she was married, her husband promised to pay the debt but the loan was determined to be past consideration. In the early English case of Stilk v. Myrick [1809], a captain promised to divide the wages of two deserters among the remaining crew if they agreed to sail home short-handed; however, this promise was found unenforceable as
20880-408: The hawala system gave rise to the hundi , a transferrable contract entitling its holder in due course to obtain money from its issuer or an agent thereof, giving rise to the principle underlying contemporary negotiable instruments . The hawala system also influenced the development of agency in common law and in civil laws . In Roman law, agents could not act on behalf of other individuals in
21054-551: The history of torts has been critically reviewed. The 1928 US case of Palsgraf v. Long Island Railroad Co. heavily influenced the British judges in the 1932 House of Lords case of Donoghue v Stevenson . The United States has since been perceived as particularly prone to filing tort lawsuits even relative to other common law countries, although this perception has been criticised and debated. 20th century academics have identified that class actions were relatively uncommon outside of
21228-470: The infliction of emotional distress regardless of intention as an actionable wrong in matrimonial disputes, typically follow the English approach, although case law from both the United Kingdom and North America is frequently employed by judges ruling on cases in which damages for mental distress are sought. Both Scots and Roman-Dutch law are uncodified , scholarship -driven, and judge-made legal systems based on Roman law as historically applied in
21402-466: The injured party may seek judicial remedies such as damages or equitable remedies such as specific performance or rescission . A binding agreement between actors in international law is known as a treaty . Contract law, the field of the law of obligations concerned with contracts, is based on the principle that agreements must be honoured . Like other areas of private law , contract law varies between jurisdictions. In general, contract law
21576-495: The intent requirement. Causation can be satisfied as long as the defendant was a substantial factor in causing the harm. "Nuisance" is traditionally used to describe an activity which is harmful or annoying to others such as indecent conduct or a rubbish heap. Nuisances either affect private individuals (private nuisance) or the general public (public nuisance). The claimant can sue for most acts that interfere with their use and enjoyment of their land. In English law, whether activity
21750-468: The justification of self-defence when acting in the interests of another person, but it is possible to invoke the justification of private defence when acting in one's own interests. Conduct will be justified as an act in private defence or self-defence if it is The violence used in defence must not exceed what is reasonably necessary to avert the threatened danger: An act of necessity may be described as lawful conduct directed against an innocent person for
21924-408: The law of civil procedure , can open-endedly demand evidence from the other party or parties by means of discovery devices such as interrogatories , requests for production of documents , requests for admissions and depositions . Discovery can be obtained from non-parties using subpoenas . When a discovery request is objected to, the requesting party may seek the assistance of the court by filing
22098-533: The mainland. In areas administered by the Republic of China, the legislative basis of tort law is the Civil Code of the Republic of China whose legal system was modelled after the Japanese Six Codes system, which itself was primarily based on the German pandectist approach to law. In general, article 184 provides that a person who "intentionally or negligently" damages another person's rights
22272-549: The majority of English-speaking countries, the rules are derived from English contract law which emerged as a result of precedents established by various courts in England over the centuries. Meanwhile, civil law jurisdictions generally derive their contract law from Roman law , although there are differences between German contract law , legal systems inspired by the Napoleonic Code or the Civil Code of Lower Canada (e.g. Québec and Saint Lucia ), and jurisdictions following Roman-Dutch law (e.g. Indonesia and Suriname ) or
22446-407: The medieval period. As transportation improved and carriages became popular in the 18th and 19th centuries, however, collisions and carelessness became more prominent in court records. In general, scholars of England such as William Blackstone took a hostile view to litigation, and rules against champerty and maintenance and vexatious litigation existed. The right of victims to receive redress
22620-472: The modification of contracts or the assignment of rights under a contract are broadly similar across jurisdictions. In most jurisdictions, a contract may be modified by a subsequent contract or agreement between the parties to modify the terms governing their obligations to each other. This is reflected in Article 3.1.2 of the Principles of International Commercial Contracts , which states that "a contract
22794-511: The obligation. Further, reasonable notice of a contract's terms must be given to the other party prior to their entry into the contract. Written contracts have typically been preferred in common law legal systems. In 1677 England passed the Statute of Frauds which influenced similar statute of frauds laws in the United States and other countries such as Australia. In general, the Uniform Commercial Code as adopted in
22968-405: The offer's terms, which is known as the " mirror image rule ". An offer is defined as a promise that is dependent on a certain act, promise, or forbearance given in exchange for the initial promise An acceptance is simply the assent of the other contracting party or parties to the terms stipulated in the contract. As an offer states the offeror's willingness to be bound to the terms proposed therein,
23142-450: The offeror. Consideration must be lawful for a contract to be binding. Applicable rules in determining if consideration is lawful exist both in case law and in the codes of some common law jurisdictions. The general principles of valid consideration in the common law tradition are that: The insufficiency of past consideration is related to the pre-existing duty rule . For example, in the early English case of Eastwood v. Kenyon [1840],
23316-554: The offeror. In a reward contract, for example, a person who has lost a dog could promise a reward if the dog is found, through publication or orally. The payment could be additionally conditioned on the dog being returned alive. Those who learn of the reward are not required to search for the dog, but if someone finds the dog and delivers it, the promisor is required to pay. On the other hand, advertisements which promise bargains are generally regarded not as offers for unilateral contracts but merely "invitations to treat". Some have criticised
23490-540: The operation of hazardous activity. This differs greatly from the English approach as it includes all kinds of resulting liability, rather than being limited to damage to land. In New Zealand, the tort system for the majority of personal injuries was scrapped with the establishment of the Accident Compensation Corporation , a universal system of no-fault insurance . The rationale underlying New Zealand's elimination of personal injury torts
23664-493: The overarching purpose and nature of contracting as a phenomenon have been made, notably relational contract theory . Additionally, certain academic conceptions of contracts focus on questions of transaction cost and ' efficient breach ' theory. Another important dimension of the theoretical debate in contract is its place within, and relationship to a wider law of obligations . Obligations have traditionally been divided into contracts, which are voluntarily undertaken and owed to
23838-491: The parties expressly state the opposite. For example, in Rose & Frank Co v JR Crompton & Bros Ltd , an agreement between two business parties was not enforced because an "honour clause" in the document stated "this is not a commercial or legal agreement, but is only a statement of the intention of the parties". In contrast, domestic and social agreements such as those between children and parents are typically unenforceable on
24012-493: The parties have explicitly agreed that breach of that term, no matter what the factual consequences, will entitle the innocent party to terminate the contract for breach; or (5) as a matter of general construction of the contract, the clause must be understood as intended to operate as a condition. In all systems of contract law, the capacity of a variety of natural or juristic persons to enter into contracts, enforce contractual obligations, or have contracts enforced against them
24186-411: The person who commits the tortious act. Tort law can be contrasted with criminal law , which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery , can result in both a civil lawsuit and
24360-539: The person's control. There was no liability for killing livestock, if the livestock was about to hurt someone. In contemporary China, however, there are four distinct legal systems in force, none of which are derived from classical Chinese law: Portuguese civil law in Macau, common law in Hong Kong, a German-style civil law system adopted by the Republic of China following Japan's model, and a primarily civil law system in
24534-427: The plaintiff is left better off than before the transaction. Since the economic loss rule would eliminate these benefits if applied strictly, there is an exception to allow the misrepresentation tort if not related to a contract. The remedies and defences available in common law jurisdictions are typically similar, deriving from judicial precedent with occasional legislative intervention. Compensation by way of damages
24708-591: The plaintiff must prove to establish negligence. In most common law jurisdictions, there are four elements to a negligence action: Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm. Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages. However, at their heart, the various definitions of what constitutes negligent conduct are very similar. Depending on jurisdiction, product liability cases such as those involving warranties may be considered negligence actions or fall under
24882-400: The practices of local businesses. Consequently, while all systems of contract law serve the same overarching purpose of enabling the creation of legally enforceable obligations, they may contain significant differences. Accordingly, many contracts contain a choice of law clause and a forum selection clause to determine the jurisdiction whose system of contract law will govern the contract and
25056-411: The precedent established in the English case of Rylands v Fletcher , upon which the Indian doctrine of absolute liability is based, anyone who in the course of "non-natural" use of his land "accumulates" thereon for his own purposes anything likely to cause mischief if it escapes is answerable for all direct damage thereby caused. While, in England and many other common law jurisdictions, this precedent
25230-447: The promisee. The Indian Contract Act also codifies examples of when consideration is invalid, for example when it involves marriage or the provision of a public office. The primary criticism of the doctrine of consideration is that it is purely a formality that merely serves to complicate commerce and create legal uncertainty by opening up otherwise simple contracts to scrutiny as to whether the consideration purportedly tendered satisfies
25404-422: The promisee. Forbearance to act, for example, can constitute valid consideration, but only if a legal right is surrendered in the process. Common law jurisdictions require consideration for a simple contract to be binding, but allow contracts by deed to not require consideration. Similarly, under the Uniform Commercial Code , firm offers in most American jurisdictions are valid without consideration if signed by
25578-506: The purpose of protecting an interest of the actor or of a third party (including the innocent person) against a dangerous situation, which may have arisen owing to the wrongful conduct of another or the behaviour of an animal, or through natural forces. Two types of emergency situations may be found: Civil and criminal law were not clearly delineated in Ancient Chinese law as they are in modern legal systems. Therefore, while Tort Law
25752-401: The pursuer, by demonstrating that the defender owed to them a 'duty of care' which they ultimately breached by failing to live up to the expected standard of care . If this can be shown, then the pursuer must also establish that the defender's failure to live up to the expected standard of care ultimately caused the loss (damnum) complained of. There is a distinction between defences aimed at
25926-470: The requirements of the law. While the purpose of the doctrine was ostensibly to protect parties seeking to void oppressive contracts, this is currently accomplished through the use of a sophisticated variety of defences available to the party seeking to void a contract. In practice, the doctrine of consideration has resulted in a phenomenon similar to that of Ḥiyal in Islamic contracts, whereby parties to
26100-721: The role of law, the PRC's socialist background, the Japanese/German-based law of the Republic of China on Taiwan , and the English-based common law used in Hong Kong. Consequently, contract law in the Chinese mainland functions as a de facto mixed system. The 2021 civil code provides for the regulation of nominate contracts in a manner similar to that of jurisdictions such as Japan, Germany, France, and Québec. The rules governing contracts vary between jurisdictions. In
26274-604: The role served by administrative courts in many civil law jurisdictions and much of the function of constitutional review in other jurisdictions, thereby functioning as a branch of administrative law rather than private law . Rather than developing principles of administrative fairness as a distinct branch of law as other common law jurisdictions have, Indian courts have thus extended tort law as it applies between private parties to address unlawful administrative and legislative action. Within Canada's common law provinces, there
26448-438: The sale of a home, the buyer promises to pay the seller $ 200,000 in exchange for the seller's promise to deliver title to the property. Bilateral contracts commonly take place in the daily flow of commercial transactions. Less common are unilateral contracts, in which one party makes a promise, but the other side does not promise anything. In these cases, those accepting the offer are not required to communicate their acceptance to
26622-431: The state in order to maintain the rule of law: the investigative objective of discovery is the prerogative of the executive branch , and insofar as discovery may be able to facilitate the creation of new rights, that is the prerogative of the legislative branch . The availability of discovery in common law jurisdictions means that plaintiffs who, in other jurisdictions, would not have sufficient evidence upon which to file
26796-561: The term "represents" in order to avoid claims under the Misrepresentation Act 1967 , while in America the use of "warrants and represents" is relatively common. English courts may weigh parties' emphasis in determining whether a non-contractual statement is enforceable as part of the contract. In the English case of Bannerman v White , the court upheld a rejection by a buyer of hops which had been treated with sulphur since
26970-468: The term tort is generally used. The word 'tort' was first used in a legal context in the 1580s, although different words were used for similar concepts prior to this time. A person who commits a tortious act is called a tortfeasor. Although crimes may be torts, the cause of legal action in civil torts is not necessarily the result of criminal action. A victim of harm, commonly called the injured party or plaintiff , can recover their losses as damages in
27144-447: The terms of a contract are so uncertain or incomplete as to elude reasonable interpretation, the parties cannot have reached an agreement in the eyes of the law. An agreement to agree does not constitute a contract, and an inability to agree on key issues, which may include such things as price or safety, may cause an entire contract to fail. However, a court will attempt to give effect to commercial contracts where possible, by construing
27318-495: The test established in Anns v Merton LBC . In Singapore, the current leading case is Spandeck Engineering v Defence Science and Technology Agency , which builds on Anns by establishing a two step test comprising an analysis of proximate cause and public policy as a universal test, independent from the individual circumstances of a given case, for determining the existence of a duty of care. The Supreme Court of Canada established
27492-633: The tort law of a variety of jurisdictions in Asia and Africa. There is a more apparent split in tort law between the Commonwealth countries and the United States. Despite diverging from English common law in 1776, earlier than the other common law jurisdictions, United States tort law was influenced by English law and Blackstone's Commentaries , with several state constitutions specifically providing for redress for torts in addition to reception statutes which adopted English law. However, tort law globally
27666-441: The traditional common law torts. These are loosely grouped into quasi-torts or liability torts. The tort of negligence is a cause of action leading to relief designed to protect legal rights from actions which, although unintentional, nevertheless cause some form of legal harm to the plaintiff. In order to win an action for negligence, a plaintiff must prove: duty, breach of duty, causation, scope of liability, and damages. Further,
27840-481: The two remedies is that the aquilian action serves a compensatory function (i.e. providing economic damages to restore the plaintiff to their previous state) while the actio iniuriarum provides for non-economic damages aimed at providing solace to the plaintiff. In Roman-Dutch law (but not in Scots law), there is also a distinct action for pain and suffering relating to pain and suffering and psychiatric injury, which provides for non-economic damages similar to those under
28014-430: The use of non-economic damages caps and other tort reform measures. Apart from proof that there was no breach of duty (in other words, that a tortious act was not committed in the first place), there are three principal defences to tortious liability in common law jurisdictions: Discovery (or disclosure), a concept unique to common law jurisdictions, is a pre-trial procedure in a lawsuit in which each party, through
28188-669: The various legal traditions closer together. In the early 20th century, the United States underwent the " Lochner era ", in which the Supreme Court of the United States struck down economic regulations on the basis of freedom of contract and the Due Process Clause . These decisions were eventually overturned, and the Supreme Court established a deference to legislative statutes and regulations that restrict freedom of contract. The need to prevent discrimination and unfair business practices has placed additional restrictions on
28362-416: The world. Common examples include contracts for the sale of services and goods, construction contracts , contracts of carriage , software licenses , employment contracts , insurance policies , sales or leases of land, among others. A contractual term is a "provision forming part of a contract". Each term gives rise to a contractual obligation, breach of which can give rise to litigation , although
28536-499: The wronged person or their clan. Fines in the form of wīte ( lit. ' blame ' or ' fault ' ) were paid to the king or holder of a court for disturbances of public order, while the fine of weregild was imposed on those who committed murder with the intention of preventing blood feuds . Some wrongs in later law codes were botleas 'without remedy' (e.g. theft, open murder, arson, treason against one's lord), that is, unable to be compensated, and those convicted of
28710-438: The wrongfulness element and defences which serve to exclude fault . Grounds of justification may be described as circumstances which occur typically or regularly in practice, and which indicate conclusively that interference with a person's legally protected interests is reasonable and therefore lawful. They are practical examples of circumstances justifying a prima fade infringement of a recognised right or interest, according to
28884-406: Was an illegal nuisance depended upon the area and whether the activity was "for the benefit of the commonwealth", with richer areas subject to a greater expectation of cleanliness and quiet. The case Jones v Powell (1629) provides an early example, in which a person's professional papers were damaged by the vapors of a neighboring brewery. Although the outcome of this case is unclear, Whitelocke of
29058-399: Was first used in the English case of Smith v Hughes in 1871. Where an offer specifies a particular mode of acceptance, only acceptance communicated via that method will be valid. Contracts may be bilateral or unilateral . A bilateral contract is an agreement in which each of the parties to the contract makes a promise or set of promises to each other. For example, in a contract for
29232-445: Was imprisoned. It arose in local courts for slander , breach of contract , or interference with land, goods, or persons. Although the details of its exact origin are unclear, it became popular in royal courts so that in the 1250s the writ of trespass was created and made de cursu (available by right, not fee); however, it was restricted to interference with land and forcible breaches of the king's peace. It may have arisen either out of
29406-575: Was misinterpreted by English courts. The case of Ultramares Corporation v. Touche (1932) limited the liability of an auditor to known identified beneficiaries of the audit and this rule was widely applied in the United States until the 1960s. The Restatement (Second) of Torts expanded liability to "foreseeable" users rather than specifically identified "foreseen" users of the information, dramatically expanding liability and affecting professionals such as accountants, architects, attorneys, and surveyors . As of 1989, most U.S. jurisdictions follow either
29580-458: Was not a distinct area of law, concepts familiar to tort law were present in the criminal laws. However, by the late feudalism period, personal injury and property damage torts were mostly focused on compensation. The earliest "tort case" known from Ancient China is from the Zhou dynasty . During a famine one person robbed another's barn by sending his slave to steal the grain. He was sued and
29754-483: Was regarded by later English scholars as one of the rights of Englishmen . Blackstone's Commentaries on the Laws of England , which was published in the late 18th century, contained a volume on "private wrongs" as torts and even used the word tort in a few places. In contemporary common law jurisdictions, successful claimants in both tort and contract law must show that they have suffered foreseeable loss or harm as
29928-467: Was relatively unavailable. The English welfare state , which provides free healthcare to victims of injury, may explain the lower tendency towards personal injury lawsuits in England. A similar observation has also been made with regard to Australia . While Indian tort law is generally derived from English law , there are certain differences between the two systems. Indian tort law uniquely includes remedies for constitutional torts, which are actions by
30102-609: Was securing equality of treatment for victims regardless of whether or the extent to which they or any other party was at fault. This was the basis for much of Professor Patrick Atiyah 's scholarship as articulated in Accidents, Compensation and the Law (1970). Originally his proposal was the gradual abolition of tort actions, and its replacement with schemes like those for industrial injuries to cover for all illness, disability and disease, whether caused by people or nature. In addition to
30276-442: Was viewed as relatively undeveloped by the mid-19th century; the first American treatise on torts was published in the 1860s but the subject became particularly established when Oliver Wendell Holmes, Jr wrote on the subject in the 1880s. Holmes' writings have been described as the "first serious attempt in the common law world to give torts both a coherent structure and a distinctive substantive domain", although Holmes' summary of
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