Difference between Tort and Breach of Contract
Tort and contract differ from one another in the following respects –
(1) In tort, there is a violation of a right in term, i.e., a right vested in some determinate person and available against the whole world, whereas a breach of contract is an infringement of a right in personam i.e., a right available only to a some definite person and in which the society has no concern. Thus if ‘A’ agrees assaults ‘B’ or damages B’s property without lawful justification it is tort. In this case the duty is a duty imposed by law and that is the duty not to do unlawful harm to the person or property of another. But if ‘A’ agrees to sell 100 quintals of wheat to ‘B’ for a price, and if he fails to perform the contract within specified time, ‘A’ will be liable for breach of contract.
(2) In both tort and contract the general remedy is an action for damages. But the purpose for which damages are given is different. In contract the damages are compensatory and punitive or exemplary. In tort exemplary damages are awarded to punish the defendant but in contract the nature of damages is compensatory and it is generally fixed.
(3) In case of contract the damages are compensatory and not punishing or exemplary. But in tort it is both.
(4) In tort, there is a breach of duty which are primarily fixed by law whereas in contract there is breach of duty which is fixed by the consent of parties, for example, it is my duty not to assault or defame any person.
(5) In tort, the motive for breach of duty is immaterial. But in case of breach of contract it is often taken into consideration. Thus if the defendant does an act with good motive or in good faith to save a persons from being harmed then he will not be liable to the plaintiff. But in a
contract the defendant cannot take the defence of good faith or good motive and he has to pay damages to the plaintiff in every case.
(6) In tort the damages are generally unliquidated and are determined by the court on the facts and circumstances of the case. But in contract, the damages are fixed according to the terms and conditions of contract, for example, suppose ‘A’ contracted to build a house for ‘B’ within a year, and on failure to do so he agreed to pay Rs. 1000/- to ‘B’ as damages. Again if ‘A’ agrees to sell to ‘B’ 20 pigs for Rs. 10 each by the 10th of October, 1947 but he fails to do so, there is a fixed and determined measure to ascertain the damages. But in tort the damages are not fixed nor there is any measure by which the plaintiff can estimate it correctly. It is determined, by the Court on the basis of facts and circumstances of each case.
We may put the distinctive feature of tort and contract in the following tabular form-
| Tort | Contract | |
| 1 | Right in Rem. | Right in Personam |
| 2 | Vicarious liability is in tort | It is not in contract except in certain cases |
| 3 | Duty primarily fixed by law | Duty fixed by parties |
| 4 | No privity between the parties needed | Privity between the parties is necessity |
| 5 | Duty towards person generally | Duty towards specific person |
| 6 | Motive in certain tort relevant | Motive is irrelevant |
| 7 | Remedy is by way of claim for unliquidated damages | Action lies for liquidated damages. |
Overlapping of tort and breach of contract
Salmond says, that it is often the case that the same wrong is both a breach of contract and a tort, because “a person voluntarily binds himself by a contract to perform some duty which already lies upon him independently of any contract.” Persons such as, carriers, solicitors or surgeons, who undertake to discharge certain duties and voluntarily enter into contracts for the due performance thereof, will be liable for neglect or unskilfulness either in an action for a breach of contract or in tort. The breach of such contract is also a tort, inasmuch as liability would equally have existed in such a case had there been no contract at all, for example, when a passenger whilst travelling with ticket is injured owing to the railway company’s negligence the company is guilty of a wrong which is both a breach of contract and a tort. Similarly a bailee who wrongfully refuses to restore the property lent to him is liable both in contract and in tort; in contract because of his promise to restore it in due time, and in tort, because no one has a right to detain another’s property without some special justification.
Also Read Question:- Discuss the Tortious liability of the Crown or State.
There may be certain cases when the facts result in a breach of contract as well as a tort. If, for example, due to the negligence of a driver the authorities or master are liable for the breach of contract of safe carriage or due to negligence which results the passenger damaged. In the case of bailment, the breach of contract inasmuch as the bailee has failed to exercise due care in that matter and the bailee has also committed tort for negligence. A contract by the bailee exempting himself from liability from negligence is not valid.
Thus, the boundary line between tort and breach of contract is at time obscured, and Winfield rightly remarks, “though liability in tort and in contract is quite distinct, the same facts may nevertheless create alternate liability in tort or in contract. I cannot recover damages twice over, but I may well have alternate claims for damages under different heads of legal liability.
There is a lot of overlap between tort and breach of contract[In one of the cases e.g.,Junior Books v. Veitchi the plaintiff was allowed to sue the sub-contractor for the tort of negligence whose liability was in the nature of liability for breach of contract]. But it is wrong to say that there are cases of ‘torts founded on contract’. Thus, if a contract exists between A and B, and C maliciously induces either A or B to break the contract. C commits a tort. No doubt, there are cases of this type but the right of action in such cases is independent of contract. It is an independent right. It is on this ground that Pollock holds the view that the expression ‘tort founded on contract’ is misleading and inaccurate.
In Dr. Sharad Vaid v. Pentro, the Bombay High Court held that when a patient comes fo a doctor, it cannot be said that the patient wants to make a contract with the doctor. He simply needs medical service. If the doctor is negligent at that time he is responsible for tort. In the absence of some express contract between doctor and patient the doctor cannot be held responsible for making breach of contract. His liability will be tortious.