Talk:Tort/Archive 01

Problems with torts section
I am removing the following section, entitled "problems with torts"

In common law systems, recovery in tort cases depends on the ability of the attorneys for the parties to sway the jury. Because of this, claimants seeking compensation for very similar injuries may receive vastly different compensation based on the quality of the lawyers for each party.

Certain kinds of claims are very expensive to bring because of the complexity of the issues involved. Medical claims, for example, invariably require expert testimony. For this reason, many legitimate medical claims fail. Furthermore, hospitals and doctors may be motivated to hide their errors for fear of facing a lawsuit, making quality control more difficult.

The reason for this is, at the moment, it is POV. Paragraph 1 is not true in England and Wales: we don't have juries in the vast majority of tort cases, and damages are very predictable indeed in personal injury cases (to within a smallish margin of error).

Paragraph 2, may well be correct. My impression (having worked for some clinical negligence practitioners) is that clinical negligence is not a particularly difficult kind of claim to pursue. I may be wrong, but then again it may be that experiences differ. Is there anything more than anecdotal evidence for the above?

Both paragraphs can obviously be salvaged, but only with specific knowledge of jurisdictions other than mine. Can someone with such knowledge please modify (at least paragraph 1) so that it is NPOV -- eg by marking it as specific to some jurisdictions? Francis Davey 13:16, 25 December 2005 (UTC)


 * Paragraph 1 is clearly POV and one would have thought that in any legal system with an appellate system, such discrepancies would be subject to appeal in any event. However, one problem with the Tort system, is that in many cases, as well as ascribing liability(a legal concept), it attempts to ascribe fault. The problems with this are emotional (in that a person may have to criticise someone they do not wish to critise), and evidential (in that other than strict liability torts, one needs evidence which has to be proved). A discussion of the above, could be referenced to the experiment in New Zealand, which abolished the law of Tort, but then re-introduced it, after the alternative system of no-fault statutory liability was considered unsatisfactory. I do not know enough to contribute an article however.


 * Secondly, another criticism which can be levelled at Tort is that it is a costly method to determine liability and although in an ideal world the outcome depends upon the evidence, in practice it is a necessary corrollary of court based dispute resolution that costs and resources of the parties are a factor. Whilst this is clearly POV, it is hopefully more neutral than what has been put above and true across jurisdictions. However, it is not law, and would be better served as a reference to another article dealing with such criticism.


 * Paragraph 2 contains elements of the first problem with Tort (the liability / fault issue), i.e. doctors who may cover up wrong-doing to avoid being labelled as at fault, and elements of the second problem (legal costs). If a re-write more in the style i have suggested was undertaken, those aspects could be incorporated.--Necessaryx 12:33, 30 December 2005 (UTC)

Problem with this Page
Actually this whole Tort page needs to be cleaned up and simplified, major legal jargon belongs in a law book, not in an encyclopedia
 * Only if removal of jargon will not impair the clarity or concision. Often these words are required as to avoid ambiguity. Bamkin 19:57, 24 May 2007 (UTC)

Possible Additions
What about the intentional tort of Forcible Harm (as a civil rights violation), as was classified in 42 USC §1983? Brown v Muhlenberg Township (269 F.3d 205) references to it and it falls under the category of an intentional tort. I know this may not be a typical intentional tort, but its covered pretty extensively in law school textbooks.--Mason13a 02:43, 18 December 2005 (UTC)
 * This article tends to focus on the broad, common-law development and classification of torts. We do have an article on 42 U.S.C. § 1983. bd2412  T 04:14, 18 December 2005 (UTC)
 * I concur. The article on Tort should remain as a general overview of tort law and not cover Section 1983 because it is too specific to the United States.  There is already an article on United States tort law and Section 1983 should be discussed there.  --Coolcaesar 19:16, 18 December 2005 (UTC)

Someone may want to change the Donoghue and Stevenson names around............

---

I believe Mayhem is a Tort if I am not mistaken: From Bouvier's Law Dictionary, Revised 6th Ed (1856)

MAYHEM, crimes. The act of unlawfully and violently depriving another of the use of such of his members as may render him less able in fighting either to defend himself or annoy his adversary; and therefore the cutting or  disabling, or weakening a man's hand or finger, or striking out his eye or  foretooth, or depriving him of those parts the loss of which abates his courage, are held to be mayhems. But cutting off the ear or nose or the like, are not held to be mayhems at common law. 4 Bl. Com. 205.      2. These and other severe personal injuries are punished by the Coventry act, (q.v.) which has been re-enacted in several of the states; Ryan's Med. Jurispr. 191, Phil. ed. 1832; and by congress. Vide act of April 30, 1790, s. 13, 1 Story's Laws U. S. 85; act of March 3, 1825, s. 22, 3 Story's L. U. S. 2006. While it is a type of Assult, it an extreem Assult that disfigures and/or maims someone. I also believe Bouvier's definition is a little dated and currently Mayhem would include the cutting off an ear or nose. In a case I am aware of, where the defendant "pisotl whipped" someone, the defendant was charged with, and convicted of Mayhem because of the disfiguration to the victums face.

Recent changes
I have reverted some significant changes to the crime/tort relationship. The changes may not hit the right note in style (I'd like to discuss that); made sweeping claims about early socities without references, but most significantly implied that crime and tort overlapped to a very large extent. They don't. Few crimes are torts and few torts are also criminal. Some torts have no origin in the criminal law, which makes me doubt the claims for the origins of dispute resolution (which as I said were unsourced). Francis Davey 13:18, 8 December 2005 (UTC)

Older changes
I have made a significant edit to the Tort entry. The previous entry was getting dangerously vague and non POV.

We had:

There is some overlap between tort law and criminal law. A tort is a wrong against an individual, while a crime is a contravention of the rules of the state. Particularly antisocial acts may at once constitute both a tort and a crime on the basis that they are both a wrong against the individual and against society as a whole, represented by the state. A cause of action in tort can also be distinguished from a criminal prosecution which may arise from the alleged violation of a criminal statute. The former is typically prosecuted by a private citizen, whereas the latter is prosecuted by the state, and one or both may be brought forth independently. Moreover, remedies for torts can take the form of compensation for damages or injunctive relief. A criminal prosecution usually results in the imposition of a sentence, such as a fine and/or incarceration.

My criticism of this is that: (1) some torts are public not private in at least some jurisdictions; (2) many torts are contravention of rules of the state, just as much as crimes; (3) many overlapping crimes/torts are not particularly anti-social (eg. battery may be a mere deliberate touching). (4) the proper cognate of "cause of action" is "offence", a criminal prosecution is analogous to a claim (or in other jurisdictions a lawsuit).

Various other infelicities have been corrected. For example, crimes may not be violations of any statute at all (see murder in England).

Francis Davey 17:53, 9 Dec 2004 (UTC)

A couple of niggles, saying "money damages" and "equitable remedies" is slightly misleading. (1) because the law is seperate from the remedies available (though it includes them); and (2) in some jurisdictions there are remedies at common law that are not money remedies (eg, abatement, specific recovery and so on).

A second problem is that tort is defined as being not contract. That doesn't really cover other kinds of case, eg equitable, that of a personal representative, in bailment, under quantum meruit, money had and received, and so on. Can we come up with a satisfying definition of "tort" without it? Francis Davey 1 July 2005 12:40 (UTC)

United Kingdom
There shouln't be two articles, they should be by national jurisdiction. English tort law and Scots tort law should probably be sections in United Kingdom tort law.--Jerryseinfeld 20:53, 3 Jan 2005 (UTC)

I disagree. While there has been considerable convergence of English and Scots law the two have quite different histories. The tort law of England and Wales is closer to that of other countries outside the UK than it is to that in Scotland. Francis Davey 14:31, 6 Jan 2005 (UTC)

Strict tort
An IP user "corrected" the statement: "Some torts are considered to carry strict liability, that is they are actionable without the plaintiff demonstrating any actual damage has occurred" to read: "... demonstrating any actual intentional wrong or negligence on the part of the defendant ". But if there is no intentional or negligent action wrong, then the plaintiff has no cause and ergo, no liability strict or otherwise. So I've reverted it. I'm just a tort student, and I'm an Aussie, so maybe I'm wrong. Let me know if that's the case. An An 05:48, 11 July 2005 (UTC)
 * There are torts without fault - in America for sure, but I thought this was the general rule. If the tortfeasor is engaged in ultrahazardous activities, or is a merchant placing goods in the market, an individual who is injured as a result of those activities or through the use of those goods is liable even if the tortfeasor took all due care. -- BD2412 talk 13:13, July 11, 2005 (UTC)
 * That's what I thought. It is slightly different in Australia. I don't think we have a category of "ultahazardous activities", though torts of trespass are actionable per se. An An 23:05, 11 July 2005 (UTC)
 * Ah, but trespass still requires the intent to go to a certain spot, even if the tortfeasor is unaware that it is on the land of another. Compare: I trip and roll down a hill onto private property? No trespass. I'm being chased by a wild bull, and run onto private property to get to safety by climbing a tree? Trespass, but with a defense of private necessity. I'm walking in a park, and I see a pretty flower and unknowingly walk onto private land to pluck it? Trespass, no defense. Should be the same everywhere, but if not the difference should be outlined in a separate section (or it should say "in some countries..."). -- BD2412 talk 23:44, July 11, 2005 (UTC)
 * Yeah, intent (because its an intentional tort) but not damage. Or rather, the damage is the infringement of property or bodily integrity - the touch, the step onto land.An An 00:48, 12 July 2005 (UTC)
 * I suppose what we call strict liability torts could be looked at the same way - if you intend to use explosives, than that's all the intent that is required to hold the tortfeasor liable for damage resulting from the activity. -- BD2412 talk 01:42, July 12, 2005 (UTC)


 * Yes, that's a way of understanding the liability in Rylands v Fletcher. In English law the tort is strict -- in the sense that escape of the dangerous thing need not be the fault of the land owner -- but not strict in the sense that a landowner who does not (and could not be expected to) realise that something dangerous was accumulating on their land does not fall within the tort. In Cambridge Water v Eastern Counties Leather, something like this happened. I think all torts have some element of intention or negligence, but for ultrahazardous activities/product liability and so on, the tortious event is caused strictly without negligence or intent. Does that make sense? Francis Davey 20:01, 21 July 2005 (UTC)
 * Something like that - the landowner would be liable for the damage even if they took every precaution that a reasonable person would take, yes? -- BD2412 talk 20:20, July 21, 2005 (UTC)

Whoops
"Obviously, whether any given injury can be brought as a negligence claim depends upon whether a lawyer can convince a court that the plaintiff owed the defendant a duty of due care to not inflict the particular injury at issue."

Oh dear. I have now corrected this.

Vandalism
Well this is a first for me: to find an entire passage of mine reverted as if it was vandalism with the assertion that much of it was legally inaccurate. So would Francis Davey like to justify this rather dramatic reversion. Let us have a dialogue. David91 13:35, 8 December 2005 (UTC)


 * "The social utility underlying the development of any judicial system to resolve disputes is a reduction the level of violence in the community. " has no source and looks very much like a point of view of a particular school of jurisprudence, evidence? Anyway, its rather general and doesn't really relate to the article.


 * "Most early societies go through a system of feud where personal vengeance is the norm. " again, source. "early society" is a bit of a cowardly term. Who are we talking about? Romans? Sumerians? How early do we go. Evidence?


 * " Hence, the source for torts and crimes in the common law is the need to transform family and clan self-help into a regulated system by relocating it into a state-provided legal framework.", again source this please. What "clan self-help" existed in the pre-common law stage? Do you have any evidence that the common law grew out of such a system?


 * " Thus, almost all torts and crime overlap in the range of acts and omissions covered. ". Rubbish. Most tort cases and jurisprudence is negligence (ultimately based on trespass on the case) which has little or no overlap with crime. Many jurisdictions have reanalysed tort so that more of it has become negligence (eg nuisance), so this is stronger in many newer common law countries. Actually there is very little current overlap between crime and tort. Criminal libel is rarely charged (and has vanished in most places), crimes and torts of deceit are really quite different (in origin not just form). Private nuisance does not have a criminal counterpart. And so on. Assault is a rare example where the two are close.


 * "for example, in English law an assault is both a crime (a breach of the peace) and a tort (the principle trespass as applied to the person)" -- an assault is not a breach of the peace, it is a non-consensual touching, also better to say "the tort of trespass to the person".


 * "In tort, it is the victim (or 'plaintiff' in English law)" -- its "Claimant" in English law, plaintiff remains the term elsewhere, so this bit is exactly wrong in a highly misleading way.


 * After that I gave up. Although "But such systems are not universally effective because many offenders do not have the means or the desire to pay the compensation ordered and serve time in jail in default." does not really belong here -- it is really a commentary on criminal penalties and belongs in such an article.


 * Sorry to do the revert, I just didn't know what to do. I liked, what was there before. Big edits need some justification. If you can source some of the pastiche that begins the changes we might be getting somewhere. Francis Davey 19:35, 8 December 2005 (UTC)

I too apologise in that I gave my library away when I retired so can no longer provide the usual citations in support. Further, because this Wiki phenomenon is trying to provide accessible material for lay people, I sometimes sound like a journalist. As memory serves, Sir Henry Maine studied the ancient codes and failed to find any real criminal law. While modern systems distinguish between offences against the "State" or "Community", and offences against the "Individual", what was termed the penal law of ancient communities was not the law of "Crimes" (crimina); it was the law of Wrongs (delicta). Thus, the Hellenic laws treated all forms of theft, assault, rape and murder as private wrongs, and action for enforcement was up to the victim or their survivors (which was a challenge in that although there was law, there were no formalised courts in the earliest system). It was the Romans who systematised law and exported it to their Empire. Again, the initial rule was that assaults were a matter of private compensation and I recall it reported that bored rich patricians would beat plebs for fun and give them the specified "compensation" on the spot, forcing the law to be amended. The significant Roman Law concept was of dominion. The pater familias was in possession of all the family and its property (including slaves). Hence, interference with any property was enforced by the pater. The Commentaries of Gaius on the Twelve Tables treated furtum (modern theft) as if it was a tort. Similarly, assault and violent robbery were allied with trespass as to the pater's property (so, for example, the rape of a female slave, would be the subject of compensation to the pater as having trespassed on his property) and breach of such laws created a vinculum juris (an obligation of law) that could only be discharged by the payment of money. Similarly, in the consolidated Teutonic Laws of the Germanic tribes, there was a complex system of money compensations for what would now be considered the complete range of criminal offences against the person from murder down.

Even though Rome abandoned England sometime around 400AD, the Germanic mercenaries who had largely been enforcing the the Roman occupation, stayed on and continued to use a mixture of Roman and Teutonic Law, with much written down by the early Anglo-Saxon Kings. But, it is not until a more unified Kingdom emerges following the Norman invasion and the King is attempting to assert power over the land and its peoples, that we get the concept that a crime is not only against the "individual", it is also a wrong against the "state". This is a "common law" idea and the earliest conception of a criminal act involved such events of such major significance that the "state" had to usurp the usual functions of the civil tribunals and direct a special law or privilegium against the perpetrator. All the earliest criminal trials were wholly extraordinary and arbitrary without any settled law to apply, whereas delictual law was highly developed and consistent in its operation (except where the King wanted to raise money by selling a new form of Writ). The development of the idea that it is the "state" dispensing justice in a court only emerges in parallel with or after the emergence of the concept of sovereignty.

The entire policy of monetary compensation from the Hellenic system onwards, has been to avoid feuding between clans and families (note the concept of pater familias in this context). If families' feelings could be mollified by compensation, this would help to keep the peace. It did not always work, but in the earliest times, the "states" were not prepared to get involved. Thus, criminal law grew out of what is now tort and, in real terms, many acts and omissions that could be classified as a crime can be litigated as a tort and, subject to the discretion of the Crown Prosecution Service (or judge to issue nolle prosecui if a private prosecution is mounted), many tortious situations may be covered by criminal laws (although I accept that the enforcement of criminal laws as breaches of civil laws is less common than it used to be and the habit of criminal judges to expand the common law of criminal activity to cover new civil situations has been limited). I regret that the terminology of claimant plaintiff seems to have changed since I last looked at practice. I find it difficult enough to get out of bed these days, let alone keep up-to-date with the details. But I hope you will understand that I did not write the few sentences you deleted without some idea of history. And even though I used the word "utility", I have carefully refrained from getting into utilitarianism on deterrence because that really would be irrelevant to this topic. Good luck in your career change. Hope it works out well. David91 03:46, 9 December 2005 (UTC)

criticism
Torts needs a criticsim. I started with some criticisms which were quickly done. Lawyers make a fortune from torts and it is not clear at all if torts is good for anyone in society but the lawyers and a few lucky ones that hit the lottery.

Of course my criticisms were just deleted which I intend to just revert back when I have a chance. If someone wants to improve them, be my guest as they were done rather quickly.

Merging
So I found this substub Ex turpi causa non oritur actio, which I'm pretty sure is related to torts, but I can't figure out where to merge it to. Help appreciated. --maru (talk) contribs 23:11, 4 February 2006 (UTC)


 * It's some hoary old Latin maxim which probably has something to do with the doctrine of unclean hands. There are tons of these maxims lying around &mdash; Black's Law Dictionary has a whole section in the back where most of them are listed. I'm not sure it needs to be merged into anything; it should probably be speedy deleted by an admin.  --Coolcaesar 09:20, 5 February 2006 (UTC)


 * No it isn't -- at least not in my jurisdiction -- its an important concept in the law of tort, and would form part of any course on tort in England and Wales. Its a different concept from unclean hands which is a notion that arises from an equitable maxim and has a different compass. Speedy deletion does not seem appropriate. Francis Davey 17:05, 5 February 2006 (UTC)

Problem with this Page
Actually this whole Tort page needs to be cleaned up and simplified, all this legal jargon belongs in a law book, not in an encyclopedia. Put it in a reference section.
 * The page needs to be responsive to its community of interest - a lot of users will be law students. Perhaps we can keep the jargon, as it were, but simplify the explanation of the jargon. bd2412  T 01:55, 22 February 2006 (UTC)
 * The use of the word "perhaps" is a pleasing touch. David91 01:59, 22 February 2006 (UTC)

HELP?
Does someone more familiar with this project than I help me out here? I think this should be added, but not sure where:
 * ==Redressing Rights==

There is a legal maxim that "for every right, there is a remedy." That is, the law will provide appropriate remedies to protect the right. Remedies can be equitable (injunction) or in law (money damages). This legal maxim was first enunciated by William Blackstone: "it is a settled and invariable principle in the laws of England, that every right when with-held must have a rem edy, and every injury it’s [sic] proper redress" 1 William Blackstone, Commentaries on the Laws of England 23. See also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162-163 (1803). Thanks!MollyBloom 02:13, 22 May 2006 (UTC)
 * We already have an article on Legal remedy. Now that you bring this up, I think we need to link to that article from here. What does everyone else think?--Coolcaesar 02:23, 22 May 2006 (UTC)
 * Good idea. What do you think about adding this to Legal remedy?   I am just finding my way around here.  This is impressive how much work you all have done.  I look forward to helping, if I can.MollyBloom 03:49, 22 May 2006 (UTC)

Another issue
Do any jurisdictions outside of the the United States recognize the tort of negligent infliction of emotional distress? Just out of curiosity. If so, it would be great if the NIED article could be edited to reflect a worldwide view. Thanks. --Coolcaesar 02:23, 22 May 2006 (UTC)


 * Yes, England and Wales has something like it, but NIED wouldn't be what we call it. I'm not happy with some of the POV titles in the wikipedia law (which is mostly US law with notes), which is why I am reluctant to contribute further to articles like Tort. Essentially they mislead more than they inform by trying to set out one jurisdiction (the US) but with suitable weasel words to try to make it more universal. The result informs no-one properly.


 * For the record, we have specific rules about psychiatric injury, but also permit recovery for emotional distress in narrower circumstances under the tort of negligence. Francis Davey 08:52, 22 May 2006 (UTC)


 * So what do you call it in the UK, then? Also, I'm still wondering if they have anything like NIED in civil law countries like France and Germany.  Does anyone know?  --Coolcaesar 05:22, 23 May 2006 (UTC)


 * Reading the article, I think the answer would be "no" to England and Wales. NB, the UK is not a single legal jurisdiction. Francis Davey 12:28, 23 May 2006 (UTC)

Order of Specific Performance as a tortious remedy
Within Australian civil law an Order of Specific Performance as a tortious remedy can be ordered, generally in relation to nuisance matters. For instance (to use an example from Currie & Cameron, cited in article) if a tree branch hung over one's property one could seek an Order of Specific Performance to have the branch removed. The occurence of such an order in Australian tort law is somewhat rare, however still relevant. Yarub 12:42, 10 September 2006 (UTC)


 * I find that a rather hard idea to get my head around -- specific performance was an equitable remedy developed in the context of the law of contract. Can you cite a case where specific performance was ordered in a tortious case? In English law the remedy to deal with an overhanging tree would be an injunction, and its strange that Australia should have changed the terminology. I would like to know more. Francis Davey 14:17, 10 September 2006 (UTC)
 * I concur with Francis Davey. In the United States, specific performance is used only in contract, not tort.  The appropriate remedy in tort would be an injunction.--Coolcaesar 05:30, 11 September 2006 (UTC)

missing important info
An expert should please add this and relevant info in the approriate way and place:  Special damages may be awarded for pain and suffering and mental or emotional distress. http://www.legal-info-legale.nb.ca/showpub.asp?id=2&langid=1 --Espoo 10:20, 30 September 2006 (UTC)


 * Except that "special damages" are not awarded for pain, suffering, and mental or emotional distress (and on this I am an expert). Francis Davey 22:53, 30 September 2006 (UTC)


 * In fact, looking at the link, the author of the web page has "general" and "special" damages exactly the wrong way around. Francis Davey 22:55, 30 September 2006 (UTC)
 * Indeed, 'special' are damages that can be precisely quantified such as salary and 'general' are taken from a judicial guidance book and are monetary estimation of pain, loss of ameinity, ect. Bamkin 19:35, 3 June 2007 (UTC)

Changing the tort page
This page is riddled with mistakes. The headnote which I have changed, and I hope you will prefer had some errors:


 * Can we discuss them here first, get some consensus and then change them? It is easy enough to bring back what you wrote. To start with, why get rid of the clear marker that this is a common law concept -- the civil law category of delict is not quite coterminous and not analogous. Francis Davey 18:25, 31 October 2006 (UTC)

"a tort is a civil wrong, other than a breach of contract"

that implies contract is a civil wrong, which it isn't. Or there was this:


 * That's a popular way of characterising them. I am not sure how helpful it is (it has to do with whether you think in terms of a law of obligations or not), but your replacement "as opposed to a criminal wrong" is even less helpful. It ignores all kinds of equitable wrongs (such as equitable fraud and breach of trust) which are not torts at all. Francis Davey 18:25, 31 October 2006 (UTC)

"The origins of the modern law of torts lie in the old remedies of trespass and trespass on the case.

That is mistaken, because torts have existed in actions like nuisance or simple damage to property.


 * No. It really is correct. That is why I suggested you didn't change things unless you had legal training - lots of legal history is a bit obscure. Damage to property has always been a matter of trespass. Nuisance did originate in the assize of nuisance, just as libel had (one of its) origins in criminal actions in the star chamber, nonetheless, by the time modern forms of action coalesce everything derives from trespass. That is because trespass was a much more useful form of action than the others and had useful powers and remedies attached to it. Of course the law of contract *also* originated in trespass on the case (by an action of assumpsit) and most restitutionary remedies (via indebitatus assumpsit). Francis Davey 18:25, 31 October 2006 (UTC)
 * I concur. I was just reading a book on English Legal History last night (so that I can continue expanding the history section in Lawyer) and the evolution of the old trespass writ into modern tort law was thoroughly discussed. --Coolcaesar 21:21, 11 November 2006 (UTC)
 * You may well concur, mate, but try a book on Roman Legal History, and a little more study than a night before. Wikidea 02:47, 20 December 2006 (UTC)

And not to be picky, but this is wrong too:

"The term itself comes from Law French and means, literally, "a wrong". The French phrase avoir tort translates to "to be wrong"."

...because tort comes originally from the Latin 'torquere' to twist"


 * Now you really must be trolling with this one! The term tort is used in the year books (which are in law French), do you have any evidence for the origin in torquere? Francis Davey 18:25, 31 October 2006 (UTC)
 * I concur that this mysterious editor is probably a troll with no legal training. --Coolcaesar 21:21, 11 November 2006 (UTC)
 * Whereas you seem to be a comedian. Wikidea 02:47, 20 December 2006 (UTC)
 * Mirriam Webster's online dictionary, "tort"
 * Main Entry: tort
 * Pronunciation: 'tort
 * Function: noun
 * Etymology: Middle English, injury, from Anglo-French, from Medieval Latin tortum, from Latin, :::neuter of tortus twisted, from past participle of torquEre: a wrongful act other than a breach of :::contract for which relief may be obtained in the form of damages or an injunction Wikidea 05:06, 22 December 2006 (UTC)

I thought the part about civil law should be expanded, and this is not an informative statement:

"A tort is a breach of a non-contractual duty potentially owed to the entire world, imposed by law"

...because torts can involve contracts, they have potential duties to individuals, and of course they are imposed by law.


 * This is the classic distinction between torts and contracts - contractual duty is agreed, tortious duty is not. Its true that some torts may relate to a contract (such as tortious interference) but the tortfeasor need not (and in that case will usually not) be a party to the contract. Francis Davey 18:25, 31 October 2006 (UTC)

Can I suggest that the best thing to do is work out the structure of what to say next. We could go by the categories of tort, and then a section on delicts in Civil Law countries.


 * OK. I don't like "Somebody behaves 'tortiously' when they harm other peoples' bodies or property." It sounds like a definition, and it isn't since tort can harm minds, economic interests and more intangible things like reputation. Its a definition that made me think you didn't have legal training.


 * I am not sure what to make of "There are many categories of tort, which correspond to categories of property that people have." it sounds like there is a neat correspondence between property and tort, but that's not true. Some torts protect all kinds of property (such as negligence) others overlap (both slander of title and nuisance protect interests in land) and its not clear that all kinds of property are protected (whatever "property" may mean in this context). I don't think you should be trying to set out all kinds of torts in the way you do in the heading. You give examples -- a lot of them -- but not an exhaustive list. Better to list them in a section later. Tort is too complicated to try to explain by example (its casuistic and not categorical).


 * Note, many jurisdictions do not have a common law action for death. If you kill someone negligently there may be no recovery for the death itself (just any antecedent pain and suffering which may be minimal). In any case "The biggest category of tort is negligence which has complex rules for each type of harm to our bodies, like psychiatric injury or death, and our property, like proper professional advice from solictors or physical damage to your car." is a dog's breakfast of a sentence. Again it looks like it might be trying to be exhaustive but it isn't. Negligence is a single tort, that covers a very wide class of behaviour but always the same situation (breach of a duty of care), although the occasions on which that duty arises have detailed rules that differ between jurisdictions.


 * "Important for labour law is torts against unions who go on strike, and the evolution of immunity for workers in a counterveiling right to strike." is probably something you put very far down the article. Collective employment rights aren't (in most places) common law, and tortious liability for unions is complicated.


 * "a tort may be called a delict in French, or unerlaubte Handlung in German, although the core philosophy or tort is the same." is misleading. Delict is really quite different in the way it thinks about the world. Tort is essentially about *kinds* of tort, delict is about general notions of liability.


 * Lastly "A tort means X owes a duty to Y but he breaches it. To behave tortiously X must infringe a right of Y in the eyes of law." sound like further attempts to define the concept. The first is unhelpful "duty" is used in the context of negligence. It is unhelpful in many jurisdictions to try and analyse (say) Rylands v Fletcher from a duty point of view because liability is strict. Even if there is nothing X can do to stop the tort it will still be tortious. Language like "infringe a right of Y in the eyes of the law" again doesn't add much. Not all rights attract tortious liability (not all breaches of statutory duty for example) so its not a definition. Why put it here?


 * Hopefully you will see why I reverted your edits - that this is a matter that clearly needs discussion and argument and (I hope) by other wikilawyers too. Please leave it until some others have jumped in and said their peace. Francis Davey 18:25, 31 October 2006 (UTC)

Response to above
Since you asked Francis! 1. mind and body are the same, economic interests are property 2. the intro, i think, is to get a feel for the subject, hence no exhaustive lists of categories 3. if you can find the reference/case for the exception to common law death, it'd be great to have it 4. negligence is a category of tort, and a single tort. You can say both 5. read Crofter v. Tweed on the labour law stuff, it's interesting 6. I'm right about french and german law. The concept is the same, the concept of duty. It comes from an enlightenment philosopher called Pufendorf. But your right, I should add that. 7. I'm right about duty cross all torts, not just the 'duty of care' in negligence. If you have a right, you have a correlative duty. But it's not a big point. 8. I would be really grateful if you could put any references up from those books you said you had, which you think could be interesting! It sounds like you know lots on the subject, so let's see some more refs!

One thing I would just like to say. Since when has body and mind been the same thing? The law does distinguish between both. A tortfeasor may, in whatever way, create damages to the body or mind. For example if I act tortiously, and break your arm - your body has been damaged. I may need to compensate for that; but also if after the event of breaking your arm, you fall into severe depression, you can claim compensation under emotional distress, which to my understanding, this is one distinction the law does understand.

Images
I'd just like to note that the photographs and images in this article are terrific. They don't add any content to the article, but they definitely make it funny and liven up the page. Good work!