What is a Tort? — Definition, Essentials & Tort vs Crime vs Contract

“Tortious liability arises from the breach of a duty primarily fixed by law… towards persons generally.” — Winfield

A tort is a civil wrong — a breach of a duty fixed by law (not by agreement) — for which the remedy is an action for unliquidated damages (compensation the court assesses, not a sum the parties fixed in advance). The word comes from the Latin tortum, “twisted” or “wrong.”

Essentials of a Tort

For an act to be a tort, four elements must be present:

1. A wrongful act or omission by the defendant;
2. A legal duty owed to the plaintiff;
3. Legal damage — injuria (violation of a legal right), which is not the same as factual loss; and
4. A legal remedy — the action for damages.

Tort vs Crime vs Contract

In simple terms: contract = a duty you promised; crime = a wrong the State punishes; tort = a duty the law imposes on everyone, enforced by the victim for compensation. A single act (e.g. an assault) can be a crime and a tort at once.

Ubi Jus Ibi Remedium & the Mental Elements

Ubi jus ibi remedium — “where there is a right, there is a remedy”: if the law confers a legal right, it must give a way to enforce it. It does not invent remedies for purely moral grievances.

The mental elements distinguish several torts: intention (what you meant to do); motive (why you did it); malice in law (a wrongful act done intentionally without lawful excuse); and malice in fact (an act done out of spite). As a rule a bad motive is irrelevant — a lawful act does not become unlawful because of an evil motive (Bradford Corporation v. Pickles, 1895) — though malice matters in a few specific torts (malicious prosecution, some nuisance and defamation).

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