Tort, defined generally

Here is a discussion on the definition by which "tort" is generally understood, according to Aquino (2005)'s outline. Please see citation below. Aquino's book is available in fine bookstores nationwide.

Citing Robles vs. Castillo (61 O.G. 1220, 5 C.A.R. [2s] 213), Aquino (2005) outlines that the word "tort" is taken directly from the French and is a derivation of the Latin word "torquere" meaning ‘to twist.’ In common law, tort is an unlawful violation of private right, not created by contract, and which gives rise to an action for damages. It is an act or omission producing an injury to another, without any previous existing lawful relation of which the said act or omission may be said to be a natural outgrowth or incident.

From the discussion above, there are six things we should take note of:

[1] Tort is not a concept originating from the Philippines;
[2] Tort is a common law principle but, in the Philippines, the New Civil Code has codified it;
[3] Tort simply means unlawful violation of a right. This has been described as damage and injury, the former being the loss or harm and the latter being the violation of a person's right;
[4] Tort arises not from contract and, even if there is a contract, it is independent therefrom;
[5] A tort committed results in the obligation to pay damages (indemnification); and
[6] A tort is not only an act but also an omission that causes injury to another. Hence, if injury is done to oneself, there is no tort.

Tort is also defined as a "private or civil wrong or injury, other than breach of contract," for which the court will provide a remedy in the form of an action for damages. It is a violation of a duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction. There must always be violation of some duty that must arise by operation of law and not by mere agreement of the parties. (Aquino [2005], citing Black’s Law Dictionary, 5th Ed., p. 1335, citing Coleman vs. California Yearly Meeting of Friends Church, 27 Cal. App. 2d 579, 81 P. 2d 469, 470). It is a legal wrong committed upon person or property independent of contract.

If an actionable wrong is a natural consequence of a contract or other legal relation, tort law cannot be invoked. If the wrong arises from a breach of contract, an action based on contract must be brought. At this junction, it must be pointed out that, under Article 1157 of the New Civil Code, obligation arises from law, contracts, quasi-contracts, delicts and quasi-delicts.

In the case of Air France vs. Carrascoso (G.R. No. L-21438. September 28, 1966), the Supreme Court pointed out that an act which breaches a contract but done a tortious manner may be considered tort.

A contract to transport passengers is quite different in kind and degree from any other contractual relation. And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rule or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. 

Thus, where a steamship company had accepted a passenger's check, it was a breach of contract and a tort, giving a right of action for its agent in the presence of third persons, to falsely notify her that the check was worthless and demand payment under threat of ejection, though the language used was not insulting and she was not ejected, although the relation of passenger and carrier is "contractual both in origin and nature" because the act that breaks the contract may be also a tort. In another case, where a passenger on a railroad train, when the conductor came to collect his fare tendered him the cash fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached such point he would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger which justified the conductor in using insulting language to him, as by calling him a lunatic, and the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said passenger.
Air France's contract with Carrascoso is one attended with public duty. The gravamen of Carrascoso's action is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier — a case of quasi-delict. And so, the Supreme Court held in Air France vs. Carrascoso that damages are proper.

Going back to the definition of tort, it has a general legal definition, according to Aquino (2005). Tort encompasses a number of different civil causes of action providing a private remedy, almost always in the form of money damages, for an injury to a person caused by the tortious conduct of another. (Edward J. Kionka, Torts, 1988 Ed., p. 92). Each tort is separately named and defined. Although some rules or principles are common to various torts or groups of torts, there is no universal formula for tort liability.

The paragraph above wants the reader to know that whether an act or omission is tortious (an actionable wrong) depends heavily on the circumstances of the case. This is because of two points of consideration. First, some acts are not only tortious but actually criminal, prompting the need to invoke criminal justice. Second, some acts may cause harm or loss but are not tortious because there is no violation of a right.

In one case, the landowner fenced his property and, as a result, those around him lost quick access to a main road and had to walk the long cut in order to get there. In fact, because of the landowner's action, tenants of one of his neighbors started to terminate the contract with him, which, according to said neighbor, caused him loss of income. The Supreme Court ruled in favor of the fencing landowner.

At the time of the construction of the fence, the lot was not subject to any servitudes. There was no easement of way existing in favor of private respondents, either by law or by contract. The fact that private respondents had no existing right over the said passageway is confirmed by the very decision of the trial court granting a compulsory right of way in their favor after payment of just compensation. It was only that decision which gave private respondents the right to use the said passageway after payment of the compensation and imposed a corresponding duty on petitioners not to interfere in the exercise of said right.

Hence, prior to said decision, petitioners had an absolute right over their property and their act of fencing and enclosing the same was an act which they may lawfully perform in the employment and exercise of said right. To repeat, whatever injury or damage may have been sustained by private respondents by reason of the rightful use of the said land by petitioners is damnum absque injuria. (Custodio vs. Court of Appeals. G.R. No. 116100. February 9, 1996)

Aquino (2005) continues his discussion on the definition of torn by saying that, in common law, tort includes intentional torts, negligent torts, and strict liability torts (otherwise known as strict or fixed torts). Intentional torts include conduct where the actor desires to cause the consequences of his act or believes the consequences are substantially certain to result from it. Intentional torts include assault, battery, false imprisonment, defamation, invasion of privacy and interference of property. Negligence, on the other hand, involves voluntary acts or omissions which result in injury to others, without intending to cause the same. The actor fails to exercise due care in performing such acts or omissions. There is strict liability in tort where the person is made liable independent of fault or negligence upon submission of proof of certain facts.

Under the New Civil Code of the Philippines, negligent tort is governed mainly by Article 2176. "Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter."

SOURCE: Aquino (2005). Torts and Damages By Timoteo B. Aquino, Professor of Law. Philippine Copyright, 2005. ISBN-13: 978-971-23-3991-2. ISBN-10: 971-23-3991-2. Rex Books Store.

The person who commits the 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; the harm in civil torts may be due to negligence, which does not amount to criminal negligence. The victim of the harm can recover their loss as damages in a lawsuit. In order to prevail, the plaintiff in the lawsuit, commonly referred to as the injured party, must show that the actions or lack of action was the legally recognizable cause of the harm. The equivalent of tort in civil law jurisdictions is "delict."

SOURCE: Tort > Terminology. From Wikipedia, the free encyclopedia.

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