Detailed Notes on Salmond’s Theory of Tort

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1. Introduction to Salmond

• John William Salmond (1862–1924) was a prominent jurist and legal scholar.

• His work, “The Law of Torts”, remains a foundational text in tort law across common law countries, including India.

• Salmond’s theory systematically classifies and explains torts and sets out the conceptual basis for tort law.

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2. Salmond’s Definition of Tort

Salmond defines a tort as:

“A civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or other merely equitable obligation.”

Breaking it down:

• Civil wrong: Tort is distinct from criminal wrongs; it deals with private wrongs.

• Remedy: The usual remedy is a civil lawsuit for damages (compensation), not a predetermined sum (unliquidated).

• Excludes breach of contract: Torts arise independently of contracts and are based on legal duties imposed by law, not by agreement.

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3. Nature and Characteristics of Tort According to Salmond

a) Tort is a breach of legal duty

• A legal duty arises from law (not contract).

• The duty is owed generally to the community or the public at large, not merely to an individual.

• For example, the duty not to harm others by negligence or trespass is owed to everyone.

b) Tort is a civil wrong

• Unlike crimes, torts involve a wrong against an individual or private party.

• The victim can sue the wrongdoer to seek remedy.

• The state is generally not a party unless representing the victim.

c) Remedy in tort

• The remedy is usually compensation (damages) for the loss or injury caused.

• Other remedies include injunctions (to stop wrongful acts) and restitution.

d) Tort is actionable wrong

• Tort must be actionable, i.e., the law provides a right of action for the injury caused.

• Not every wrong or immoral act is a tort unless the law recognizes it.

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4. Distinction Between Tort and Crime (Salmond’s View)

Aspect	Tort	Crime
Nature of wrong	Private wrong	Public wrong
Duty	Legal duty to individual/public	Legal duty to society/state
Purpose of law	Compensation to victim	Punishment and deterrence
Parties involved	Injured party sues wrongdoer	State prosecutes offender
Remedy	Damages, injunction	Fine, imprisonment, other punishments

• A single act can be both a tort and a crime (e.g., assault).

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5. Classification of Torts According to Salmond

Salmond classifies torts into:

a) Intentional Torts

Where the defendant intends the act that causes harm. Examples:

• Assault and battery

• Trespass to land or goods

• False imprisonment

• Defamation

b) Negligent Torts

Where the defendant fails to exercise reasonable care, causing harm.

• Most common torts like motor accidents, medical negligence fall here.

c) Strict Liability Torts

Liability without fault — the defendant is liable even if there was no negligence or intent, e.g., Rylands v. Fletcher rule.

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6. Concept of Legal Duty

• Salmond stresses the importance of legal duty as the basis of tort.

• A tort arises when there is a breach of a duty imposed by law.

• This duty is towards the public generally but is breached in a way that injures an individual.

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7. Elements of a Tort (Salmond’s View)

1. Existence of legal duty

2. Breach of that duty

3. Resulting damage or injury to the plaintiff

4. Causation between breach and injury

5. Legal remedy available

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8. Importance and Impact of Salmond’s Theory

• Salmond’s work systematized tort law into a coherent body of law with clear principles.

• It clarified the distinction between tort and contract law, and tort and criminal law.

• His theory influenced courts in India and other common law countries in interpreting torts.

• His definition of tort as a civil wrong with unliquidated damages remains authoritative.

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9. Criticisms and Modern Developments

• Some scholars argue Salmond’s strict separation between tort and contract is too rigid today, especially with economic torts.

• The growth of statutory torts and consumer protection laws has expanded tort remedies beyond Salmond’s classical framework.

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10. Summary Table: Salmond on Tort

Aspect	Salmond’s View
Definition	Civil wrong with remedy in damages
Nature	Breach of legal duty imposed by law
Remedy	Unliquidated damages or injunction
Distinction	Different from contract and crime
Classification	Intentional, negligent, strict liability
Core Principle	Existence and breach of legal duty