DISCHARGE OF TORT

A Right of Action in Tort May Come to an End!

DE ATH O F PARTY WAIV E R

AC Q U IE SC E NC E RE LE ASE

ACC O RD AND LIMITATIO N

SATISFAC TIO N
DEATH OF PARTY
o In Indian law, the general principle is that tort
actions are personal, meaning they typically die
with the person involved.

o This principle is reflected in the Latin

maxim "Actio Personalis Moritur Cum
Persona," which means "a personal action dies
with the person."

o As a result, in most cases, the right to sue for a

tortious wrong or claim for damages ceases upon
the death of either the plaintiff (injured party) or
the defendant (wrongdoer).
 o However, there are exceptions to this rule under
specific circumstances:
EXCEPTIONS o Under the Indian legal system, property-related
claims, contractual obligations, or other rights
that continue after death can survive. For
example, if a tort relates to damage to property or
financial losses, the cause of action may pass to
the legal heirs of the deceased.

o Section 306 of the Indian Succession Act 1925

allows certain tort actions to survive the death of
either party if the wrong affects the deceased's
estate.

o For example, actions related to defamation,

assault, or personal injury typically do not survive,
but claims concerning the wrongful deprivation of
property or contract breaches may continue.

o In essence, while the death of a party discharges

most tort actions, exceptions do exist, particularly
where the rights or interests of the estate are
involved.
EXCEPTIONS
1. Action under Contract

o The rule that a cause of action ended with the

death of either of the parties did not apply to an
action under the law of contract. Contractual
obligations could be enforced by or against the
legal representatives of the parties to the
contract.

o In the case of personal service contracts, such as

painting a picture, the legal representatives
could not be bound.

o Sections 37 and 40 of the Indian Contract

Act make a similar provision.
o S. 37. Obligation of Parties to Contract: -

o The parties to a contract must either perform or

offer to perform their respective promises unless
such performance is dispensed with or excused
under this Act's provisions or any other law.

o Promise binds the representatives of the

promisors in case of the death of such promisors
before performance unless a contrary intention
appears from the contract.

o Illustrations:

o A promises to deliver goods to B on a certain day

on payment of Rs. 1,000. A dies before that day.
A's representatives are bound to deliver the
goods to B, and B is bound to pay Rs. 1000 to
A's representatives.

o Mr. A promises to paint a picture for B by a

certain day at a certain price. Mr. A dies before
the day. The contract cannot be enforced by A’s
representatives or B.
o S. 40. Person by whom promise is to be
performed: –

o If it appears from the nature of the case that it

was the intention of the parties to the contract
that the promisor himself should perform any
promise contained in it, such promise must be
performed by the promisor. In other cases, the
promisor or his representatives may employ a
competent person to perform it.

o Illustrations:

o Mr. A promises to pay Mr. B a sum of money.

Mr. A may perform this promise by personally
paying Mr. B or another. If Mr. A dies before the
time appointed for payment, his representatives
must perform the promise or employ some
proper person.

o Mr. A promises to paint a picture for Mr. B. Mr.

A must perform this promise personally.
EXCEPTIONS
2. Unjust Enrichment of Tortfeasor's Estate

o If someone, before his death, wrongfully

appropriated another person's property, the law
did not allow the benefit of that wrongfully
appropriated property to be passed on to the
legal representatives of the deceased. The person
entitled to that property was entitled to bring an
action against the deceased's legal
representatives and recover such property or its
value.

o The idea behind the rule was that only what

belonged to the deceased should constitute his
estate, and his estate should not be unjustly
enriched by what does not belong to him.
CASE LAW
o Nrusingha Charan v. Ratikanta, AIR 1978
Orissa 217

o A money decree was passed against a Hindu

father regarding an amount he received by
misrepresentation.

o It was held that the father's liability in such a

case was personal. It was not a debt that the son
could realise under the mandate of moral
obligation. Moreover, the plaintiff's relief under
the law of torts had ended with the death of the
father, and the son could not be made liable for
the same.
CASE LAW o Zargham Abbas v. Hari Chand, AIR 1980 All
259

The court determined that if o The suit for damages for defamation on account
the cause of action (here, of malicious prosecution was decreed against
damages for defamation due Zargham Abbas and his son, Ali Abbas. At the
appellate stage, Zargham Abbas died.
to malicious prosecution)
does not survive the death o It was held that if the cause of action does not
of one of the appellants survive the death of the first appellant, it is the
(Zargham Abbas), then the appeal that would abate and not the suit, and
appeal brought by that the decree under the appeal court would still be
executed against the assets in the hands of the
person abates (comes to an heir.
end). However, this does not
nullify the decree itself. o In this case, the decree was jointly applied to the
father and the son. It was further held that the
death of the father did not affect the
maintainability of the appeals from the decree.
WAIVER o In India, the discharge of tort by waiver occurs
when the injured party voluntarily relinquishes or
abandons their right to pursue a tort claim. A
waiver defends the defendant and bars the plaintiff
from later suing for the same tort.

o This is grounded in the principle that a person who

has knowingly and voluntarily given up a legal right
cannot later claim relief for the exact cause of
action.

o When a man has more than one remedy for a tort

and elects to pursue one, giving up the other
remedies, the different remedies are waived.

o If out of several civil remedies available for a wrong,

the injured person elects to pursue only one, and
he shall be precluded from seeking the other
afterwards.

o A waiver is express or implied.

 o Express Waiver:

WAIVER o This occurs when the injured party explicitly states,

in writing or verbally, that they are giving up their
right to sue.

A landlord and tenant have a o For example, if a person injured in a car accident
rental agreement that requires signs a settlement agreement and agrees not to sue,
it constitutes an express waiver.
rent to be paid on the 1st of
every month. Over several
months, the tenant consistently o Implied Waiver:
pays rent late (e.g., on the
10th), and the landlord accepts o A waiver can also be implied from the injured party's
conduct. If their actions indicate that they have
the late payments without accepted the situation or have voluntarily chosen
objection. not to enforce their right, it can be considered an
implied waiver.

o For example, if a plaintiff knowingly benefits from a

settlement offer and later tries to file a lawsuit, the
court may find that they impliedly waived their right
to sue.
ACQUIESCENCE o Acquiescence implies passive acceptance or
tolerance of the wrongful act without objection,
leading to the assumption that the injured party
has waived their right to seek legal remedy.

o Critical elements of acquiescence as a discharge of

tort:

o Knowledge: The injured party must be fully aware

of the wrongful act or tort committed by the
defendant.

o Silence or Inaction: The injured party's failure to

object or take action against the wrongful act,
despite knowing about it, can be interpreted as
consent or acceptance.

o Passage of Time: If the injured party delays

seeking legal recourse, this delay may be considered
acquiescence, mainly if the defendant has been led
to believe that the injured party does not intend to
claim damages.
o In Indian law, discharge of tort by
acquiescence occurs when the injured party, by
their conduct, silently consents to or accepts the
wrongful act, thereby losing the right to claim
damages or pursue legal action.

o However, courts in India carefully evaluate

cases of acquiescence, ensuring that there was
no coercion or undue influence on the injured
party and that they had full knowledge of the
wrong before remaining silent or inactive.
RELEASE
o In Indian law, discharge of tort by release refers to
a situation where the injured party voluntarily
agrees to relinquish their right to pursue legal action
against the tortfeasor (wrongdoer) in exchange for
compensation or other considerations.

o A release is typically formalised through a legal

agreement where the plaintiff agrees not to sue or
drop an existing claim, effectively discharging the
tortfeasor from further liability.
o Critical aspects of discharge by release:

o Mutual Agreement: The injured party and the

wrongdoer mutually agree to settle the matter, with
the plaintiff waiving their right to sue in exchange
for compensation (usually monetary) or other agreed
benefits.

o Legal Formality: A release is often documented in

both parties' written agreement or settlement. This
ensures clear evidence of the plaintiff's intention to
release the defendant from liability.

o Full and Final Settlement: The plaintiff cannot

bring further legal action for the same tort once the
release is executed. The release usually covers all
claims arising from the tort, known or unknown, at
the time of signing.

o Scope of Release: The release must be precise in its

scope. It can be a partial release (discharging only
specific claims) or a full release (discharging all
claims related to the tort).
o For example, in a personal injury case arising from a
car accident, the injured party may agree to settle
with the defendant for a lump sum payment to
release them from future claims related to the
accident. After the release is signed, the injured
party cannot pursue further compensation for the
same injury.

o In India, once a valid release is made, the tort claim

is considered discharged, and the plaintiff is barred
from further legal proceedings on the same matter.
Courts ensure that releases are voluntary, without
undue pressure or coercion, and that the injured
party fully understands the consequences of signing
such an agreement.

o According to Section 63 of the Indian Succession

Act, consideration is unnecessary for release.
Therefore, an injured party would be open to
releasing the wrong-doer without consideration.

o But a release executed under mistake (Hore v.

Becher, (1842) 12 Sim 465), or in ignorance of
one's rights (Phelps v. Amcott, (1869) 21 LT 167), or
obtained by fraud (Hirschfield v. S.C. Ry. Co.,
(1876) 2 QBD 1) is not binding.
ACCORD AND
SATISFACTION
o In Indian law, discharge of tort by accord and
satisfaction occurs when the injured party
(plaintiff) and the wrongdoer (defendant) agree to
settle the dispute through a new agreement, known
as an accord, and the subsequent fulfilment of that
agreement, known as satisfaction.

o Once the accord's terms are fulfilled, the tort claim

is considered discharged, and the injured party
cannot pursue further legal action for the same
wrong.
o For example, in a case where a person suffers
property damage due to negligence, instead of
filing a lawsuit, the parties may agree that the
wrongdoer will pay a specific sum of money or
repair the damage. If the wrongdoer fulfils their
obligation, the injured party cannot pursue
further legal claims for the same incident.

o In India, the doctrine of accord and

satisfaction is recognised under general
contract principles and is often used to settle
tort claims without resorting to prolonged
litigation. Courts ensure that the accord is
reasonable and voluntary and that both parties
fully understand the terms of the agreement.
o Critical elements of discharge by accord and
satisfaction:

o Accord: This refers to a new agreement between the

parties, where the plaintiff agrees to accept
something different (such as compensation or a
promise) from the defendant instead of pursuing the
original tort claim.

o Satisfaction: The actual execution or performance

of the accord. Once the defendant fulfils the new
agreement's terms (e.g., compensation payment), the
original tort is settled, and no further claims can be
made.

o Mutual Consent: Both parties must voluntarily

agree to the accord's terms. The plaintiff must
accept the new consideration, and the defendant
must agree to provide it.

o Finality: Once the satisfaction of the accord is

completed, the tort is fully discharged. This means
the plaintiff cannot later change their mind and
pursue legal action for the original tort.
STATUTES OF o In India, discharge of tort by statutes of
LIMITATION limitation refers to the legal principle where a tort
claim is extinguished if not filed within a specific
time frame.

o The Limitation Act of 1963 governs the time limits

for filing various legal claims, including torts. Once
the prescribed limitation period expires, the plaintiff
loses the right to bring the claim to court, and the
tort is considered discharged by operation of law.
o Common Examples:

o Personal Injury Claims: Must be filed within three

years from the date of injury.

o Property Damage: Similarly, the limitation period is

usually three years from the date of the wrongful
act.

o Illustration:
o If a person suffers injury due to a neighbour's
negligence on 1 January 2020, they must file their
tort claim by 1 January 2023. If they attempt to file
the lawsuit after this date, the defendant can invoke
the statute of limitation as a defence, and the
court will dismiss the case.

o In summary, the statute of limitation is a legal

cut-off for tort claims in India, ensuring that claims
are pursued within a reasonable time. After the
expiration of the limitation period, the tort is
considered discharged, and the right to seek remedy
is lost.
o Caution:

o There is a distinction between wrongs that are

actionable per se and. those that are actionable
only where the plaintiff can prove that he has
suffered damage.

o In the first case, the period of limitation runs from

when the wrongful act is committed and, in the
second, from the time of the plaintiff's first
sustained actual injury.
o Critical aspects of discharge by statutes of
limitation:

o Time Limit for Filing a Claim: The Limitation Act

specifies different periods within which a tort claim
must be filed. For most torts, the limitation period
is three years from the date the cause of action
arises unless otherwise specified.

o Bar to Legal Action: After the expiration of the

limitation period, the tortfeasor (defendant) can use
the expiry as a defence, and the court will typically
refuse to hear the case. The claim is considered
discharged, meaning no legal liability can be
imposed after this time.

o Public Policy Objective: The statute of limitations

aims to promote fairness by preventing delayed
claims, which may result in lost evidence or fading
memories. It encourages plaintiffs to pursue their
claims on time and provides certainty to defendants.

o Exceptions: In some instances, the limitation period

may be extended (e.g., when the plaintiff is a minor
or of unsound mind at the time the cause of action
arises). The clock for the limitation period starts
once these disabilities are removed.
THANK YOU!

DR C J RAWANDALE
Email: director@symlaw.edu.in