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On the Concept of Tort

Published online by Cambridge University Press:  12 February 2016

G. Tedeschi
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Extract

Under common law and in other legal systems, including our own, which have in whole or in part adopted English tort law, each tort possesses its own special physiognomy. Yet, the very term “tort” in its generality attests to the existence of certain elements, in addition to those which distinguish one tort from another, common both to the constituent facts—the situations giving rise to tortious liability, as hypothesized by law—and to the normative provisions—the general body of rules which in Israel is set out in various sections of the Civil Wrongs Ordinance, 1944–1947. We may, therefore, speak of a law of torts, with every tort having its own characteristic features, as well as of a law of tort, with one concept embracing the totality of torts. By attributing to these expressions a meaning other than that ascribed to them by the two schools of thought which have considered them antithetical, we indicate a state of co-existence.

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Articles
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Israel Law Review , Volume 3 , Issue 2 , April 1968 , pp. 161 - 183
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1968

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References

1 Cf., e.g., Winfield, , Law of Tort (8th ed.), 4Google Scholar; Province of the Law of Tort, 40.

2 Cf., e.g., Winfield, Tort, cit., 2, 3; Paton, , Jurisprudence (3rd. ed.), 241, 242Google Scholar; Prosser, , Torts (3rd ed.), 5Google Scholar; Street, , Torts (3rd ed.), 39Google Scholar; Fleming, , Torts (3rd ed.), 3.Google Scholar

3 Cf. Seavey in (1931–32) 45 Harv. L.R. 209, 210.

4 Op. cit., 211.

5 Province, 237–38.

6 For a similar formulation in English law see Underhill, , Torts (16th ed.), 211Google Scholar, Art. 81 (3).

7 Cf. Seavey, op. cit., 20; Fleming, op. cit., 3; Prosser, op. cit., 5.

8 Winfield (Tort, 710; Province, 230) does not ignore the fact that also in English law the breach of statutory duty may contemplate a duty towards specified individuals and even a single legal person but he considers these rare instances to be undecisive. For the purpose of definition his view is unacceptable, even if the exceptional case constitutes a single instance or even only a potential one. When in doubt whether a certain wrong constitutes a tort, we cannot accept the fact of an invasion of a jus in personam or the breach of a duty in personara as necessarily involving a negative reply. But since these torts are rare, when it is doubtful whether an act constitutes a tort, the presence of these characteristics may contribute to a negative solution and their absence to the opposite solution.

9 See Winfield, , Province, 233Google Scholar: (In an action for damages in tort) “the courts must at least hear what the plaintiff has got to say, even if they come to the conclusion that the defendant has, in the circumstances of the case, nothing to which he need answer.”

10 Cf. Paton, op. cit., 241, 438 et seq.

11 Terry, , Some Leading Principles of Anglo-American Law (Philad. 1884) §§21, 142, 143, 154.Google Scholar

12 Cook, W. W., “Powers of Courts of Equity” (1915) 15 Col. L.R. 37, 45.CrossRefGoogle Scholar As regards one aspect of Cook's thesis, see the remark of Kocourek, , Jural Relations (2nd ed.Indian, 1928), 345.Google Scholar

13 Dearle v. Barret (1834) 2 A & E. 82; Davys v. Richardson (1888) 21 Q.B.D. 202.

14 In Israel law see sec. 6 of the Adjudication of Interest Law, 1961, which must be supplemented by English law in compliance with Art. 46 of the Palestine Order in Council.

15 See, for trespass, the obiter dictum of Judge Zeltner in the case of Ben-Gurion v. Apelbaum & ors. (1957) 14 P.M. 307, 354, where the rule mentioned is termed “the addition of the element of the existence of damage in trespass”.

15a But see also n. 17 below.

16 In the two forms in which this may occur: a simple dismissal of the claim or a formal recognition of it by an award of nominal damages only.

17 Or pecuniary loss, where this is required by the Civil Wrongs Ordinance as a condition to a claim for compensation. But a different view could perhaps be suggested here: since apart from the special cases therein mentioned, the Ordinance considers as compensatable even damage which is not pecuniary, the rules regarding pecuniary damage may be regarded as denying any compensation (actual and potential) even when it should be payable according to the general principles set out in the Ordinance, in other words, as provisions departing from the usual rules of tort. But from this view one must not deduce that the concept of tort does not include a right to compensation; one should rather say that the rules of tort do not apply in their entirety to such cases, or that these cases do not constitute torts except in a special and limited sense.

18 See Penal Law Revision (Modes of Punishment) Law, 1954, sec. 31, as amended by sec. 14 of the Penal Law Amendment (Modes of Punishment) (Amendment No. 5) Law, 1963.

19 See State of Israel v. Kleiman (1965) (II) 19 P.D. 152, 157.

20 Winfield, , Province, 202et seq.Google Scholar

21 Cf. Paton, op. cit., ch. XIX (“Remedial Rights”).

22 Cf. Austin, J., Lectures on Jurisprudence (5th ed.), II, 769.Google Scholar

23 Cf. Savigny, , Oblig. Recht (1851–1953), II, 294Google Scholar; Regelsberger, , Pand. I (1893), 645Google Scholarbis et seq.; Crome, System d. bürg. Recht (1900–02), II, 1011 et seq.; Eltzbacher, , Handlungsfähigkeit, I (1903) 350Google Scholar; Allara, , Vincende rapporto giur. (1941), 671Google Scholaret seq.; De Cupis Il danno (1947), 340.

24 But let us note that according to Kocourek (op. cit., 345) a sanctional duty such as that to pay damages is an “infringible” duty in the sense that its breach does not give rise to a different obligation (to remedy the breach) but prolongs the existence of the original duty.

25 See, e.g., with regard to the breach of the obligor, Kocourek, op. cit., 345.

26 In the sense that the negative solution in tort derives from English law (according to sec. 15 of the Civil Wrongs Ordinance) whereas in other cases the opposite solution prevails under the Mejelle.

27 Seavcy, op. cit., 211.

28 Cf. Mayne and McGregor, Damages (12th ed.), 357; Arminjon, Nolde, & Wolff, , Droit Comparé, 3 (1951), 170Google Scholar: “en matière de délits, les dommages ne peuvent évidemment pas être ‘liquidés’ ou déterminés d'avance”.

29 Cf. Carriage by Air Act, 1961.

30 See the ratification of the Convention by Israel, Yalkut Hapirsumim 1203 of August 5, 1965.

31 See e.g. Winfield, Tort, 703; Province, 233. He mentions this reason to justify the exclusion of injunctions from the definition of tort, although they may be granted in respect of every or nearly every tort. In our law there are absolutely no limitations according to the nature of the tort.

32 See Barak in the chapter on injunctions in the collective work (Tedeschi, Barak, Cheshin, Englard) about to be published in Hebrew on the general law of tort. A tendency is discernible in this connection, as in others (such as the use of “compensation” for “damages” and the very title “Civil Wrongs Ordinance” and not “Torts Ordinance”), to merge for purposes of export common law and equity and to abandon certain special national and traditional characteristics.

33 Cf. Pollock, , Torts (1939), 147Google Scholar: “no question of remedy in such a case”.

34 Enlargement of the term “remedy” to include prevention, as in some English legal dictionaries, does not accord with the definition in the Oxford English Dictionary.

35 Hanbury, , Modern Equity (1962), 375.Google Scholar

36 Tort (7th ed.), 10; Province, 232.

37 Austin, , Lectures on Jurisprudence, cit., II, 761Google Scholar, distinguishes the rights and duties arising from a delict between sanctioning or preventive and reparative or remedial.

38 Even Pollock, op. cit., 146, despite his quoted remark, deals with self-defence in his chapter “of remedies for tort”.

39 For such a case see Cooperative House C. v. A. & M. Lampert (1956) 10 P.D. 197; and see Herzl Square Ltd. v. Goldberg (1965) (IV) 19 P.D. 107, 110.

40 A similar consideration could justify or explain the conception of a prohibitory injunction as a remedy but it seems less natural in relation to the facts to which a prohibitory injunction may pertain.

41 Kocourek, op. cit., 346.

42 Cf. Austin, Lectures on Jurisprudence, I, 443 et seq.: “conditional evil (…) to produce obedience (…)”.

43 See Cooperative House C. v. A. & M. Lampert, ubi supra.

44 See in English law Leeds Industrial Co-operative Society v. Slack [1923] 1 Ch. 431; [1924] A.C. 851 and in our law sec. 59 (3) of the Civil Wrongs Ordinance.

45 Hanbury, op. cit., 566.

46 Cf. Winfield, , Province, 233Google Scholar; Presser, op. cit., 2. Cf. etiam Fleming, op. cit., 1.