Prior to the development of these laws, the law of crimes and the law of torts were thought to be interchangeable. A person who has been mistreated has two options: sue in tort or sue in criminal court. However, as time has passed, these rules have evolved to incorporate traits that separate them from one another. Different characteristics have been introduced into both statutes. Tort and criminality are two very different legal concepts. These are very technical concepts that necessitate a broad expertise in order to distinguish them. The fundamental ideas of each phrase aid knowledge of these two terms.

A tort differs from a crime in that it is categorised as a civil offence despite the fact that it is a wrongdoing. A tort is an infringement on a private person's or property's right to privacy.

This article aims to explain the difference between a crime and a tort.

What is a Tort?

“Torts as civil wrong for which the remedy is common law action for unliquidated damages, and which is not exclusively the breach of contract or the breach of trust or other merely equitable obligation”[1]

- Sir John Salmond

“A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury”[2]

- Austin

In simple terms, torts occur when a wrongful act occurs as a result of a violation of duty of care, and that breach causes damage to a person for which he is legally entitled and for which he has a remedy in a court of law. The new emerging definition is simply that it is a civil wrong in which a person can sue another without any prior relationship, as is the case in contract law, and where a person can sue another without relying on the state or its authority, as is the case in criminal law.

What constitutes the law of torts?

1. Wrongful Act: The first and most important element in establishing torts is that the defendant committed a wrongful act, which can be either an active commission of an act or a silent omission of an act that was supposed to be done, and which resulted in a breach of duty that was either imposed by law or was required due to a special position that a person held. The unlawful act is defined as the failure to do or not do anything that a reasonable and sensible person would do or not do.

2. Legal Damage: The legal damage that results from the wrongful act in the first place is the second ingredient that makes up torts. Any breach of a legal right must result in legal damage, which the plaintiff must prove.

3. Legal remedy: The final component of torts is a legal remedy available in a court of law; the harm inflicted must have a remedy, and the court can take action and award unliquidated damages.

What is crime?

“A wrong which is pursued by the sovereign or his subordinates is a crime”.

- Austin

To put it another way, crime is a wrong for which the state would sue the offender since the state has prohibited the activities, which are penalised by the court if they are committed.

To put it another way, a crime is a violation of a law enacted by the authorities, and when such laws are broken by an individual, the state prosecutes the individual. The government provides these laws through various legislation and acts passed by the government.This is not the case in tort law, where the government recognises the rights that have been established via case law and precedent. These rights are not specifically included in any list or legislation, but they are widely recognised by the government and society, and they are upheld by the courts.

What constitutes a crime?

The important ingredients are Mens Rea and Actus Reus:

1.Mens Rea: This is the mental component of a crime; one must have the purpose to conduct the crime; an accident or negligence usually does not constitute a crime. If the person did not intend to perform the act but nevertheless resulted in wrongdoing, there is a potential that they will not be found guilty.

2.Actus Reus: This is the actual conduct of the crime, once the purpose has been formed and the perpetrator acts in accordance with his intent, resulting in Actus Reus and the commission of the crime. A non-commission of crime occurs when there is merely the intention to commit the crime but no action to carry it out.

Mens Rea or Actus Reus will not result in the commission of the crime on their own. Both of these must be present at the time of the crime in order for it to be committed.

What is the remedy in the Law of Torts and Law of crimes?

In tort law, the remedy is compensation in the form of unliquidated damages, which are paid by the wrongdoer who caused the losses and are given to the plaintiff to put him in the same situation as he was before the damages. Compensation in the form of unliquidated losses is calculated based on the facts of each case and the unjust loss and damages suffered by a specific person.

However, in criminal law, if a person is found guilty, he is sentenced to prison. The goal is to make people afraid of committing the crime again, which is in the best interests of society. The severity of the punishment is determined by the nature of the offence and the penalties prescribed by numerous codes and statutes.

Another important point to note is that in the case of a breach of right under tort law, one can mitigate his right to go to court by waiving his right to compensation; however, in the case of a criminal act, one cannot waive his right and the person will be punished regardless of whether one wants to sue or not for the best interests of society and will be prosecuted by the state.

On whom the burden of proof lies?

The burden of proof in torts law is simply preponderance of evidence, which is to satisfy the court of the likelihood of the commission of the act, whereas in criminal law it is beyond reasonable doubt. The threshold is much higher in criminal law than civil or torts law because the stake in criminal law is the life of a specific person, whereas the stake in civil law is not as high, as it only involves damages.

In Torts law, the element of Mens Rea is not required to be proven and does not play a significant role in deciding the fault; hence, even if there is no Mens Rea, the act of wrongdoing would be a tort. Mens Rea, on the other hand, is crucial in determining a person's guilt.

Sources and Development

Torts law has evolved through many precedents, and there is no torts law Act or statute in India; key advancements have occurred through court decisions, and precedent is the most important source of torts law. Though there are precedents in criminal law as well, the majority of the law is governed by statutes and acts. These legislation and Acts serve as a catalyst in the justice delivery system, with court rulings based on them. It's no surprise that a civil claim for Torts would be filed in civil court, whereas a criminal case would be filed in criminal court.

The foregoing distinctions are due to the act's nature. When a person's individual rights are violated, the tort law applies; nevertheless, these violations are less harmful to society and can occur as a result of an accident or negligence. Damages are granted to recover the loss caused by these acts as a result of these features, and no further action is taken to deter these acts. In criminal law, however, some offences are so serious and harmful that they have a societal impact. These considerations are not mitigating in nature, thus these persons are sentenced to prison, which is in the best interests of the society.


With the contrasts listed below, we may conclude that the disparities between the two laws are due to the nature and goal that both laws seek to achieve, which alters the perspective and scope of both laws. In watershed divisions, however, both laws are not wholly distinct. Many parallels exist within the distinctions, broadening the reach of the laws. Despite the fact that these laws are distinct, they both have the same goal of bringing harmony and law and order to society. Both laws have evolved throughout time in response to societal requirements, are always evolving in their sectors, and are assisting in the survival of the hour.


- Shubham Choudhary, Difference Between Torts and Crime, Ipleaders, (April 29, 2019 ), https://blog.ipleaders.in/difference-between-torts-and-crime/

- Ibid.

[1] Shubham Choudhary, Difference Between Torts and Crime, Ipleaders, (April 29, 2019 ), https://blog.ipleaders.in/difference-between-torts-and-crime/ [2] Ibid.

This article is written by Shivani Kharai of CMR University, School Of Legal Studies.

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