Author: Ria Tandon, Research Associate
When we have come down to bringing out a difference between Crime and Wrong at Common law then the immediate idea, which would strike the mind of any person would be that of crime versus torts or civil wrong. However, through this paper author tries to define the meaning of other wrong besides what wrong really is with respect to Common law.
Crime is defined according to the Black’s law dictionary ((Black’s Law Dictionary, 5th Ed))as “Any act which is done in violation of those duties which an individual owes to the community, and for the breach of which the law has provided that the offender shall make satisfaction to the public . A crime or public offence is an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed upon conviction, either, or a combination, of the following punishments: (1) death; (2)imprisonment; (3) fine; (4) removal from the office; or (5) disqualification to hold and enjoy any office of honor, trust, or profit. While many crimes have their origin at common law, most have been created by statute; and, in many states, such have been codified.”
Torts has been defined from the same source as the above as “A private or civil wrong or injury, other than breach of contract, for which court will provide a remedy in the form of an action for damages. 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 a violation of some duty owing to plaintiff, and such duty must arise by operation of law and not by mere agreement of the parties”.
While wrong has been defined by Black’s law dictionary as” A violation of the legal rights of another; an invasion of right to the damage of the parties who suffer it, especially a tort. It usually signifies injury to person, property or relative non contractual rights of another than wrongdoer, with or without force, but, in more extended sense, includes violation of contract”.
Thus by stating these definitions of crime, torts, and wrong we can get a clear idea what exactly other wrongs mean. It is very clearly stated in the definition of wrong that it refers to torts especially and in more extended sense it refers to the violation of contract which as we know doesn’t come under torts , and is rather an exception. A breach of contract is basically the duty which two individual parties have towards each other but both breach of contract and tort are against the criminal liability ((Available at http://keepingitlegal.net.nz/learn-more/torts-criminal-offences/)).
DIFFERENCE BETWEEN CRIME AND CIVIL WRONGS BASED ON THEIR ELEMTARY NEEDS
From the recommencement the idea of crime and civil wrong or tort in this case was not very sharply distinguished. The problem was, whatever principles people had learned for understanding ((Available at http://www.articleclick.com/))of criminal law was applied to that of civil law. In common law, a victim was able to gain justice ((David J. Seipp, The Distinction Between Crime and Tort in the EarlyCommon Law, 76 B.U. L. REV. 59, 59 (1996).))for the same wrongful act which was committed either through criminal law or through law of tort. Hence here are some differences between the wrong.
- Theory of Offence ((Available at http://legacy.earlham.edu/~peters/courses/ct/crimtort.htm)): When we talk with reference to this theory we can very well see that in crime the offence is against the whole society hence it prohibits public wrong while in civil law the offence is against an individual who has suffered the injury, it caters to private interest and private wrong ((Note, Victim Restitution in the Criminal Process: A Procedural Analysis, 97 HARV. L. REV. 931, 934-35 (1984).)).
- Purpose – One of the most carved out distinction between the purpose of the two is that criminal law when there is a violation of the laws the guilty is punished by following incarceration in a prison ((Available at http://www.diffen.com/difference/Civil_Law_vs_Criminal_Law)), fine or both and last but not the least with death penalty. While in civil wrong the person who is at fault is liable to provide reimbursement to the injured.
- Very peculiar thing which is noticeable in crime is that the state prosecutes the person at fault for the offence, and there is nothing as consent when a prosecution is brought. While when it comes to that of civil wrong, the victim is the main master to decide whether he would like to claim for tort or would choose not to do so ((Indeed, one recent theory of tort law, the civil recourse theory, championed by John C.P. Goldberg and Benjamin C. Zipursky, claims that the optional quality of a tort lawsuit is one of its most important, defining characteristics. John C.P. Goldberg & Benjamin C. Zipursky, Accidents of the Great Society, 64 MD. L. REV. 364, 402-03 (2005); Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695 (2003). I am not so sure)).
- Proportionality-In theory of criminal law, at least, we come across the fact that the Punishment which is given to the offender should be in proportion to the culpability of the actor and how serious the wrong which has been committed. But in tort law it does not support the remedies ((See John C.P. Goldberg & Benjamin C. Zipursky, Tort Law and Moral Luck, 92 CORNELL L. REV. 1123, 1142-43 (2007).))which are in proportion to the wrong committed to injurer . The compensation which is provided in civil wrong done based the idea of proportionality. For example for say there are three people A, B and C who the wrong of negligence in various degree but the compensation would be in proportionality for all three offenders.
- Burden of Proof- The category of the responsibility which lies in crime is that of guilt ((Available at http://legacy.earlham.edu/~peters/courses/ct/crimtort.htm))which needs to be proved by the government so as to make a point of proving the that the defendant ((Available at http://www.diffen.com/difference/Civil_Law_vs_Criminal_Law))was found to be guilty since the burden of proving lies entirely on the government. While in case of civil wrong plaintiff is entrusted with the work of burden of proving and then it later on shifts to the defendant , when he has to refute the evidence which is provided by the plaintiff.
- Time of Action- The deadline or the final time of action in case of Crime is that there is a concept of Statute of Limitation involved for all crimes except in case of murder ((Available at http://legal-dictionary.thefreedictionary.com/Statute+of+Limitations)). In this case the time limit is calculated from the time the crime was committed. Once the statute expires, the court cannot charge punishment to the defendant. While when we talk with reference to the civil wrong we find that the type of cause of cause of action plays a major role when it comes to deciding onto the statutory limitation period. Civil wrong is also guided by the principle of equitable estoppels ((Available at http://en.wikipedia.org/wiki/Estoppel_in_English_law))when it comes to the deadline of action and laches ((Available at http://www.translegal.com/legal-english-dictionary/laches)).
These were basically the difference between the civil wrong/ tort and crime. Now through this paper I would like bring out the difference between crime and Breach of Contract , which have already proved to fall under the category of civil wrong ((Available at http://en.wikipedia.org/wiki/Civil_wrong)).
DIFFERNCE BETWEEN CRIME AND BREACH OF CONTRACT
When coming down to distinguishing these three : tort, breach of contract and crime we found the following difference
- A contract mainly consists of a promise factor for which the law provides with a remedy ((RESTATEMENT (SECOND) OF CONTRACTS § 1 (1981).))in case there is a violation of the promise kept. .If the party fails to fulfill the promise which is contractual in nature or conveys to the other person that he won’t be able to honor the contract then he seems to have committed breach of contract ((Available at https://en.wikipedia.org/wiki/Breach_of_contract)). This is regarded to be strict liability standards ((Available at http://en.wikipedia.org/wiki/Strict_liability)). The breach of the contract gives the party who is injured the right to seek monetary reimbursement unlike in the case of state which does not wish for non-monetary punishment in such breaches ((RESTATEMENT (SECOND) OF CONTRACTS § 1 (1981).)). While Crime seems to differ from contracts. The state in this case can seek for sanctions as well as give punishment such as imprisonment ((The state can also pursue fines as applicable. See MODEL PENAL CODE § 302.1 (1985).)). Moreover the main contention which needs to be understood is that everything which is found to be equal in crime receive criminal punishment only while in contracts the result is civil liability.
- An excellent example from the view of economics theory would be the best. Hence when we take the example of the concept described by Richard Posner , he uses the idea of something which a person can gain voluntarily , being more efficient and the involuntary transaction so as to come to a conclusion with respect of criminal punishment and the sanctions ((Posner, supra note 8.))which are civil in nature. He gives an example to explain such idea. He says that it would be more easier to have the neighbor ‘s car ((Posner, supra note 8, at 1196.))through negotiation or rather than simply just taking it. Stealing of the car would not improve the allocation of the resources ((Id.))since it would not make it more valuable , since the person who wants car is not ready to pay the price of the car. If the person is allowed to steal the car then the owner will have to use more resources which would mean that the victims resources which would be used to prevent the car from being taken. This would only result in the increase in the amount of expenditure and there would be no social benefit ((Id.)).
When it comes to the point of criminal law it is seen that if the point is mainly not to encourage behavior ((Id. at 1206))which is inefficient then in that case Poser is right in his approach when he says that tort law is not enough for fighting it. He explains by basically putting total focus on the subject of the ineffectiveness of pricing crimes. He states that the people who are from affluent class would come into line only when monetary sanctions are imposed, but when it comes to non-affluent members of the society it would just not work on them. Since they would not be in a position to pay money hence crimes like rape are prices to be very high. He then again goes on to give the example wherein there is for say a car which and accident ((Id))occurs so in this case. If the penalty was found to be imprisonment then some would give up driving but no we know that driving is a necessity so only compensation would be preferred rather than punishment.
- Describing the differences in a nut shell are as follows :
- The purpose of the criminal law is basically use the force of punishment as a sanction while as that of breach of contract is that to protect the rights of the parties by providing them with compensation based on monetary.
- Men rea ((Available at http://www.shareyouressays.com/118921/distinction-between-crime-and-breach-of-contract))is the main factor behind when we talk with reference to crime or that of imposing the criminal liability on the person who is at fault while when we talk with reference to the breach of contract there already the pre-settled damage at hand.
- When we talk with reference that the wrongdoer has the duty in rem ; which means that he should not harm anyone. It is a duty which is stated in that statute. While in breach of contract the right is available only against a private person.
Through this paper, Author has tried to differentiate between the nature of crime and tort, which is also called the Civil wrong. It was found that in crime, the wrong is against the public mainly and tort is against the private party. Crime and civil wrong are of the same nature at some point or the other but some elements is what makes all the difference. In both breach of contract and tort compensation is provided while in case of crime punishment is the only thing many a times.