Extinguishment and Discharge of Liability in Tort

5. Acquiescence. Where the person injured stands by, with knowledge of his rights, and allows the other party to act on the assumption that no claim will be made, he may be precluded from suing later. Mere delay short of the limitation period is not acquiescence; there must be conduct from which assent can be inferred.

6. Judgment recovered. Once a court has given judgment on a claim, the same claim cannot be brought again. The Latin tag is transit in rem judicatam, the cause of action passes into the thing adjudged. Two consequences follow: a plaintiff must claim all his damages in one action, and a single wrongful act cannot be split into several suits. Where a single act violates two distinct rights, for example an assault that both injures and defames, separate actions may lie.

7. Limitation. The expiry of the period prescribed by the Limitation Act 1963 bars the suit. Section 3 requires a court to dismiss a suit filed after the period even where limitation is not set up as a defence. Chapter [Limitation in an Action for Tort] works out the periods.

The one mode that extinguishes the RIGHT and not merely the remedy

The rule everywhere else is that limitation bars the remedy and leaves the right alive. Section 27 of the Limitation Act 1963 is the exception, and it is the reason MU's topic is called "extinguishment": at the determination of the period limited for instituting a suit for possession of any property, the person's right to that property is itself extinguished.

So a trespasser who is left in adverse possession of land beyond the period does not merely become immune from a suit; the owner's title goes. That is extinguishment in the strict sense, and it is worth knowing that it applies to possession of property and not to a claim for damages.

A worked example

Latha's car is damaged when Naveen reverses into it in 2023. Consider five different endings.

Ending one. Naveen offers Rs. 40,000 and Latha accepts it and is paid. That is accord and satisfaction, and the liability is discharged. If he had promised the money and never paid, there would be accord without satisfaction and Latha could sue on the original claim.

Ending two. Latha writes to Naveen saying she will not pursue the matter. That is a release, and unless it was obtained by fraud or coercion the claim is gone.

Ending three. Naveen sells the wreck of Latha's car and keeps the money. Latha sues him for the price rather than for the damage. She has waived the tort and elected the other remedy.

Ending four. Latha sues for the cost of repairs, wins, and then discovers she also had a claim for loss of use during the repairs. She cannot bring a second suit: the cause of action has passed into the judgment.

Ending five. Latha does nothing until 2029. Her suit is barred by limitation, and section 3 of the Limitation Act 1963 obliges the court to dismiss it even if Naveen never raises the point.

Distinctions that carry marks

What it does NOT mean

Limitation does not usually destroy the right. It bars the remedy. Section 27 of the Limitation Act 1963 is the exception, and it concerns suits for possession of property.

Delay is not acquiescence. Acquiescence needs knowledge of the right and conduct from which assent can be inferred.

An unpaid promise is not satisfaction. Accord without satisfaction leaves the claim alive.

Death does not discharge everything. The Fatal Accidents Act 1855 and section 166(5) of the Motor Vehicles Act 1988 have cut the old maxim down a long way.

Quick revision

1. A defence denies that liability arose; a discharge ends a liability that did.
2. Seven modes: death of a party, waiver, accord and satisfaction, release, acquiescence, judgment recovered, limitation.
3. Actio personalis moritur cum persona is cut down by sections 1A and 2 of the Fatal Accidents Act 1855 and by section 166(5) of the Motor Vehicles Act 1988.
4. Accord is the agreement, satisfaction is its performance; accord alone discharges nothing.
5. Waiver is an election between inconsistent remedies.
6. Transit in rem judicatam: a plaintiff must claim all his damages in one suit.
7. Section 3 of the Limitation Act 1963 obliges a court to dismiss a time-barred suit even if the defence is not pleaded.
8. Section 27 of that Act extinguishes the right itself where the suit is for possession of property.

Test yourself

1. How is liability in tort extinguished or discharged? By seven modes. The death of a party, so far as the action does not survive, though the Fatal Accidents Act 1855 and, for motor accidents, section 166(5) of the Motor Vehicles Act 1988 have cut this down. Waiver, where a plaintiff having two inconsistent remedies elects one and abandons the other. Accord and satisfaction, where he agrees to accept something in place of his right of action and that agreement is performed; accord without satisfaction discharges nothing. Release, a voluntary relinquishment of the right of action, which is ineffective if obtained by fraud or coercion. Acquiescence, where with knowledge of his rights he stands by and allows the other party to act on the footing that no claim will be made. Judgment recovered, since the cause of action passes into the judgment and cannot be sued on again. And limitation, since section 3 of the Limitation Act 1963 obliges a court to dismiss a suit brought after the prescribed period.

2. Distinguish a general defence from a discharge of tort. A general defence denies that liability ever arose: volenti non fit injuria, inevitable accident, act of God and statutory authority all say that what the defendant did was not a wrong at all, and the facts that establish them belong to the incident itself. A discharge admits that liability arose and asserts that it has since come to an end, and the facts that establish it are later than the wrong: a payment accepted, a release given, a judgment obtained, a period allowed to expire. The distinction decides how the case is pleaded and proved, and it also decides the order in which a court takes the questions, since a discharge is irrelevant unless liability is first established.

3. Explain accord and satisfaction with an illustration. Accord is the agreement by which the person wronged accepts something in substitution for his right of action; satisfaction is the actual performance of that agreement. Both are needed. If a car owner whose vehicle has been damaged agrees to take Rs. 40,000 in full settlement and the money is paid, the liability is discharged and no suit lies. If the agreement is made but the money is never paid, there is accord without satisfaction, the discharge fails and the original claim survives, so the owner may sue on the tort. A satisfaction accepted from one of several joint tortfeasors ordinarily discharges the others as well, because the plaintiff is entitled to one satisfaction only.

4. Does limitation destroy the right or only the remedy? As a rule it bars the remedy and leaves the right intact, so a time-barred debt may still be paid voluntarily and a time-barred claim may be set up as a defence in some circumstances. Section 3 of the Limitation Act 1963 gives the bar teeth by requiring a court to dismiss a suit filed after the prescribed period even where limitation is not pleaded. The exception is section 27, which provides that at the determination of the period limited for instituting a suit for possession of property, the right to the property is itself extinguished. That is why the syllabus calls this topic extinguishment: for possession, the right and not merely the remedy is lost.