This element in Winfield’s definition is designed, not so much as to provide a workable tool for identifying various branches of tortious liability. The element operates as a formula for distinguishing Tortious Liability from other forms of legal liability. The Law of Contract, for example, exists at its simplest form, for the purposes of ensuring that parties perform their part of promises or contractual obligations. In contract it is the contracting parties who before hand chart out their respective liabilities, responsibilities and promises. One may dare say that in Contract parties to an agreement determine their own way of binding themselves to their agreement. Tortious duties exist by virtue of the law itself and are not dependent upon agreement or consent of the persons subjected to
33 them. In Tort, parties do not agree before hand the nature of their liabilities. Their respective liabilities are there by virtue of existing law on the matter. The fact that in the Law of Tort liability is fixed by the Law of Torts and not parties distinguishes Law of Tort from Contractual Liability. A breach of contract, which is based on a definite agreement between determinate persons, is an infringement of a right in personam , that is, an infringement of a right available only against some determinate person or body and the community at large has no concern. In the Law of Contract parties determine their own duties and responsibilities and the duty is fixed by the will and consent of definite person/persons. In the Law of Tort, the duty is imposed by the law and is owed to the community at large.
