Liability UNDER jurisprudence

LIABILITY

LIABILITY Presented by :

Divya sampath &Vidur Nair DEFINITION:

Salmond :- Liability and responsibility is the bond of necessity that exists between the wrongdoer and the remedy of the wronged Liability arises from a breach of duty which may be in the form of an act or omission. Liabilities are divided into two types Primary liability : Civil liability : Civil wrong is the against a private individual and the remedy is damages. The liability is measured by the wrongful act and the liability depends on the act and not the intension

Criminal liability : Crime is a wrong committed against the society and remedy is punishment. Liability in a crime is measured by the intension of the wrongdoer.

Secondary liability : Remedial Based on the maxim ubi jus idi remedium [when there is a right, there must be some remedy]

2.Penal Based on the maxim Actus non facit reum , nisi mens sit rea [ where the act does not amount to guilt, it must be accompanied by a guilty mind ]

Theories of remedial liabilityDuties of imperfect obligation :- Those duties where the breach of which gives no cause of action and creates no liability . In civil, criminal , penal and remedial . Ex : Time- barred debt - here though the debt exists it is not enforceable

Duties incapable of specific enforcement :-Duties which from their nature cannot be specifically enforced after having once been broken. There wrongs are transitory and non continuing .In such cases the duty is violated is in its nature capable of specific enforcement

Specific performance inexpedient :-There are many cases where specific performance of a duty is possible, the law may not resort to it. For example, If X contracts to render personal service to Y, Y cannot enforce performance of this contract.

Kinds of acts Voluntary Act and involuntary act :-If the act is willed or deliberate, it is a voluntary act. If the act is without will or not willed, it is an involuntary act. Ex: acts performed by persons suffering from some abnormal condition like acts done in sleep etc.

Intentional and unintentional act :-Intentional act means an act which is foreseen and is desired by the doer of the act. Unintentional act is that act which is not desired or it is not a result of any determination .

Internal and external acts :-Internal acts are the acts of mind while external acts are the acts of the body. Every external act is preceded by an internal act. But every internal act need not necessarily be followed by the external act.

Positive and negative acts :-When the wrongdoer does an act which he should not do, it is a positive act, whereas when the wrongdoer does not do an act which he should do , it is a negative act.

Damnum Sine Injuria Although all wrongs are mischievous acts but all mischievous acts are not wrongs. All damage done is not wrongful. Such wrongs where damage is done without injury are called Damnum Sine Injuria Injury signifies an act contrary to law or violation of a legal right. Salmond says that cases of Damnum Sine Injuria falls under two heads:

Cases in which the harm is done to the individual is a gain to the society at large, therefore, such acts are not actionable. Ex : Competitors do each other harm but not injury.

Cases in which, although real harm is done to the community, yet, owning to its triviality, or to the difficulty if of proof, or for any other reason, it is considered inexpedient to attempt its prevention by the law. Injuria Sine Damnum Converse of Damnum sine Injuria is the maxim Injuria sine Damnum which says that there are certain acts which though not harmful, are actionable. Ex: Case of Ashby v. White where it was considered to be Injuria sine Damnum. In this case , in a parliamentary election the plaintiff was wrongfully prevented by the defendant officer from casting her vote. Although the candidate to whom the plaintiff wanted to vote won the election no actual damage was suffered by her but due to malicious behavior of the defendant which prevented the plaintiff from exercising her statutory right of vote in the election the court awarded some certain amount of pounds by way of recognition of plaintiffs legal right. Mens rea Meaning of mens rea is guilty mind Any act alone does not constitute to crime. It requires a guilty mind behind it . Mens Rea is defined as the mental element necessary to constitute criminal liability .

Salmond criminal liability may require the wrongful act to be done intentionally or with some further wrongful purpose in mind, or it may suffice that it was done recklessly. And in each case the mental attitude of the doer is such as to make punishment effective.

Mens rea must extend to all three parts of the act : The physical doing or not doing. The circumstances, and The consequences Presumption of Innocence One of the fundamental principles of criminal law is that every one is presumed to be innocent until his guilt is proved by the prosecution. But there are certain exceptions of this fundamental principal which are as follows :

A person who is In possession of stolen goods soon after the theft may be presumed by the court either to be a thief or a guilty receiver unless he has a satisfactory explanation for the possession of those goods.Where the accused pleads protection under some of the exceptions or defenses, the court need not presume innocence of the accused. In such circumstances if the defense fails, the accused will be convicted

Stages in commission of a crime Intention :- The first stage consists of the intention or design to commit the crime. The will cannot be taken in for the deed, unless there has been some external act showing progress made towards maturing the crime.

Preparation:-The second stage is that of preparation to commit a crime. It is devising the means or measures necessary for the commission of an offence.

Attempt:-The third stage is attempt, which is the direct movement towards he commission of crime after preparations are made. It is referred as an intentional act carried out by a person towards the commission of the crime.

Commission:-The last stage is Commission , that is when the crime is successfully committed.

MALICE In a narrow and popular sense been malice ill will . In law it means wrongful intention or recklessness. It includes any intent which the law deems wrongful. An act done with a bad intention or with bad motive is said to have been done maliciously. It is divided into two parts Malice In Fact : Is irrelevant except in cases of malicious prosecution, defamation on a privileged occasion , injurious falsehood and conspiracy.

A law does not become unlawful only because it is done with bad motive or malice and similarly , an unlawful act does not become lawful if done with good motive.

Malice In Law : Means a wrongful act done intentionally without just cause or excuse. Such malice is implied in every case where a person has inflicted injury upon another in contravention of the law without just cause or excuse.

12Measures of a criminal liability Magnitude in the offence : It depends upon the intensity of the feelings of reprobation of the community towards the act which constitutes the offence . Other things being equal, the greater the evil consequences of the crime, the greater should be the punishment .

Motive of the offence : Other things being equal , the greater the temptation to commit a crime, the greater should be the punishment - crimes are committed because the offenders find it to their interest to commit them. Severity and penalty increases with the strength of the motives which lead to crime.

Character of offender : The worse character of the offender, the more severe should be the punishment. Law should carefully deal with offenders whose characters are yet to be formed. Juvenile offenders and first offenders may thus be treated leniently by law. Measures of civil liabilities Penal redress involves both the compensation of the person injured and the punishment of the wrongdoer . But in the case of liability , the liability is measured exclusively by the magnitude of the wrongdoer , or the evil tendencies of consideration of the motive, character of the wrongdoer . Therefore, some of the jurists believe that the measure of a civil liability is not in consonance with the penal principles because same liability may prove heavier to one wrongdoer than to the other.

The penal redress is a gain to the wronged person and is loss to the offender. The wronged person becomes directly interested in the prosecution of the case so that the wrongdoer may be asked to redress the wrong . Negligence Negligence is a particular state of mind of the person who does an act . It is culpable carelessness. It is the breach of a legal duty to take care of which results in damage undesired by the defendant to the plaintiff. Thus its ingredients are :

A legal duty on the part of a person[A] towards another person[B] to exercise care n such conduct as falls within the scope of the duty.

breach of that duty .

Consequential damage . Theories of Negligence Subjective theory :- This theory was propounded by Salmond. According to him, a careless is a person who does not care. negligence essentially consists in the mental attitude of undue indifference with respect to ones conduct and its consequences

Objective theory :- Means that negligence is an objective fact. It is not a particular state of mind or form of the mens rea at all, but a particular kind of conduct.

Strict liability These are acts for which a man is responsible irrespective of the existence of either wrongful intent or negligence. They are exceptions to the general requirement of fault. They arise from an absolute liability. Hence the wrong arises from the breach of an absolute duty.

Theories of strict liability Theories of strict liability Ignorantia Juris Neminem excusat States that the legal presumption is that everyone knows the law and ignorance of law is not an excuse. And this presumption is irrebutable.

Mistake of fact :Ignorantia facit excusat ignorance of the fact is an excuse. It means that a person is not liable for a wrongful act if he has done it under a mistake of fact . It is a valid defense against a wrongful act.

Inevitable accident of law :Inevitable accident is commonly recognized as a ground of exemption from liability. It cannot possibly be prevented by the exercise of ordinary care, caution and skill . Accidents are wither culpable [ due to negligence] or inevitable[ due to decree of care exceeding the standard] .

Vicarious liability Vicarious liability is divided into two chief classes :

Master servant relationship where in every person is responsible for his owns acts , but certain circumstances liability attaches to him for the wrongful acts committed by others. Liability of the master for the acts of his servant is both joint as well as several .

Living representatives responsible for the acts of the dead at common law, in the case of the death of a person wronged his executors or administrators could not maintain an action for :- Personal wrongs committed during his life time. Trespass to his goods and chattels Damage for his death . Thank you