Liability

Jurisprudence
Introduction

In civilized societies, most of the relations between the individual and the state are governed by rules made or
recognized by the state, that is, law. Law lays down the rights and duties of the individuals. In other words, it
prescribes what one is to do and what one is not to do and what one is entitled to get done. A breach of these
rules is called wrong. When a person has committed a wrong, he is said to be liable for it.
Thus, liability is the condition of the person who has committed a wrong.
Salmond defines liability as, ‘the bond of necessity that exists between the wrongdoer and the remedy of the
wrong’.
The task of law is not finished only by laying down rights and duties; it ensures their protection, enforcement
and redress also. Therefore, liability is a very important part of the study of law. The kinds of liability, when
one becomes liable or in other words, when liability comes into existence and the measure of liability are the
things that must be known in this connection.
Kinds of Liability

Liability is of two kinds:

Civil. (remedial or penal) and Criminal. (penal)
Remedial and Penal
 Distinction between civil and criminal liability

About the distinction between the two, different jurists have given different views.
Austin says:
An offence which is pursued at the discretion of injured party or his representatives is a civil injury. Offences
which are pursued by the sovereign or by the subordinates of the sovereign are a crime.

Salmond's view is that the distinction between criminal and civil wrong is based not on any difference in the
nature of the right infringed, but on a difference in the nature of the remedy applied.

One view is that the main difference between the two lies in the procedure. In other words, their procedures are
different.
Continued.

Generally, four points of distinction between the two have been put forward:

Crime is a wrong against society but a civil wrong is a wrong against a private individual or individuals.

The remedy against a crime is punishment but the remedy against the civil wrongs is damages.

A third difference between the two is that of the procedure. The proceedings in case of crime, Liability is imposed on
the wrong doer, but in the proceedings in case of civil proceedings, liability is determined by Civil Courts.

The liability in a crime is measured by the intention of the wrongdoer, but in a civil wrong the liability is measured
by the wrongful act and the liability depends upon the act and not upon the intention.
Remedial and Penal liability

The liability can again be classified as penal and remedial.

This distinction has been made on the basis of the legal consequences of the action against the wrong, if after a
successful proceeding the defendant is ordered to pay damages or to pay a debt, or to make a specific
performance, etc., the liability is called remedial liability.

When after a successful proceeding the wrongdoer is awarded punishment which may be a fine, imprisonment,
etc., it is called penal liability. The civil liability is generally remedial and the criminal liability is penal. But this
is not always true. As pointed out earlier, civil liability in some cases is penal. Therefore, civil liability is
remedial and penal both. As far as criminal liability is concerned, with very few exceptions, it is always penal.
Remedial liability

This liability is based on the maxim ubi jus ibi remedium (where there is a right, there must be some remedy). When
law creates a duty, it ensures its fulfillment also. For the breach of duty, there is some remedy prescribed by law and it
is enforced by law. With very few exceptions this is the rule.

The exceptions are the following:

The duties of imperfect obligation. This is the first exception of the rule that a duty is enforceable by law. A
time-barred debt is an example of it. Though the debt exists in law, it is not enforceable. Therefore, there can be no
proceedings to compel its payment.

There are some duties which are of such a nature that if once broken cannot be specifically enforced (in respect of
the act done). For example, in a completed assault (that is actionable as a tort), the defendant cannot be made to
refrain from it (as it is already done and the original state of things cannot be brought).

Cases where, though the specific performance of the duty is possible, the law, on other considerations, does not
enforce the specific performance, but instead awards damages to the plaintiff.
Penal Liability

The Maxim actus non facit reum, nisi mens sit rea (the act alone does not amount to guilt, it must be
accompanied by a guilty mind) is considered to be the condition of penal liability. Thus, there are two conditions
of penal liability:
Act.
Guilty mind or mens rea.
Austin defines the act as a ‘movement of the will'. It is bodily movement caused by volition, a volition being a
desire for a bodily movement that is immediately followed by such movement provided the bodily member is
in a normal condition. Thus, an act is a willed movement of the body.
Kinds of Acts

Acts are of various kinds:

Positive and negative acts: when the wrongdoer does an act that he should not do or in other words, he is prohibited
by law not to do, it is a positive act.
When the wrongdoer does not do an act which he should do, in other words, which he is directed by law to do, it is a
negative act. The act includes a positive as well as a negative act.
The Indian Penal Code section 32 says In every part of this code, except where a contrary intention appears from the
context, words that refer to acts done extend also to illegal omissions.

Voluntary and involuntary acts: If the act is a willed act, it is called a voluntary act, but if the act is not a willed act,
it is an involuntary act. The penal liability is only for voluntary acts.

Internal and external acts: Internal act means the act of mind and external act means the act of the body. An external
act generally implies an internal act also but an internal act is not always translated into an external act. The term ‘act'
is commonly used for external act, but it should not be taken to be restricted to it alone. The internal act is a very
important condition in determining penal liability.
Cont.

Intentional and unintentional acts: 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 so foreseen or desired, or in other words, it is not a
result of any determination. Generally, by act we mean intentional act, but intention is not always necessary
condition of penal liability, and therefore, it is not an essential element in those acts where it is not a
condition of liability. These divisions of act are not exclusive, and sometimes an act may fall into various
classes. For example, an act may be positive, external and intentional at the same time without any conflict.
Wrong ful Acts

Wrongful act means any act, misstatement, or omission in violation of the law, especially the civil law. Wrongful
Acts result in Criminal liability, on proving that the act was dangerous or mischievous even though it did or did
not cause any harm. These acts are mischievous in the eye of law, that is, an act to which law attributes harmful
consequences. Wrongful acts can be classified into two kinds, from the point of view of their consequences.
1. Actual
2. Anticipated
The wrongful acts are divided into two classes:

Actual : Acts which causes some harm, and it is only on this ground that they are considered wrong.
Example: Breach of contract, Malicious prosecution etc.
Anticipated: Acts which are considered as wrong due to their mischievous tendencies. In these acts, proof
of actual harm is not necessary for liability.
Example: Trespass, etc
Damage and liability

In the first class of the wrongful acts, no cause of action arises without some actual damage
but in the second class of acts, the proof of the damage is not necessary, the act alone makes the doer liable.
Generally, though not necessarily, the civil liability arises from the actual damage.
But as crime is a wrong against the society in general, so not only the act but the mischievous tendencies also are
considered wrongful and they are punishable.

Therefore, in criminal law attempt and in some cases, preparation also subjects a person to criminal liability. In the
first class of cases, actual damage does not include every kind of damage. A damage though caused by an act of a
man, is not always wrongful.
Damnum sine injuria (a damage without injury or wrongful act) does not make a person liable.
Damnum sine injuria

It means that though damage has been caused, it does not amount to a wrongful act( legal injury is
missing) . Such cases are of two kinds:
The cases where though some damage is caused to an individual nevertheless it is a gain to the society at
large, for example, a competition in trade causes damage to some of the traders, but as it is a gain to the
society, therefore, the trader whose competition causes damage is not liable.(No legal injury)

The cases where though some harm is caused, it is so trivial that it is the policy of the law not to take action
against the doer. (harm feeble)
Causation

Causation is the “causal relationship between the defendant’s conduct and the result”. In a criminal activity,
there are always these three elements namely –
actus reus,
mens rea
and causation.
Despite the presence of both actus reus and mens rea, a criminal act can be unsustainable in the eyes of law
because of the absence/lack of causation.
For example, A intending to murder B puts a bomb in his car, B dies because of the car accident with someone
else but not because of that bomb. Now in such a situation, A can’t be held liable for the said murder, despite
having that mental element and the act. The simple reason is that A’s action didn’t cause B’s death and therefore,
A will only be held liable for an attempt to murder. Therefore, causation is an indispensable element of criminal
law.
Mens Rea

Mens rea means to have "a guilty mind." Mens Rea or the mental element of crime is a very important part of
criminal law in India as well as other countries. Most laws in India contain the element of guilty mind so as
to make an act by a person criminally liable for punishment.
Mens rea is a Latin term meaning guilty mind.
Mens rea Means an intention to do forbidden act.
It is defined as the mental element to constitute criminal ability.
Mens Rea is constructed from a person’s thought process, their motive and intention.
Intention

It is the state of mind of the person doing the crime. It can be proved when the defendant can foresee
virtually that the consequences of the action of the person is going to kill, cause grievous injury or any other
prohibited harm to them.
Malice

Malice means spite or ill-will in the popular sense. When an act is done with bad intention, called Malice. An
act or statement becomes malicious if used for purposes other than those sanctioned by the law authority.
It is possible to discuss the term malice in both legal and popular sense. In the legal sense, it means’
intentional wrongdoing, without a just cause or excuse or a lack of a reasonable or probable cause’ and it is
known as ‘malice in law’ . In the popular sense, it means’ an improper or evil motive’ and it is known as
‘malice in fact’.
It emphasizes here that this wonderful act does not become lawful merely because the motive is good.
Similarly, a lawful act does not become wrongful because of an improper, bad or evil motive or malice.
In the case of Town Area Committee v. Prabhu Dayal AIR 1975 All 132, the court observed that “mere
malice cannot disentitle a person from taking recourse of law for getting the wrong undone. It is, therefore,
not necessary to investigate whether the action is motivated by malice or not.”
Negligence and Recklessness

It cannot be used as a synonym for Mens Rea but while looking for guilty intent in any criminal case this
aspect is also covered. Negligence is the lack of attention or due care that a reasonable or prudent person may
have while performing any task. For a negligent act to turn into criminal negligence its degree shall be high
enough to cause criminal liability. Section- 304 IPC
Strict Liability

There are some criminal laws that don't require any mens rea. These strict liability laws apply to certain acts
which deserve criminal punishment regardless of intent, usually those involving minors.
It is another class of crimes referred to as strict liability crimes. Strict liability crimes, also known as public
welfare offenses, are crimes that do not require mens rea. The defendant could be found guilty merely
because he committed the act.
Some examples of crimes that fall into the strict liability category are:
Rape.
Selling alcohol to minors.
Bigamy.
State of Maharashtra v. M. H. George

In the case of, a very famous case in India, it was held that “Merely because a statute deals with a grave
social evil is not sufficient to infer strict liability, it must also be seen that whether the imposition of strict
liability would assist in the enforcement of the regulations. Unless this is so, there is no reason in penalizing
him and cannot be inferred that the legislature imposed strict liability merely to find a luckless victim.”
Finally, the court decided that when the accused was held loaded with gold bars in his jacket beyond the limit
allowed under the provisions of FERA, 1947, the doctrine of mens rea cannot be applied here. The object and
purpose of the Act will be defeated if the accused is allowed to take the plea of ignorance of the law and
validate his action accordingly. Even the ignorance of the law is not allowed as a valid defense. According to
Sir J. Stephens, the doctrine of mens rea is misleading as the doctrine originated when criminal law
practically dealt with offenses that were not defined. In the present scenario, however, every crime is defined
precisely.
Vicarious liability

Vicarious liability is a legal term used to explain the legal responsibility one party may hold for actions that cause
harm, even if they aren’t the party that directly caused the harm. Also sometimes referred to as imputed liability,
vicarious liability states that any party who is in an authoritative legal relationship with another party is legally
responsible if their actions cause harm to the other party.
Vicarious liability exists outside of the employee/employer relationship, including in areas such as the medical field
and business partnerships. On a much smaller scale, someone who owns a vehicle is vicariously liable for the actions
of any individual whom they permit to operate their vehicle.
The fact is that vicarious liability is designed to keep individuals and larger parties accountable and make sure that
someone or some entity is held responsible for harm caused to the innocent. The reality is that vicarious liability – and
all the gray areas within it – can lead to sometimes frivolous, ridiculous, and unfair legal actions against employers,
companies, or relatively innocent or unknowing parties.