of right by reason that he possesses a will.
On the contrary, the will is at the service of law and it is
the interest of man which the law protects.
The symbolist theory is often acknowledged for its availability to justify corporate personality from
non-legal facts but it has been repeatedly rejected by the courts in common law jurisdictions because
it denies the law by deducing that the only legal relation which is fixed and certain can be discovered
by removing the 'brackets' of the corporation and analysing the relations of the human beings
involved.
● The Purpose Theory: This theory is also known as the theory of Zweck Vermogen. Similar to the
fiction and concession theories, it declares that only human beings can be a person and have rights.
Entities other humans are regarded as an artificial person and merely function as a legal device for
protecting or giving effect to some real purpose. As corporations are not human, they can merely be
regarded as juristic or artificial persons. Under this theory, a juristic person is no person at all but
merely as a "subject-less" property destined for a particular purpose and that there is ownership but
no owner. The juristic person is not constructed around a group of people but based on the object and
purpose. The property of the juristic person does not belong to anybody but it may be dedicated and
legally bound by certain objects. This theory rationalized the existence of many charitable
corporations or organizations, such as trade unions, which have been recognized as legal persons for
certain purposes and have continuing funds.
● Group personality theory : This theory supposes that every collective group has a real mind, a real
will and a real power of action. This theory was mainly contended by Johannes Althusius and carried
forward by Otto Von Gierke. Gierke stated that the existence of a corporation is real and not based on
any fiction. It is a psychological and not a physical reality. He further stated that the law has no
power to create an entity but solely has the right to identify or not to identify an entity.
Liability
Definitions:- Liability means vinculum juris — a bond of law //// a legal tie
In civilized societies, most of the relations between the individual and the state are governed by rules
made or recognised 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 it
done.
A breach of these rules is called wrong. When a person has committed a wrong, he is said to be liable.
Salmond - “Liability is a bond of necessity that exists between the Wrongdoer and remedy of wrong”.
Markby - “The word liability is used to describe the condition of the person who has a duty to perform”.
Thus, liability is the condition of the person who has committed a 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.
Liability:- Joint liability, Several liability, Joint tort feasor, Primary liability, Secondary liability, Liability
in Solid.
Kinds of Liability :
According to Salmond: Civil liability, Criminal liability, Remedial liability, Penal liability
Generally there’re : Absolute liability, Vicarious liability, Strict liability, Criminal liability, Civil liability
Civil Liability – In Civil cases imposed by the plaintiff against the defendant where the plaintiff usually
demands compensation or damages from the defendant for the harm caused to him.
Examples or arising out of: Family, Promise, Contract, Breach of duty
Criminal Liability:- In “Criminal cases” imposed by the victim against the accused, the victim usually
seeks punishment in the form of imprisonment or fine for the accused.
Difference between in Civil & Criminal Liability:-
1. Civil liability accrues on an accused if he commits a civil wrong – like negligence defamation etc.
While Criminal liability accrues to an accused if he commits criminal offences like murder, sedition,
theft, rape etc.
2. Civil liability is determined under the CPC while Criminal liability is determined under [Link].
3. The Legal remedy for a civil wrong is the payment of compensation or damages by the wrongdoer to
the victim While the Legal remedy for a Crime is the giving of punishment to the offender by the State.
4. The standard of preponderance of probabilities decides civil cases while in Criminal cases the guilt of
the accused has to be proved beyond reasonable doubt.
Remedial liability- It is based on the maxim “Ubi jus ibi remedium” Which means that “ Where there is
a right there is a remedy.” If Law has conferred a right, then the Law must also provide a remedy to
enforce or claim that right. Similarly, If the Law has imposed a duty, then the law must also ensure its
fulfilment, If there is a breach of duty, there ought to be some remedy prescribed and enforced by Law.
For the breach of a 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:
1. The duties of imperfect obligation. This is the first exception of the rule that a duty is enforceable by
law. Those duties where the breach of which gives no cause or action and creates no liability. 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.
2. Duties incapable of specific enforcement: There are some duties which are of such a nature that if
once broken cannot be specifically enforced (in respect of the act done). There are wrongs that are
transitory and non continuing In such cases the duty is violated is in its nature capable of specific
enforcement. 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).
3. Specific performance inexpedient:- 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.
In Civil cases the liability of the defendant is remedial.
Object of remedial liability:-
1. To protect the right of the plaintiff
2. To provide him compensation or damages in case his rights are infringed.
Penal liability– It is based on the maxim “actus non facit reum nisi mens sit rea” which means that an act
alone does not make a person guilty unless & until it is accompanied with a guilty mind” if the guilt of an
accused is established in a Criminal Case , the court awards him appropriate punishment which may be
simple imprisonment , rigorous imprisonment , fine , death penalty etc.
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:
1. Actus Reus i.e. Physical Act :- Positive Act & Negative Act, Voluntary & Involuntary Act , Internal &
External Act.
2. Guilty mind or mens rea.
Austin - An act is a bodily movement caused by volition which is a movement of human will.
Salmond - An act is any event subject to human control.
Holland - An act is determination of will which produces an affect in the sensible world.
An act consists of three stages:
1. Its origin in some mental or bodily activity or passivity of the doer.
2. Its circumstances
3. Its consequences.
For example, if we take theft, it has five ingredients:
1. Dishonest intention to take property.
2. The property must be movable property.
3. It should be taken out of the possession of another person.
4. It should be taken without the consent of the person.
5. There must be some moving of the property in order to accomplish the taking of it.
If we examine the ingredients, in the light of the above definition, we can say that it is an act according to
the definition. Leaving the first ingredient which is the second condition mens rea, if we arrange the other
ingredients in the light of the definition, intention to take the property is a mental activity where the act
originates. The circumstances are the property must be movable (ingredient 2);
it should be taken without the consent of that person (ingredient 4); there must be some moving of the
property in order to accomplish the taking of it (ingredient 5).
The consequence is that the property is taken out of the possession of another person (ingredient 3).
The law prescribes as to under what circumstances and consequences an act shall be punishable or, in
other words, a person committing the act shall be under penal liability. The circumstances so prescribed
are relevant in determining whether a particular act (wrong) has taken place or not. A person is liable only
for his own acts and not for the acts done by others, or the events which are independent of human
activity.
Kinds of Acts : Acts are of various kinds:
1. Positive and negative acts: when the wrongdoer does an act which 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. Act includes positive as well as negative acts. The Indian Penal Code section 32
says In every part of this code, except where a contrary intention appears from the context,
words which refer to acts done extend also to illegal omissions.
2. 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.
3. Internal and external acts: Internal act means the act of mind and external act means the act
of 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. Internal act is a very important condition in
determining the penal liability.
4. 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 a 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.
Strict liability / Rylands Fletcher rules
Strict liability:- Negligence, Breach of absolute duty, Actual & Proximate Cause – Rylands vs Fletcher
Exceptions to the rule of strict liability:-
a. Natural use of land
b. Plaintiff’s own default
c. Act of God
d. Consent of the Plaintiff
e. Act of Stranger
f. Common benefit
g. Statutory Authority
Apart from the negligence and wrongful acts, there is another class of wrongful acts for which a person is
liable irrespective of mens rea. This liability is called the strict or absolute liability. The strict liability is
an exception to the general rule about the conditions that constitute liability. It is said that in civil wrongs,
strict liability should be the rule. The aim of civil law is to redress the person who has suffered harm and
there is no question of punishment.
Therefore, the person who suffered should be redressed without the consideration as to whether the
wrongdoer did it intentionally or negligently. This view has no wide recognition in modern times because
cases where redress is a penal redress are considered as punishment. In such cases, the damage awarded
to the plaintiff amount to a penalty inflicted upon the defendant for which he is liable.
Therefore, it is argued that there should be no strict liability in civil law also. This view is supported by
many English jurists, and to some extent, it is applied in the English law. In modern times, there is a
tendency of expanding the field of strict liability. In cases where the redress is penal, it is intended more
for mending the conduct of the wrongdoer in future than it is a penalty for subjective guilt.
Condition of strict liability:-
a. Bringing of anything likely to do mischief if it escapes
b. Escape
c. Non natural use of land
Difficulty of knowing the intention: A very strong argument that is given in favour of strict liability is that
it is very difficult to procure the evidence of intention or negligence in every case and it would make the
administration of the justice very difficult. Therefore, in some kinds of cases the law makes a conclusive
presumption of mens rea on the basis of the external conduct. It is clear that this liability would fall very
heavily upon the innocent persons.
But the supporters of strict liability say that it is not as serious and hard as it appears to be. In cases of
civil wrongs, a man does a thing at his own peril; therefore he should be liable for it in every case. In
criminal law, the rule of strict liability is applied only to a comparatively minor and trivial kinds of
offences which in many cases do not imply any moral stigma on the part of the wrongdoer and in majority
of the offences mens rea is a necessary condition for liability. Thus, in criminal law, rule of strict liability
is almost an exception.
The strict liability may be divided into the following three headings:
1. Mistake of law.
2. Mistake of fact.
3. Accident.
1. Mistake of law : The principle that ignorantia juris non excusat (ignorance of law is no excuse) is
followed in almost all the legal systems. A person who has committed a wrongful act will not be heard to
say that he did not know that it was forbidden by law, or, in other words, he did not know the law. This is
an irrebuttable presumption that every person knows the law of the land. This is an instance of strict
liability. The law will not go to make an inquiry as to whether the person taking the defence of the
ignorance of law actually knew it or not. This irrebuttable presumption or, in other words, the strict
liability is on the following grounds.
● First, that law is definite and knowable and it is the duty of every person to know the law
concerning his rights and duties.
● Second, law in most of the cases is based on common sense, or in other words, it is based
on the principle of natural right and wrong which generally every person knows. A person
might not be acquainted with the Indian Penal Code, but he knows that to kill a man
intentionally or to steal is wrong.
● Third, there shall be evidential difficulties in accepting the defence of the ignorance of the
law.
2. Mistake of fact: The principle about it is that ignorantia facit excusat (ignorance of the fact is excuse).
It means that a person is not liable for a wrongful act if he has done it under a mistake of fact. In other
words, mistake is a valid defence against a wrongful act. But this principle applies only in case of a
criminal wrong and not a civil wrong. In civil wrongs, except in few cases, the mistake of fact is not a
valid ground for discharging a person from liability.
3. Accident: A person is not liable for an act taking place accidentally. Accident differs from a mistake of
fact. Every unintentional act is done by mistake when the consequences of the act are intentional, the
mistake is only about the circumstances and in that respect it is unintentional.
For example, For example, if I arrest A taking him to be B, it is a mistake of fact. In this case the
consequence that is arrest is intentional but there is a mistake about the circumstances and I was to arrest
B and not A. So the arrest of A is unintentional.
An act is said to be done accidentally when it is unintentional in respect of its consequences also. The
accident is called inevitable when it could not have been avoided by the wrongdoer and it takes place
without any fault on his part. Culpable accident is no defence, save in those exceptional cases in which
wrongful intent is the exclusive and necessary ground of the liability.
Inevitable accident is commonly a good defence in the criminal law. It exonerates the wrongdoer from the
liability. The rule in Rylands v. Fletcher, and in some other cases of that nature, is that if a person
accumulates or keeps a thing which may cause danger if it escapes, he does it at his own peril and he is
strictly liable for any harm or damage that the thing causes, although it is caused accidentally.
Vicarious liability :
Generally a person can be liable only for his own acts. He can’t be liable for the acts of others, but in
certain situations a person can be made liable for the acts of another person because he stands in a
particular relationship with him. This liability is known as Vicarious liability.
It is based on the maxim —
1. “Oui facit per alium facit per se” Means He Who acts through another does the act himself
2. “Respondeat Superior” Let the superior be responsible
3. He who has set the whole thing in motion must be liable
Circumstances of the arise of vicarious liability:-
● By abetment
● By ratification
● By special relationship :- Principal & Agent, Firm & Partnership, Company & Directors ,
Husband & Wife , Guardians & word , Master & Servant
The principles of vicarious liability in ancient times were that a person must be made answerable for the
acts of the person who are akin to him. With the onward march of time, this principle of liability
underwent a great change, and in modern times, this liability exists in limited kind of cases. Now a person
is made liable on the grounds of expediency and policy, and not on any other ground. The scope and the
field of application of the vicarious liability shall now be described here.
Measure of Liability
Depends upon the theory of punishment and on the concept of the State, the measure of the criminal
liability is different in different legal systems. The measure of the liability is determined on various
considerations.
First, the measure of liability in a particular society depends on the theory, or in other words, the aim of
the punishment recognised in the society. If the punishment is for the purpose of the retribution, the law
will look into the motive of the wrongdoer and would take it as the chief measure of the liability. If the
purpose of the punishment is to reform the wrongdoer, the measure of the liability would be the character
of the wrongdoer and soon.
Second, the measure of the liability depends upon the concept of the State and the kind of the government
in a particular society. In Nazi Germany, to be a Jew was the gravest offence and, similarly to speak and
to act against the wishes of the dictator was a very serious crime. In a socialist State, the grave offences
are those that undermine the interest of the society.
Third, the measures of the liability also depend on the values which are recognised in a particular society.
In India, where sex morality is considered to be a great virtue, the punishment for sexual offences has
been very severe since very early times but in England, where the sex morality is not the same as it is in
India, adultery is not an offence and in some cases seduction is a civil wrong and the wrongdoer is liable
only for compensation. Thus in modern times, the principle is that all the offences do not involve equal
guilt on the part of the wrongdoer and all the offenders are not equally guilty for the same offence.
This being so, the punishment for all kinds of offences and for all wrongdoers having committed the same
offence cannot be uniform. The aim of the law is to bring the maximum good at the cost of the maximum
sacrifice, therefore, in awarding the punishment it proceeds on the same line. If the punishment is same
for assault and murder, a person who intends to cause injury to his enemy would prefer to cause the latter
kind of injury. Thus the uniform punishment for every offence would bring more evil than good.
Similarly, the punishment is very severe such as hanging for petty thefts; it may bring down the crimes,
but the evil so prevented would be far outweighed by that which the law would be called on to inflict in
the cases in which its threats proved unavailing.
Therefore, the different offences have different punishments and secondly, the judge is left with ample
discretion in awarding punishments. The law has generally fixed the maximum punishment that can be
awarded in a particular offence and the judge awards the punishment within this limit taking into
consideration the nature of the guilt, and the character of the offender, etc.
In modern times, though there is a great theoretical support for the reformative theory of punishment, in
practice, the punishment to some extent, serves the retributive purpose and in the most part the deterrent
purpose.
Therefore, the factors which are taken into consideration in determining the liability are the following:
Motive:
1. The motive of the offence is a very important factor in determining the liability. If the motive to
commit the offence is very strong, the punishment must be severe, because the punishment aims at
counteracting the motives which made the offender to commit the crime.
2. The magnitude of the offence: The other things being equal, if an offence brings greater evil
consequence or has greater evil tendencies, the punishment should be severe. Some criticize this view
and say that the liability should not be determined on the basis of the evil caused to a person, but it
should be determined on the basis of the benefit derived by the offender by his wrongful act. It is
submitted that the punishment on the basis of the magnitude of the offence greatly helps in preventing
offences and where the offender is to choose one wrongful act out of many of the same nature, he
would prefer to commit one for which there is lesser punishment. Thus, the severe punishment for
grave offence deters the wrongdoer from committing it.
3. The character of the offender: The character of the offender is also a factor in the measure of liability,
in other words, it is a consideration in determining the punishment. The offenders who have become
habitual and have undergone punishment, to them punishment loses much of its rigour and light
punishment does not deter them. Therefore, they are given severe punishments.
There are some other factors also which are taken into consideration in determining the punishment. One
such factor is the nature of the offence. The offences which are inhuman and heinous deserve severe
punishment. The sensibility of the offender is also taken into consideration. A simple censor or rebuke
might hurt the sensibility of a wrongdoer who did a wrong casually in the heat of a passion or anger and
he may not commit the offence again, but to a habitual offender the censor or rebuke will have no effect,
therefore, he should be given a severe punishment for the same offence.
General Conditions of Liability :
The below are the conditions or the essential elements of liability in tort.
● Wrongful Act: -
To constitute tort there must be a wrongful act committed by the defendant. The expression “wrong act”
denotes commission of an act which is contrary to law or omission of act.
Omission of act for example :- BM fails to maintain a construction situated in the city or if a construction
collapses causing death of people then BM is liable in tort. To constitute tort the act must be wrongful in
the eyes of law and not according to the parties. The wrongful act amounting to tort is decided by the
court. In other words the wrongful act committed by a person is tort or not is decided by the court.
● Injuria Sine Damnum :-
Injury to an individual's legal rights without any loss or damage Thus the term injuria sine damnum
means violation of legal right without damage. In this 'plaintiff’s legal right is affected but has not
suffered any loss or damage.
Ashby v. White : In this case the plaintiff's legal right of voting was isolated or infringed. The defendant,
a voting officer, prevented the plaintiff from voting. The plaintiff filed a suit in the court even though the
candidate to whom he intended to vote got elected. The defendant was held liable on the ground that
plaintiff legal right was infringed or violated.
● Damnum Sine Injuria : -
Damage without the infringement of legal rights in this case the plaintiff suffers loss or damage with any
injury to his legal right. Hence the plaintiff suit is not actionable.
Gloucester Grammar School Case – In this case the defendant started a school and collected a reduced
fee from the student, as a result the students in plaintiff school took admission in defendant school. Due to
the competition the plaintiff has to reduce the fees from 40 pence to 12 pence, due to this the plaintiff
suffered loss and sued the defendant. The court held that the plaintiff suit is not actionable on the ground
that his legal right is not infringed by the defendant.
In this case principle laid down is that every person has right to carry his own trade or profession in
competition with others and if as a result of healthy business competition his rival suffers a loss then he is
not entitled to recover any compensation. Here the defendant setting up his school near the plaintiff
school has exercised his legal right and therefore no action can be taken against him.
Judgment - The court held that the plaintiff is not entitled to any remedy since the defendant has exercised
his legal right by setting up the school without violating legal right.