PREPARED BY – BHARGABI BARUAH
ISBR LAW COLLEGE
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.
Thus, liability is the condition of the person who has committed a
wrong
Salmond -
According to Sir John Salmond, "liability or responsibility is the bond
of necessity that exists between the wrongdoer and the remedy of the
wrong.“ (Vindiculam)
Markby -
According to Markby, the word 'liability' is used to describe the
condition of a person who has a duty to perform whether that duty is
primary one or secondary or sanctioning one.
Austin -
Austin prefers to use the term 'imputability' to 'liability'. According to
him, Those certain forbearances, Commissions or acts, together with such
of their consequences, as it was the purpose of the duties to avert, are
imputable to the persons who have forborne omitted or acted.
Kinds of Liability
Liability is of two kinds:
Civil.
Criminal.
Distinction between civil and criminal liability
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. All absolute obligations are enforced criminally.
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.
Generally, four points of distinction between the two have been put
forward:
Crime is a wrong against the 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 are criminal proceedings, but the
proceedings in case of a civil wrong are called civil proceedings and
criminal and civil proceedings take place in two different sets of 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 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 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:
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.
Duties which by nature are incapable of specific
performance
Where specific performance is inexpedient or inadvisable.
Liability generally are studied
Civil Liability
Criminal Liability
Tortious Liability
Vicarious Liability
Strict and Absolute Liability
Absolute and StrictLiability
Criminal Liability
When a person is guilty of committing an Offence with criminal intention
then he is liable for punishment
Wrong doer in criminal liability is liable to punishment after criminal
proceeding
“Actus non facit nisin mens sit rea” – offender is guity when he does with
an guilty mind
Important Aspects
- Mens rea – Mental Element
- Actus rea – Physical element
- Intention – Act
- Motive – ulterior Object
Stages of Commission of Crime
[Link] – Mens rea
Intention is different from Malice, Motive , Expectation,
knowledge
2. Preparation – Actus reus
3. Attempt
4. Completion
Punishment – Detterent , Preventive , Retributive , Reformative
Exceptions – Accident , Mistake , Infancy, Intoxication, Consent
, (sec 76- Sec 95) Communication, Private defence (sec 96 –
106)
Tortious Liability
Meaning – Tort is civil wrong
Two principles
Damnum Sine Injuria – Damage without violation of Law ( Glouster
Grammar School case , Ushabhahen Vs Bhagyalaxmi Chitra Mandir
Injuria Sine Damnum – Violation of Law without causing damage (
Ashy Vs White , Bhim Singh Vs State of Jammu and Kashmir
Exceptions
Jus Necessities – ( Theory of necessity)
Necessaties non habet legam- Necessities knows no Law
Mistake of fact
Sec 76
Mistake of Law
Mistake of fact – If a person is in goodfaith believing himself to be justified in
doing so and due to mistake of fact commists a wrong
Mistake of Law – Ignortia Juris nonexcusat . Ignorance of Law is no excuse for
breaking or violating it
Vicarious Liability
Meaning – One person becoming liable of another persons action
Maxim-
“Qui facit per alium facit per se” – He who does the act through another
does it by himself
“Respondeat Superior”
Relationships
Master and Servant “Actio personalis moritur cum
Partners personalis”
Principal Agent
Exceptions
Not applicable for IPC
Absolute and Strict Liability
One of the most important ingredient to hold a person guilty in both
civil and criminal law is mens rea
There are few exception to this rule
In such cases though there is absence of wrongful intent or
negligence a person will be held responsible
Such cases are known as wrongs of Strict or Absolute Liability
IPC Tort (Exception)
- Offences against State(Waging War Natural use of Land
S121
- Sedition – S 124 Things attached to land
-Assaulting high officers S 152 Act of God
- Counterfieting Indian Currency Wrongful Act of a stranger
-Abduction S362 Plaintiffs own fault
-Kidnapping S 359Offences under food Common Benefit
adulteration
- Statutory Authority