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INTRODUCTION
Law lays down the rights and duties of individuals. The law provides legal rights to one individual and imposes duty upon another individual. If there is a breach of such rules or anybody violates the legal rights of another, he is said to have committed a wrong. If there is wrong then there is a a liability. Liability is something which an individual must do or endure on account of his failure to do what he ought to have done as a "duty”. A person has a choice in fulfilling his duty, but liability emerges independently of one’s choice. According to Salmond: “ Liability or responsibility is the bond of necessity between the wrongdoer and the remedy of the wrong.” Liability implies the state of a person who has violated the right or acted contrary to a duty. Liability is in any case either civil or criminal and in the second place either remedial or penal. In Civil Liability, the person has the right to seek redressal by law. It gives rise to civil proceedings whose purpose is the enforcement of certain rights. In criminal liability, the penalty is imposed upon the wrongdoer and the wrongdoer is under duty to comply with it. It is the liability to be punished in criminal proceeding. In the criminal or penal liability the purpose of the law, direct or ulterior, is or includes the punishment of a wrongdoer while in the case of remedial liability the law has no such purpose at all; its sole intent is the enforcement of the plaintiffs right, the idea of punishment being wholly irrelevant.
AIMS AND OBJECTIVES
To study about the concept of liability. To study about the different kinds of liability. To study about different theories related to liability.
HYPOTHESIS
The researcher presumes that an intentional or unintentional wrongful act precedes a liability. The researcher presumes that penal liability can arise both from criminal or civil wrong.
LITERATURE REVIEW
V.D. Mahajan’s, Jurisprudence And Legal Theory (Fifth Edition) The book attempts to explain the legal concept and theories of law including its sources in simple and understandable language. The chapters in this book have been developed to study the nature, scope, classification and sources of law. Dr. S.R. Myneni, Jurisprudence (Legal Theory), 2nd^ Edition. The book examining different legal theories and controversies. It starts by examining the nature of Jurisprudence , then goes on to outline the content, implications and problems of the major legal theories.
SOURCES OF DATA
Secondary Sources – Books on Jurisprudence, journals, articles, etc.
styled imputability”. It is thus evident that liability arises from a wrong or the breach of a duty in law. Liability means and implies responsibility for an act or omission. Liability may arise out of a guilty mind (mens rea), that is out of dolus malus ( a bad intention) or out of malitia ( knowledge that an act prohibited by law is gping to be done) or out of negligence or out of the provisions of some statute even in the absence of any guilty intention, knowledge or negligence.^2 The term liability, which occupied a place of pride in the hierarchy of the legal concepts has in English law been used to express three things. First, it has been used to express the position of person who has undertaken to do or to abstain from doing something by contract with another person. Second, the term has been used to express the condition of person who has failed in the performance of source duty, and who is consequently, called upon to make compensation to some person who has suffered damage thereby. Third, the term “liability” has been used to express the condition of a person who has not failed in the performance of any duty, but who has done an act which has caused damage to another for which he is required to make compensation.^3 The duty to fulfill a contract and the duty to make compensation for damage caused by an act which is not a breach of duty are primary duties, whereas duty to make compensation for damage caused by a breach of duty is a secondary one Liabilities can be of many kinds. There are civil and criminal liability, remedial and penal liability, vicarious liability and absolute or strict liability. (^2) Dr. S.R. Myneni, Jurisprudence (Legal Theory), Asian Law House (2nd (^) Ed.), p. 329. (^3) Markby, Elements of Law (3rd Ed. 1885) p.292.
CHAPTER 2: PRIMARY LIABILITY
Civil liability is enforcement of right of the plaintiff against the defendant in civil proceedings. Liability in civil law presupposes an injuria i.e. violation of a legal right- whether a jus in rem or jus in personam. Whereas, criminal liability arises when the act complained of has been done with a mens reas, i.e. with a dolus malus (bad intent) or culpa (negligence) or simple knowledge that the law was being violated. It may arise even in the absence of mens rea. Crime is a wrong against the society but a civil wrong is a wrong against a private individual or individuals.
1. Civil Liabilty Civil liability gives a person rights to obtain redress from another person e.g. the ability to sue for damages for personal injury. There is also the right to obtain an injunction. For there to be an award of damages, the injured party has to have suffered an actual loss, be it personal injury, damage to property, or financial loss. The burden of proof is "the balance of probability" which is much lower than for criminal matters. If there has been a relevant criminal conviction in a particular matter, then the burden of proof in any related civil action is reversed, so that the defendant has to prove he is not liable. An example of this would be a conviction of a company for breach of health and safety legislation, followed by the injured employee suing the company for damages for personal injury. A disincentive to suing is that the losing party pays the winners costs.^4 In fact, this works out as a substantial proportion of the costs, rather than 100%, so a successful plaintiff has his award of damages diminished in practical terms. As a matter of public policy, it is not possible to have an enforceable insurance policy in relation to criminal penalties. The Measure Of Civil Liability In the case of a civil wrong, motive is irrelevant. It is only the magnitude ofthe offence that determines the liability. The liability of the offender is not measured by the consequences which he meant to ensure, but by the evil which he succeeded in doing. The liability consists ofthe compulsory compensation to given to the injured person and that is (^4) Dr V.D. Mahajan, Jurisprudence and Legal Theory, Easter Book Company (Ed. 5th (^) ), p. 366.
This has been as a matter of public policy to make it possible to obtain convictions which otherwise would be very difficult. The penalties for criminal offences are fines and imprisonment, as well as other non-custodial punishments. The Measure Of Criminal Liabilty The measure of the criminal liability is different in different legal systems. The measure of the liability is determined on various considerations: a) First, the measure of liability in a particular society depends on the theory or, in other words the aim of the punishment, recognized by the society. If eh punishment is for the purposes 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 punishment is to reform the wrongdoer, the measure of the liability would be the character of the wrongdoer and so on: b) 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. c) Third, the measures of the liability also on the values which are recognized n 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 early time, but in England, where the sex morality is not the same as it is in India.
CHAPTER 3: SECONDARY LIABILITY
The distinction between Remedial and Penal liability is made on the basis of legal consequences of the action against the wrong. If after a successful proceeding the defendant is not puished and is instead ordered to pay damages or to pay a debt, or to make a specific performance etc; the liability is called a “remedial liability”. If the purpose of the law is wholly or partly the punishment of the wrongdoer, the liability is described as penal. The civil liability is, generally, remedial and the criminal liability is penal.
1. Penal Liability The theory of penal liability is concerned with the punishment of wrong. There are different kinds of punishment , Deterrent, preventive, retributive, reformative etc. A penal liability can arise either from a criminal or a civil wrong. There are three aspects of penal liability those are the conditions, incidence, and measure of a liability. As regards the conditions of penal liability, it is expressed in the maxim "actus non facitreum nisi mens sit rea" This means that the Act does not constitute guilt unless it is done with guilty intention. Two things are required to be considered in this connection and those are the act and the mens rea requires the consideration of imitation and negligence. The act is called the material condition of penal liability and the mens rea is called the formal condition of penal liability. An act alone does not amount to crime, unless it is accompanied by guilty mind. Therefore, two elements i.e. i) act; and ii) guilty mind are essential to constitute a crime. No person can be punished merely because his act resulted into some crime unless it was accompanied by “Mens Rea” or guilty mind. Conversely, mere presence of “mens rea" shall not constitute a crime unless it is accompanied by some act. Thus "act ” is he physical element of the crime and “mens rea ” is the mental element.
law ought is normally equivalent to must, and obligation and remedial liability are in general coexistent. To this general principle there are three exceptions: Duties of imperfect Obligation : the breach of such a duty gives no cause of action, that is to say, creates no liability at all eg. a time barred debt is a legal debt, but the payment of it cannot be compelled by any legal proceeding. Where the duty violated is in its nature incapable of specific enforcement. There are duties which cannot be specifically enforced, once they are broken. Thus, it is the duty of every one to refrain from doing anything that is likely to injure the reputation of others. But once a libel on somebody is perpetrated, it becomes impossible in the nature of the things, to enforce specifically, on the miscreant the duty of refraining, for the simple reason that it is too late. Wrongs of this nature cannot be remedied, they can only be punished. Where the specific enforcement of a duty is inexpedient : There are duties, the specific performance of which the law can but will not enforce, because it is neither advisable nor expedient to do so. Thus, the law will categorically refuse to enforce specifically many contracts, particularly contracts of service and promises of marriage, for obvious reasons. In such cases, it will only provide pecuniary compensation. It is only in special cases that the law will compel the specific performance of a contract, instead of the payment of damages for the breach of contract.
CHAPTER 4: OTHER KINDS OF LIABILITY
1. Vicarious Liability Generally, a person is liable for his own wrongful acts and one does not incur any liability for the acts done by others. In certain cases, however, vicarious liability, that is the liability of one person for the act of another person, may arise. In order that the liability of A for the act done by B can arise, it is necessary that there should be certain kind of relationship between A and B, and the wrongful act should be, in certain way, connected with that relationship.^5 The common examples of such a liability are: (1) Liability of the principal for the tort of his agent; (2) Liability of partners of each other’s tort; (3) Liability of the master for the tort of his servant. So Vicarious Liability deals with cases where one person is liable for the acts of others. In the field of Torts it is considered to be an exception to the general rule that a person is liable for his own acts only. It is based on the principle of qui facit per se per aliumfacit per se, which means, “He who does an act through another is deemed in law to do it himself”. So in a case of vicarious liability both the person at whose behest the act is done as well as the person who does the act are liable. Thus, Employers are vicariously liable for the torts of their employees (^5) Dr. S.R. Myneni, Jurisprudence (Legal Theory), Asian Law House (2nd (^) Ed), p. 338.
more onerous than his liability in respect of wrongs committed by an independent contractor. If a servant does a wrongful act in the course of his employment, the master is liable for it.^7 The servant, of course, is also liable. The wrongful act of the servant is deemed to be the act of the master as well. “The doctrine of liability of the master for act of his servant is based on the maxim respondeat superior ,which means ‘let the principal be liable’ and it puts the master in the same position as he if had done the act himself. It also derives validity from the maxim qui facit per aliumfacit per se , which means ‘he who does an act through another is deemed in law to do it himself’.” Since for the wrong done by the servant, the master can also be made liable vicariously, the plaintiff has a choice to bring an action against either or both of them. Their liability is joint and several as they are considered to be joint tortfeasors. The reason for the maxim respondeat superior seems to be the better position of the master to meet the claim because of his larger pocket and also ability to pass on the burden of liability through insurance. The liability arises even though the servant acted against the express instruction, and for no benefit of his master. For the liability of the master to arise, the following two essentials are to be present: (1) The tort was committed by the servant. (2) The servant committed the tort in the course of his employment. A servant is a person employed by another to do work under the direction and control of his master. As a general rule, master is liable for the tort of his servant but he is not liable for the tort of an independent contractor. It, therefore, becomes essential to distinguish between the two. A servant is an agent who is subject to the control and supervision of his employer regarding the manner in which the work is to be done. An independent contractor is not subject to any such control. He undertakes to do certain work and regarding the manner in which the work is to be done. He is his own master and exercises his own discretion. And independent contractor is one “who undertakes to produce a given result, but so that in the actual exclusion of the work, he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand.” The doctrine of vicarious liability is based on the principle of "respondent superior". (^7) http://www.legalservicesindia.com/article/1634/Vicarious-Liability-in-India.html, lasr retrieved on 16th February, 2020.
According to SALMOND the rational basis of the rule of vicarious liability, of which the master-servant liability serves as the best illustration, is mainly evidential. To quote his own words of SALMOND, “ there are such immense difficulties in the way of proving actual authority, that unless some such conclusive presumption is drawn, masters would make tools oftheir servants to commit great wrongs. A word, a gesture or a tone from the master will be sufficient to induce a servant to commit greatest wrongs, yet who couldprove such a measure of complexity". 2.Strict Liability Generally, a man is held liable for the negligence which results into harm of violation of rights of others. But there are certain exceptions to this general principle of liability. Such cases are those cases where a person is held liable for his act even though he did not do it intentionally or negligently. In other words, he is held liable irrespective of negligence or carefulness. These cases are covered under “strict liability’’ which is known as absolute liability. In cases covered under strict liability, the wrong arises from the breach of an absolute duty. An “absolute duty" may be defined as a “duty which renders a man liable without any fault of his and irrespective of any consideration of intention or negligence on his part”.^8 The word ‘strict’’ or “absolute” denotes that it is not necessary for the injured party to prove any intention or negligence on the part of the. wrong-doer and no amount of care or caution proved by the latter would absolve him from liability. The principle of absolute liability has been enunciated in the court of Exchequer chamber by BALCKBUM, J. and affirmed by the house of lords in Rylands v. Fletcher. The doctrine of strict liability is applicable in cases involving wild animals, dangerous premises or substances, electricity, water fir explosive etc. which are capable of escape.^9 The object of absolute liability is not to prevent persons from undertaking hazardous and adventurous activities. The law only expect a person to do such acts at his own peril, and keep himself ready to compensate the person wronged if any injury is caused to him by the wrongful act. (^8) https://www.lawteacher.net/free-law-essays/criminal-law/strict-liability.php, last retrieved on 17 th February, 2020. (^9) https://www.srdlawnotes.com/2018/02/what-is-liability-and-what-are.html, last retrieved on 16th (^) February
faith and on reasonable grounds in the existence of c some circumstances which justified his act. The principle about it is that “ignorantia facit excusat” 'ignorance of the fact is excuse ’ ”. It means that a person is not liable for wrongful at if he has done it under a mistake offact. In other words mistake is a valid defence against a wrongful act. But this principle applied only in case of a criminal wrong and not a civil wrong.^10 In civil wrongs, except in few cases the mistake of fact is not a valid ground for discharging a person from liability. But in criminal law the strict liability for a mistake offact is only in exceptional cases. An example of such exception, or strict liability is that if a person kidnaps a girl below 16, he is always liable, although he honestly believed that she was above 16. In R.v.Prince^11 a person who abducted a girl under the legal age of consent was held criminally liable and the plea of inevitable mistake as to her age failed as a defence. This is so because the act oftaking the girl away was itselfwrongful. However, ifthe intention of lawful, mistake offact is a valid defence in criminal law. For instance, if A intending to kill b kills C mistaking him to be B. A has no defence, but if A who is out-hunting in a forest shoots at a bush thinking that a tiger was lurking inside and the bullet hits and kills B, he will be exempted from criminality due to mistake offact. This mistake, in order of quality for exemption from criminal liability should fulfil two conditions, namely i) It should be reasonable, and ii) It should be mistake offact and not oflaw. Inevitable accident Inevitable accident is commonly recognized as a ground of exemption from liability both in civil and criminal law. Accident may either be culpable or inevitable. It' is culpable when caused due to negligence but inevitable when the avoidance of it would have required a degree of care exceeding the standard demanded by law. In other words, an inevitable accident is that which could not possible by prevented by the exercise of ordinary care, caution and skill. That is, it must be a “physically unavoidable ” nature. 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 it is unintentional. For example,, (^10) Dr V.D. Mahajan, Jurisprudence and Legal Theory, Easter Book Company (Ed. 5th (^) ), p. 370. (^11) [1986] 2 S.C.R. 480.
if Z arrests A taking him to be B, it is a mistake offact. In this case, the consequence , that is arrest is intentional but there is a mistake about the circumstances and Z was to arrest B and 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. In civil law, inevitable accident is not always a ground of exemption from the liability. The case of Stanley v. Powel is a leading decision on inevitable accident as a defence. In this case the defendant while firing at a pheasant accidentally and without negligence shot the plaintiff with a pellet from his gun, it was held that he had a good defence. In a subsequent case of Ryan v. Youngs^12 the sudden death of the driver of a motor vehicle due to heart-failure as a result of which an accident was caused, was held to be a mere inevitable accident and defendants were held not liable. (^12) [1938] 1 All. E.R. 522
Thus where after a successful proceeding the defendant is ordered to pay compensation for damages, or to pay a debt or to make a specific performance of a contract, the liability may be known a remedial, but where it after a successful proceeding the wrongdoer is awarded punishment, which may be the fine, imprisonment etc. it may be called penal liability. Though civil liability may generally be remedial and the criminal penal, the argument is not always true, because in some cases liability may be both remedial and penal. So also is true of criminal liability, though in exceptional cases.
BIBLIOGRAPHY
WEBSITES
www.legalservices.com www.lawteacher.com BOOKS Dr. S.R. Myneni, Jurisprudence (Legal Theory), Asian Law House (2nd^ Ed.). Salmond: Jurisprudenc (12th Ed.). Dr V.D. Mahajan, Jurisprudence and Legal Theory, Easter Book Company (Ed. 5 th^ ). Markby, Elements of Law (3rd Ed. 1885)
