Smt. Premalatha, teacher of Law of
Torts (CP-03) came
to the class in the first hour and taught the following points.
1.
Volentinon fit injuria is a general defence.
2.
This
maxim is applicable where the act done by the defendant is with the permission
or consent of the plaintiff.
3.
By
giving consent, a person agrees to suffer the consequent harm. Here consent may
be express or implied.
4.
Express
consent may be in the form of written document or oral statement.
5.
If
a person give an invitation to another person or invites him through telephone
to come to his home, then the person inviting shall have no right to sue
against the other person on the charge of trespass.
Certain persons were the owners of a
racing track for motor cars. The track was oval in shape and measured two miles
or more in circumference. It contained a long straight stretch known as the
finishing straight, which was over 100 feet wide and was bounded on its outer
side by a cement kerb 6 inches in height, beyond which was a strip of grass 4
feet 5 inches in width enclosed within an iron railing 4 feet 6 inches high.
Spectators were admitted on payment to view the races, and stands were provided
in which they could do this in safety, but many persons preferred to stand
along and outside the railing. Among the competing cars in a long distance race
on this track two cars were running along the finishing straight at a pace of
over 100 miles an hour and were approaching a sharp bend to the left; the car
in front and more to the left turned to the right; the other car did the same,
but in so doing touched the off side of the first mentioned car, with the
strange result that the first mentioned car shot into the air over the kerb and
the grass margin and into the railing, killing two spectators and injuring
others. The course was opened in 1907. No accident like this had ever happened
before.
In an action by one of the injured
spectators against the owners of the racing track the jury found that the
defendants were negligent in that having invited the public to witness a highly
dangerous sport they had failed by notices or otherwise to give warning of, or
protection from, the dangers incident thereto, and to keep spectators at a safe
distance from the track. Judgment having been given for the plaintiff on these
findings: -
Held, that it was the duty of the
appellant s to see that the course was as free from danger as reasonable care
and skill could make it, but that they were not insurers against accidents
which no reasonable diligence could foresee or against dangers inherent in a
sport which any reasonable spectator can foresee and of which he takes the
risk, and consequently that there was no, evidence to support the verdict of
the jury.
7.
For
attracting the defence of consent, there are two ingredients to be ensured. 1.
The consent must be free. The act must be same for which the consent was given.
3. Mere knowledge does not imply consent.
The defendant was a singing coach. He told one of his 16 year
old pupil that he was performing an act to open her air passages to improve her
singing. In fact he was having sexual intercourse with her. It was held that
her consent was vitiated by fraud as to the nature and quality of the act.
March
27 1944
The plaintiff, a carter employed to
collect road sweepings by a municipal corporation, was ordered by his foreman
to take out a horse which, to the knowledge of both of them, had run away on at
least two previous occasions when driven by a fellow employee. The carter protested,
but the foreman said that it was an order of the borough surveyor. Some weeks
later, the horse ran away and the plaintiff was thrown from his cart and
suffered personal injuries. In an action against the corporation by the
plaintiff, alleging that they had failed in their duty to provide him with a
horse which was safe and suitable for the work which he had to perform.
Court held that the plaintiff being
an employee of the defendant, he is not having the freedom to choose as their
relation is master servant relation. The court observed that the nature of the
consent should be keenly observed.
10.
Mere knowledge does not imply consent
The Claimant sued his employers for injuries sustained
while in the course of working in their employment. He was employed to hold a
drill in position whilst two other workers took it in turns to hit the drill
with a hammer. Next to where he was working another set of workers were engaged
in taking out stones and putting them into a steam crane which swung over the
place where the Claimant was working. The Claimant was injured when a stone
fell out of the crane and struck him on the head. The Defendant raised the
defence of volenti non fit injuria in that
the Claimant knew it was a dangerous practice and had complained that it was
dangerous but nevertheless continued. At trial the jury found for the Claimant.
The Defendant appealed and the Court of Appeal allowed the appeal holding that
the Claimant was precluded from recovering as he had willingly accepted the
risk. The Claimant appealed to the House of Lords.
Held 3:2 Decision.
Held 3:2 Decision.
The appeal was allowed. The Claimant may have been aware of
the danger of the job, but had not consented to the lack of care. He was
therefore entitled to recover damages.
There are two
topics to be considered under this legal maxim, namely 1. Rescue Cases 2.
Unfair contract Terms Act 1977
13.
Rescue
cases are exceptions to the maxim ‘volenti non fit injuria.’
14.
If
the plaintiff voluntarily and knowingly enters into a particular act for saving
the life of another, and if the crisis was created by the defendant, and gets
hurt during the rescue operation, then the defendant cannot take the defence ‘volunti
non fit injuria.’
The Defendant left a horse-drawn van
unattended in a crowded street. The horses
bolted when a boy threw a stone at them. A police officer tried to stop the horses to save a woman and children who were in the path of the bolting horses. The police officer was injured. It was held that the Defendant owed a duty of care as he had created a source of danger by leaving his horses unattended in a busy street.
bolted when a boy threw a stone at them. A police officer tried to stop the horses to save a woman and children who were in the path of the bolting horses. The police officer was injured. It was held that the Defendant owed a duty of care as he had created a source of danger by leaving his horses unattended in a busy street.
16.
Smt.
Premalatha reminded about the quiz and asked the students to come prepared the
next day.
17.
When
some students asked whether the book Law of Torts by Dr. R.K. Bangia may be
resorted to as a reference book, the teacher recommended it.
The first hour ended and Smt.
Praseeda, teacher of Civil Procedure Code
(CP-05) came in the
second hour and taught the following among others.
1.
We
have to prove three things in the plaint itself, namely, 1. The Court where the
plaint is filed has jurisdiction of all kinds to hear and try the case. 2. The
plain is filed within the limitation period 3. The prescribed court fee has
been remitted.
2.
When
limitation period seems over, the style of the drafting slightly changes like, “the
defendants had committed trespass for the last five years but the plaintiff
could check them. But recently the defendants have attempted to trespass again
on such and such dates which I could not prevent. ”
3.
If
the possession of the property is already with the defendant the plaint shall
be for fixing the boundaries of the property and for restricting the defendants
from entering into the property.
4.
Possession
is nothing but 9/10th of ownership.
5.
Drafting
for prayers shall be in the form “It is most humbly prayed before this Honourable
Court to the grant the following reliefs
1.
Order
repayment of the Principle amount of Rs. 100000/-
2.
Order
interest for the Principle amount at the rate of 12% per annum from the date of
institution of the suit.
3.
Order
to pay costs for mental agony, fee of advocate, court fee etc. Rs. 25000/- and
4.
Such
other reliefs which the plaintiff may seek from time to time and this
Honourable Court may deem fit.”
6.
At
the end of the Plaint there shall be a verification which runs as “All the
statements stated above are true to my information, knowledge and belief.”
7.
It
is followed by the phrase “Signed by me on this …..th day of………20.. ” and the
plaintiff signs.
8.
Under
the signature of the plaintiff a certificate from the advocate is added as “Solemnly
affirmed and signed before me on this …..th day of………20.. at my office at ……………..”
and the Advocate signs there.
9.
After
that the Valuation of the case as per Kerala Court Fees and Suit Valuation Act 1959
is given. An example follows
Valuation for
Prayer A 500
Valuation for
Prayer B 300
Valuation for
Prayer C 125
Total Court
Fee 925
1/10th
of the Court fee to be deposited at the time of filing Rs. 92.50
Balance Court
Fee (B.C.F.) Rs. 832.50
10.
Under
the valuation Statement both the Client and Advocate sign.
11.
TemporaryInjunction is prayed for a period from the institution of the suit to the
disposal of the suit.
12.
Suit
for permanent injunction is a remedy for getting a thing specifically got done.
13.
Valuation
for injunction is the value of the entire property.
Second hour ended there and Smt.
Suma, teacher of Law of Contracts (CP-02), came in the third hour and
taught the following.
1. Contract
is the agreement for the fulfilment of common intentions or consensus of ideas.
Contract forms a legal relationship.
2.
The
word signifies in the definition of offer in the Indian Contract Act means
communicates.
3.
The
classification of offer is depending on the mode of signification or
communication.
4.
If
the offer is made to a specific and definite person, then that offer is a
specific offer.
5.
Generaloffer is addressed to public at large.
6.
Express
offer is an offer made and accepted by parties by a document or oral statement.
7.
Implied
offer is the one inferred by the Court from the facts and circumstances of the
case.
8.
Express
offer is not necessary (or it is optional) for the transfer of movableproperties.
9.
The
transfer of immovable property worth more than Rs. 100/- should be compulsorilyregistered.
10.
If
a man travels in a bus, after paying bus fare a contract is generated.
11.
The
offer, acceptance, agreement and contract here are implied but not express.
At that time
a KSU Campaign lead by the Calicut University Senate Member Sri. Ranjith came
into the class and he spoke. He expressed his solidarity with the people of France
on the recent attack in Paris. He emphasized that the teachings of the Religion
need be re-taught. He wanted all the students to stand silently for two minutes
in reverence to the victims of the Paris incident.
Then a women
lead campaign of Mathrukam one of the female wings of SFI came into the class.
The speaker claimed that it was the Mathrukam Unit of Government Law College,
Thrissur who spoke first in favour of the famous strike of the Nurses in
Kerala. She had an action plan to be done for five days. The first day i.e.
today they would clean the two water coolers of our College. The next day they
plan to make a flower garden in the campus. Day after tomorrow they plan to
organise a meeting of ladies at ‘Pukavalimoola’ or smokers corner. The fourth
day is for the cleaning of Ladies Rest Room of the College. The fifth day is
reserved for making arrangements to sell napkins until the authorities provide
an automatic napkin vending machine. They also plan to conduct a seminar on
23.11.2015.
Then Sri. Ashbin, a second year
3year LLB student entered the class and told us the story of Charlie Chaplin
and his mother. He wanted to make a cultural organization named Samskara. A
meeting shall be convened in Room No. 9 at 1.30 pm.
The third hour ended there and Smt.
Premsy, teacher of Jurisprudence (CP-04) came the next hour. She taught the
following points.
1.
Learning
Jurisprudence demands the answering of questions like 1. What is Jurisprudence?
2. What is law? 3. What are the contents of law? 4. Etymology of Jurisprudence.
5. Subject matter of Jurisprudence 6. Definition of Jurisprudence. 7.
Classification of Jurisprudence. 8. Scope of Jurisprudence. 9. Utility of Jurisprudence.
10. Relationship of Jurisprudence with other social sciences etc.
2.
Etymologically
Jurisprudence was derived from the Latin words juris = law and prudencia =
study, knowledge, wisdom, philosophy, science, art, etc. Thus Jurisprudence
means study of law, philosophy of law, art of law etc.
3.
Subject
matter of Jurisprudence is nothing but law.
4.
All
human beings are both social beings and selfish beings.
5. Every
civilized society knows that some sorts of means may be there to control the
behaviour of human beings.
6.
All
jurists have attempted to interpret law as per conditions prevalent in their
respective societies.
7.
Supplementing,
modifications etc. come subsequently in their interpretations of law as the
conditions change.
8.
Some
say that laws should be written down, whereas some others are of the opinion
that they needn’t.
9.
There
are different schools of thought in law such as positive school or naturalschool, historical school, etc.
10.
The
supporters of positive school argue that law need not be written down.
11.
The
supporters of historical school argue that law cannot be brought in on a fine
morning. Law should be evolved as per requirements.
12.
Practically
law is an admixture of the views of these schools.
13.
Students
of law should be able to identify without lacunae what is law.
14. RealistSchool of Law identifies law by applying the test whether it can be applied to
courts or not. According to them the foremost duty of a judge is to issue a
just decision.
15.
The
purpose of law is to do acts smoothly.
16.
The
justice according to law (which is distinct from the concept of true justice) is
the main limitation of courts.
17.
That
is why judicial activism came into existence.
18.
In
a legal system, no right is absolute, but are subject to limitations.
19.
The
state usually comes with restrictions on fundamental rights.
20.
Smoking
in public places is a violation of fundamental rights.
21.
In
Maneka Gandhi v. Union of India and others (1978) the court found that there is
violation of fundamental rights if passport is confiscated without assigning
any reason at all, even the law permitted the state to do so.
The judges
observed that procedure established by law must be just and fair. Hence the SC
struck down Sn. 10(3)(c) of Indian Passport Act.
22.
Law
is a set of human behaviour in the society necessary for the continuance of the
society.
23.
There
are two kinds of laws namely 1. Man made law and 2. Natural law
24.
Natural
law is also known as Divine law or God made law.
25.
Once
a right as per this natural law is violated persons approach courts.
26.
Man
made law is also called positive law. Man has created this law by his wisdom.
27.
The
difficulty in natural law is that the understanding of law varies from one man
to another.
28.
For
the purpose of clarity and disambiguation every law should be written.
29.
Right
is some sort of interest while recognized by law.
30.
The
famous Roman Jurist Ulpian defines Jurisprudence as the observation of things human and divine, the
knowledge of the just and the unjust.
31.
JohnAustin who is regarded as the father of positive law states, “What law ought to
be is to be just and fair.”
32.
Thinkers
of the natural school of law aver that “Law should be what law ought to be.”
33.
Positive
school thinkers envisage law as “law as it is.”
34.
John Salmond
defines Jurisprudence as science of the first principles of civil law.
35.
Law
when questioned before a court of law, such court shall also be able to accept
that; then only can that be called law.
36.
RoscoePound defines law in terms of individual perspective. He says that
Jurisprudence is the science of social engineering. His theory of law is called
Social Engineering Theory.
37.
Roscoe
Pound has identified five Jural Postulates as follows.
Jural postulate I.
In a civilized society men must be able to
assume that others will commit no intentional aggression upon them.
Jural postulate II.
In a civilized society men must be able to
assume that they may control for beneficial purposes what they have discovered
and appropriated to their own use what they have created by their own labour
and what they have acquired under the existing social and economic order.
Jural postulate III.
In a civilized society men must be able to
assume that those with whom they deal as a member of the society will act in
good faith and hence-
(a) Will make good reasonable expectations
with their promises or other conduct reasonably create?
(b) Will carry out their undertaking
according to the expectations which the moral sentiment of the community
attaches thereto:
(c) Will restore specifically or by
equivalent what comes to them by mistake, or failure of the pre suppositions of
a transaction or other unanticipated situation whereby they receive at other's
expense what they could not have reasonably have expected to receive under the
actual circumstances.
Jural postulate IV
In a civilized society men must be able to
assume that those who engage in some course of conduct will act with due care
not to cast an unreasonable risk of injury to others.
Jural postulate V
In a civilized society men must be able to
assume that others who maintain things or employ agencies, harmless in sphere
of their use but harmful in their normal actions elsewhere and having a natural
tendency to cross the boundaries of their proper use will restrain them and
keep them within their proper bounds.
The fourth period ended there. Even
though Smt. Ligi was supposed come to the class in the fifth hour, she informed
some inconvenience and classes of the day ended there.
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