Smt. Premalatha, teacher of Law of
Torts (CP-03) came
to the class in the first hour and taught the following points.
1.
The
second defence in Tort is to prove that the plaintiff is the wrong doer.
2.
In
contract law the legal maxim ‘Ex turpi causa non oritur actio’ is applicable.
This maxim means ‘From an immoral cause no action arises.’
3.
If
the very basis of the contract is illegal, the breach of contract has no remedy
at all.
Example : If
A agrees to give B good currency of Rs.100/- to get fake currency of Rs. 1000/-
in return, and a pays the amount to B, and B does not give the agreed fake
currency, A cannot complain against B.
4.
Pollock
says that such escape of the defendant from liability because of the fact that
the plaintiff is a wrong doer is not good law.
5.
Another
example of this defence is as follows. In a bridge under construction the
officials had displayed a notice prohibiting four wheeler vehicles from
entering into the bridge. But the plaintiff had passed over the bridge in a loaded
four wheeler and accident took place. Here the officials had taken precautions
by way of proper warning but the plaintiff has done the wrong. Hence the
plaintiff is liable.
6.
The
meaning of the legal maxim ‘Ex turpi causa non oritur actio’ is that if the
very basis of the contract is illegal, and if any one of the parties commits a
breach of contract, the other party has no remedy.
7.
As
for the law of tort is concerned, the defence is available when it is proved by
the defendant that the injury to the plaintiff is because of his own fault and
not because of the defendant.
8.
The
third defence available in Tort is ‘Inevitable Accident.’ This is a
general defence. Here accident is an unexpected event. It is something beyond
control.
9.
Pollock
says that an inevitable accident is that accident which is “not avoidable by
any such precautions as a reasonable man, doing such an act then and there,
could be expected to take.”
10.
Thus
inevitable accident is absolutely beyond our control.
11.
Reasonable
man here means an ordinary prudent man.
What had happened was that at the relevant time the road was
wet. A cyclist had suddenly come in front of the Bus and in order to save that
cyclist the driver applied the brakes as a result of which the Bus skidded on
the road with its rear portion striking against the front portion of another Bus.
Shridhar Tiwari claims that he got injured and filed a plaint before Motor
Accident Claims Tribunal Mainpuri. The Court dismissed the case and the Plaintiff
preferred an appeal before the Allahabad High Court. The Court found that what
happened was an inevitable accident and that the accident was caused due to
circumstances beyond the control of the drivers and not on account of any rash
and negligent act on their part is possible.
13.
To claim the defence of inevitable accident, the
defendant has to prove that the accident has taken place, in spite of
reasonable and proper care by the defendant.
14.
Act of God is another General Defence. Act of
God is the result of natural calamities. Nobody can initiate an action against
the State or a Citizen where the wrong was due to an act of God or natural
calamities.
Example : The defendant had constructed an artificial lake in
his property. The heaviest rain for the last few years caused the water of the
lake overflow into the property of the plaintiff. The Court held that the accident
was due to an Act of God and hence defendant was not liable.
15.
In
another case, a building collapsed during an ordinary rain causing the death of
the children of the plaintiff. As the rain was ordinary, the Court held that
the building had fell due to the negligence of the defendant in the
construction of the building.
16.
In the defence of Act of God natural forces like
tempest, heavy rain, Tsunami etc. are the villains. In such cases if injury is
suffered by the plaintiff, and if he brings action against the defendant, the
defendant can escape liability by pleading Act of God.
17.
In order to get the benefit of the defence of
Act of God, the defendant has to prove that the accident was due to natural
calamity and that the natural calamity was extraordinary.
18.
CASE LAW : Nicholas v. Marsland 1876.
The defendant diverted a natural stream
on his land to create ornamental lakes. Exceptionally heavy rain caused the
artificial lakes and waterways to be flooded and damage adjoining land. The
defendant was held not liable under Rylands v Fletcher as the cause of
the flood was an act of God.
The Court
observed that ,“ Now the jury have distinctly found, not
only that there was no negligence in the construction or the maintenance of the
reservoirs, but that the flood was so great that it could not reasonably have
been anticipated, although, if it had been anticipated, the effect might have
been prevented; and this seems to us in substance a finding that the escape of
the water was owing to the act of God. However great the flood had been, if it
had not been greater than floods that had happened before and might be expected
to occur again, the defendant might not have made out that she was free from
fault; but we think she ought not to be held liable because she did not prevent
the effect of an extraordinary act of nature, which she could not anticipate.”
19.
CASE LAW : Kallulal and another v. Hemchand and others, 1957
The Defendants
were owners of a house in the Lord Ganj locality of Jabalpur, the southern wall
of which adjoined a highway. For several years past Thelas (cycle-wheel stalls)
used to be kept on this highway near the said wall. On 25-8-1947 at 5 to 5-30
p. m., when it was raining the southern wall of the first storey of the
appellants' house suddenly collapsed crushing the Thela of Plaintiff 1 and
immediately killing his son, Vijay Kumar, aged 6 1/2 years, and his daughter
Suraj Bai aged 10 years, whom the Plaintiff 1 had entrusted the Thela
containing hosiery goods while going home to take his meals. These children
used to help their father in his business.
Then the
plaintiff sued the defendants
It was
contended by the defendants that the house was in good condition and kept in
proper repairs; that though the defendants were the owners of the house in
question, it was occupied by tenants and the situation and circumstances were
such that no reasonable person could say that the unfortunate deaths of persons
were caused by any wrongful act, neglect or default of defendants. It was added
that it ought to be taken to be an act of God.
The lower
Court found that the defendants are liable and they preferred appeal before the
Madhya Pradesh High Court. The HC found that "To be an act of God an
occurrence must be, (a) due to natural causes exclusively, (b) of an
extraordinary nature, and (c) such that it could not be anticipated or provided
against." In this case an ordinary
rain cannot be termed as act of god and the defendants were held liable.
20.
Then she asked a Question, “What is meant by
rescue cases?” and asked us to answer from the legal maxim “volunti non fit
injuria.”
21.
If a problem that “John found a snail in a
bottle in a restaurant etc.” has to be answered, we have to refer to the case law
“Donoghue v. Stevenson.”
22.
She then postponed the quiz to the next day as
usual.
23.
Then
she announced that the Roll numbers were allotted to us and read out the roll
numbers and names as given hereunder
1.
Abdul
Rehiman
2.
Abhiram
3.
Ajith
4.
Akhil
S. Kumar
5.
Akhila
Paul
6.
Aleena
Babu
7.
Amal
8.
Amrita
P.S.
9.
Anish
K. Varghese
10.
Anishad
11.
Anjaly
12.
Anna
jolly
13.
Ansila
14.
Anuraj
15.
Arathy
16.
Archana
17.
Arjun
18.
Arun
S. Nair
19.
Aruna
20.
Arya
P. Mohan
21.
Arya
Chandran
22.
Aswathy
23.
Aswin
24.
Aswin
Kumar
25.
Athira
26.
Athul
27.
Balu
Aravind
28.
Basil
Joy
29.
Benraj
30.
Bindu
31.
Bismi
32.
Chinthu
33.
Dharmapal
34.
Digna
David
35.
Farhan
36.
Faizal
Abid
37.
Gibu
Paul
38.
Gildy
Nandan
39.
Gokul
P.S.
40.
Harinarayanan
41.
Ismail
Noor
42.
Jayakumar
43.
Jijo
44.
Jisma
45.
Jismimol
46.
John
Joseph
47.
Joe
Thomas
48.
Jose
Paul
49.
Katherine
Xavier
50.
Kavya
K.M.
51.
Kavya
S. Babu
52.
Krishnaprasad
53.
Manas
54.
Meenu
Sunderlal
55.
Meenu
V.A.
56.
Najma
N.S.
57.
Nandagopan
58.
Nikitha
59.
Ninoj
60.
Noushila
61.
Oshin
Mendez
62.
Pareed
63.
Prajeenderlal
64.
Prathibha
65.
Prathyash
66.
Prince
Peter
67.
Priyadarshan
68.
Rakesh
Chandran
69.
Ramesh
P.M.
70.
Raviprasad
71.
Rema
K.M.
72.
Remya
73.
Riya
Elizabeth
74.
Rijin
75.
Riya
Sunilan
76.
Sabeena
77.
Sabu
78.
Saifulla
Zaid
79.
Sajeela
80.
Sajina
Ambalath
81.
Sajith
Krishnan
82.
Samsudheen
83.
Sanal
84.
Sangeeth
85.
Saranya
86.
Saranya
P.T.
87.
Sasi
K.G.
88.
Shine
P.S.
89.
Syamlin
90.
Sneha
John
91.
Sony
Teresa
92.
Sowmya
Raj
93.
Sreeja
K.S.
94.
Subrahmanyan
95.
Sudarsan
96.
Syamli
97.
Syam
Prasad
98.
Tinsy
M.P.
99.
Tintumol
100.
Tom
George
101.
Uma
Maheswari
102.
Vivet
D’Couth
The first hour ended there and Smt.
Premsy, teacher of Jurisprudence (CP-04) came the next hour. She taught the
following points.
1.
In
France Jurisprudence is called La philosophie du droit. La philosophie
du droit means Philosophy of law (not to be confused with the theory of
law, including distinction made by Hans Kelsen in the "Pure Theory of
Law"). It is the study and analysis of the concepts and fundamental
principles of law and legislation. Discipline at the intersection between philosophy,
political science and legal studies, it is designated in English as the "case
law" or "legal theory." Among the main currents of the theory of
law include legal positivism, which Kelsen (1881-1973) provided the titles of
nobility, natural law (Ronald Dworkin), realism (Judge Oliver Holmes to States Axel
Hägerström States or Sweden), sometimes closer to the sociology of law, with
emphasis on actual practice of legal actors. In France, the discipline is
represented in particular by Michel Villey (1914-1988), Michel Troper, Amselek Paul
or Jean-François Kervégan. Thus Jurisprudence is the philosophy of rights in
France.
2.
In
Germany Jurisprudence is called Die Rechtsphilosophie.
Rechtsphilosophie
or The philosophy of law is a branch of philosophy and basic discipline of
jurisprudence that deals with the fundamental questions of law. Legal
Philosophical questions are, for example:
What's right?
What is the relationship "justice" and "rights" to one another?
What is the relationship rights law to other social standards, particularly for morality?
What content should have the right?
How do legal norms?
What is the reason for the validity of law? (Liability)
What is the relationship "sense of justice" and "rights" to one another?
At least some
of these questions - especially after the connection between law and morality,
the general structure of legal norms and by the legally binding - is located
next to the philosophy of law and the so-called theory of law, which since the
mid-19th century, initially under the name "General Theory of Law "as
an independent of the philosophy of law discipline has emerged. The exact ratio
of legal philosophy and legal theory another is disputed in detail
3.
Natural
philosophers of law consider law as it ought to be.
4.
Positive
philosophers of law consider law as it is.
5.
Law
can be divided into two, namely 1. Man made Law and 2. God made Law
6.
God
made Law can be further divided into two, namely 1. Law of nature and 2. Divine
Law.
7.
Divine
Law is ordained by God and revealed by religious scriptures.
8.
The
theme of the Drama Antigone of Sophocles is considered to be the conflict
between Manmade Law and Divine Law.
9.
Philosophical
school of law and natural school of law are synonyms and they deal with law as
it ought to be.
10.
Positive
law school, analytical school of law and English law school are synonyms and they
deal with law as it is.
11.
Law
can also be divided into Abstract law and concrete law.
12.
Abstract
law deals with law in general or law in abstract sense.
13.
Concrete
law is law in concrete sense or a particular law.
14.
The
principles of law evolve. For example strict liability has been developed into
absolute liability. The present legal interpretation is that if a person keeps
a dangerous material he is having an absolute liability on all consequences
coming out of it.
15.
Followers
of the natural school of law consider manmade law as a subset of the natural
law.
16.
To
understand Jurisprudence properly, three questions should be answered, namely
1.
Whether
Jurisprudence is a philosophical study or analytical study?
2.
Whether
Jurisprudence is a study of manmade law or God made law or both?
3.
Whether
Jurisprudence is a study of law in abstract or law in concrete?
17.
Let
us now consider the definitions of Jurisprudence.
18.
Salmond
defines Jurisprudence as the science of first principles of natural law.
Elsewhere he states that Jurisprudence is the science of civil law. By
law he means the law of the land.
19.
John
Austin and Jeremy Bentham try to distinguish between manmade law and natural
law. According to John Austin, Jurisprudence is a philosophy of positive
law.
20.
The
name of the famous work of John Austin is The Province of Jurisprudence
Determined.
21.
Robert
Keeton defines Jurisprudence as the study and systematic arrangement of
the general principles of law.
22.
C.K.
Allen defines Jurisprudence as the scientific synthesis of all essential
principles of law.
23.
Roscoe
Pound defines Jurisprudence as the science of social engineering.
The second hour ended there and Smt.
Ligi, teacher of Legal Language and Legal Writing (CP-01) came to the class
in the third hour and taught the following.
1.
R. v. Prince
deals with the U.K. law, Offences Against Persons Act. Mens rea has no
application there because the subject matter is a statutory offence.
2.
CASE LAW : R vTolson (1889) 23 QBD 168 or Queen v. Mrs. Tolson
The appellant married in Sept 1880. In
Dec 1881 her husband went missing. She was told that he had been on a ship that
was lost at sea. Six years later, believing her husband to be dead, she married
another. 11 months later her husband turned up. She was charged with the
offence of bigamy.
Held:
She was afforded the defence of mistake
as it was reasonable in the circumstances to believe that her husband was dead.
3.
Case
Law : State Of Maharashtra v. Mayer Hans George 1964
The legal question was in respect of Foreign Exchange Regulation Act,
1973.
Before explaining the case an ABVP
campaign lead by Sri. Deepak, ABVP Unit President came into the class and spoke
the following among others.
Both SFI and KSU target ABVP. ABVP is
the biggest student organization in the world. SFI and KSU attempt to make the propaganda
that the Government lead by Modi spread intolerance.
It is true that there is intolerance
such as pouring black oil, killing authors etc. Why is there such intolerance?
One Leelavathi has remarked that great Sugathakumari as മൂരാച്ചി literally
meaning a bourgeoisie. He then narrated the conflict between KPN Kottur and EMS
and other communist leaders. He thinks that the revolution is brought about by
both the high class and the low class. Some people even blame Veer Savarkar.
The Press reports when Modi looks where the camera is, but they do not report
what he says. During beef struggle, the SFI activists have beat ABVP workers.
We
only need our Mother India as the Preceptor of the entire world i.e. Visvaguru.
He
also took the stand that ABVP is not a B team of BJP.
Smt.
Praseeda, teacher of Civil Procedure Code
(CP-05) came in the
fourth hour and taught the following among others.
1.
The
rank of the parties in a plaint means whether they are plaintiffs or
defendants.
2.
Vakalathnama
is the authorisation given by a party in a suit to the effect that the party
has appointed an advocate to represent him.
3.
Along
with the plaint document list, docket and court fee stamp should accompany.
4.
There
are many kinds of Title Deeds namely Settlement deed = ധനനിശ്ചയാധാരം, sale deed = തീറാധാരം, partition deed = ഭാഗാധാരം etc.
5.
Latest
basic tax paid receipt from village office shall prove ownership.
6.
Location
sketch, location map, copy of registered notice, its acknowledgment card
showing receipt by the other party, the reply if any may also be included as
documents in a litigation.
7.
Lis
Pendens : Section 52 of the Transfer of Property Act bars all transactions of a
property under litigation pending disposal of the case.
8.
In
cheque cases, copy of registered legal notice, its acknowledgment card, reply
if any, the cheque and its bounce notice etc are the primary documents to be
included in the document list.
9.
Schedule
of property with the prescribed columns and descriptions is necessary only in
cases involving immovable property.
10.
Sala
is the term to show the valuation of court fee.
11.
The
detailed procedure to file a plaint is given in the Civil Rules of Practice.
The morning session ended there. Smt.
Smitha, teacher for Consumer Protection Laws (CP-06) came in the fifth hour. Her lecture
contained the following points.
1.
Defect
"Defect" means
any fault, imperfection or shortcoming in the quality, quantity, potency,
purity or standard which is required to be maintained by or under any law for
the time being in force under any contract, express or implied or as is claimed
by the trader in any manner whatsoever in relation to any goods;
2.
We
term defect in goods as deficiency in service.
3.
"Deficiency"
means any fault, imperfection, shortcoming or inadequacy in the quality,
nature and manner of performance which is required to be maintained by or under
any law for the time being in force or has been undertaken to be performed by a
person in pursuance of a contract or otherwise in relation to any service;
4.
Case
Law : Lucknow Development Authority vs M.K. Gupta, 1993
In this case Court found that the State is liable to pay compensation,
when there is a deficiency in providing services.
5.
Limitation
period for filing consumer cases is two years.
6.
Case
Law : Indian Medical Association v. V.P. Shantha & Ors, 1995
Due to the medical negligence of a Nursing Home, Smt. Shantha’s husband
died. The Court found that there are three kinds of medical profession namely
1.
Hospitals
which provide services free of charge.
2.
Hospitals
where service is rendered with consideration.
3.
Hospitals
which usually charge for treatment, but where free treatment also is given for
poor beneficiaries.
In case 1, Consumer Protection Act is not attracted.
In case 2, Consumer Protection Act is attracted.
In case 3 also, Consumer Protection Act is attracted on the ground that
poor people here may be considered as beneficiaries.
Supreme in this case rejected the averment that the Medical Professionals
may not be included under the Consumer Protection Act, 1986. SC opined that in
cases of ambiguity expert opinions may be called for.
7.
As
per Section 2(1) (m) of the Consumer Protection Act, 1986, "person" includes,—
(i) a firm whether registered
or not;
(ii) a Hindu undivided
family;
(iii) a co-operative
society;
(iv) every other association of
persons whether registered under the Societies Registration Act, 1860 (21 of
1860) or not;
8.
A
person being defined as above, it can be interpreted that the organizations
formed for earning the livelihood its members for self employment do not come
under the purview of the term commercial purpose. Hence they also are
consumers.
The
class of the day ended there.
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