SASI K.G.
01. Meaning and Classification of Legal Rights and Duties
Legal rights are, clearly, rights which exist under the
rules of legal systems or by virtue of decisions of suitably authoritative
bodies within them.
According to positivists, legal rights are essentially
those interests which have been legally recognized and protected. John Austin
made a distinction between legal rights and other types of rights such as
Natural rights or Moral rights. By legal rights, he meant rights which
are creatures of law, strictly or simply so called. He said that other
kind of rights are not armed with legal sanction and cannot be enforced
judicially.
On the other hand, Salmond said that a legal right is an
interest recognized and protected by rule of law and violation of such an
interest would be a legal wrong. Salmond further said that:
1. A legal duty is an act that obliges to do something
and act, the opposite of which would be a legal wrong.
2. Whenever law ascribes duty to a person, a
corresponding right also exists with the person on whom the duty is imposed.
3. There are two kinds of duties: Moral Duty and Legal
Duty.
4. Rights are said to be the benefits secured for persons
by rules regulating relationships.
Salmond also believed that no right can exist without a
corresponding duty. Every right or duty involves a bond of legal obligation by
which two or more persons are bound together. Thus, there can be no duty unless
there is someone to whom it is due; there can be no right unless is someone
from whom it is claimed; and there can be no wrong unless there is someone who
is wronged, that is to say, someone whose right has been violated.
This is also called as vinculum juris which
means “a bond of the law”. It is a tie that legally binds one person to
another.
On the other hand, Austin said that Duties can be of two
types:
a. Relative Duty – There is a corresponding right
existing in such duties.
b. Absolute Duty – There is no corresponding right
existing.
Austin conceives this distinction to be the essence of a
right that it should be vested in some determinate person and be enforceable by
some form of legal process instituted by him. Austin thus starts from the
assumption that a right cannot vest in an indeterminate, or a vague entity like
the society or the people. The second assumption with which Austin starts is
that sovereign creates rights and can impose or change these rights at its
will. Consequently, the sovereign cannot be the holder of such rights.
According to Salmond, there are five important characteristics of a Legal Rigt:
1. It is vested in a person who may be distinguished as
the owner of the right, the subject of it, the person entitled, or the person
of inherence.
2. It avails against a person, upon whom lies the
correlative duty. He may be distinguished as the person bound, or as the
subject of duty, or as the person of incidence.
3. It obliges the person bound to an act or omission in
favour of the person entitled. This may be termed the content of the right.
4. The act or omission relates to something (in the
widest sense of that word), which may be termed the object or subject matter of
the right.
5. Every legal right has a title, that is to say, certain
facts or events by reason of which the right has become vested in its owner.
Some jurists hold that a right may not necessarily have a
correlative duty. They say that legal rights are legal concepts and these legal
concepts have their correlatives which may not necessarily be a duty.
Roscoe Pound also gave an analysis of such legal
conceptions. He believed that legal rights are essentially interests recognized
and administered by law and belong to the ‘science of law’ instead of ‘law’. He
proposed that such Rights are conceptions by which interests are given form in
order to secure a legal order.
02. Theories of Legal Rights and Duties
01. Salmond on Rights and Duties
Salmond said that a perfect right is one which
corresponds to a perfect duty and a perfect duty is one which is not merely
recognized by law but also enforced by law. In a fully developed legal system,
there are rights and duties which though recognized by law are not perfect in
nature. The rights and duties are important but no action is taken for
enforcing these rights and duties. The rights form a good ground for defence
but duties do not form a good ground for action. However, in some cases, an
imperfect right is sufficient to enforce equity.
Salmond gave following classifications of rights.
1. Positive and Negative Rights
2. Real and Personal Rights
3. Right in rem and right in personam
4. Proprietary and Personal Rights
5. Inheritable and Uninheritable Rights
02. Salmond’s Classification of Positive and Negative Rights
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Positive Rights
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Negative Rights
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1
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A positive right corresponds to a corresponding duty
and entitles its owners to have something done for him without the
performance of which his enjoyment of the right is imperfect.
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Negative rights have negative duties corresponding to
them and enjoyment is complete unless interference takes place. Therefore,
majority of negative rights are against the entire world.
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2
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In the case of positive rights, the person subject to
the duty is bound to do something.
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Whereas, in case of negative rights, others are
restrained to do something.
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3
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The satisfaction of a positive right results in the
betterment of the position of the owner.
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Whereas in case of a negative right, the position of
the owner is maintained as it is.
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4
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In case of positive rights, the relation between
subject and object is mediate and object is attained with the help of others.
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Whereas in case of negative rights, the relation is
immediate, there is no necessity of outside help. All that is required is
that others should refrain from interfering case of negative rights.
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5
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In case of positive rights, a duty is imposed on one or
few individuals.
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In case of negative rights, the duty is imposed on a
large number of persons.
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03. Salmond’s Classification of Real and Personal Rights
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Real Rights
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Personal Rights
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1
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A real right corresponds to a duty imposed upon persons
in general.
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A personal right corresponds to a duty imposed upon
determinate individuals.
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2
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A real right is available against the whole world.
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A personal right is available only against a particular
person.
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3
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All real rights are negative rights. Therefore, a real
right is nothing more than a right to be left alone by others. It is merely a
right to their passive non-interference.
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Most personal rights are positive rights although in a
few exceptional cases they are negative.
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In real right, the relation is to a thing. Real rights
are derived from some special relation to the object.
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In personal right, it is the relation to other persons
who owe the duties which is important. Personal rights are derived from
special relation to the individual or individuals under the duty.
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4
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Real rights are right in rem.
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Personal rights are right in personam.
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04. Salmond’s Classification of Right in rem and Right in personam
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Right in rem
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Right in personam
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1
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It is derived from the Roman term ‘actio in rem’.
An action in rem was an action for the recovery of dominium.
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It is derived from the Roman term ‘action in
personam’. An action in personam was one for the enforcement of obligato
i.e. obligation.
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2
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The right protected by an action in rem came to
be called jus in rem.
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A right protected by action in personam came to
be called as jus in personam.
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3
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Jus in rem means a right against or in respect of a thing.
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Jus in personam means a right against or in respect of a person.
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4
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A right in rem is available against the whole
world.
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A right in personam is available against a
particular individual only.
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05. Salmond’s Classification of Proprietary and Personal Rights
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Proprietary Rights
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Personal Rights
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1
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Proprietary rights means a person’s right in relation
to his own property. Proprietary rights have some economic or monetary value.
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Personal rights are rights arising out of any
contractual obligation or rights that relate to status.
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2
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Proprietary rights are valuable.
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Personal rights are not valuable.
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3
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Proprietary rights are not residual in character.
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Personal rights are the residuary rights which remain
after proprietary rights have been subtracted.
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4
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Proprietary rights are transferable.
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Personal rights are not transferable.
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5
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Proprietary rights are the elements of wealth for man.
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Personal rights are merely elements of his well-being.
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6
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Proprietary rights possess not merely judicial but also
economic importance.
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Personal rights possess merely judicial importance.
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06. Salmond’s Classification of Inheritable and Uninheritable Rights
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Inheritable Rights
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Uninheritable Rights
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A right is inheritable if it survives the owner.
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A right is uninheritable if it dies with the owner.
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07. Relation between Rights and Duties
1. Rights
and Duties always go together:
Rights and
duties are closely related and cannot be separated from one another. Both go
side by side. These are the two sides of the same coin. If the state gives the right
to life to a citizen, it also imposes an obligation on him to not to expose his
life to dangers, as well as to respect the life of others. If I have a right to
work and earn, it is also my duty to recognize the same right of others.
2. Right of
One is the Duty of Others:
Rights can be
enjoyed only in the world of duties. For every right there is corresponding
duty. When the people fail to discharge their duties properly, the rights all
become meaningless. “I can enjoy my rights only if the others allow me to do
the same. I have” the right to life and it is the duty of others to respect my
life and not to cause any harm to me.”
3. Rights of
a Citizen also implies Duties for him:
Rights are not
the monopoly of a single individual. Everybody gets these equally. This means
that “others also have the same rights which I have, and it is my duty to see
that others also enjoy their rights.” Laski has rightly said that one man’s
right is also his duty. It is my duty to respect the rights of others as well
as the duty to use my rights in the interest of society.
4. Rights
are to be used for Social Good:
Rights
originate in society. Therefore, while enjoying rights, we must always try to
promote social interest. It is the duty of every one of us to use our rights for
promoting the welfare of the society as a whole.
5. Duty
towards the State:
Since state
protects and enforces rights, it also becomes the duty of all citizens to be
loyal to the state. It is their duty to obey the laws of the state and to pay
taxes honestly. Citizens should always be ready to defend the state. Thus a
citizen has both Rights and Duties. He enjoys rights and performs his duties.
Rights and Duties are the two sides of the same coin.
03. Correlation between Rights and Duties
Rights and duties
that acquire a functional nature in such context are characterized in a
tentative formal way. A possible connection between functional rights and
duties and the issue of morality as a regulation mechanism. Every right has a
corresponding duty. Therefore,, there can be no duty unless there is someone to
whom it is due. There can be no right without a corresponding duty or a duty
without a corresponding right, just as there cannot be parent without a child.
. Every duty is a duty towards some person or persons in whom a corresponding
right is vested
01. Relationship between Rights and Duties
It is debatable
question whether rights and duties are necessarily co relative. According to
one view, every right has a corresponding duty. Therefore,, there can be no
duty unless there is someone to whom it is due. There can be no right without a
corresponding duty or a duty without a corresponding right, just as there
cannot be parent without a child. Every duty is a duty towards some person or
persons in whom a corresponding right is vested. Likewise, every right is right
against some person or persons upon whom a co relative duty is imposed. Every
right or duty involves a vinculum juris
or a bond of legal obligation by which two or more persons are bound together.
There can be no duty unless there is someone to whom it is due. Likewise, there
can be no right unless there is someone from whom it is claimed.[i]
According to
Holland, every right implies the active or passive forbearance by others of the
wishes of the party having the right. The forbearance on the part of others is
called a duty. A moral duty is that which is demanded by the public opinion of
society and a legal duty is that which is enforced by the power of the state.
The view of Salmond
is that rights and duties are co relatives. If there are are duties towards the
public, there are rights as well. There can be no duty unless there is some
person to whom that duty is due. Every right or duty involves a bond of
obligation.
02. Minerva mills ltd v. union of India
The Supreme
Court observed that there may be a rule which imposes an obligation on an
individual or authority, and yet it may not be enforceable in court of law, and
therefore not give rise to a corresponding enforceable right in another person.
But it would still be a legal rule because it prescribes a norm of conduct to
be followed by such individual or authority. The law may provide a mechanism
for enforcement of this obligation, but the existence of the obligation does
not depend upon the creation of such mechanism. The obligation exists prior to
and independent of, the mechanism of enforcement. A rule of law because there
is no regular judicial or quasi-judicial machinery to enforce its command. Such
a rule would exist despite any problem relating to its enforcement.[ii]
Rights and
duties are two phases of the same thing. Rights are considered to be essential
for the expansion of human personality. They offer to the individual a
sufficient scope for free action and thus prepare ground for self-development.
Although rights
arc of great significance in a democratic stale yet they become meaningless in
the absence of duties. Rights involve obligations as well.
An individual
has rights so that he may make his contribution to the social good. One has no
right to act unsocially, man’s rights imply his claims on society and duties
indicate the claim of society on the individual. This means that an individual
owes to the society certain duties as he obtains rights.
03. four-fold connection between rights and duties
According to
Prof. Laski there is a four-fold connection between rights and duties.
1.
My Right implies Your Duty:
Every right of
an individual involves a corresponding duty of others. For example, my right to
life implies that others should give protection and security to my life.
My right to
move about freely implies a corresponding duty resting on others that they
should not interfere with my free movement.
2.
My Rights imply My Duty to admit a similar Right of others:
The conditions
of life which I need for myself arc also needed by others. This indicates that every
right is a duty in itself. If an individual exercises a right, he must bear in
mind that the same right belongs to others as well.
If I have the
right to freedom of speech, it is my duty to see that I may not be a hindrance
in the free exercise of this right by others.
3.I
should exercise My Right to promote Social Good:
A person He
guarantees the rights to the majority in the society to remove the should not
abuse the right given to him by the State.
For example, if
he uses the right to freedom of speech for spreading communal bitterness or
society cannot deprive man of these rights; these are inherent and to preach
violence and anarchy, it becomes an act counter to the social alienable rights,
good. The state will then be justified in depriving the person of his right if
he has abused it.
4.
Since the State guarantees and maintains My Rights, I have the Duty to support
the State:
The state is
the agency for social good and it is the duty of an individual to perform ones
duties honestly.
The above-mentioned
relations between rights and duties, there for clearly prove that rights and
duties go hand in hand. A healthy civic li] is impossible without the
co-existence of rights and duties. Rights without duties have no meaning and
duties without rights have no sense.[iii]
04. Constitutional Provisions
The Indian
Constitution is one of the largest written Constitutions, drafted after the
path breaking and epoch-making French Revolution, American Revolution and
Russian Revolution. It also came after Industrial revolution in Europe, the
Liberal Thinkers and their Ideas. And it had been framed long after the
Unification of the German and Italian Nations by Bismarck and Garibaldi.
Therefore, every Progressive and Noble Thoughts of the World have been adopted
and built into Indian Constitution. And in the words of Baba Saheb, framer of
the Constitution – not to do so would have only been irrational. The Indian
Constitution, naturally had derived a lot from the unwritten British
Constitution. It had adopted the British Parliamentary System, British Legal
System and Principles of Administration. And it had also incorporated many main
Provisions drawn from various Govt of India Acts made by the Imperial British
for India and Indian People, and to the British Colonial Govt in India for its
Governance. Those were only to be expected.
The Rights
Freedoms and Duties of the Individuals, as Citizens of the Country, had been
built into the Constitution in various Parts Chapters and Articles. It will be
a Study of the whole Constitution, all the Parts, Articles and Schedules, if we
are to talk of all the Rights and Duties. For almost all the Articles and
Provisions such as the Preamble and Schedule hold many promises and hopes to
the Citizens, and even to other Individuals. Some of the Rights are specific
and special for specified segments of the Society, otherwise marginalised
discriminated exploited and suppressed. These are specifically in addition, and
apart from those clearly laid out, as the Rights and Duties of all Citizens.
The Rights one
can derive, depends upon the way the People or Individual agitate demand
legislate and govern themselves, before the authorities, the political parties,
elected peoples representatives, in the Legislatives and Parliament, before the
political executives in the Government, and ultimately before the Government
and Courts. However, the significant and apparently clear Rights and Duties
are, specifically discussed below.
Fundamental
Rights
The
Constitution has been made by Indians for Indians and their Government.
Sovereignty of the Nation lies with the People. In fact it is the People, who
give the Rights to others, to all Institutions public and private, every
individual in the Country – Citizens or not, and to themselves. The People also
provide the Directions to the Government, the Political Parties and their
Members, who come forward to represent them, and help Govern the Nation.
The Rights
start from the Right to –
1. Citizenship
of the Country
2. The hopes
and expectations that flow from Part IV Directive Principles of State Policy
However, the
Constitution Part IV on Directive Principles of State Policy, is only a
Directive and guideline for the State, Parliament and Legislatives, Political
Executives, government, the bureaucracy and planners, and to the people. The
directive principles of state policy, do not give any direct rights and powers
to the individuals. People cannot, in the normal circumstances go to courts to
demand any of the directive principles of state policy, as their Rights or
Dues, or ask the Courts to enforce them.
Apart from
these there are specific Fundamental Rights. They are large, specific,
significant, essential and important to any Citizen in any part of the Country.
In fact, most of these are needed by any Citizen of any Nation living in any
part of the World.
The Fundamental
Rights are contained in exclusive Part III of the Constitution. They are the –
1. Right to
Equality – Articles 14, 15, 16, 17 and 18
2. Right to
Freedom – Articles 19 to 22
3. Right
against Exploitation – Articles 23 and 24
4. Right to
Freedom of Religion – Articles 25 to 28
5. Cultural and
Educational Rights – Articles 29 and 30
6. Right to
Constitutional Remedies – Articles 32 to 35
Right to
Property and the concerned Article 31 relating to Compulsory acquisition of
property was omitted and repealed by the Constitution (Forty-fourth Amendment)
Act 1978.
Saving of
Certain Laws, with related Articles 31A to 31 D were added by various
Constitutional Amendments. However, Article 31 D Saving of Laws in respect of
Anti-National Activities was subsequently repealed by the Constitutional
(Forty-third Amendment) Act of 1977.
Rights have no
meaning at all, unless one can force those others, or authorities or the
Government to give the Rights being denied, withheld or delayed, deliberately
or otherwise, to yield and give the rights. Or one should be able ask or force
the Govt and other authorities to intervene, and ensure or force those who are
denying, withholding or standing in the way of the Rights, discipline them, and
get the Rights. Hence, the Constitution provides, vide Article 32, remedies for
enforcement of Rights conferred by this Part. This Article 32, in fact is the
most important provision of the Constitution, forming part of Part III on Fundamental
Rights. It provides every Citizen and every individual, the Right to move the
Supreme Court by appropriate proceedings for the enforcement of the Rights.
Others are –
1. under the
Right to Equality,
a) Article 14
provides the Right of EQUALITY BEFORE LAW
b) Article 15
provides rights for prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth
C) Article 16
gives the right to equality of opportunity in matters of public employment
D) Article 17
deals with rights associated with the abolition of untouchability, and
E) Article 18
deals with rights associated with the abolition of titles
2. under the
Right to Freedom,
a) Article 19
on PROTECTION OF CERTAIN RIGHTS REGARDING FREEDOM OF SPEECH etc, it is said
that,
(1) All citizens
shall have the right –
(a) To freedom
of speech and expression
(b) To assemble
peaceably and without arms
(c) To form
association or unions
(d) To move
freely throughout the territory of India
(e) To reside
and settle in any part of the territory of,
(f) To practice
any profession, or to carry on any occupation, trade or business
At the
same-time vide part (2) of the same Article 19, the Constitution allows the
Operation of any existing law, permits the States to make any law to impose
restrictions on the above rights, that can be considered as reasonable.
b) Article 20
gives the Rights of PROTECTION IN RESPECT OF CONVICTION FOR OFFENCES, in some
unfair or unjust manner
c) Article 21
gives the Rights of PROTECTION OF LIFE AND PERSONAL LIBERTY
d) Article 22
gives the Rights for PROTECTION AGAINST ARREST AND DETENTION IN CERTAIN CASES,
in some unfair and unjust manner
3. under the
Rights against Exploitation,
a) Article 23
deals with PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOUR
b) Article 24 deals
with PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES, etc
4. Right to
Freedom of Religion – Articles 25 to 28
5. Cultural and
Educational Rights – Articles 29 and 30
6. Right to
Constitutional Remedies – Articles 32 to 35
05. Duties of Individuals
The Duties of
individual Citizens of India have been laid out in Article 51A, Part IVA of the
Constitution, as Fundamental Duties. These were not there in the Original
version of the Constitution framed and adopted by the Constituent Assembly.
These were inserted by the Constitution (Forty-second Amendment) Act passed by
the Parliament in 1976. –
06. Fundamental Rights
It shall be the
duty of every citizen of India –
a) To abide by
the Constitution and respect its ideals and institutions, the National Flag and
National Anthem;
b) To cherish
and follow the noble ideals which inspired our National Struggle for Freedom;
c) To uphold
and protect the sovereignty, unity and integrity of India;
d) To defend
the Country and render National Service when called upon to do so;
e) to promote
harmony and the spirit of common brotherhood amongst all the people of India
transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women;
f) To value and
preserve the rich heritage of our composite culture;
g) To protect
and improve the natural environment including forests, lakes, rivers and wild
life, and to have compassion for living creatures;
h) To develop
the scientific temper, humanism and the spirit of inquiry and reform;
i) To safeguard
public property and to abjure violence;
j) To strive
towards excellence in all spheres of individual and collective activity so that
the Nation constantly rises to higher levels of endeavour and achievement.
All Rights and
Duties always remain as silent Provisions interned in the Constitution. It is
unto the People to realise them. They have to make the Government to work, and
ensure that they do their Duties and they get their Rights. Where necessary
they have to fight for them, go to the Courts to agitate for them, and struggle
in the Society to retain them. As Baba Saheb said, in his last speech in the
Constituent assembly on 25thNovember 1949, while moving the Draft Constitution
for adoption, the success or effectiveness of any Law and Constitution depends
upon those who work them.[iv]
04. Rights in a Wider Sense: Hohfeld’s Analysis
01. Four Types of Rights
The following
list enumerates Hohfeld’s basic schema, identifying each kind of right and the
correlative legal consequence. P is the party with the right. Q represents the
person or group of persons on whom the right has a legal effect. X represents
the object of the right.
Claim Rights
Rights
relation: P has a claim against Q to X.
Correlative
relation: Q has a duty to P to X.
Liberty Rights
Rights
relation: P has a liberty against Q to X.
Correlative
relation: Q has no
claim against P
to not-X
Authority Rights:
Rights
relation: P has authority over Q to X
Correlative
relation: Q has a liability to P to X.
Immunity Rights
Rights
relation: P has an immunity against Q to X.
Correlative
relation: Q has a disability
(no authority) against
P to not-X.
02. Moral and Legal Rights
Hohfeld was
interested in legal rights, but we can extend his
scheme to moral rights. Thus, if I have a moral
claim right to performance of a promise, you have a corresponding moral duty to
perform. Of course, many legal rights are identical to (or substantially the
same as) similar moral rights. Contracts, for example, create both moral and
legal obligations. Some moral rights, however, may not be reflected in the law.
For example, I may have a moral obligation not to discriminate on the basis of
race when letting a room in my home, but at the same time have a legal liberty
right to engage in such discrimination.
03. Hohfeld’s System of Fundamental Legal Concepts or Jural Relations
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1
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2
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3
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4
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Jural Opposites
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Right
–
No Right
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Privilege
–
Duty
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Power
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Disability
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Immunity
–
Liability
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Jural Correlatives
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Right
–
Duty
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Privilege
–
No Right
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Power
–
Liability
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Immunity
–
Disability
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Jural Correlatives represent the
presence of in another. Thus, right is the presence of duty in another and
liability is the presence of power in another.
Jural Opposites represent the absence
of in oneself. Thus, no right is the absence of right in oneself and disability
is the absence of power in oneself.
04. Conclusion derived from Hohfeld’s System
a. As a person’s right is an expression
of a wish that the other person against whom the right or claim is expressed
has a duty to obey his right or claim.
b. A person’s freedom is an expression
of a right that he may do something against other person to change his legal
position.
c. A person’s power is an expression of
a right that he can alter other person’s legal position.
d. A person’s disability is an
expression of a wish that another person must not alter the person’s legal
position.
05. Definition and Nature of Personality
01. Definition of ‘Person’
The term ‘person’ is
derived from the Latin term ‘Persona’ which means those who are recognized by
law as being capable of having legal rights and being bound by legal duties. It
means both- a human being, a body of persons or a corporation or other legal
entity that is recognized by law as the subject of rights and duties.
Savingy has defined person
as the subject or bearer of right. But Holland has criticised this definition
on the ground that persons are not subject to right alone but also duties. He
says: the right not only resides in, but is also available against persons.
There are persons of incidence as well as of inherence.
Kelson rejected the
definition of personality as an entity which has rights and duties. He has also
rejected the distinction between human beings as natural persons and juristic
persons. He says the totality of rights and duties is the personality; there is
no entity distinct from them. However, Kelson’s view has been criticised for
the reason that in law natural person is different from legal persons who are
also capable of having rights and duties and constitute a distinct entity.
Salmond’s definition seems
to be more correct than the earlier definitions. In the words of Salmond: “So
far as legal theory is concerned, a person is any being whom the law regards as
capable of rights and duties. Any being that is so capable is a person, whether
a human being or not, and no being that is not so capable is a person even
though he be a man.”
Salmond further explains
that the extension of the conception of personality beyond the class of human
beings is one of the most noteworthy achievements of the legal imagination.
Persons can be classified
into (a) natural person, and (b) legal or artificial or juristic person. There
are some natural persons who do not enjoy the status of legal persons and vice
versa.
02. Meaning of Natural Person
A natural person is legally defined as a living
human being. A natural person is a being, to whom the law attributes
personality in accordance with reality and truth. Natural person is a human
being who is regarded by law as having rights and being bound by duties. A
human being must satisfy two conditions in order to be a natural person in law,
namely, he must be a living human being and he must be recognized by the state
as person so he must not be a slave in the absolute control of his master or
otherwise civilly dead as a monk who has renounced the world.
03. Meaning of ‘Legal Person’
The word person is derived from the Latin
word ‘persona’. Used in the context of law, persona came to signify the
subject of legal rights and duties. It came to denote not an individual
litigant as a human being, but anybody or anything permitted to assert legal
claims or subjected to legal duties. From the legal perspective, the mask of
personality does not, therefore, necessarily have to be worn by human beings.
Legal personality may be
said to refer to the particular device by which law creates, or recognizes
units to which it ascribes certain powers and capacities. Persons are the
substances of which the rights and duties are the attributes. It is in this
respect that persons possess judicial significance.
04. Natural Person vis-a vis Legal Person
Legal persons are those which are the creations of
law e.g. the company, corporations, trade unions, etc. Salmond says legal
person is any subject matter other than human beings to which the law
attributes legal personality. Generally, legal personality is granted by law to
all human beings, legal personality being an artificial creation of the law may
be conferred on entities other than individual human beings. The law, in
creating legal persons, always does so by personifying some real thing. Following are the differences between natural person and legal
person:
1.
A natural person is a human being and is a real and living person.
2.
He has characteristics of the power of thought speech and choice.
3.
Unborn, dead man and lower animals are not considered as natural persons.
4.
The layman does not recognize idiot, company, corporation, idol etc. as
persons.
5.
He is also a legal person and accordingly perform their functions
6.
Natural person can live for a limited period. i.e. he cannot live more than 100
years.
1.
Legal person is being, real or imaginary whom the law regards as capable of
rights or duties.
2.
Legal persons are also termed “fictitious”, “juristic”, “artificial” or
“moral”.
3.
In law, idiots, dead men, unborn persons, corporations, companies, idols, etc.
are treated as legal persons.
4.
The legal persons perform their functions through natural persons only.
5.
There are different varieties of legal persons, viz. Corporations, Companies,
Universities, President, Societies, Municipalities, Gram panchayats, etc.
6.
Legal person can live more than 100 years. Example: (a) the post of “American
President” is a corporation, which was created some three hundred years ago,
and still it is continuing. (b) “East India Company” was established in
sixteenth century in London, and now still is in existence.
06. Legal Status of Unborn Children, Minor, Lunatic, Drunk and Dead Person
01. Law of Status
Law of status is the law
concerning the natural, the domestic and the extra domestic status of man in
civilized society. The law of extra domestic status is the law that is
concerned with matters and relations apart from those concerning the family.
Thus this department of the law of status deals with the status of persons such
as lunatics, aliens, deceased persons, lower animals etc.
These are persons who do
not enjoy the status of legal personality but the society has some duties
towards them.
02. Legal Status of Unborn Person
A child in mother’s womb is
by legal fiction regarded as already born. If he is born alive, he will have a
legal status. Though law normally takes cognizance of living human beings yet
the law makes an exception in case of an infant in ventre sa mere.
Under English Law, a child
in the womb of the mother is treated as in existence and property can be vested
in its name. Article 906 of the French Civil Code permits the transfer of
property in favour of an unborn person. But, according to Mohammedan Law a gift
to a person not in existence is void. A child in the womb of the mother is
considered to be a person both under the law of crimes and law of torts.
Indian Position - Under section 13 of
the Transfer of Property Act, property can be transferred for the benefit of an
unborn person by way of trust. Similarly section 114 of the Indian Succession
Act, 1925 provides for the creation of prior interest before the unborn person
may be made the owner of property – corporeal or incorporeal, but no property
will be deemed to be vested in the unborn person unless and until he is born
alive. In Hindu Law also a child in the womb of the mother is deemed to be in
existence for certain purposes. Under Mitakshara law, such a child has interest
in coparcenary property.
Under section 315 of the
Indian Penal Code, the infliction of pre natal injury on a child, which is
capable of being born alive and which prevents it from being so could amount to
an offence of child destruction. Section 416 of Criminal Procedure Code
provides that if a woman sentenced to death is found to be pregnant, the High
Court shall order the execution of the sentence to be postponed, and may if it
thinks fit, commute the sentence to imprisonment for life. It has been held
that in a Canadian case that a child could succeed in tort after it was born on
account of a deformity which was held to have been caused by a negligent pre
natal injury to mother.
Though there is no Indian
case on this point but it is expected that a liberal view would be taken on
this line and a child would be getting the right to sue. In an African case it
was held that a child can succeed in tort after it is born on account of a
deformity caused by pre injury to his mother.
In India as well in
England, under the law of tort an infant cannot maintain an action for injuries
sustained while on ventre sa mere. However, in England damages can be
recovered under Fatal Accidents Act, 1846 for the benefit of a posthumous
child. In short, it can be concluded that an unborn person is endowed with
legal personality for certain purposes.
03. Legal Status of Dead Man
Dead man is not a legal
person. As soon as a man dies he ceases to have a legal personality. Dead men
do not remain as bearers of rights and duties it is said that they have laid
down their rights and duties with their death. Action personalis moritur cum
persona- action dies with the death of a man. With death personality comes
to an end. A dead man ceases to have any legal right or bound by any legal
duty. Yet, law to some extent, recognises and takes account of the desires or
intentions of a deceased person. Law ensures a decent burial, it respects the
wishes of the deceased regarding the disposal of his property, protects his
reputation and in some cases continues pending action instituted by or against
a person who is now deceased.
Indian Position - As far as a dead
man’s body is concerned criminal law secures a decent burial to all dead men.
Section 297 of Indian Penal Code also provides punishment for committing crime
which amounts to indignity to any human corpse. The criminal law provides that
any imputation against a deceased person, if it harms the reputation of that
person if living and is intended to hurt the feeling of his family or other
near relatives, shall be offence of defamation under sec 499 of the Indian
Penal Code.
The Supreme Court in the
case of Ashray Adhikar Abhiyan v Union of India has held that even a homeless
person when found dead on the road, has a right of a decent burial or cremation
as per his religious faith.
In English Law as well as
in Muslim Law the violation of a grave is a criminal offence. As regards
reputation of a dead man, it is to some extent protected by criminal law. Under
Roman law any insult to the body of the deceased at the timing of funeral, gave
the deceased’s heir a right to sue for the injury as it is treated as insult to
the heir. Under the law of France the relative of the defamed deceased can
successfully sue for damages, if they can prove that some injury it suited from
the defamation. Thus, it is not the rights and the hence the personality of the
deceased that the law recognises and protects but it is the right and interest
of living descendants that it is protected.
So far trust is concerned
English Law provides the rule that permanent trust for the maintenance of a
dead man’s tomb is illegal and void and property cannot be tied up for this
purpose. This rule has been laid down in the leading case of Williams v.
Williams where it was said that a corpse is the property of no one. It
cannot be disposed of by will or any other instrument. It was further held in
this case that even temporary trusts are neither valid nor enforceable. Its
fulfilment is lawful and not obligatory. It was held in Mathii Khan v. Veda
Leiwai that worship at the tomb of a person is charitable and religious
purposes amongst Muslims- hence trust is possible. In Saraswati v. Raja
Gopal it was held that worship at the Samadhi of a person, except in a
community in which there is a widespread practice of raising tombs and
worshipping there at, is not a religious or charitable purpose according to
Hindu Law and would not constitute a valid trust or endowment.
Regarding the property of
the dead man the law carries out the wishes of the deceased example, a will
made by him regarding the disposal of his property. This is done to protect the
interest of those who are living and who would get the benefit under the will.
This is subject to the rule against perpetuity as well as law of testamentary
succession. Indian Transfer of Property Act, section 14 incorporates the rule
against perpetuities, which forbids transfer of property for an indefinite time
thereby making it alienable. Section 14 of the TPA restrains the power of
creating future interests by providing in the rule against perpetuities that
such interest must arise within certain limits. The rule of perpetuity looks to
the date at which the contingent interest will vest, if it vests at all, and
hold it to be void as “perpetuity if this date is too remote”.
Similarly, section 1 and 4
of the Indian Succession Act, 1925 forbids the creation of a will whereby
vesting of property is postponed beyond the lifetime of one or more persons and
the minority period of the unborn person.
The Drunken Person as a Person not Having the Capacity to
Contract Admittedly, the law presumes that every person of full age has the
capacity to contract. However, the point has been made supra that certain
categories of persons are, under certain conditions, regarded as incapable of entering into a valid
contract. The drunk is one of such persons. Drunkenness is a good defence as
regards voluntariness of action. Additionally, it is generally agreed that the
contractual capacity of a drunken person
is the same a s that of the one who is mentally afflicted.
Accordingly, the burden of proving drunkenness is on he
who asserts it.
04. Hindu Idols
According to the long
established theory which was founded upon the religious customs of the Hindus,
a Hindu idol is a ‘juristic entity’ having a ‘juridical status’ and it has the
power to sue and being sued. But juridical person in the idol is not the
material image but the image develops itself into a legal person when it is
consecrated by the Pran Pratistha ceremony. According to Hindu law and various
decisions of the courts, the position of idol is that of a minor and a manager
is appointed to act on idol’s behalf. Like a minor, an idol cannot express
itself and like a guardian, manager has some limitations under which he has to
act and perform its duties. According to this rule, Shri Guru Granth Sahib is
also a juristic person. But other religious texts such as Gita, Quran, Bible
are not considered to be juristic persons.
07. Legal Status of Animals
01. Legal Status of Lower Animals
Law does not recognise
beasts or lower animals as persons because they are merely things and have no
natural or legal rights. Salmond regards them mere objects of legal rights and
duties but never subjects of them. Animals are not capable of having rights and
duties and hence they are not legal persons.
02. In Ancient Law
However, in ancient times animals were
regarded as having legal rights and being bound by legal duties. Under the
ancient Jewish Code ‘if an ox gore (wound with a horn) a man or woman resulting
in his or her death, then the ox was to be stoned and its flesh was not to be
eaten. There are many examples in ancient Hebrew Codes where cock, bulls, dogs
and even the trunk of trees which had fallen on human beings and killed him
were tried for homicide.’
There are similar instances
in India as well. In number of cases found that, animals were sued in courts in
ancient India. There is popular story about the Mughal Emperor Jehangir in
which the bullock was presented before the Emperor. However these instances are
merely of historical interest and have no relevance in modern law.
03. In Modern Law
Modern Law does not recognise animals as bearer of rights and duties.
Law is made for human beings and all things including animals are for men. No
animal can be the owner of property from a person to an animal. Animals are
merely the object of transfer and are a kind of property, which are owned and
possessed by persons. Of course, for the wrongs done by animals the master is
held liable. This duty or liability of the master arises due to public policy
and public expediency. The liability of the master is strict and not a
vicarious liability. The animal could be said to have a legal personality only
if the liability of the master is considered vicarious.
In certain cases, the law
assumes the liability of the master for an animal as direct while in other
cases, liability is not direct. Thus, for keeping animals that are not of
dangerous nature the master is not liable for the damage it may do, unless he
knows that it was dangerous. The knowledge of the defendant must be shown as to
their propensity to do the act in question. However, if the animal is of
ferocious nature, the master is responsible for the wrong if he shows
negligence in handling it. The owner of animals of this class is also
responsible for their trespasses and consequent damage. If a man’s cattle,
sheep or poultry, stray into his neighbour’s land or garden, and do such damage
as might ordinarily be expected to be done by things of that sort, the owner is
liable to his neighbour for the consequences. A charitable trust can be created
for the maintenance of stray cattle, broken horses and other animals. Such a trust
is created with a view to promote public welfare and advancement of religion.
However, if the charitable trust is created only for the benefit of a single
horse or a dog, it cannot be regarded as public charitable trust for instance
in Re Dean Cooper Dean v. Stevens a test of charged his property with
the payment of annual sum of trustees for the maintenance of his horses and
dogs. The court held that it is not valid trust enforceable in any way on
behalf of these animals. It was observed that the trustee could/spend the money
if they pleased in the manner desired by the testator. But if they did not
spend the money it would not be considered a breach of trust and in such a
situation the money so spent will be of the representatives of the testator.
Similarly, a bequest for
the maintenance of the testator’s favourite black mare a bequest of an annual
sum for the maintenance of testator’s horses and hounds for a period of 50
years if nay those animals should so long live a trust for the benefit of a
parrot during the life of two trustees and survivor of them have all been held
valid.
08. Legal Personality of State
The Union of India and the State Governments
The Union of India and the
States have also been recognized as corporate entities under Article 300 of the
Constitution of India. Article 300 relating to
Suits and proceedings is as follows:
(1) The Governor of India may sue or be sued by the name of the Union
and the Government of a State may sue or be sued by the name of the State and
may, subject to any provisions which may be made by Act of Parliament or of the
Legislature of such State enacted by virtue of powers conferred by this
Constitution, sue or be sued in relation to their respective affairs in the
like cases as the Dominion of India and the corresponding Provinces or the
corresponding Indian States might have sued or been sued if this Constitution
had not been enacted
(2) If at the commencement of this Constitution
(a) any legal proceedings are pending to which the Dominion of India
is a party, the Union of India shall be deemed to be substituted for the
Dominion in those proceedings; and
(b) Any legal proceedings are pending to which a Province or an Indian
State is a party, the corresponding State shall be deemed to be substituted for
the Province or the Indian State in those proceedings.
The President of India as
also the Governor of the State is a corporation sole like British Crown. The
Ministers of Union or State Government are not legal or constitutional entity
and therefore, they are not corporation sole. The reason being that they are
appointed by the President or the Governors and are ‘officers’ within the
meaning of Articles 53 and 154 of the Constitution. Article 53(1) say that the
executive power of the Union shall be vested in the President and shall be
exercised by him either directly or through officers subordinate to him in
accordance with the Constitution. Similarly, Article 154(1) say that the
executive power of the State shall be vested in the Governor and shall be
exercised by him either directly or through officers subordinate to him in
accordance with the Constitution.
Thus, they are not
personally liable for their acts or omissions nor are they directly liable in a
Court of law for their official acts. It is the State whether the Centre or the
federated unit which is liable for the tort or the breach of contract committed
by a Minister in his official capacity.
09. Corporate Personality
01. Partnership Firm and Company
Partnership firm is not a
legal person in the eye of law. There is no legal entity, standing over against
the partners. The property and debts of the firm are nothing else than those of
the partners. It can neither sue nor be sued in its own name. The member
partners cannot contract with their partnership firm because a man cannot
contract with himself.
Unlike a partnership firm
which has no existence apart from its members, incorporated company has a
distinct legal or juristic existence independent of its members. Under the law,
a corporation or a company is a distinct entity (legal persona) existing
independent of its members. An incorporated company exists as a complete being
by virtue of its legal personality and is often described as an artificial person
in contrast with a human being who is a natural person. A company being a legal
entity by itself, is separate and distinct from its promoters, shareholders,
directors, officers or employees and as such, it is capable of enjoying rights
and being subjects to duties which are not the same as those enjoyed or borne
by its members. It may sue or be sued in its own name and may enter into
contracts with third parties independently and the members themselves can enter
into the contract with the company.
02. Other Legal Personalities
1) RBI: The Reserve Bank of India has a corporate
existence because it is an incorporated body having an independent existence.
2) UPSC: Union Public Service Commission is not
recognized as a legal person as it cannot hold property in their own names and
can neither sue nor be sued in a court of law.
3) A Fund dedicated for a Religious Purpose: it was
also of the nature of a legal person. It had certain rights and received
certain protection from law, such as the property dedicated to a math.
4) Registered Societies: Societies registered under
Societies Registration Act, 1860 are also held to be legal persons.
5) Trade Union: Registered trade unions are considered
as juristic persons.
6) Institutions like Church, University, Library etc.:
these are considered as juristic persons.
7) Under the Indian law, Corporation Aggregate are all
those bodies or associations which are incorporated under a statute of the
Parliament or State Legislature. In this category comes all trading and
non-trading associations which are incorporated under the relevant like the
State Trading Corporation, Municipal Corporation, Roadways Corporation, the
Public Companies, State Bank of India, the Life Insurance Corporation, the
universities, Panchayats, Corporative Societies.
03. Juristic Personality or Corporate Personality
Ethical Natural law
philosophers of the 17th and 18th centuries as well as the metaphysical
theorists of 19th century postulated the concept of will as an essential
requirement for exercising legal right. They also believed that personality
is the subjective possibility of a rightful will.
Legal personality is an
artificial creation of law. Entities recognized by law are capable of being
parties to a legal relationship. A natural person is a human being whereas legal
persons are artificial persons, such as a corporation, created by law and given
certain legal rights and duties of a human being; a being, real or imaginary,
who for the purpose of legal reasoning is treated more or less as a human being.
All legal persons can sue or be sued.
10. Dimensions of Modern Legal Personality
01. Theories of Juristic Personality
1. Fiction Theory –
This theory was put forward by Von Savigny, Salmond, Coke, Blackstone, and
Holland etc. According to this theory, the personality of a corporation is
different from that of its members. Savigny regarded corporation as an
exclusive creation of law having no existence apart from its individual members
who form the corporate group and whose acts are attributed to the corporate
entity. As a result of this, any change in the membership does not affect the
existence of the corporation.
It is essential to recognize
clearly the element of legal fiction involved in this process. A company is in
law something different from its shareholders or members. The property of the
company is not in law the property of the shareholders. The company may become
insolvent, while its members remain rich.
Gray supported this theory by
saying that it is only human beings that are capable of thinking, therefore it
is by way of fiction that we attribute ‘will’ to non-human beings through human
beings who are capable of thinking and assign them legal personality.
Wolf said that there are three
advantages of this theory. It is analytical, more elastic and it makes easier
to disregard juristic personality where it is desirable.
2. Concession Theory –
This theory is concerned with the Sovereignty of a State. It pre-supposes that
corporation as a legal person has great importance because it is recognized by
the State or the law. According to this theory, a juristic person is merely a
concession or creation of the state.
Concession Theory is often
regarded an offspring of the Fiction Theory as both the theories assert that
the corporation within the state have no legal personality except as is
conceded by the State. Exponents of the fiction theory, for example, Savigny,
Dicey and Salmond are found to support this theory.
Nonetheless, it is obvious
that while the fiction theory is ultimately a philosophical theory that a
corporation is merely a name and a thing of the intellect, the concession
theory is indifferent to the question of the reality of a corporation in
as much as it focuses only on the source (State) from which the legal power of
the corporation is derived.
3. Group Personality Theory
or Realist Sociological Theory – This theory was propounded by Johannes
Althusius and carried forward by Otto Van Gierke. This group of theorists
believed that every collective group has a real mind, a real will and a real
power of action. A corporation therefore, has a real existence, irrespective of
the fact whether it is recognized by the State or not.
Gierke believed that the
existence of a corporation is real and not based on any fiction. It is a
psychological reality and not a physical reality. He further said that law has
no power to create an entity but merely has the right to recognize or not to
recognize an entity.
A corporation from the realist
perspective is a social organism while a human is regarded as a physical
organism. This theory was favoured more by the sociologists rather than by the
lawyers. While discussing the realism of the corporate personality, most of the
realist jurists claimed that the fiction theory failed to identify the
relationship of law with the society in general. The main defect of the fiction
theory according to the realist jurists was the ignorance of sociological
facts that evolved around the law making process.
Horace Gray, however, denied
the existence of collective will. He called it a figment. He said
that to get rid of the fiction of an attributed by saying that corporation has
a real general will, is to derive out one fiction by another.
4. The Bracket Theory or
the Symbolist Theory – This theory was propounded by Rudolph Ritter von
Jhering (also Ihering). According to Ihering, the conception of corporate
personality is essential and is merely an economic device by which we can
simplify the task of coordinating legal relations. Hence, when necessary, it is
emphasized that the law should look behind the entity to discover the real
state of affairs. This is also similar to the concept of lifting of the
corporate veil.
This group believed that the
juristic personality is only a symbol to facilitate the working of the
corporate bodies. Only the members of the corporation are ‘persons’ in
real sense of the term and a bracket is put around them to indicate that they
are to be treated as one single unit when they form themselves into a
corporation.
5. Purpose Theory or the
theory of Zweck Vermogen - The advocates of this theory are Ernst
Immanuel Bekker and Alois von Brinz. This theory is also quite similar to the
fiction theory. It declared that only human beings can be a person and have
rights. This theory also said that a juristic person is no person at all but
merely a “subjectless” property destined for a particular purpose. There
is ownership but no owner. Thus a juristic person is not constructed round a
group of persons but based on an object and purpose.
The assumption that only
living persons can be the subject-matter of rights and duties would have
deprived imposition of rights and duties on corporations which are non-living
entities. It therefore, became necessary to attribute ‘personality’ to
corporations for the purpose of being capable of having rights and duties.
6. Hohfeld’s Theory- He
said that juristic persons are creations of arbitrary rules of procedure.
According to him, human beings alone are capable of having rights and duties
and any group to which the law ascribes juristic personality is merely a
procedure for working out the legal rights and jural relations and making them
as human beings.
7. Kelsen’s Theory of Legal
Personality – He said that there is no difference between legal personality
of a company and that of an individual. Personality in the legal sense is only
a technical personification of a complex of norms and assigning complexes of
rights and duties.
11. Legal Personality on Non-human beings
Legal recognition of nature or some part of the natural world as having
legal personality can be seen emerging in various doctrines and developments
around the world. The historical
concept of public trust has been expanded to make the natural world or parts of
it the beneficiary of protection, while various "rights of nature"
have been incorporated into the constitutions of several countries. A growing
number of lawsuits and other projects are seeking to have non-human primates
and other animals declared legal persons, while in New Zealand a river has been
recognized as a person.
In 2008, Ecuador became the
first country in the world to declare in its constitution that nature is a
legal person. Articles 10 and 71-74
of the Constitution recognize the inalienable rights of ecosystems, give
individuals the authority to petition on the behalf of ecosystems, and require
the government to remedy violations of nature’s rights, including “the right to
exist, persist, maintain and regenerate its vital cycles, structure, functions
and its processes in evolution.”
Bolivia followed Ecuador in 2009 by similarly giving Constitutional
protection to natural ecosystems, in order to override the immediate interests
of residents.
Further north, on November 16, 2010, Pittsburg, Pennsylvania became the
first city in the United States to declare nature a legal person and to ban
“fracking” within the city limits.
During the Middle Ages in Europe it was widely accepted that animals could
be held responsible for the commission of crimes. Several hundred trials are recorded of pigs, donkeys, dogs, and other
animals that lived in close proximity to humans. Recent scholarly and activist
attention has been devoted to questioning whether some or all living species
should be recognized as legal persons. The international “Great Ape Project”
seeks to imbue non-human primates with attributes of legal
personhood--specifically “protections of the right to life, the freedom from
arbitrary deprivation of liberty, and protection from torture.” Spain
responded when the parliament’s environmental committee voted in 2008 to
approve principles committing Spain to the Great Ape Project.[v]
When people treat non-humans as persons they create a
relation of double contingency with them. The choices of the partners are seen
in a relation of mutual dependency. Usually,
in a third presumption, addressability, people make a whole range of
anthropomorphic assumptions about non-humans and they act accordingly, as if
they were humans. The non-humans are supposed to process meaning
self-referentially as the humans do, to be equipped with freedom of choice,
with self-preserving strategies, reflective capacities, phenomenal world views
of their own, empathy and understanding, even with the ability to communicate. These
projections do not dispose of the former uncertainty about causal connections. They
transform them, however, into a different uncertainty, namely, concerning the
inquiries about what questions one should ask the other. And indeed, this is
exactly the uncertainty about how to deal with other actors.
Law is opening itself for the
entry of new juridical actors - animals and electronic agents. The differences
in the outcomes, however, are striking. Although in both cases the law uses the
same higly formalized conceptual techniques - juridical personality, capacity
for legal action, attribution of rights and duties, participation in
administrative and judicial procedures - and although in both cases legal
personification is creating the conditions of possibility for the entry of
non-humans into political, economic and cultural communication, it is the very
legal formalism that allows for great variation among the new legal actors.
Animal rights and similar constructs create basically defensive institutions.
Paradoxically, they incorporate animals in human society in order to create defences
against destructive tendencies of human society against animals. The old
formula of social domination of nature is replaced by the new social contract
with nature.
12. The Definition and Nature of Liability
One of the most significant
words in the field
of law, liability means legal responsibility
for one's acts
or omissions. Failure of a person or entity to meet
that responsibility leaves him/her/it open
to a lawsuit for any
resulting damages or a court order to perform
(as in a breach of contract or violation of statute). In order to win
a lawsuit the suing
party (plaintiff) must prove the legal liability of the
defendant if the plaintiff's
allegations are shown
to be true. This requires
evidence of the duty
to act, the failure
to fulfill that duty,
and the connection
(proximate cause) of that failure to some
injury or harm to the plaintiff. Liability
also applies to alleged
criminal acts in which
the defendant may
be responsible for his/her acts which
constitute a crime, thus making him/her
subject to conviction and punishment. Example:
Jack Jumpstart runs
a stop sign in his
car and hits
Sarah Stepforth as she is crossing in the
cross-walk. Jack has
a duty of care to Sarah (and the public) which he breaches
by his negligence, and therefore has
liability for Sarah's
injuries, and gives
her the right
to bring a lawsuit against him. However,
Jack's father owns
the automobile and
he, too, may
have liability to Sarah based on a statute
which makes a car
owner liable for
any damages caused
by the vehicle he owns. The father's
responsibility is based on "statutory liability" even though he personally
breached no duty. A signer of promissory note
has liability for
money due if it is not paid, and so
would a co-signer who guarantees it.
A contractor who has
agreed to complete a building has liability
to the owner if he fails to complete on time.
13. Kinds of Liability
·
Civil or Criminal and can be Remedial or Penal
·
Civil Liability: Liability in civil proceedings
with a purpose of enforcement of rights vested in plaintiff.
·
Criminal Liability: Liability in criminal
proceedings with a purpose to punish the wrongdoer.
·
Penal Liability: Aims at punishing the wrongdoer
·
Remedial Liability: Aims at enforcement of
rights and punishment is unknown to it.
·
Criminal Liability is always penal
·
Civil Liability is sometimes penal and sometimes
remedial[vi]
14. Theories of Liability
·
Theory of Remedial Liability
·
Theory of Penal Liability [vii]
15. General Conditions of Liability
In Tort Law, the general conditions of Liability are fivefold.
01. Co-existence of two General Conditions
1. Damage is suffered by the plaintiff from the act of the defendant
2. Wrongful intent or culpable negligence on the part of the defendant
02. Damage
Alterum non laedere – to hurt nobody by word or deed – is the fundamental
principle applicable in damage. Any violation to this is damage.
03. Damum sine injuria
Damage without legal injury is not actionable.
04. Injuria sine damnum
Legal injury even without injury is actionable
05. Mens Rea
Mens rea has application in criminal wrongs and severe civil wrongs.
However Mens rea is not applicable in statutory crimes, crimes independent of
hurt or damage, etc. In Tort even negligence, recklessness, nuisance etc. are
liable, as these are identified as forms of Mens rea.
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