class notes_legal concepts

7/30/2019 Class Notes_Legal Concepts

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LEGAL CONCEPTS

1. Legal rights

2. Ownership

3. Possession

4. Persons

5. Titles

6. Liability

7. Law of property

8. Law of obligation

9. Law of procedure

4th March, 2010

Salmond Legal right has 5 characteristics:

1. Legal right is vested in a person who may be distinguished as na owner of the right

and he is the person of inherence.

2. Availed against a person who has a correlative duty. He may be distinguished as the

person bound as the subject of duty or person of incidence.

3. Obliges a person bound to act or omission in favour of the person entitled. This may

be termed as the content of the right.

4. The act or omission relates to something which may be termed as the object/ subject

matter of the right.

5. Every legal right has a title reason of the title the right becomes vested in the owner.

Every right involves a three fold relation in which the owner stands:

1. Right against person or persons

2. Right of act or omission of such person or persons

3. Right over something to which that act or omission remains.

LEGAL RIGHTS IN THE WIDER SENSE (Ruscoe Pound)

Legal right may be defined as any advantage or benefit conferred upon a person by the virtueof law.


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Jural correlatives

Concept Correlative

1. Rights (strict sense) - duty

2. Liberties - no right

3. Power - liability

4. Immunity - disability

Legal rights are essentially external recognition and administration by law and belong to the

science of law rather than law and are a complete idea. It may mean the legally recognized

and delineated human wants and demands and by some conceptions by which the recognized

interests are given form in order to be served by a legal order.

Ruscoe Pound Volume 6

Distinguished by the sovereign itself.

4th March, 2010

Right (strict sense) Liability (no duty)

(diagonals)

Duty No Right

Power Impunity

(diagonals)

Liability Disability

Jural Opposites/Correlatives

- Jural correlatives is the presence of in another

Diagonal arrows Jural contradictions is the absence of in oneself

- is the absence of in another

Hohfeld uses claim instead of right.

First rectangle represents static legal relationship.

Second rectangle represents changing relationships.

Categorisation not found in general law but in transactions:


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1. It is improper to speak of a right inherent in A towards B unless it can also be said

that B has a duty.

2. It is improper to speak of A having a privilege vis-a-vis B unless it can be shown that

B has no right to prevent the exercise.

3. It is improper to speak of A as having a power against B unless As exercise of power

involves the imposition of liability over B.

4. It is improper to speak of A as having immunity as against B unless it can be shown

that B is under a disability with respect to the same subject matter.

Simplification:

1. As a persons right is an expression of a wish (claim) that other person against whom

right/ claim is expressed has a duty to obey his claim.

2. A persons freedom is an expression of a claim that he may do something against

another person to change his legal position.

3. A persons power is an expression of a claim that he can alter other persons legal

position.

4. A persons inability is an expression of a wish that another person cannot alter the

persons legal position.

6th March, 2010

KINDS OF LEGAL RIGHTS Salmond

1. Perfect Right

2. Imperfect Right

A perfect right is one that corresponds to a perfect duty. A perfect duty is one which is notmerely recognized by law but also enforced by law.

Imperfect rights Rights which are not perfect in nature.

Eg. Claims brought by the lapse of time claims which cannot be enforced for want of

special evidence claims against foreign state/ sovereign.

Rights and duties are imperfect as no action lies for their maintenance.

Imperfect right may be a good ground of defence though not a good ground of action. Eg.

Law of limitation.


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Imperfect right is sufficient to support any security that has been given for it and an imperfect

right becomes perfect.

Right of action lies dormant.

POSITIVE AND NEGATIVE RIGHTS

Positive right corresponds to the positive duty and entails its owner to have something done

for him without the performance of which his enjoyment of the right is imperfect and

incomplete.

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.

Differences:

1. The right of the first possessor to quiet enjoyment is a negative one. It corresponds to

the negative duty of all others not to interfere.

2. In the case of positive rights, the person subject to the duty is bound to do something.

In the case of negative rights, others are restrained from doing something.

3. Satisfaction of the positive right results in the betterment of the position of the owner

and in negative rights the position of the owner is maintained as it is.

4. In case of positive rights, the relationship between subject and object is immediateand the object is attained by the help of others. In case of negative rights, the relations

is immediate, there is no necessity for outside help.

REAL AND PERSONAL RIGHTS

Similar to negative and positive rights

8th March, 2010

Salmond Real rights correspond to duty imposed on persons in general and personal rights

correspond to duty imposed on determinate persons.

Real rights Against the entire world.

Personal rights Against specific persons.

Right to reputation Real right.

Right to compensation Personal right


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Real rights are more important that personal rights as they are available against the entire

world.

Real right is nothing more than the right to be left alone merely a right to their passive non-

interference.

No person can have a legal right to the active assistance of the entire right. What duties can

be expected of the entire world are of a negative character.

Eg. Purchase of goodwill Personal and negative right.

RIGHT IN REM AND RIGHT IN PERSONAM

Derived from actio in rem and actio in personam

In rem Real right

In personam Personal right

Jus in rem

Jus in personam

Every right is at the same time one in respect to a thing as well as against the entire world.

Real right relation to the thing

Personal right relation to other persons who owe a duty

Right in rem available against all persons

Right in personam. duty imposed upon determinate persons

9th March, 2010

PROPRIETARY AND PERSONAL RIGHTS

Proprietary estate estate

Proprietary rights always involve some monetary value. They are the elements of wealth of

a man whereas the personal rights are only the elements of well being.

Proprietary rights possess not only judicial but also economic importance whereas personal

rights have only judicial importance.

Proprietary rights do not apply to rights in strict sense but other kinds of rights also.

Proprietary rights include accessory rights as well. Eg. General power of appointment.

Duty of fulfilling a contract i) purchase of goods (proprietary right)


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ii) manage (personal right)

Status of a person Personal right

True test for proprietary rights not whether it can be alienated but whether it is equivalent to

money a right to receive money or something which itself can be turned into money is aproprietary right.

INHERITABLE AND UNINHERITABLE RIGHTS

Inheritable when it ______ its owner

Uninheritable right dies with the owner

Inheritance in term of title

10th March, 2010

OWNERSHIP

1. Salmond

Ownership denotes the relation between person and objecvt forming the subject

matter of his ownership.

Ownership consists of a complex of rights i.e. rights in rem.

Incidence of ownership:

i) Owner will have the right to possess the thing which he owns.

ii) Owner normally has the right to use and enjoy the thing owned.

iii) The owner has the right to consume, destroy or alienate the thing (forward

liberties).

iv) Ownership has the characteristic of being indeterminate in duration.

v) Ownership has a residuary character.

2. Austin

Ownership means a right indefinite in point of user, unrestricted in point of

disposition, and unlimited in the point of duration over a determinate thing.

Two caveats:

1. Use of property to injure neighbours

2. To build upon your land to injury of others


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Attributes:

1. Indefinite in point of user owner may use property in any way subject to the two

caveats.

2. Unrestricted in point of disposition right to dispose of the property.

3. Ownership exists as long as the thing owned exists.

11th March, 2010

3. Dias

Does not give any incidence of ownership.

Ownership is needed to give effect to the idea of mine and not mine or thine.

Without society, there is no need of ownership.

Ownership as a right consists of:

1. Claims

2. Liberties

3. Powers

4. Immunities

But can be curtailed by:

1. Duties

2. Liabilities

3. Disabilities

The claims which comprises the content of ownership may be vested in persons other than

the owner.

An owner may be divested of his claim to such an extent that he may be left with no practical

benefit.

The way in which the ownership arises differ in different legal systems, therefore incidence

of ownership is determined by law determining the rights and interest of the persons to whom

the law ascribes ownership.

SUBJECT MATTER OF OWNERSHIP


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Salmond Subject matter of ownership consists of material objects like land or chattel.

Ownership also includes interests one may have. Eg. Shares, patents or copyrights.

Whenever a thing is to be owned, there are two ways to do so:

a) A stature might provide that a property after sometime may devolve to a person.

b) A person may take or make a thing to become a owner.

May not be applicable in present day concept of ownership due to restrictions on ownership.

Eg. Estate tax.

CLASSIFICATION OF OWNERSHIP

1. Corporeal or Incorporeal Ownership

Corporeal ownership ownership in a physical object

Incorporeal ownership right/ interest in an intangible object

Distinction lies between corporeal and incorporeal things

Corporeal things felt and perceived by senses

Incorporeal things cannot be felt or perceived by senses

2. Sole and Co-ownership

Sole ownership ownership vested in one person

Co-ownership ownership vested in many undivided interest. Eg. Partners in a firm

3. Trust and Beneficial Ownership

Trust no co-ownership but there are two persons involved i.e. the trustee and the

beneficiary. Trustee cannot be the beneficiary no right of beneficial ownership

Beneficial ownership enjoyment over the property

Restricted to public trusts

4. Legal and Equitable Ownership

Legal ownership ownership having its origin in common law

Equitable ownership that which proceeds from rules of equity divergent from rules

of common law

5. Vested and Contingent Ownership

Ownership is vested when its title is perfect absolute

Contingent ownership title can become perfect on fulfilment of conditions


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6. Absolute and Limited Ownership

Absolute ownership when all the incidence are imposed by law and complete and

imposed without restrictions

Limited ownership when incidence is subject to restrictions

12th Mar, 2010

POSSESSION

1. IDEA OF POSSESSION

a) Paton - Possession is capable of various meaning - lacks uniform approach created

various legal relations prima facie evidence of ownership he who disturbs

possession must show either title or a better possessory right defines possession

is a root of title and all possession is regarded as just till it is shown to be otherwise.

b) Salmond Possession is the most basic relationship between men and things as men

require basic essentials of food, clothing etc and therefore, men have to possess them

admits that the concept of possession is difficult to define and at the same time it is

not purely a legal concept as possession is independent of and prior to that of law - itis both legal and non legal concepts.

The concept of possession may vary from one system of law to another system

depending on the social policy underlining that system of law.

Custody and detention are non-legal concepts of possession - When u go to a

jewellery store and the shopkeeper gives u a gold ring to examine - u take it in your

hand and u are examining it hence, u are in custody of the ring which is a non-legal

concept here.

- Custody is a relation of relative possession where the holder either lacks full

control or else has no animous to exclude others Eg. A customer examining a

ring in the presence of the jeweller.

2. POSSESSSION IN FACT AND POSSESSION IN LAW


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Possession in fact Denotes that something is in ones control direct and indirect

control direct control means that one has custody of the thing whereas indirect control

means when that thing is lying somewhere and one has the power to regain or retain it

no temporary relinquishment of power to retain or regain there are a variety ofsituations where possession of fact depends on the intention of the possessor as to how he

wants to possess the thing eg. U own a small thing which u can hold in your hand; u

have an animal and u cage it; u have a house but u are away from it all these are

possessions in fact.

Salmond considers possession in fact in two elements:

i) Corpus possessionis it comprises both the power to use the thing possessed and

the existence of grounds for the expectation that the possessors use will not be

interfered with.

ii) Animus possessindi Consists of an intentto appropriate to oneself the exclusive

use of thing possessed.

Fitzergrald says this classification is impracticable as they are associated with the quantity

of intention. Eg for a baby of one day old or for a person in coma, we are unable to

identify the intention aspect.

Possession in law Means that the possessor has been given rights by law to keep the

thing in possession without interference by others right in rem supported by right in

personem against those who violate the possessors primary rights and includes right to

recover compensation for interference for disposition of the right to restore his possession

the law can protect possession by criminal and civil sanctions

Possession in fact and possession in law go hand in hand a persons possession in an

article which he finds lying around it is a possession in fact and possession in law till

the owner is found A pickpocketer is in possession of the thing pickpocketed in fact and

also in law with reference to other people except the owner.


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Discussion e-Courts

16th March, 2010

INCIDENTS OF POSSESSION (PATON) MEDIATE AND IMMEDIATE

1. In case of a personal possession of a thing, it is not acquired whenever a mere

physical control is taken, it depends on the knowledge of the taker of the nature of the

thing acquired.

2. A possessor of land possesses everything attached to or under the land and things

lying loose on the land are not in the possession of the landowner but fall into the

possession of the first finder if he is lawfully on the land.

3. The owner or possessor of a shop is not in personal possession of a thing on the floor

of his shop until he knows of their presence there.

4. The owner of a house who may have been in possession of the house for the purpose

of taking action against the trespasser may not be in personal possession of a thing

found on the premises if he has never physically occupied the house.

5. The owner and possessor of the land may not be in personal possession of a thing on

his land even though he owns them, another person not on the land may be in

possession of them.

6. The finder of a lost chattel obtains possession of it and hence, title to it as against

those who have no claim to it prior to his.

7. A finds a chattel who finds it in the course of employment, does not obtain

possession of it.

8. As between two or more persons who are in apparent physical control and enjoyment

of the use of chattels, the owner of the chattel is in possession of them.

9. To acquire possession of a thing it is necessary to exercise such physical control as

the thing is capable of and to evince an intention to exclude others.

THEORIES OF POSSESSION


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1. Possession in Roman Law

Possession is regarded as a matter of fact. The possessor is having two practical

advantages:

i) He could ask in cases of dispute through the magistrate to protect his

possession.

ii) If the possessor could show good faith and good cause, he could acquire

ownership on the expiration of the necessary period of time.

Divides the concept of possession into:

i) Possession naturalis

ii) Possession civilis

Major exponent was a jurist Paul.

2. Savignys Theory (Historical School)

Possession consists of two elements:

i) Corpus possessionis physical control

ii) Animus domini intention with which such control is exercised.

Since the possessor has to exert physical control over the thing, animus domini is allthe more important to keep physical control to hold the thing as against others.

This theory is imperfect. There are certain areas where this does not apply. Eg.

Pledge.

3. Jherings Theory


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He put forward a more objective theory. A man possesses who is. in relation to the

thing, in the position in which an owner of such thing ordinarily is, animus being

merely an intelligent consciousness of the fact.

Persons who hold property would be owners in majority of cases and possession was

attributed to them as an incident of ownership. Whenever a person looked like a

owner in relation to a thing he had possession of it unless possession was denied to

him by special rules based on practical convenience. It is in line with the Roman

theory.

4. Salmond Theory

Concentrates on Possession in Fact and Possession in Law. He talked of two

elements:

i) Corpus possessionis Power to use the thing possessed and the existence of

grounds for the expectation that the possessors use will not be interfered with.

ii) Animus possidendi Intent to appropriate to oneself the exclusive use of the

thing possessed.

Two other categories:

i) Corporeal possession Mere physical possession of an object.

ii) Incorporeal possession Possession of rights.

Dias criticizes this. He says that corpus and animus are possessions by themselves and

are simply conditions for acquiring possession.

5. Holmes Theory

It is rested on Savignys theory. Holmes believed that there are very few facts needed

to constitute possession than to acquire it. To get possession a man must stand in

certain physical relation to the object and to the rest of the world and must have


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certain intent. This relations and the intent are the facts of which one should search of

in cases of possessions.

Dias has criticized this. He says that it is a very generalized theory.

6. Pollocks Theory

De facto control and physical control with general intent is sufficient to constitute

possession. However, de facto control cannot be explained in cases of relationships

like master-servant, bailor-bailee etc.

17th March, 2010

PERSONS

Persons are human beings who are capable of thinking and making choices. The autonomy of

human being and the capacity to take decisions make him the subject of legal person and his

subject of rights, duties and liabilities. Natural persons i.e. the human beings are legal persons

simpliciter. This idea is found right from the Roman law period. Now we give personality to

even corporations and companies. There are certain schools of law who have this idea of

giving personality:

1. The Ethical Natural Law Philosopher alongwith the Metaphysical School Will isan essential requirement for exercising a legal right and hence personality is the

subjective possibility of a rightful will. This concept was put forward by Grey in his

bookNature and Sources of Law.

2. The Analytical jurisprudence by way of fiction included unborn child, lunatics etc.

Institutions like municipalities, companies were attributed with these capacities of

right.


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Thus, legal personality is an artificial creation of law and entities recognized by the law are

capable of being parties to legal relationships.

3. Salmond So far as legal theory is concerned, a person is any being whom the lawregards as capable of rights and duties. He divides persons into:

i) Natural Human beings

ii) Legal Beings which are real or imaginary who for the purpose of legal reasoning are

treated in greater or lesser degree as human beings. These beings are often termed as

fictitious, juristic, artificial or moral.

STATUS

1. Lower animals - Animals are not recognized by law as appropriate subject matter of

rights and duties and liabilities. No animals can be the owner of any property even

through the instrument of trust. The jurists say animals cannot be legal persons as they

do not have rights and duties. However, in the present day, cruelty to animals is an

offence. Hence they have some rights. For a single animal a trust cannot be created,but the same can be created for a class of animals. There are essential duties created

for the welfare of animals. There are public rights vested in the community for the

welfare of animals. In custom we find that even animal can owe property, like in

some regions in Rajasthan. But an individual animal cannot own property.

2. Dead man They do not have legal personality as they lose the capacity of enforcing

rights and liabilities. However, they have rights over their body, reputation and estate.

They have the right of a decent burial and anything otherwise would be an offence.

He has a right over his reputation and any defamation would harm his rights. He has a

right over his estate. De moritus mil nisi bonum A dead man lives through his

descendants. A dead man can regulate the disposition of property and to decide who

gets to enjoy his property.

3. Unborn child/ Child in a mothers womb They can have rights. Before birth they

can have a share in the property. This is found mainly in coparcenary system. A child

in the womb has the right not to be injured. If injured, it will be taken as an offence.


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4. Corporations Corporation sole (one man at a time, found only when his successee

comes to constitute single permanent legal person, eg. Solicitor of a treasury,

postmaster general etc.) and corporation aggregate (when there are several members

at a time, eg. Registered company, municipalities, improvement trusts, state

governments). The property of a company is different from the property of itsshareholders. The debts and liabilities of a company cannot be attributable to its

members.

Protection of Traditional Knowledge: National and International Perspectives

Globalization, Neo-colonization and Bioprospecting, the North-South Debate

18th March, 2010

THEORIES OF JURISTIC PERSONALITY

1. FICTION THEORY (Salmond + Savigny + Grey + Wolff)

Salmond says that the moment we give personality to a company we give rights,

liabilities and duties to that entity. Their existence is imaginary. But we give a legal

will to that entity, and thus we give a legal personality to that entity.

Savigny says that there is no reality at all, legal capacity is considered as extended to

artificial subjects admitted by means of a pure fiction. Thus a person is assumed to be

of purely juristic personality.

Grey points out that except in the case of normal human being, there is always a

fiction of attributing will of another to another or to some other than himself. Further,

fiction is purely a formation of abstracts. It is the formation of an abstract entity to

which will of men may be attributed.


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Wolffhas given certain advantages of fiction theory:

i) It is a theory of law and is analytically preferred

ii) It is more elastic than other theories

iii) It makes it easier to disregard juristic personality in cases where it is desirable.

Further, from this point of view, if any type of human beings were not so recognized,

the polity would not be regarded nowadays as one rule of law.

2. THE CONCESSION THEORY

It assumes that associations are creations of the state and law is the only source from

which legal personality may flow. It is something by way of privilege ascribed to a

group to be recognized as a juristic person and is nearer to fiction theory in

concerning the personality. Law determines what shall be regarded as juristic entity.

3. ORGANISM THEORY

It stresses that once groups are organized they correspond biologically to human

beings. In Roman law also, we find that person is called corpus. As the organized

groups like corporations, through giving them rights and duties, are alive. They have

duties, and have a real life. They have heads and organs. They have a group will

different from individual members. The conceptions of social organism of thesegroups are not imaginary but in reality. The reality is physical, namely the unity of

spirit, purpose, interest or organisation.

4. GROUP PERSONALITY/ THE REALIST SOCIOLOGICAL VIEW Gierke

(Historical and Sociological School)

A group has a real mind, a real will and a real power of action. The realist theory bills

on the concept that groups or associations when recognized by law become a legal


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reality and juristic personality. The function of the realist theory is to confer widest

power on the groups or corporations when registered or incorporated.

Favoured by Maitland, Pollock and Dicey. They believe that the group is a livingorganism and a real person with body members and a will of its own. It itself can will,

itself can act and it wills and acts by the men who are its organs as a man wills and

acts by brain, mouth and hand and it is a group person and it is a group will.

19th March, 2010

5. THE BRACKET THEORY Jhering

Members of an incorporated association are considered bearers of rights. However,

juristic person is a symbol in helping to giving effect to the purposes of that group.

The members of the group are bracketed together to treat them as a unit. But the real

and only persons are its members. Juristic person is nothing but a special form in

which the members manifest their relations of right and law with the outside world.This theory is a restricted approach. It cannot be applied to Anglo-American or Indian

situations. There is a clear distinction between the properties, rights, duties of the

company and its members. Corporations stand sue generis. they can sue and can be

sued. This theory will find application in cases of lifting of the corporate veil in cases

of fraud or tax evasion.

6. HOHFELDS THEORY

Juristic persons are certain creations of arbitrary rules of procedure. As human beings

are capable of having rights, duties, powers and liabilities, any group or association to

which the law ascribes juristic personality is merely a procedure for working out the

legal rights and jural relations and postponing for future the details of the procedure

which ultimately determines the rights of human beings involved in such juristic

persons. Group personality is collectivisation of mass of individual rights.

7. KELSENS THEORY


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There is no difference between the legal personality of a company and that of an

individual. Personality in the legal sense is only a technical personification of a

complex form of norms, a focal point of imputation which gives a unity to certain

complexes of rights and duties. More or less arbitrarily the law individualises certainparts of the legal order and establishes a certain unity in the rights and obligations

pertaining to it but this is only a technical means of securing facility of procedure for

all that is real consist of rights of human individuals. This is the only approach for a

pure science of law and has the advantage of ending the tiresome and futile arguments

concerning the psychological and philosophical nature of group personality.

Debate: Feminist Jurisprudence Political Sphere

22nd March, 2010

LIABILITIES

Salmond

Liability or responsibility is the bond of necessity that exists between the wrongdoer and the

remedy of the wrong. He classifies the kinds of liability and these were further added to by

the courts of jurisprudence:

1. Civil and Criminal Liability

Civil liability is the enforcement of the right of the plaintiff against the defendant in

civil proceedings. Criminal liability is the liability to be punished in criminal

proceedings. Civil liability gives rise to civil proceedings whose purpose is the

enforcement of certain rights claimed by the plaintiff against the defendant. Eg.

Specific performance, realisation of debt. There may be instances where the liability

may be both civil and criminal.


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How to measure liabilities? In civil liabilities damage has to be imposed. Hence there

has to a quantification of liabilities. In criminal liabilities, we do not see the

magnitude of the wrong done. Civil liability is measured by the magnitude of the

wrong done. In criminal liability we take into consideration the motive, intention,

character of the offender, magnitude of the offence etc.

2. Remedial Liability

If a duty is created by law, the latter should see to it that it is performed. The force of

law can be used to compel a person to do what he ought to do. Therefore, there is no

idea of punishment. There are three exceptions to the principle that a man must be

forced to do by law what he should be do by rule of law:

i) In the case of breach of an imperfect duty time barred debt

ii) In cases where duties are impossible of specific enforcement libel or

defamation

iii) In cases where specific enforcement of duty is inadmissible a promise of

marry

3. PENAL LIABILITY

Penal liability is concerned with punishment of law. Punishment is of four kinds. It

can arise from criminal as well as civil proceedings.

4. VICARIOUS LIABILITY

Master-servant

Legal representatives liable for the acts of the dead man

5. STRICT OR ABLOLUTE LIABILITY


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An accident which may be culpable or inevitable

Negligence

In cases where law requires standard of care which needs to be taken

GENERAL CONDITIONS OF LIABILITY

1. Act (Salmond) It is a conscious movement and a conduct which results from the

operation of will. All acts should be voluntary to constitute actus reas which may

amount to an offence. An omission on the other hand will attract liability as it consists

of not performing an act which was expected to be performed by law. Section 32, 33

of IPC. Eg. A has an infant brother. He beats him and does not give him food forsome days. The brother dies. Can we say A is guilty of murder?

Acts may be voluntary or involuntary. Involuntary are those which are beyond mans

control. Acts done in sleep or under hypnosis are involuntary acts. In case of true

voluntary act, it is said to consist of a willed muscular contraction which incurs moral

or legal liability only by virtue of the circumstance in which it is committed or the

consequence which it produced.

23rd March, 2010

2. Causation of crime (Hart) Instead of investigating whether the defendants act was

he act will be such that will lead to the causatthe cause of the plaintiffs injuries, they

should inquire whether the defendant ought to be held responsible which could beanswered according to the policy and without regard to the conceptual difficulties

inherent in the notion of the crime.

Causation implicitly recognises number a factors which may be responsible for an

offence. A man is said to commit an actus reas if the actus cannot occur without his

participation. A man will generally be held criminally liable only for the

consequences of his conducts as he foresaw. Direct and indirect causation must be

taken into account.


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(Salmond) It is important to decide question of causation before imputing liability.

When acts are direct and simple, the establishment of the nexus between the act and

the offence is not difficult to perceive. Causation can also be indirect. Eg. Abatement.

Causation is often based in the common sense of cause. However it does not provide

an analysis of the concept as applied by the lawyers and the courts. Causal

investigation involves both explanatory and attributive enquiry. In such cases the

common sense of causation does not apply. In cases of post-mortem, it serves to

investigate as to the cause of the death. Now suppose a man is stabbed. He is brought

to the hospital. He is given an antibiotic injection. There is a strong reaction to the

antibiotic in his blood. He dies. In such cases, the common sense of causation does

not apply. Only a post mortem can decide the causation of the death.

Examples:

i) A intends to kill B and he shoots at him but slightly injures him. B is taken to

hospital in an ambulance. While going to the hospital, some debris falls on the

ambulance and A dies. A had the mens rea but there was just an attempt to

murder.

ii) A intends to kill B and he shoots at him but slightly injures him. B has a rare

blood disease where the blood does not coagulate. Because of this would B

dies. Here causal investigation will decide the liability of A, whether B was

killed from the injury afflicted by A or because of the disease.

iii) A intends to kill B and he shoots at him but slightly injures him. B refuses to

take any treatment and dies. A has mens reabut he is guilty of only attempt to

murder.

Causation in terms of sequencing of events takes many forms. First, it is evidence

which has to establish the occurrence of causes. Second, when some events have

happened to form a combination of factors, one of these factors has to be chosen as

the cause. Third, the laws choice between factor A and factor B are to be related to

the actual happening. Fourth, intended consequences are not too remote. Thus fixing

of causation in criminal cases is a complex one.

3.Mens Rea

Actus non facit reum mens sit rea. In criminal law for assigning liability,the law first satisfies two things:


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i) An act has been done which by reason of its harmful tendencies or results is fit

to be repraised by way of penal discipline.

ii) The mental attitude of the doer towards the deed was such as to render

punishments if it acts as a deterrent in future and thereof just. The form of

mens rea will depend on the provisions of the particular legal system.

4. Intention (Salmond) it is the purpose of design with which an act is done or to

perform some further act to bring about certain consequences and so on. An

unintentional act is one lacking such purpose or design. Whether an act is termed to

be intentional or unintentional depends partly on the description of the act itself.

Sometimes, it can be explained as a combination of foresight or desire. But intention

is not identical with desire.

Examples:

i) A purchases a gun to kill B who is his neighbour. By mistake, he shot it at thetime of testing. B was killed. In this case, the design was not there.

ii) A person disregards traffic signal through forgetfulness. He kills a person

walking on the zebra crossing. It is an unintentional act.

iii) A person has a disease of sleepwalking. He goes out in night, drives a vehicle

and kills a pavement dweller. There is no intention.

iv) A sets fire to a house and wants to rob the house. There was someone inside

and he was killed. There is no intention in this case.

Are motive and intention the same?

A person may act from a laudable motive, but his intention causes wrongful loss. His

crime is complete irrespective of the motive.


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class notes_legal concepts

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