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Legal Concepts

Table of Contents

Liability

QUESTION BANK

Q.1 What is the meaning of liability? Explain various kinds of liabilities.

SHORT NOTES

Liability.
Vicarious liability.
Strict liability.

I. Kinds of Liability-

Liability may either be (i) civil or (ii) Criminal.

(i) Civil Liability-

Civil Liability consists in the enforcement of the right of the plaintiff against the defendant in a civil proceeding, whereas, in the case of penal or criminal liability, the purpose of the law is to punish the offender.

Civil liability, by its nature, is remedial; however, it sometimes may be penal, while criminal liability is always penal in nature. There are some wrongs which attract civil as well as penal liability, e.g. the liability of the publisher for libel [i.e. defamatory statement in printed forms] is both remedial under tort, whereas punitive under S. 499 and 500 of the I.P.C. Thus, liability for felonious torts [i.e. wrongs which are torts as well as crimes] may be civil as well as criminal. Sometimes, excessive compensation may be awarded, which is by its nature penal.

The distinction between Civil and Criminal liability-

Remedial liability is based on the maxim ‘ubi jus ibi remidium’ (when there is a right, there must be a remedy). When the law creates a duty, it also ensures its fulfilment. For the breach of duty, there is some remedy prescribed by the law and enforced by law. However, there are some exceptions to this general rule, viz-

1) Duties of imperfect obligation-

In this case, the law recognises the right but does not enforce it. For example, the law recognises a debtor’s liability in case of a time-barred debt; however, the court does not enforce it.

2) Duties that by nature are incapable of specific performance-

In some cases, the nature of duty is such that it cannot be specifically enforced. In such cases, once mischief is done it cannot be undone by specific performance. In such cases, damages are the only remedy. E.g. once a label (i.e. a printed form of deformation) is committed, it cannot be undone by specific performance, but the only remedy available is damages.

3) Where Specific performance is inexpedient or unadvisable-

In such cases, though specific performance is possible, it is not advisable or convenient. E.g., an agreement to sing in concert, an agreement to print a picture, the promise of marriage, etc., though specifically enforced, cannot be so enforced; rather, damages are awarded in such cases.

(ii) Criminal or Penal Liability-

Penal liability is based on the maxim ‘actus non facit reum, nisi mens sit rea (i.e. act itself does not constitute offence unless done with guilty intention). The maxim is considered the basis of penal liability.

Thus, ‘act’ is the physical element of the crime and mens rea is its mental element.

Vicarious Liability-

a) Vicarious Liability in criminal law-

Vicarious Liability is the liability imposed upon one person for the wrong of another in some relations. Such relations are one of the master and servant, principal and agent, company and directors, etc. In vicarious liability, the superior is held liable for the act of the inferior. The principle behind it is that ‘One who does act through other does it himself’. The doctrine of Vicarious Liability is widely applicable in civil law, but it is not applicable in criminal law except in very few cases, viz.

(i). Statutory Liability[1]–

Sometimes, the statute provides strict rules, which need to be obeyed by the superior; otherwise, he would be held liable, e.g., the Liability of newspaper proprietor for libel published in it, the liability of the owner of a property for any injury caused to others for riot taken place on the property (S. 154 and S. 155 of I.P.C).

(ii). Public Nuisance[2]–

If a servant does any public nuisance while performing the work entrusted by his principal, the principal is held liable.

(iii). Neglect of duty[3]–

The Factories Act 1948 provides strict liability for owners of hazardous industries for any injury caused to workers due to non-providing skilled staff, safety measures, etc.

b) Vicarious Liability in tort or civil law-

As Salmond observes, “In general, a person is responsible only for his own acts, but there are some exceptional cases in which the law imposes on him vicarious responsibility for the acts of others, however blameless himself may be.”

It means every person is responsible for their torts. However, there are certain exceptional circumstances in which liability is imposed upon a person for the wrongs committed by others. Such liability is called “vicarious or constrictive liability.”

Principles on Which Vicarious Liability is Based: –

(i) ‘Qui facit per alium facit per se[4]’ –

The maxim means ‘he who acts through another, does it himself’. In other words, in law, it is deemed that he who acts through others does that act himself. Therefore, the person is answerable for the consequence thereof.

(ii) ‘Respondent superior[5]’-

This maxim means, ‘Let the superior be responsible. In such cases, not only the one who obeys but also the one who commands becomes equally liable.

(iii) Public policy[6] –

According to the modern social view, the concept of public policy serves a social purpose, e.g. the master employing a servant is better able to make good any damage caused to others by the servant within the course of his employment.

Modes of Vicarious Liability: –

The liability for others’ wrongful acts or omissions may arise in one of the following three ways.

a) Liability by ratification[7]: –

Any person authorising the commission of a tort by another is responsible for that tort as if he had committed it himself.

Illustration

An act done by A, not for himself, but for B, without the authority of B, If B subsequently ratifies (assents) such act of A. B becomes liable for any tort committed by A in doing that act for B.

This liability is based on the maxim- Qui facit per alium facit per se, i.e. he who does an act through others does it himself.

b) Liability arises out of the special relationship[8]:-

Vicarious liability may arise where the doer of the act and the person sought to be held liable are related to each other in the following relations-

i). Master and servant: –

ii) Owner and Independent Contractor[9]:-

iii) Company and its Directors: –

iv) Principal and agent-
v) Firm and Partner[10]: –
vi) Guardian and Ward[11]:-

c) Liability for abetment[12]:-

In action for wrong, the person who abets the tortuous act is equally liable to him who commits the wrong. (For details, refer to the topic ‘Vicarious Liability” from notes on “Tort”)

III. Strict Liability-

a) Concept of strict liability in criminal law-

Following are the circumstances in which Mens Rea is not required to impose criminal liability; they are called an ‘offence of strict liability.

1) Offences of strict liability-

Where the Statute imposes strict liability, the presence or absence of a guilty mind is immaterial. These statutes are generally passed for public safety and social welfare. Such strict liability is imposed under The Motor Vehicle Act, The Arms Act, Licensing of Shops, Hotels, Restaurants and Chemists, Essential Commodities Act, Food and Drugs Act, etc.

2) Difficulty in proving Mens Rea-

The cases in which it is difficult to prove mens rea, the penalties are petty fines or where the statute does not require proof of mens rea on the basis of expediency etc., the law imposes strict liability.

3) Public Nuisance-

In cases of Public Nuisance, the mens rea is not required to be proved because protecting public health, comfort, etc., is in the public interest.

4) Criminal proceedings, enforcing Civil Rights-

It includes the cases in which, although the proceeding is criminal, it is really a mode of enforcing civil rights, e.g. Cases of violation of municipal laws and regulations, proceeding under S. 125 of the Criminal Procedure Code etc.

5) Ignorance of Law-

Under criminal law, a person cannot be excluded from liability for an act that he has done in ignorance of the law. In other words, committing a criminal act in ignorance of the law is no defence. Everybody is presumed to know the law.

In R. V/s. Bailey

Facts: – A British Sailor did an act at African cost. The act was forbidden by the Act (law) of the British Parliament, enacted a few days before the act was committed by the sailor. There was no possibility (taking into consideration the means of communication available at that time) for him to know at African Cost that such a law was passed by the British Parliament prohibiting the act that he was doing. He was arrested for that offence. He pleaded defence of ‘ignorance of the law’.

Court Held– Sailor was held liable, and the court held that ‘ignorance of the law is no defence’.

b) Concept of strict liability in tort / civil law-

The absolute liability arises from the breach of absolute duty. Absolute duty renders a man liable without any fault of himself, irrespective of any consideration of intention or negligence on his part. Therefore, wrongs of absolute liability impose a kind of liability which is somewhat peculiar, in the sense a person becomes liable without there being any fault on his part and without any intention. In other words, Strict Liability is imposed without mens rea.

Instances of absolute liability-

Absolute liability may arise in the following cases: –

Cases relating to the escape from dangerous things.
Cases relating to the escape of animals.
Cases relating to the use of things in their nature, especially dangerous, e.g. fire, explosives etc.
Cases relating to dangerous premises.
Person professing skill. (For further details, refer topic “Strict Liability” from notes “Tort”).

IV. Elements of liability-

a) Elements of criminal/penal liability-

The fundamental principle of penal liability is embodied in the maxim, ‘Actus non-facit reum nisi mens sit rea[13]’. It means the act does not constitute a crime unless done with a guilty mind. Thus, there are two conditions of criminal liability. Viz- (1) Physical act (Actus reus)[14] (2) Mental (Mens Rea, i.e. Guilty mind)[15]

In other words, act (i.e. physical movement) and intent (mental process) must both concur to constitute the crime.

Therefore, to make a man criminally liable, it is to be proved that the act was committed due to the conduct of the accused and that the conduct was accompanied by a legally blameworthy attitude of mind (for further details, refer to topic “Elements of criminal liability” from notes on “Law of Crimes”.)

b) Elements of Tortious liability-

The law of Torts is fashioned as “an instrument for making people adhere to standards of reasonable behaviour and respect the rights and interests of one another”.

An act which infringes a legal right is a wrongful act, but every wrongful act is not a tort. To constitute a tort or a civil injury, the following ingredients are essential viz-

(i) There must be a wrongful act committed by a person.

(ii) The wrongful act must give rise to legal damage.

(iii) The wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages.

These are the ingredients or constituents of torts which attract ‘tortious liability’. (for further details, refer to the topic “Constituents of Tort” from the notes on “Tort”).

V. The measures of Liability-

In criminal law, the ‘measures of liability’ are the factors that help decide the actual quantum of punishment. In civil wrongs or tort, they refer to the factors that help decide the actual amount of compensation.

a) Measures of criminal liability-

Three important factors must be considered when determining the quantum of punishment. They are called measures of criminal liability viz- the offence’s motive, the offence’s magnitude, and the offender’s character. Moreover, in I.P.C., the antecedent is also taken into consideration.

b) Measures of Civil Liability-

In civil liability, the quantum of damages depends upon the actual loss suffered by the Plaintiff.

Neither the character nor motive of the defendant is relevant in determining civil liability. Actual consequences of the wrongful act are considered while determining civil liability, not probable ones. However, in certain cases, the court awards penal damages if the defendant’s conduct has aggravated the plaintiff’s damage.

VI. Presumption of innocence-

The fundamental principle of criminal jurisdiction is that “everyone is presumed to be innocent until his guilt is proved by the prosecution”. In other words, the accused is not bound to make any statement or explain the crime’s incidence. It is upon the prosecution (State) to prove the guilt of the accused beyond all reasonable doubt.

Exceptions-

Following are the exceptions to the above rule of presumption of innocence viz.

1) Person in possession of Stolen Goods-

According to S. 114 illustration (a) of the Evidence Act, the court may presume that a person who is in possession of stolen goods soon after the theft is either a thief or a guilty receiver unless he has a satisfactory explanation for the possession of that goods.

2) If the accused pleads exception-

In a case accused pleads protection under some of the exceptions (i.e. the right of private defence, necessity etc.), the court need not presume his innocence; if the defence fails, the accused will be convicted.

3) Offences relating to trade marks-

In cases of offences relating to trademarks, property marks, or currency notes, the doctrine of innocence does not apply.

VII. Transferred Malice-

The general rule is that all elements of criminal liability should be established to punish or convict the accused. In other words, actus reus and mens rea should be associated with the event to hold a person guilty of an offence.

However, the doctrine of ‘transferred malice’ is an exception. Transferred malice is also called ‘transmigration of malice’.

301 of the I.P.C incorporates the principle of ‘transferred malice’. It reads as-

‘If a person, by doing anything which he intends or knows to be likely to cause the death of any person, causes the death, whose death he neither intended nor knew himself to be likely to cause, is liable for punishment as if he had caused the death of the person whose death he intended and knew likely to be caused.

Illustration

If a person intends to cause the death of A and in his attempt to cause the death of A, he kills B, he would be guilty of having committed the murder of B, though he never intended to kill B. In this case, the general intent to kill A is transferred to the killing of B.

Similarly, if A counsels B to poison his wife with a roasted apple, but the wife gives it to B’s child, not knowing it contains poison, and the child eats it and dies, B is liable for the murder of a child though he never intended to harm the child.

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[1] कायदयाने दिलेली जबाबदारी. [कानून द्वारा दी गई जिम्मेदारी। ]

[2] सार्वजनिक उपद्रव. [सार्वजनिक उपद्रव। ]

[3] कर्तव्यात कसूर. [कर्तव्य की उपेक्षा ]

[4] जो दुस-याकडून अपकृत्य करुन घेतो त्याने ते स्वतःच केल्याप्रमाणे असते [जो दूसरे से गलत काम लेता है, वह ऐसा है जैसे उसने खुद ही किया हो ]

[5] उच्चाधिकारी जबाबदार [उच्चाधिकारी जिम्मेदार ]

[6] जनकल्याण [सार्वजनिक कल्याण ]

[7] मागाहून संमती दिल्याने [पीछे से सहमति से ]

[8] विषिश्ट संबंधामुळे येणारी जबाबदारी [विशेष संबंध से उत्पन्न होने वाला दायित्व ]

[9] स्वतंत्र कंत्राटदार [स्वतंत्र ठेकेदार ]

[10] भागीदारी व भागीदार [साझेदारी और भागीदार ]

[11] पालक व पाल्य [ माता-पिता और बच्चे ]

[12] चिथावणी देणाराची जबाबदारी [उत्तेजक का दायित्व ]

[13] जर व्यक्तीचे मन निर्दोश असेल तर केवळ कार्यामुळे तो गुन्हेगार किंवा दोशी ठरत नाही. म्हणजेच गुन्हेगार ठरविण्यासाठी व्यक्तीचे कृत्य व त्याचे मन सुध्दा दोशी असले पाहीजे.[ यदि किसी व्यक्ति का मन निर्दोष है, तो मात्र कार्य उसे दोषी या दोषी नहीं बनाते हैं। अर्थात अपराधी बनाने के लिए व्यक्ति का कर्म और उसका मन भी दोषी होना चाहिए। ]

[14] दोशपूर्ण /अपराधी कृत्य.[ एक दुराचार/आपराधिक कृत्य। ]

[15] अपराधी/ पापी/ दोशी मन. [दोषी/पापी/दोषी मन। ]