Liability
Definitions :- Liability means vinculum juris
Salmond - “ liability is a bond of necessity that exists between the
Wrong doer and remedy of wrong”.
Markby - “ The word liability is used to describe the condition of person
who has a duty to perform”.
Liability :- Joint liability , Several liability , Joint tort feasor , Primary
liability , Secondary liability, Liability in Solido
Kinds of liability :-
( Salmond ) Civil liability , Criminal liability , Remedial liability, Penal
liability
( Generally ) Absolute liability , Vicarious liability , Strict liability ,
Criminal liability , Civil liability
Civil liability – In Civil cases
Civil liability is imposed by the plaintiff against the defendant in civil
proceeding the plaintiff usually demands compensations or damages from
the defendant for the harm caused to him.
Civil liability :- Family , Promise , Contract , Breach of duty
Criminal liability :- In “Criminal cases” Criminal liability is imposed by the
victim against the accused , the victim usually seeks punishment in the
form of imprisonment or fine for the accused.
Grounds of the liability :- “ No liability without fault”.
Delictal liability :-
Under Roman Law – Delict – Under French Law Under Common Law
Tortious Ground - 1 Theory of Interest in Security
2 Theory of interest in freedom of action Difference between in Civil
& Criminal Liability :-
1- Civil liability accrues on an accused if he commits a civil wrong – like
negligence defamation etc.
While Criminal liability accrues to an accused if he commits a criminal
offences like murder, sedition, theft, rape etc.
2- Civil liability determined under the CPC while Criminal liability is
determined under Cr.PC.
3- The Legal remedy for a civil wrong is payment of compensation or
damages by the wrong doer to the victim While the Legal remedy for
a Crime is the giving of punishment to the offender by the State.
4- Civil cases are decided by the standared of preponderance of
probabilities while in Criminal cases the guilt of the accused has to be
proved beyond reasonable doubt.
Remedial liability :- It is based on the maxim “ Ubi jus ibi remedium” Which
means that “ Where there is a right there is a remedy.” If a right has been
conferred by Law, then the Law must also provide a remedy to enforce or
claim that right . Similarly , If a duty has been imposed by the Law , then
the law must also ensure its fulfillment , If there is a breach of duty, there
ought to be some remedy prescribed and enforced by Law.
In Civil cases the liability of the defendant is remedial.
Object of remedial liability:-
1- To protect the right of the plaintiff
2- To provide him compensation or damages in case his right are
Infringed.
Penal liability – It is based on the maxim “ actus non facit reum nisi mens
sit rea” which means that an act alone does not make a person guilty unless
& until it is accompanied with a guilty mind” if the guilt of an accused is
established in a Criminal Case , the court awards him appropriate
punishment which may be simple imprisonment , rigorous imprisonment ,
fine , death penalty etc. Conditions for Penal liability :-
1- Actus Reus
1.1 - Physical Act :- Positive Act & Negative Act, Voluntary &
Involuntary Act , Internal & External Act.
2- Mens Rea - IPC Act Act :-
Austin - An act is a bodily movement caused by volition which is
a movement of human will.
Salmond - An act is any event subject to human control.
Holland - An act is determination of will which produces an
affect in the sensible world.
Bentham - Volition Will , Consciousness , Circumstances ,
Consequences , Intention, Motive
Relevancy of Intention in Criminal Law :- “ Actus non facit reum, nisi mens
sit rea”
Criminal liability :- Physical & Mental Condition
Strict liability / Rylands Fletcher rules
Strict liability :- Negligence , Breach of absolute duty , Actual & Proximate
Cause
Rylands us Fletcher (1868) LR3HL.330 Condition
of strict liability:-
a- Bringing of anything likely to do mischief if it escapes b-
Escape
c- Non natural use of land
Exceptions to the rule of strict liability :-
a- Natural use of land
b- Plaintiff’s own default
c- Act of God d- Consent
of the Plaintiff e- Act of
Stranger f- Common
benefit g- Statutory
Authority
Application of Rylands us Fletcher in India :-
Vacarious liability :- Generally a person can be liable only for his own
acts. He can’t be liable for the acts of others , but in certain situations a
person can be made liable for the acts of another person because he
stands in a particular relationship with him. This liability is known as
Vacarious liability.
It is based on the maxim
1- “Oui facit per alium facit per se”
Means He Who acts through another does the act himself
2- “Respondeat Superior” Let the superior be responsible
3- He who has set the whole thing in motion must be liable
Circumstances of the arise of vicarious liability :-
a- By abetment b- By ratification
c- By special relationship :- Principal & Agent, Firm & Partnership,
Company & Directors , Husband & Wife , Guardians & word ,
Master & Servant
