b) Parent-Child Relationship: Parents can be held vicariously liable for

the actions of their minor children. If a child causes harm or damage, the parents
can be held responsible for their actions.

 Civil Liability
 Criminal Liability

Distinction between civil and criminal liability

About the distinction between the two, different jurists have given different
views.

Austin says:

 An offence which is pursued at the discretion of injured party or his

representatives is a civil injury.
 Offences which are pursued by the sovereign or by the subordinates of the
sovereign are a crime. All absolute obligations are enforced criminally.

Salmond’s view

The distinction between criminal and civil wrong is based not on any difference
in the nature of the right infringed, but on a difference in the nature of the remedy
applied.

 Generally, four points of distinction between the two have been put
forward:
 Crime is a wrong against the society but a civil wrong is a wrong against a
private individual or individuals.
 The remedy against a crime is punishment but the remedy against the civil
wrongs is damages.
 A third difference between the two is that of the procedure. The
proceedings in case of crime are criminal proceedings, but the proceedings
in case of a civil wrong are called civil proceedings and criminal and civil
proceedings take place in two different sets of courts.
  The liability in a crime is measured by the intention of the wrongdoer, but
in a civil wrong the liability is measured by the wrongful act and the
liability depends upon the act and not upon the intention.

 Markby’s
 According to Markby, the term ‘liability’ describes the situation when a person has a
duty to fulfill, whether that duty is their main responsibility or a secondary or
enforcing one. It’s about having a job to do.

Holland’s view – an act is determination of will which produces an affect in the sensible
world

Bentham’s view – Volition Will, Consciousness, Circumstances, Consequences, Intention,

Motive

REMEDIAL AND PENAL LIABILITY

The liability can again be classified as

 Penal: When after a successful proceeding the wrongdoer is awarded

punishment which may be the fine, imprisonment, etc., it is called penal
liability. The criminal liability is penal.
 Remedial.: If after a successful proceeding the defendant is ordered to pay
damages or to pay a debt, or to make a specific performance etc., the
liability is called remedial liability. The civil liability is generally remedial

Remedial liability

This liability is based on the maxim ubi jus ibi remedium (where there is a right,
there must be some remedy). When law creates a duty, it ensures its fulfillment
also. For the breach of a duty, there is some remedy prescribed by law and it is
enforced by law. With very few exceptions this is the rule.

The exceptions are the following:

  The duties of imperfect obligation. This is the first exception of the rule
that a duty is enforceable by law. A time-barred debt is an example of it.
Though the debt exists in law, it is not enforceable. Therefore, there can be
no proceedings to compel its payment.
 There are some duties which are of such a nature that if once broken cannot
be specifically enforced (in respect of the act done). For example, in a
completed assault (that is actionable as a tort), the defendant cannot be
made to refrain from it (as it is already done and the original state of things
cannot be brought).
 Cases where, though the specific performance of the duty is possible, the
law, on other considerations, does not enforce the specific performance, but
instead awards damages to the plaintiff.

For example, if A contracts to render personal service to B, B cannot enforce

performance of this contract, (Specific Relief Act of 1877, section 21).

Penal Liability

The Maxim actus non facit reum, nisi mens sit rea (the act alone does not amount
to guilt, it must be accompanied by a guilty mind) is considered to be the
condition of penal liability.

Thus, there are two conditions of penal liability:

1. Act

Austin defines act as a ‘movement of the will’. It is bodily movement caused by

volition, a volition being a desire for a bodily movement which is immediately
followed by such movement provided the bodily member is in a normal
condition.

The view of Holmes is that an act is always a voluntary muscular contraction

and nothing else. Thus, according to both the jurists an act is a willed movement
of the body.

Salmond takes act in a wider sense. He says: ‘We mean by it (act) any event which
is subject to the control of human will’.

 An act consists of three stages:

Its origin in some mental or bodily activity or passivity of the doer.

 Its circumstances
 Its consequences.

1. Mens Rea

Salmond’s view: Mens rea means guilty mind. It is the second condition of penal
liability.

Mens rea is defined as ‘the mental element necessary to constitute criminal liability’.
In making a person criminally liable, an enquiry ‘into his mental attitude is made
Criminal intention, malice, negligence, heedlessness, and rashness, etc. all are
included in mens rea.

Salmond says that mens rea included only two distinct mental attitudes of the
doer towards the deed:

 Intention
 Recklessness.

It means that a man is liable only for those wrongful acts which he does either
willfully or recklessly. Sometimes, inadvertent negligence is also punishable.
Therefore, unless an act is done with any of these three mental attitudes, the doer
is not liable.

From the point of view of the mens rea, wrongs maybe divided in three classes:

1. Where mens rea amounts to intention or knowledge. The wrongs in

which the mens rea is of this degree are intentional wrongs, or wrongs
committed recklessly, or there is culpable negligence.
2. Negligence: In these wrongs carelessness amounts to mens rea.
3. Absolute or strict liability: In cases of absolute or strict liability mens rea
is not a necessary condition of liability.

Intention

Intention is defined as the purpose or design with which an act is done. It is the
foreknowledge of the act, coupled with the desire of it, such foreknowledge and
desire being the cause of the act, in as much as they fulfill themselves through
the operation of the will. An act is intentional if, and so far as it exists in idea
before it exists in fact, the idea realizing itself in the fact because of the desire by
which it is accompanied.

Holmes says that there are two elements of intention:

 Foresight that certain consequences will follow from an act.

 The wish for those consequences working as a motive which includes the
act.

A criminal intention means an intent to do an act whose natural and probable

ultimate consequences are criminal. Thus, when we speak that a wrong is
intentional, it means that the intention is extended to all the three elements of the
wrong (origin, circumstances and consequences). Intention must be
distinguished from the other similar terms.

Meaning of intention:

It means either desire of the consequence of one’s conduct, or foresight of the certainty
of such consequence. But the intention does not extend to cover the knowledge of
probable events. A manufacturer, who employs workmen, has the knowledge
that some accident might take place which might kill a workman, but this
knowledge would not be taken as an intention of the employer if any workman
is a victim of an accident.

Intention and motive

Motive = ‘ulterior intent’.

It is seldom that a man commits a wrongful act for its own sake. The wrongdoer
has some end in his mind, which he tries to achieve through his wrongful act.

For example, if A fires upon B, his intention is to kill B. A intended to kill him
due to reason that B was contestant against A in an election, and he is likely to
win it. A intended to kill him for ensuring his success by removing B from the
election field. This idea of removing B from the election field is motive of A for
doing the wrongful act.

 The immediate intent is coincident with the wrongful act itself. This is
intention.
  The ‘ulterior intent’ is beyond the wrongful act. It s motive.

Malice

Sometimes, malice is also used in law to indicate a similar meaning. Sometimes,

it is used to indicate a wrongful intention, and sometimes, it means ‘motive’.

In murder, it merely means that there is present one of the various forms of mens
rea necessary to constitute the crime.

In certain statutory offences, it means that there must be either an intention to

cause results of the particular kind prohibited by the statute, or at least a
recklessness which cares not whether the prohibited consequence occurs or not.

Negligence

Negligence is the second form of the mens rea. The offences in which mens rea is
a necessary element, the wrongful intention or negligence will have to be proved
on the part of the person who committed the wrongful act to make him liable.

Theories of Negligence

There are two theories of negligence.

One theory was propounded by Salmond. According to this theory, negligence

is a state of mind, a mental attitude. This theory is called the subjective theory of
negligence.

The other theory has been given by Fredrick. According to him, negligence is a
type of conduct. This is called the objective theory of negligence.

 Subjective theory:

The view is that negligence is culpable carelessness. Although negligence is not

the same as thoughtlessness or inadvertence, it is nevertheless essentially an
attitude of indifference. Therefore, according to this view, negligence essentially
consists in the mental attitude of undue indifference with respect to one’s
conduct and its consequences. A person is made liable on the ground of
negligence because he does not sufficiently desire to avoid a particular
consequence i.e. harm.
Winfield is also the supporter of this theory. He says that as a mental element in
tortious liability, negligence usually signifies total or partial inadvertence of the
defendant to his conduct and for its consequences.

 Objective theory:

This theory says that negligence is an objective fact. It is not an attitude of mind
or a form of mens rea, but it is a kind of conduct. Negligence is breach of duty to
take care. It means that one should take precaution against the harmful results of
one’s actions and he must refrain from unreasonably dangerous kind of conduct.
Pollock, the founder of the theory says that negligence is the contrary of
diligence, and no one describes diligence as a state of mind. So it is never a mental
state.

Difficulty of knowing the intention: A very strong argument that is given in

favour of strict liability is that it is very difficult to procure the evidence of
intention or negligence in every case and it would make the administration of the
justice very difficult. Therefore, in some kinds of cases the law makes a
conclusive presumption of mens rea on the basis of the external conduct. It is
clear that this liability would fall very heavily upon the innocent persons.

In criminal law, the rule of strict liability is applied only to a comparatively minor
and trivial kinds of offences which in many cases do not imply any moral stigma
on the part of the wrongdoer and in majority of the offences mens rea is a
necessary condition for liability. Thus, in criminal law, rule of strict liability is
almost an exception.

The strict liability may be divided into the following three headings:

 Mistake of law.
 Mistake of fact.
 Accident.

1. Mistake of Law:

The principle that ignorantia juris non excusat (ignorance of law is no excuse) is
followed in almost all the legal systems. A person who has committed a wrongful
act will not be heard to say that he did not know that it was forbidden by law, or,
in other words, he did not know the law. This is an irrebuttable presumption that
every person knows the law of the land. This is an instance of strict liability. The
law will not go to make an inquiry as to whether the person taking the defence
of the ignorance of law actually knew it or not.

This irrebuttable presumption or, in other words, the strict liability is on the
following grounds.

 First, that law is definite and knowable and it is the duty of every person to
know the law concerning his rights and duties.
 Second, law in most of the cases is based on common sense, or in other
words, it is based on the principle of natural right and wrong which
generally every person knows. A person might not be acquainted with the
Indian Penal Code, but he knows that to kill a man intentionally or to steal
is a wrong.
 Third, there shall be evidential difficulties in accepting the defence of the
ignorance of the law. In most of the cases, the wrongdoers in the first
instance will take this defence and the court will have to enquire as to
whether the wrongdoer knew the law or not before going into the merits of
the case. This will create great difficulties before the courts and it will
hamper the course of the administration of justice.

 Mistake of fact:

The principle about it is that ignorantia facit excusat (ignorance of the fact is
excuse). It means that a person is not liable for a wrongful act if he has done it
under a mistake of fact. In other words, mistake is a valid defence against a
wrongful act. But this principle applies only in case of a criminal wrong and not
a civil wrong. In civil wrongs, except in few cases, the mistake of fact is not a
valid ground for discharging a person from liability.

But in criminal law, the strict liability for a mistake of fact is only in exceptional
cases (IPC Act 1860, section 76 to 79). An example of such exception or strict
liability is that if a person kidnaps a girl below 16, he is always liable, although
he honestly believed that she was above 16.

 Accident:
A person is not liable for an act taking place accidentally. Accident differs from
a mistake of fact. Every unintentional act is done by mistake when the
consequences of the act are intentional, the mistake is only about the
circumstances and in that respect it is unintentional.

For example, if I arrest A taking him to be B, it is a mistake of fact. In this case

the consequence that is arrest is intentional but there is a mistake about the
circumstances and I was to arrest B and not A. So the arrest of A is unintentional.
An act is said to be done accidentally when it is unintentional in respect of its
consequences also.

Conclusion
Liability is a crucial aspect of our legal system, ensuring accountability and
protection for individuals and society. The different types of liabilities, including
strict liability, absolute liability, and vicarious liability, provide a framework for
determining responsibility and allocating damages. Understanding these
concepts is essential for individuals and businesses to navigate legal obligations,
mitigate risks, and uphold societal standards. By comprehending the nuances of
liability, we can promote a fair and just society while fostering a culture of
responsibility and accountability.
Liability in jurisprudence is central to the legal framework, where individuals
can be held liable for their actions, leading to remedies or penalties, depending
on the nature of the violation. In civil law, liability often results in the payment
of damages or specific performance to compensate for harm or breaches of
contractual obligations. In criminal law, liability can lead to punitive measures,
such as fines or imprisonment, as a means of addressing offences against society.