vustudents
09-07-2011, 12:30 AM
Q. What is the measure of criminal liability? (1998)
Q. Discuss the term accident. How is it available as a defence against civil liability. (1996)
Q. What are various kinds of liability? Enumerate different elements for determining the measure of criminal liability. (1993)
Q. Explain the term mistake of law and mistake of fact. (2000)
1. Introduction:
The responsibility or liability the ultimate purpose of the law because the wrong-doer must make up or suffer for he has already failed in doing what he ought to have done. It is the ultimatum of the law and has its source in the supreme will of the state. It arises from a wrong or the breach of a duty.
2. Definition Of Liability:
I. According To Salmond:
“Liability or responsibility is the bond of necessity that exists between the wrong-doer and the remedy of the wrong.”
II. According To Mark By:
“The word liability is used to describe the condition of a person who was a duty to perform.”
III. Kids Of Liability:
Following are the different kinds of liability.
III. Civil Liability
IV. Criminal liability
V. Remedial liability
VI. Vicarious liability
VII. Strict liability
I. Civil Liability:
Civil liability is the enforcement of the right of the plaintiff against the defendant in civil proceedings. Examples of civil proceedings are an action for recovery of a debt, restoration of property, the specific performance of control.
(i) Measurement of civil liability:
Civil liability can only on be measured by the magnitude of the wrong done. The liability of the offender is not measured by the consequences which in doing. The liability consist of the compulsory compensation to be given to the injured person and that is to be considered as a punishment for the offence.
II. Criminal Liability:
Criminal liability is the liability to be punished in a criminal proceeding. The redress for criminal liability is in the form of punishment which may be in the form of imprisonment, fine or death.
A. Conditions Of Criminal Liability:
There must be two conditions before fixing criminal liability.
(i) Actus resu
(ii) Mens rea
(i) Actus reus:
The first condition is the Actus Reus or prescribed act. Salmond calls it the physical or material condition of liability. If there is no act, there can be no punishment.
Justice Bryan Stated:
“The thought of a man cannot be tried, for the devil itself knoweth not the thought of a man.”
Example:
A man takes an umbrella from a stand at his club with intent to steal it, but finds it is his own, he has committed.
(ii) Mens Rea:
The second condition of criminal liability is mens rea or guilty mind. An act is punishable only if it is done intentionally or negligently. Intention and negligence are the alternative forms in which mens rea can exhibit itself. If a wrongful act is done intentionally, penal action will serve as a deterrent for the future. If it is done negligently or carelessly, punishment will make the offender more vigilant in future, where the law presumes that there can be no will at all, no penal liability can be imposed e. g., children under the age of seven and insane persons are regarded by law as incapable of having mens rea.
B. Measurement Of Criminal Liability:
According to salmond, following elements should be taken into consideration in determining the measure of criminal liability.
(i) Motive
(ii) Magnitude of the offence
(iii) Character of the offender
(i) Motive:
As regards motives of offence, the greater the temptation to commit the crime, the greater should be the punishment. The object of punishment is to suppress those motives which lead to crimes. The stronger these motives are, the severer must be the punishment in the case. If the profit to be gained from the act is greater, the punishment should also be severe proportionately.
(ii) Magnitude of the offence:
The second rule for the measurement of criminal liability is the magnitude of the offence, the greater the magnitude of the offence, the greater should be its punishment. The greater the mischief of any offence, the greater is the punishment which it is profitable to inflict with the hope of preventing it. If the punishment dose not very with the magnitude of the offence, there will be temptation to commit offences of very serious nature as punishment is the same in both cases. If punishment for burglary and murder were to be the same, the burglar would not stop at a lesser crime.
(iii) Character of offender:
The character of the offender should also be taken into consideration while determining the measure of criminal liability. The worse the character or disposition of the offender, the more serious should be the punishment. The law imposes upon habitual offenders penalties which bear no relation to the magnitude of the offence. The most degraded criminals are said to exhibit insensibility even to physical pain, many murderers of worst type show indifference to death itself. So it is desirable to punish more severely the more corrupt.
III. Remedial Liability:
The theory of remedial liability may be simple stated as follows viz., that when the law creates a duty, it also enforces the fulfillment of a right, the same can be remedied by compelling the person bound to comply with in.
Exceptions:
Salmond enumerates the cases in which duties are not specifically enforced.
(i) Case of Imperfect obligation:
The breach of an imperfect duty does not give rise to a cause of action. A time barred debt creates an imperfect duty and the same cannot be enforced by any Court of law.
(ii) Impossibility of specific performance of duties:
Duties which from their nature cannot be specifically enforced once broken e. g., libel or assault. They are called the transistory once broken they belong service or the irrevocable past.
(iii) Duties inadvisable to enforce:
Duties which the law on grounds of policy deem inadvisable to enforce such as a duty to render personal service or the duty to fulfil a promise of marriage.
IV. Vicarious Liability:
Ordinarily a person is liable for a wrong which he has committed himself, but there are cases where on person is made liable for the wrongs committed by another. Such cases are examples of vicarious liability.
A. Vicarious Liability In Criminal Cases:
Vicarious liability is not common in criminal law. A person cannot be punished for a crime committed by another. Vicarious liability for crimes is governed by Sec. 34 and 149 P.P.C which held persons liable for the acts of others.
B. Vicarious Liability In Civil Cases:
Civil law recognize the principal of vicarious liability. The right of the injured party to receive redress continues against the representatives of the death man.
C. Arisement Of Vicarious Liability:
The liability for wrongs of others may arise by:
(i) Subsequent ratification or previous authority
(ii) Abetment
(iii) Relationship
(i) Liability by Ratification:
A person is liable for the act of another person if that other person has committed that act with the subsequently ratified the act of that other person.
Conditions:
Following conditions must be satisfied to hold a person liable for the act of another on the ground of ratification.
(a) Only such act binds the principal, what is done on his behalf.
(b) The person ratifying the act must have knowledge of tortuous character of the act.
(c) Illegal and void acts cannot be ratified.
(ii) Liability by Abetment:
Liability by abetment is that a person who abets to commit the tort is responsible for that act.
(iii) Liability by Relationship:
Liability for the acts of other may be arise out of existing relationship between them.
(a) Master and Servant:
A master is answerable to every such wrong of the servant as is committed in the course of employment, service or business though no express command be proved. This is based on the maxim.
(b) Principle and Agent:
A principle is liable to third person for tortuous act of his servant if it was done in the scope of his agency, although the principal did not authorize it.
(c) Company and Director:
A company is liable to third persons for torts arising from doing of certain inter vires acts by its directors.
(d) Firm and Partner:
A firm is liable for torts committed by a partner in the ordinary course of the business of the firm.
(e) Guardian and Ward:
Guardians are not personally liable for torts committed by minors under their charge. But guardians can sue for personal injuries to minors under their charge on their behalf.
V. Strict Liability:
Wrongs which do not require either wrongful intent of negligence are know as the wrong of strict liability. In such cases, a person is punished for committing wrongs even if he has no guilty mind.
A. Reasons For Strict Liability:
Strict liability is imposed chiefly where it will be hard to prove by evidence the intention or negligence of the offender.
B. Strict Liability In Civil Cases:
Mens rea is generally irrelevant in civil proceedings as the object is to compensate the plaintiff for his loss and not to punish the defendant, so the rule of strict liability is generally applied in civil cases.
Exceptions:
In certain civil actions, the object of the law is to punish the defendant and strict liability is not imposed e. g., malicious prosecution, negligence etc.
C. Strict Liability In Criminal Cases:
Generally in criminal cases, there is no criminal liability unless mens rea is present and strict liability is not imposed.
Exceptions:
It is usually said that there were only two exceptions at common law to the rule requiring mens rea or where rule of strict liability is imposed.
(i) Public Nuisance:
In the public nuisance any employer might be held liable for the act of his employee might even though he himself did not know it had taken place.
(ii) Criminal liable:
In criminal liable a newspaper proprietor is liable for liable published by his employees.
D. First Case On Strict Liability:
The case which has been said to be the first to impose strict liability is Woodrow.
“Case Of Woodrow (1846)”
Facts:
Defendant was found guilty of having in his possession adulterated tobacco, although he did not know it was adulterated.
Held:
Defendant was held liable even if the adulteration was discoverable only by a nice chemical analysis.
E. Categories Of Wrong Of Strict:
The most important wrongs of strict liability fall into three categories.
(i) Mistake of law:
Absolute responsibility in the case of a mistake of law is based on the following maxim.
“Igonrantia juris enminen excusat.”
(Ignorance of law no excuse)
Even if a person commits an offence on account of a mistake of law, that is no excuse in the eye of law. He is liable to be punished although he had no guilty mind at the time of committing the offence.
Reasons for mistake of law is not considered as defence:
(a) Law is the embodiment and natural justice and hence must be obeyed.
(b) Law both can should and be limited in extent.
(c) According to salmond, the law is in legal theory definite and knowable, it is the duty of every man to know that part of it which concerns him, therefore innocent and inevitable ignorance of law is impossible.
(d) According to Austin, if ignorance of law were a ground of exemption the administration of justice would be arrested. For in almost every case, ignorance of law be alleged.
Exceptions:
There are certain exceptions to the general rule that the ignorance of law is no excuse.
(a) Ignorance of special law is excusable. No person can beheld guilty for the violation of the foreign law of any country.
(b) It also dose not apply to the rules of equity as developed in England.
(ii) Mistake of fact:
Absolute responsibility of mistake of fact can be discussed under the following heads.
(a) Mistake of fact in criminal cases:
In criminal cases, mistake of fact is a good defence against strict liability. If a person does something under a mistake without intending to do which he actually dose, he is not criminally liable for his action.
Example:
A police constable goes to arrest ‘X’ but arrest ‘Y’ thinking ‘Y’ to be ‘X’ he is not guilty of any crime.
(b) Mistake of fact in civil cases:
In the case of civil law, a mistake of fact involves abslute liability.
According to Salmond:
“It is the general principle of law that he who intentionally or semi-intentionally interferes with the person, property, reputation or other rightful interest of another, does so at his peril.”
(iii) Inevitable Accident:
Inevitable accident is that, which avoidance requires a degree of care exceeding the standard demanded by law. It is commonly regarded as a ground of exemption from liability in civil and criminal cases. There is no intention because the consequences are not desired in the case of an accident.
Exception:
There is one important exception to the above rule in civil law. There are cases in which the law provides that a man shall act his peril and shall take his chance if an accident happens.
“Rylands vs. Flether”:
“It was held that if a person brings or accumulates on his land anything which if escapes and causes damage to his neighbours he is responsible, however careful he may have been and whatever precaution he may have taken to prevent damage.”
4. Conclusion:
To conclusion, I can say, that liability arises from a wrong or the breach of a duty. It consists of those things which a person must do or suffer. A person has a choice in fulfilling his duty and his liability arises independly of his choice. Liability is of different kinds and different measures are taken into consideration for determining the liability of a person.
Q. Discuss the term accident. How is it available as a defence against civil liability. (1996)
Q. What are various kinds of liability? Enumerate different elements for determining the measure of criminal liability. (1993)
Q. Explain the term mistake of law and mistake of fact. (2000)
1. Introduction:
The responsibility or liability the ultimate purpose of the law because the wrong-doer must make up or suffer for he has already failed in doing what he ought to have done. It is the ultimatum of the law and has its source in the supreme will of the state. It arises from a wrong or the breach of a duty.
2. Definition Of Liability:
I. According To Salmond:
“Liability or responsibility is the bond of necessity that exists between the wrong-doer and the remedy of the wrong.”
II. According To Mark By:
“The word liability is used to describe the condition of a person who was a duty to perform.”
III. Kids Of Liability:
Following are the different kinds of liability.
III. Civil Liability
IV. Criminal liability
V. Remedial liability
VI. Vicarious liability
VII. Strict liability
I. Civil Liability:
Civil liability is the enforcement of the right of the plaintiff against the defendant in civil proceedings. Examples of civil proceedings are an action for recovery of a debt, restoration of property, the specific performance of control.
(i) Measurement of civil liability:
Civil liability can only on be measured by the magnitude of the wrong done. The liability of the offender is not measured by the consequences which in doing. The liability consist of the compulsory compensation to be given to the injured person and that is to be considered as a punishment for the offence.
II. Criminal Liability:
Criminal liability is the liability to be punished in a criminal proceeding. The redress for criminal liability is in the form of punishment which may be in the form of imprisonment, fine or death.
A. Conditions Of Criminal Liability:
There must be two conditions before fixing criminal liability.
(i) Actus resu
(ii) Mens rea
(i) Actus reus:
The first condition is the Actus Reus or prescribed act. Salmond calls it the physical or material condition of liability. If there is no act, there can be no punishment.
Justice Bryan Stated:
“The thought of a man cannot be tried, for the devil itself knoweth not the thought of a man.”
Example:
A man takes an umbrella from a stand at his club with intent to steal it, but finds it is his own, he has committed.
(ii) Mens Rea:
The second condition of criminal liability is mens rea or guilty mind. An act is punishable only if it is done intentionally or negligently. Intention and negligence are the alternative forms in which mens rea can exhibit itself. If a wrongful act is done intentionally, penal action will serve as a deterrent for the future. If it is done negligently or carelessly, punishment will make the offender more vigilant in future, where the law presumes that there can be no will at all, no penal liability can be imposed e. g., children under the age of seven and insane persons are regarded by law as incapable of having mens rea.
B. Measurement Of Criminal Liability:
According to salmond, following elements should be taken into consideration in determining the measure of criminal liability.
(i) Motive
(ii) Magnitude of the offence
(iii) Character of the offender
(i) Motive:
As regards motives of offence, the greater the temptation to commit the crime, the greater should be the punishment. The object of punishment is to suppress those motives which lead to crimes. The stronger these motives are, the severer must be the punishment in the case. If the profit to be gained from the act is greater, the punishment should also be severe proportionately.
(ii) Magnitude of the offence:
The second rule for the measurement of criminal liability is the magnitude of the offence, the greater the magnitude of the offence, the greater should be its punishment. The greater the mischief of any offence, the greater is the punishment which it is profitable to inflict with the hope of preventing it. If the punishment dose not very with the magnitude of the offence, there will be temptation to commit offences of very serious nature as punishment is the same in both cases. If punishment for burglary and murder were to be the same, the burglar would not stop at a lesser crime.
(iii) Character of offender:
The character of the offender should also be taken into consideration while determining the measure of criminal liability. The worse the character or disposition of the offender, the more serious should be the punishment. The law imposes upon habitual offenders penalties which bear no relation to the magnitude of the offence. The most degraded criminals are said to exhibit insensibility even to physical pain, many murderers of worst type show indifference to death itself. So it is desirable to punish more severely the more corrupt.
III. Remedial Liability:
The theory of remedial liability may be simple stated as follows viz., that when the law creates a duty, it also enforces the fulfillment of a right, the same can be remedied by compelling the person bound to comply with in.
Exceptions:
Salmond enumerates the cases in which duties are not specifically enforced.
(i) Case of Imperfect obligation:
The breach of an imperfect duty does not give rise to a cause of action. A time barred debt creates an imperfect duty and the same cannot be enforced by any Court of law.
(ii) Impossibility of specific performance of duties:
Duties which from their nature cannot be specifically enforced once broken e. g., libel or assault. They are called the transistory once broken they belong service or the irrevocable past.
(iii) Duties inadvisable to enforce:
Duties which the law on grounds of policy deem inadvisable to enforce such as a duty to render personal service or the duty to fulfil a promise of marriage.
IV. Vicarious Liability:
Ordinarily a person is liable for a wrong which he has committed himself, but there are cases where on person is made liable for the wrongs committed by another. Such cases are examples of vicarious liability.
A. Vicarious Liability In Criminal Cases:
Vicarious liability is not common in criminal law. A person cannot be punished for a crime committed by another. Vicarious liability for crimes is governed by Sec. 34 and 149 P.P.C which held persons liable for the acts of others.
B. Vicarious Liability In Civil Cases:
Civil law recognize the principal of vicarious liability. The right of the injured party to receive redress continues against the representatives of the death man.
C. Arisement Of Vicarious Liability:
The liability for wrongs of others may arise by:
(i) Subsequent ratification or previous authority
(ii) Abetment
(iii) Relationship
(i) Liability by Ratification:
A person is liable for the act of another person if that other person has committed that act with the subsequently ratified the act of that other person.
Conditions:
Following conditions must be satisfied to hold a person liable for the act of another on the ground of ratification.
(a) Only such act binds the principal, what is done on his behalf.
(b) The person ratifying the act must have knowledge of tortuous character of the act.
(c) Illegal and void acts cannot be ratified.
(ii) Liability by Abetment:
Liability by abetment is that a person who abets to commit the tort is responsible for that act.
(iii) Liability by Relationship:
Liability for the acts of other may be arise out of existing relationship between them.
(a) Master and Servant:
A master is answerable to every such wrong of the servant as is committed in the course of employment, service or business though no express command be proved. This is based on the maxim.
(b) Principle and Agent:
A principle is liable to third person for tortuous act of his servant if it was done in the scope of his agency, although the principal did not authorize it.
(c) Company and Director:
A company is liable to third persons for torts arising from doing of certain inter vires acts by its directors.
(d) Firm and Partner:
A firm is liable for torts committed by a partner in the ordinary course of the business of the firm.
(e) Guardian and Ward:
Guardians are not personally liable for torts committed by minors under their charge. But guardians can sue for personal injuries to minors under their charge on their behalf.
V. Strict Liability:
Wrongs which do not require either wrongful intent of negligence are know as the wrong of strict liability. In such cases, a person is punished for committing wrongs even if he has no guilty mind.
A. Reasons For Strict Liability:
Strict liability is imposed chiefly where it will be hard to prove by evidence the intention or negligence of the offender.
B. Strict Liability In Civil Cases:
Mens rea is generally irrelevant in civil proceedings as the object is to compensate the plaintiff for his loss and not to punish the defendant, so the rule of strict liability is generally applied in civil cases.
Exceptions:
In certain civil actions, the object of the law is to punish the defendant and strict liability is not imposed e. g., malicious prosecution, negligence etc.
C. Strict Liability In Criminal Cases:
Generally in criminal cases, there is no criminal liability unless mens rea is present and strict liability is not imposed.
Exceptions:
It is usually said that there were only two exceptions at common law to the rule requiring mens rea or where rule of strict liability is imposed.
(i) Public Nuisance:
In the public nuisance any employer might be held liable for the act of his employee might even though he himself did not know it had taken place.
(ii) Criminal liable:
In criminal liable a newspaper proprietor is liable for liable published by his employees.
D. First Case On Strict Liability:
The case which has been said to be the first to impose strict liability is Woodrow.
“Case Of Woodrow (1846)”
Facts:
Defendant was found guilty of having in his possession adulterated tobacco, although he did not know it was adulterated.
Held:
Defendant was held liable even if the adulteration was discoverable only by a nice chemical analysis.
E. Categories Of Wrong Of Strict:
The most important wrongs of strict liability fall into three categories.
(i) Mistake of law:
Absolute responsibility in the case of a mistake of law is based on the following maxim.
“Igonrantia juris enminen excusat.”
(Ignorance of law no excuse)
Even if a person commits an offence on account of a mistake of law, that is no excuse in the eye of law. He is liable to be punished although he had no guilty mind at the time of committing the offence.
Reasons for mistake of law is not considered as defence:
(a) Law is the embodiment and natural justice and hence must be obeyed.
(b) Law both can should and be limited in extent.
(c) According to salmond, the law is in legal theory definite and knowable, it is the duty of every man to know that part of it which concerns him, therefore innocent and inevitable ignorance of law is impossible.
(d) According to Austin, if ignorance of law were a ground of exemption the administration of justice would be arrested. For in almost every case, ignorance of law be alleged.
Exceptions:
There are certain exceptions to the general rule that the ignorance of law is no excuse.
(a) Ignorance of special law is excusable. No person can beheld guilty for the violation of the foreign law of any country.
(b) It also dose not apply to the rules of equity as developed in England.
(ii) Mistake of fact:
Absolute responsibility of mistake of fact can be discussed under the following heads.
(a) Mistake of fact in criminal cases:
In criminal cases, mistake of fact is a good defence against strict liability. If a person does something under a mistake without intending to do which he actually dose, he is not criminally liable for his action.
Example:
A police constable goes to arrest ‘X’ but arrest ‘Y’ thinking ‘Y’ to be ‘X’ he is not guilty of any crime.
(b) Mistake of fact in civil cases:
In the case of civil law, a mistake of fact involves abslute liability.
According to Salmond:
“It is the general principle of law that he who intentionally or semi-intentionally interferes with the person, property, reputation or other rightful interest of another, does so at his peril.”
(iii) Inevitable Accident:
Inevitable accident is that, which avoidance requires a degree of care exceeding the standard demanded by law. It is commonly regarded as a ground of exemption from liability in civil and criminal cases. There is no intention because the consequences are not desired in the case of an accident.
Exception:
There is one important exception to the above rule in civil law. There are cases in which the law provides that a man shall act his peril and shall take his chance if an accident happens.
“Rylands vs. Flether”:
“It was held that if a person brings or accumulates on his land anything which if escapes and causes damage to his neighbours he is responsible, however careful he may have been and whatever precaution he may have taken to prevent damage.”
4. Conclusion:
To conclusion, I can say, that liability arises from a wrong or the breach of a duty. It consists of those things which a person must do or suffer. A person has a choice in fulfilling his duty and his liability arises independly of his choice. Liability is of different kinds and different measures are taken into consideration for determining the liability of a person.