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Kinds of liability
Contents hide
1.Introduction
2. Definition of Liability in Jurisprudence
3. Kinds of Liability in Jurisprudence
4.The measure of liability
5.Conclusion
1.Introduction
The concept of liability in jurisprudence occupies a pivotal position,
serving as the linchpin that connects legal rights, duties and
accountability within a legal framework. Liability, in its essence,
encapsulates the notion of legal responsibility, wherein individuals or
entities are held answerable for their actions or omissions under the
purview of the law.
Liability comes about when someone breaks the law. The law sets out
rights and responsibilities for individuals. It grants legal rights to one
person and places obligations on another. People should not violate the
legal rights of others. If someone does violate these rights, they are
considered to have done something wrong and this leads to liability.
2.Definition of Liability in Jurisprudence
Defining liability in jurisprudence is not easy, but some legal experts have
tried:
Sir John Salmond
Sir John Salmond defines liability as the necessary connection between a
wrongdoer and the remedy for the wrong. In simpler terms, it’s the link
between someone who did something wrong and the solution to make it
right.
Markby
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.
Austin
Austin prefers to use the term ‘imputability’ instead of ‘liability.’ He says
that certain actions, omissions, or acts, along with their consequences,
are attributed to the people who did or didn’t do them. In other words, it’s
about holding people responsible for their actions or inactions.
3.Kinds of Liability
Liabilities can be of many kinds. Those are civil and criminal liability, remedial and penal liability,
vicarious liability and absolute or strict liability.
A..Civil and Criminal Liability in Jurisprudence
Civil Liability
Civil liability refers to the legal responsibility one person or entity may
have towards another in matters related to non-criminal issues. It arises
from violations of civil laws or regulations, typically involving disputes
between individuals or entities over issues such as contracts, property
rights, personal injury, or family matters.
When someone is found civilly liable, they may be required to compensate
the injured party through remedies like monetary damages or specific
performance (fulfilling a contractual obligation). Civil liability cases are
usually initiated by private individuals or organisations seeking
compensation or resolution of a dispute.
Criminal Liability
Criminal liability pertains to the legal responsibility an individual or entity
bears for actions that violate criminal laws and regulations established by
the government. Crimes are generally offences against society as a whole
and the government, represented by prosecutors, initiates criminal
proceedings.
If someone is found criminally liable, they may face penalties such as
fines, imprisonment, probation, or other punitive measures. The purpose
of criminal liability is to punish the wrongdoer for violating laws that are
intended to protect public safety and order.
Distinction Between Civil and Criminal Liability
Different jurists have provided varying perspectives on the difference
between civil and criminal liability. Here are some of these views:
Austin’s Perspective
Austin states that an offence that is pursued at the discretion of the
injured party or their representatives is considered a civil injury. On the
other hand, offences pursued by the sovereign or its subordinates are
crimes. All absolute obligations are enforced through criminal means.
Salmond’s View
Salmond’s view is that the distinction between criminal and civil wrongs is
not based on the nature of the right violated but rather on the nature of
the remedy applied. He identifies four key distinctions between the two:
Nature of the Wrong: Crime is considered a wrong against society, while
a civil wrong is a wrong against an individual or individuals.
Remedy: Criminal offences are rectified through punishment, whereas
civil wrongs are remedied through damages.
Procedure: Criminal proceedings are used for crimes, while civil
proceedings are employed for civil wrongs and they occur in separate sets
of courts.
Liability Measurement: In a crime, liability is measured by the intention
of the wrongdoer, while in a civil wrong, liability is based on the wrongful
act itself, not the intention.
B.Remedial and Penal Liability in Jurisprudence
Liability can be further classified into two categories:
Penal Liability: When the wrongdoer is subjected to punishment such as
fines or imprisonment after a successful proceeding, it is termed penal
liability in jurisprudence. Criminal liability falls under this category.
Remedial Liability: This type of liability in jurisprudence involves
remedies that are not punitive in nature. After a successful proceeding, the
defendant may be ordered to pay damages, settle a debt, or perform a
specific action. Civil liability generally falls under this category.
Remedial Liability Explained
Remedial liability is based on the principle “ubi jus ibi remedium,” which
means that where there is a right, there must be a remedy. When the law
establishes a duty, it also ensures that there is a means to enforce it. In
most cases, the law prescribes a remedy for breaching a duty and this
remedy is enforced by the legal system.
Exceptions to this rule include:
Duties of Imperfect Obligation: Some duties exist in law but are not
enforceable. For example, a time-barred debt, though legally recognised,
cannot be compelled for payment.
Duties That Cannot Be Specifically Enforced: There are duties that,
once broken, cannot be specifically enforced. For instance, in cases of
completed assault, the defendant cannot be made to undo the act.
Cases Where Damages Are Awarded: In some instances, although
specific performance of a duty is possible, the law, for various reasons,
may choose to award damages to the plaintiff instead of enforcing specific
performance. For example, when a contract involves personal services, the
law may not compel the performance but instead award damages (as per
Specific Relief Act).
Penal Liability
The legal principle “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
fundamental to understanding penal liability, which is the liability for
criminal offences.
Two Essential Conditions of Penal Liability
There are two main conditions for someone to be held criminally liable:
actus reus and mens reus.
Act (Actus Reus)
An act is considered a voluntary physical movement, caused by the will or
desire of the person. It involves bodily movement resulting from a
person’s intention, provided the body part involved is in a normal
condition. In simpler terms, it’s a willed bodily action. Some legal scholars,
like Holmes, narrow it down to a voluntary muscular contraction.
However, Salmond has a broader perspective, defining an act as “any
event subject to the control of human will.” An act comprises three
aspects: its origin in mental or physical activity, its circumstances and its
consequences. For example, in the case of theft, there are five essential
elements, including the dishonest intention to take property and the
actual physical movement of the property.
Mens Rea
Mens rea translates to “guilty mind” and represents the mental element
required to establish criminal liability. It delves into the mental attitude of
the person accused of the crime. Various mental states can be included in
mens rea, such as intention, recklessness, malice, negligence,
heedlessness and rashness.
Salmond, however, narrows it down to just two mental attitudes: intention
and recklessness. In essence, a person can be held liable for a wrongful
act only if they do it willfully (intentionally) or recklessly. Sometimes,
inadvertent negligence can also lead to liability in jurisprudence. However,
for someone to be held criminally liable, their actions must align with one
of these mental attitudes.
The concept of mens rea has evolved over time and in some cases, it has
been replaced by legal standards set by the law. Additionally, different
classes of offences may have varying requirements regarding mens rea.
For example, in some cases, an honest and reasonable belief held by the
accused may not be a valid defence in IPC, as illustrated by the example
of kidnapping a girl under the age of 18. This demonstrates that the level
of subjective guilt or intent required for criminal liability can differ
depending on the specific offence and legal standards in place.
The Supreme Court in State of Gujarat v. Acharya Devendra Prasadji
Pande 26 has defined mens rea as "some blameworthy mental condition,
whether constituted by the knowledge or intention or otherwise."
Generally, the term 'guilty mind' is associated with intention. Therefore,
the traditional view of equating mens rea with guilty mind seems to be
erroneous and misleading. It would be more correct to define mens rea as,
"that state of mind accompanying an act, which is regarded by specific
law as the ingredient of an offence." For example, under Section 304 A,
rashness or negligence accompanying an act constitutes mens rea.
C..Absolute or Strict Liability
Both in civil and criminal law, mens rea or guilty mind is considered
captions to the general rule. In those cases, a person is held responsible
necessary respective of the existence of either wrongful intent or
negligence. Such cases are known as the is punished s of absolute
liability. In such cases, for committing wrongs even if he has no guilty
mind. The law does not enquire whether the guilty person has com- a
person mitted the wrong intentionally, negligently or innocently. It merely
the presence of the formal conditions of presumes many reasons liability.
There are why provision is made for absolute liability but the most reason
is that it is die outlet to secure adequate proof of the mtention or the
negligence of the offender.
The most important wrongs of absolute liability fall into three catego- ries,
viz., mistakes of law, mistakes of fact and accidents.
a). Mistake of Law. An act be an intentional act because the doer of it
does not know that what he is doing is und and that but prohibited by law.
If a person ha he had no guilty mind and what but for his ignorwill not
hear him say thave not done it. Ignorance of law is no excuse in almost all
the legal systems. This is expressed in the maxim, ignorantia juris
meminem excusat. Therefore, it is obvious that in such cases the principle
of absolute or strict liability applies because of the presumption, that
every one must know the law relating to his act or conduct. This principle,
however, does not apply in case of ignorance of a foreign law.
b). Mistake of fact. It is generally said that mistake of fact is a good
defence in law of crimes. However, in English and Indian law mistake of
fact is not a defence in law of torts, ie, civil wrongs. He who interferes with
the right of another shall not be allowed to say that he believed in good
faith and on reasonable grounds in the existence of some circumstances
which justified his act.
In R. v. Prince, 58 a person who abducted a girl under the legal age of
consent was held criminally liable and the plea of inevitable mistake as to
her age failed as a defence. This is so because the act of taking the girl
away was itself wrongful.
However, if the intention is lawful, mistake of fact is a valid defence in
criminal law. For instance, if A intending to kill B, kills C mistaking him to
be B. A has no defence, but if A, who is out-hunting in a forest shoots at a
bush thinking that a tiger was lurking inside and the bullet hits and kills B,
he will be exempted from criminal liability due to mistake of fact. This
mistake, in order to qualify for exemption from criminal liability should
fulfil two conditions, namely, (1) it should be reasonable; and (2) it should
be mistake of fact and not of law.
A few more illustrative cases may be cited to explain the absolute liability
involved in acts done under mistake of fact. If a person trespasses upon
another man's land. It is no defence for him to say that he believed in
good faith and on reasonable grounds to be his own. Likewise, if a person
meddles with another person's goods in absolute innocence and under an
inevitable mistake of fact, he shall nonetheless be liable for all the loss
incurred by the true owner.
c). Inevitable Accident.-Inevitable accident is commonly recognised as a
ground of exemption from liability both in civil and criminal law.
Accident may either be culpable or inevitable. It is culpable when caused
due to negligence but inevitable when the avoidance of it would have
required a degree of care exceeding the standard demanded by law. In
other words, an inevitable accident is that which could not possibly be
prevented by the exercise of ordinary care, caution and skill. That is, it
must be a physically unavoidable nature. The case of Stanley v. Power, is
a leading decision on inevitable accident as a defence. In this case, the
defendant while firing at a pheasant accidently and without negligence
shot the plaintiff with a pellet from his gun, it was held that he had a good
defence. In a subsequent case of Ryan v. Youngs the sudden death of the
driver of a motor vehicle due to heart-failure as a result of which an
accident was caused, was held to be a mere inevitable accident and
defendants were held not liable.
Although inevitable accident serves as a good defence both in civil and
the criminal law, but in civil law, there are some exceptions when
inevitable accident cannot be availed of as a ground of defence. The cases
involving strict liability are one such exception where the defence of
inevitable accident would fail. So also, a man is strictly liable for the
trespass of his cattle or escape of flames, fumes, vapours, refuge, dust,
smoke etc. from his premises if they cause damage to others.
D. Vicarious Liability
The general principle of law is that a person is liable for his own acts and not for the acts of
others. But in certain kinds of cases a person is made liable for the act of another on account
of his standing in a particular relationship with that person. This liability is called vicarious
liability. This kind of liability existed in ancient times also but the grounds of liability were
entirely different from what it is in modern times.
The principles of vicarious liability in ancient times were that a person must be made
answerable for the acts of the person who are akin to him. With the onward march of time,
this principle of liability underwent a great change, and in modern times, this liability exists
in limited kind of cases. Now a person is made liable on the grounds of expediency and
policy, and not on any other ground. The scope and the field of application of the vicarious
liability shall now be described here.
In criminal law, the general principle is that a person is not liable for the act of another. A
master is not criminally liable for the unauthorized acts of his servant. However, there are
certain exceptions to this rule. The legislature may prohibit an act or enforce a duty in such
terms as to make the prohibition or the duty absolute; in that case the principal is liable if
the act is in fact done by his servant. Thus, a statute may impose criminal liability upon the
master as regards the acts or the omissions of his servants.
A master or owner is liable in case of public nuisance clone by his agent. Similarly, if a
principal neglects the performance of an act, which is likely to cause danger to others, and
entrusts it to the unskillful hands, he will be in certain cases criminally liable (IPC Act 1860,
Section 154 and 155).
Civil law: Vicarious liability exists mainly in civil law. It is recognised in civil law generally in
two kinds of cases:
a).A master is liable for all tortious acts of his servants done in the course of his
employment.
b).The representatives of the dead person are, in certain cases, liable for the acts of the
deceased.
4.Measure of Liability
Measure Criminal Liability:
It has already been stated earlier that the measure of criminal liability is mainly based on
three major considerations, namely, (1) motive for the commission of the offence, (2) the
magnitude of the offence, and (3) the character of the offender.
a).Motive: The motive of the offence is a very important factor in determining the liability. If
the motive to commit the offence is very strong, the punishment must be severe, because
the punishment aims at counteracting the motives which made the offender to commit the
crime.
In Arvind Mohan Sinha v. Amulya Kumar Biswas,65 the accused were
young boys about 20 years of age engaged in agriculture. They had
procured gold in contravention of the Customs Act and the Defence of
India Rules, 1962, for the marriage of their sister and were sentenced to
imprisonment by the High Court. But in appeal, the Supreme Court
ordered their release on probation under Section 4(1) of the Probation of
Offenders Act, 1958, in view of the noble cause which had compelled
them to violate the Customs law, and Gold Control Rules.
b). Magnitude of the offence
The measure of punishment also varies with the evil consequences of the
criminal act and gravity of the offence. As stated by Salmond, greater the
mischief of the offence, a proportionately greater punishment is inflicted
so as to prevent its recurrence. He further pointed out that if punishments
were not to vary with the magnitude of the offence, the offenders would
choose that act (offence) which entails a lesser form of punishment. Thus,
if burglary and burglary with murder involved the same punishment the
offender would prefer to cause death and avoid detection of crime rather
than committing only burglary.
In Prakash v. State of M.P.,69 the Supreme Court ordered the release of
appellant (accused) on probation who was found guilty and convicted for
an offence under Section 324, IPC, keeping in view the nature of the
offence, the circumstances and antecedents of the offender. In this case,
the accused was an employee of the municipality and was a first offender
and his offence was not premediated and the injury caused to the victim
was not grave or serious. The Court ruled that these grounds were
sufficient to entitle the accused to be released on probation.
c). The character of the offender: The character of the offender is also a factor in the
measure of liability, in other words, it is a consideration in determining the punishment. The
offenders who have become habitual and have undergone punishment, to them punishment
loses much of its rigour and light punishment does not deter them. Therefore, they are given
severe punishments.
Measure of Civil Liability:
In the case of a civil wrong, motive is irrelevant. It is only the magni-
tude of the offence that determines civil liability. The liability of the
of fender is not measured by the consequences which he meant to
ensue, but by the evil which he succeeded in doing. The liability
consists of the compulsory compensation to be given to the injured
person and that is to be considered as a punishment for the offence.
In penal re- dress, compensation in money is given to the injured
person and pun- ishment is imposed upon the offender. A rational
system of law must combine the advantages of penal redress with a
coordinate system of criminal liability. The reason is that penal
redress alone is not consid ered to be sufficient.
5.Conclusion
In jurisprudence, liability refers to the legal responsibility or obligation that
an individual or entity holds for their actions or failures to act within the
bounds of the law. It encompasses the consequences and accountability
arising from violations of legal rights and duties, either in civil or criminal
contexts.
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.
