ACKNOWLEDGEMENT

The success and final outcome of this assignment required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
assignment. All that I have done is only due to such supervision and assistance and I would not
forget to thank them.

I respect and thank Prof. Eqbal Hussain for providing me an opportunity to do the project work
And Giving me all support and guidance which made me complete the project duly. I am
extremely thankful to him for providing such a nice support and guidance.
 TABLE OF CONTENTS

1. CONCEPT OF LIABILITY
2. DEFINITION OF LIABILITY
3. KINDS OF LIABILITY
 CIVIL LIABILITY
 CRIMINAL LIABILITY
 PENAL LIABILITY
 REMEDIAL LIABILITY
 VICARIOUS LIABILITY
 ABSOLUTE OR STRICT LIABILITY
4. CIVIL AND CRIMINAL LIABILITY
5. DISTINCTION BETWEEN CIVIL AND CRIMINAL
LIABILITY
6. THEORY OF REMEDIAL AND PENAL LIABILITY
7. VICARIOUS LIABILITY ON THE GROUND OF
RELATIONSHIP
 CONCEPT OF LIABILITY

THE NATURE OF LIABILITY

In civilized societies most of the relation between the individual and the state are governed by
rules made or recognized by the state; that is, law. Law lays down the rights and duties of the
individuals. In other words, it prescribes what one is to do and what one is not to do and what
one isentitled to get "it” done. A branch of these rules is called wrong. When a person has
committed a wrong, he is said to be liable. Thus, liability is the condition of the person who has
committed a wrong.

Liability or responsibility results from a wrong of breach of duty. It is something which a person
must do or suffer on account of his failure to do what he ought to have done "duty”. A person has
a choice in fulfilling his duty, but liability arises independently of one’s choice. Liability is the
"vinculum juris”, i.e. the bond of legal necessity that exists between the wrongdoer and the
remedy of the wrong. Liability differs from obligation in as much as the latter refers to what a
person ought to do on account of some duty cast upon him but the former refers to something
which the person must do or suffer because he has already failed to do. One of the traditional
fields of orthodox jurisprudence is liability. This also ahs felt the impact of new jurisprudence.1

The term liability, which occupied a place of pride in the hierarchy of the legal concepts

has in English law been used to express three things.

1) It has been used to express the position of person who has undertaken to do or to

abstain from doing something by contract with another person.

2) The term has been used to express the condition of person who has failed in the

performance of source duty, and who is consequently, called upon to make

compensation to some person who has suffered damage thereby.

1
P.B. MUKHERJI, The new jurisprudence,P.13 874
3) The term “liability” has been used to express the condition of a person who has

not failed in the performance of any duty, but who has done an act which has

caused damage to another for which he is required to make compensation.

The duty to fulfill a contract and the duty to make compensation for damage caused by an

act which is not a breach of duty are primary duties, whereas duty to make compensation

for damage caused by a breach of duty is a secondary one.

Liability “ex-conlracto ” which is liability to a primary duty and liability “ex-delicto ”,

which is liability to a secondary duty have long since been recognized as two sub

divisions of the same class.

DEFINITION OF LIABILITY
Liability, as defined by SALMOND, is the bond of necessity that exists wrongdoer and the
remedy of the wrong2 has more often been said to have contract or delict.

Roman lawyers seem to have had some similar notion, and they tried to squeeze all liability
under those two expressions by adding to each class a number of things which did not properly
holding to it, which they called “quasi-contract ” and “quasi-delicit"3. Very likely the Roman
law had some good practical reason for so doing.

English lawyers seem to have kept up the distinction between contract and delict chiefly because
of the rule which one existed as to the joinder of actions; an important branch of that rule being
that causes of action arising on a breach of contract could not be joined with causes of action
arising on a delicit1. But there is a good deal of liability which is never considered as arising out
of either the one or the other, for instance, the liability of trustees or the liability of a person who
has used a ferry to pay the toll. Of course, it would be possible to extend the word "delict" so as
to cover any breaches of duty, but this extension has rarely been made. By “delicts" only certain
classes of breaches of duty are intended. English lawyers often called them torts.

According to MARKY : “the word liability is used to describe the condition of a person

who has a duty to perform ".

According to AUSTIN, liability consists in those things which a wrongdoer must do or suffer. It
is the ultimatum of law and has its source in the supreme will of the state. Liability rises from a
breach o duty which may be in the form of an act or omission. AUSTIN prefers to call liability

as "imputability". To quote him, “these certain forbearnaces, commissions or acts,

together with such of their consequences as it was the purpose of the duties

to avert are imputable to the persons who have forborne, omitted or acted.

Or the plight or predicament of the persons who have forborne, omitted or

acts, is styled imputability”.

It is thus evident that liability arises from a wrong or the breach of a duty in law.

Liability is in the first place either civil or criminal and in the second place either remedial or
penal. In the case of criminal/ penal liability the purpose of the law, direct or ulterior, is or
includes the punishment of a wrongdoer while in the case of remedial liability the law has no
such purpose at all; its sole intent being the enforcement of the plaintiffs right, the idea of
punishment being wholly irrelevant. The liability of a borrower to repay the money borrowed by
him is remedial and that of the publishers of a libel to the imprisoned or to pay damages to the
person injured by him is penal. All criminal liability is penal while the civil liability is
sometimes penal and sometimes remedial.

KINDS OF LIABILITY
Liabilities can be of many kinds. There are civil and criminal liability, remedial and penal
liability, vicarious liability and absolute or strict liability.

1) Civil liability -Civil liability is the enforcement of the right of the plaintiff against the
dependent in civil proceedings. Civil liability gives rise to Civil Procedure whose purpose is to
the enforcement of certain rights claimed by the plaintiff against the defendant. Examples of civil
proceedings are an action for recovery of the Debt, Restoration of property, the specific
performance of a contract,  recovery of damages, the issuing of an injunction against the
threatened injury etc.

2) Criminal Liability -  Criminal liability is the liability to be punished in a criminal

proceeding.  in criminal liability,  punishment is awarded to a wrongdoer. If the person is guilty
of committing the offense with criminal intension then he is liable for punishment. Criminal
liability is based on the Maxim "actus non facit reum nisi mens sit rea"  it means the offender is
guilty only when it is done with the guilty mind.

3) Penal liability - The theory of penal liability is concerned with the punishment of wrong. 
There are different kinds of punishment, Deterrent,  preventive,  retributive, reformative etc.A
penal liability can arise either from a criminal or a civil wrong. There are three aspects of penal
liability those are the conditions, incidence, and measure of a liability. As regards the conditions
of penal liability, it is expressed in the maxim "actus non facit reum nisi mens sit rea"  This
means that the Act does not constitute guilt unless it is done with guilty intention. Two things are
required to be considered in this connection and those are the act and the mens rea  requires the
consideration of imitation and negligence. The act is called the material condition of penal
liability and the mens rea is called the formal condition of penal liability.

4) Remedial Liability -  Remedial liability is based on the Maxim "Ubi jus ibi remedium"  it
means when there is right there must be some remedy.  The force of law can be used to compel a
person to do what he ought to do under the law of the country.  if an injury is caused by the
violation of a right, the same can be remedied by compelling the person bound to comply with
it.The first exception is an imperfect obligation or duty,  Second exception unenforceable duties
and the third exception is the impossibility of performance by law.

5) Vicarious liability - Vicarious liability means a liability which is incurred for or instead of
another. Generally, a person becomes liable for a tort committed by him. But there are certain
circumstances in which one person becomes liable for the tort committed by another. Such
liability is called vicarious liability. There are three exceptions to the general rule that man must
be forced to do by the force of law what he is bound to do by a rule of law.
Example- 
Master and servant
Firm and partners
Employer and independent  contractor

6) Absolute or strict liability -  Both in Civil and criminal law, mens rea or guilty mind is
considered necessary to hold a person responsible/liable. However, there are some exceptions to
the general rule. In those cases, a person is held responsible irrespective of the existence of either
wrongful intent or negligence. Such cases are known as the wrongs of absolute liability/ strict
liability. 
CIVIL LIABILITY AND CRIMINAL LIABILITY
Civil liability is the enforcement of the right of the plaintiff against tire defendant in civil
proceedings. Criminal liability is the liability to be punished in criminal proceeding. A civil
liability gives arise to civil proceedings whose purpose is the enforcement of certain rights
claimed by the plaintiff against the defendant. Examples of civil proceedings are an action for
recovery of a debt, restoration of property, the specific performance of a contract, recovery of
damages, the issuing of an injunction against the threatened injury, etc.

It is possible that the same wrong may give rise to both civil and criminal proceedings. This is so
in cases of assault, defamation, theft and malicious injury to property. In such cases, the criminal
proceeding are not alternative proceedings but concurrent proceedings. Those are independent of
the proceedings. The wrongdoer may be punished by imprisonment. He may be ordered to pay
compensation to the injured party. The outcome of proceedings in civil and criminal liability is
generally different.

In the case of civil proceedings, the remfedy is in the fonn of damages, a judgment for the
payment of debt, an injunction specific performance, delivery of possession or property, a decree
of divorce, etc. The redress for criminal liability is in the form of punishment which may be in
the form of imprisonment, fine or death. In certain cases, the remedy for both civil and criminal
liability may be he same, viz. the payment of money. In certain cases, imprisonment may be
awarded for both civil and criminal liability. Even in a child case, if a party dares to defy an
injunction, he can be imprisoned. Civil liability is measured by the magnitude of the wrong done
but while measuring criminal liability we take into consideration the motive, intention, character
of the offender and the magnitude of the offence.

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. An offence which is pursued by the sovereign or

by the subordinates of the sovereign is a crime. All absolute obligations

areenforced criminally".
SALMOND’s view is that "the distinction between criminal and civil wrong is based on any
different in the nature of the right infringed, but on a difference in the nature of the remedy
applied".

One view is that the main difference between the two lies in the procedure. In other words their
procedures are different. Generally, four points of distinction between the two have been put
forward:

1. Crime is a wrong against the society but a civil wrong is a wrong against a private
Individual or individuals.
2. The remedy against a crime in punishment but the remedy against the civil
Wrongs is damages.
3. A third difference between the two is that of the procedure. The proceedings in
Case of a civil wrong are called civil proceedings and criminal and civil proceedings
takes place in two different sets of courts.
4. 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.
 THEORY OF REMEDIAL AND PENAL LIABILITY

Civil and criminal liability cannot be treated as identical with that between remedial and penal.
For the distinction has been made on the notion of the legal consequences of the action against
the wrong. Thus where after a successful proceeding the defendant is ordered to pay
compensation for damages, or to pay a debt or to make a specific performance of a contract, the
liability"may be known a remedial, but where it after a successful proceeding the wrongdoer is
awarded punishment, which may be the fine, imprisonment etc. it may be called penal liability.
Though civil liability may generally be remedial and the criminal penal, the argument is not
always true, because in some cases liability may be both remedial and penal. So also is true of
criminal liability, though in exceptional cases.

There are two theories of liabilities: —

(1) The theory of Remedial Liability; and

(2) The theory of Penal Liability.

1. Theory of Remedial Liability– In so far as remedial liability .is concerned it is founded on

the well-known maxim - “ubi jus ubi remedium” which means, where there is right, there is
remedy. Thus where the law creates or imposes duty, it also enforces its specific performance.
For every breach of duty, there is a remedy in the law. But there are certain exceptions where the
duty is not specifically enforced.

 Duties of imperfect obligation - In the first place, there are duties of imperfect
obligation. A time-barred debt is an example of it. Thought eh debt exists in law, it is not
enforceable.

 Duties which by Nature are Incapable of Specific Performance - Another exception of

the rule are duties of such a nature, which once broken cannot be specifically enforced,
for example, in an act done the defendant cannot be made to refrain from it. Everyone has
a right to reputation, and therefore, there is a corresponding duty imposed on others not to
 violate such right. But if at a libel, is committed the specific enforcement of
corresponding duty of defendant “i.e. the person who has committed libel’’ is not
possible. In other words, once a mischief has been done, it cannot be undone. In such
case damages are perhaps the only adequate remedy.

 Where Specific Performance is Inexpedient or Inadvisable - In the third place, there

are cases where thought eh specific performance of duty is plausible, the tew does not
enforce its specific performance but rather awards damages to the plaintiff. For example,
law does not enforce the specific performance of a promise of marriage or painting to
picture but normally award damages in such cases.

In other words, “ubi jus ibi" remedium - which means where there is right there must be a
remedy.

When law creates a duty it ensures its fulfillment also. For the breach of duty there is some
remedy prescribed by law, and it is enforced by law.

Thus, the purpose of remedial liability is to ensure the specific enforcement of plaintiffs rather
than punishing the wrongdoer.

According to the theory of remedial liability whenever law creates a duty it should enforce the
fulfillment of such duty. The law imposes remedial liability on one who fails to perform such
duty.Briefly ordinarily a duty is enforced by law except in the following cases where law will not
enforce the same.

1) Duties of imperfect application, e.g. time-barred debt

2) Incapable of specific performance due to its intrinsic nature — here only compensation
will come into play e.g. tarring one’s reputation.

3) Specific performance inexpedient - promise of marriage. Court would not insists on

enforcing a marriage.
 In all above cases duty is there but it cannot be enforced. Remedy is lost.

2. The theory of Penal Liability - As stated earlier, the main purpose of penal liability is
either directly or indirectly, to punish a wrong-doer.The basic principle underlying penal liability
is contained in the maxim - "actus non facit reum, nisi mens sit rea ” which means that act alone
does not amount to crime, unless it is accompanied by guilty mind. Therefore, two elements i.e.

i) act; and

ii) guilty mind

are essential to constitute a crime. No person can be punished merely because his act resulted
into some crime unless it was accompanied by “Mens Rea” or guilty mind. Conversely, mere
presence of “mens rea" shall not constitute a crime unless it is accompanied by some act. Thus
"act ” is he physical element of the crime and “mens rea ” is the mental element.

Generally a man is hold criminally liable only for those wrongful acts which he does either
willfully or negligently. There are, however, some exceptional cases when law imposes strict
liability as in case of offences under the lincensing acts or offences against public health. In such
cases, the act itself becomes punishable even without the presence of guilty mind or negligence.
That apart, the criminal law exempts certain categories of cases from penal liability. These are
commonly known as defences or general exceptions and include mistake of act, accidents,
infancy, minority, necessity, self-defence, voluntary intoxication, etc. If the offender succeeds in
establishing any of these defences, he is not punished though his offence may satisfy the two
conditions of “actus ” and “mens rea".
VICARIOUS LIABILITY ON THE GROUND OF RELATIONSHIP

The general principle of law is that 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 the
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 principle of vicarious liability in ancient times was 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 modem times, this liability exists in a limited kind of
cases. Now a person is made liable on the grounds of expediency and policy, and not on any
other ground.

Normally, it is tire wrong-doer himself who is held liable for the act. But there may be certain
circumstances when the liability of the wrongdoer is imposed on some other person than the
wrongdoer himself. That is, some other person is made liable for the wrongful acts of the
wrongdoer.

For example, a master is liable for the Wrongful acts of his servant done in the scope of
employment. Likewise a principal is liable for the wrongful acts of his agent done in the ordinary
course of business or a guardian is liable for the wrongful acts of his words .

The doctrine of vicarious liability is based n the principle of "respondent superior".

According to SALMOND the rational basis of the rule of vicarious liability, of which the master-
servant liability serves as the best illustration, is mainly evidential. To quote his own words of

SALMOND, “there are such immense difficulties in the way of proving actual

authority, that unless some such conclusive presumption is drawn, masters would

make tools of their servants to commit great wrongs. A word, a gesture or a tone
from the master will be sufficient to induce a servant to commit greatest wrongs,

yet who could prove such a measure of complexity".

BIBLIOGRAPHY

Books:

1. DR. N.V. PARANJAPE, STUDIES IN JURISPRUDENCE AND LEGAL THEORIES,

8TH EDITION, CENTRAL LAW PUBLICATION

2. DR. AVTAR SINGH AND DR. HARPREET SINGH, INTRODUCTION TO

JURISPRUDENCE, 4TH EDITION, LEXIS NEXIS

Websites:

1. http://cbseacademic.nic.in/web_material/doc/Legal_Studies/XI_U2_Legal_Studies.pdf

2. https://www.lawnotes.in/Sources_of_Law

3. https://www.lawctopus.com/academike/precedents-as-a-source-of-law/

4. https://en.wikipedia.org/wiki/Sources_of_law