JURISPRUDENCE ASSIGNMENT

ON

BASIS OF LIABILITY:
PHILOSOPHICAL ASPECT

Submitted by:
Shimran Zaman
B.A LL.B(Hons.) S/F
5th Sem
Roll No.-54
CONTENTS

1. DEFINITION OF LIABILITY

2. CIVIL LIABILITY AND CRIMINAL LIABILITY

3. DISTINCTION BETWEEN CIVIL AND CRIMINAL LIABILITY

4. THEORY OF REMEDIAL AND PENAL LIABILITY

5. THE MEASURE OF LIABILITY

6. MODERN PRINCIPLE

7. SOME OTHER FACTORS

DEFINITION OF LIABILITY
Liability, as defined by SALMOND, is the bond of necessity that exists
wrongdoer and the remedy of the wrong 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". 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 is
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 of 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
haveforborne, 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.

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 a rise 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 remedy is in the form 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 the 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 are enforced criminally.
SALMOND’s view is that the distinction between criminal and civil wrong is
based on any different in the nature ofthe 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 are 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 take 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 is also true of criminal liability, though in
exceptional cases.
1. 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.

I) DUTIES OF IMPERFECT OBLIGATION

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

II) 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.

III) WHERE SPECIFIC PERFORMANCE IS INEXPEDIENT OR

INADVISABLE
In the third place, there are cases where thought the specific performance of
duty is plausible, the law 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.
 2. 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 is 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 licensing 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 ofthese defences, he is not
punished though his offence may satisfy the two conditions of “actus” and
“mens rea".
The maxim “actus non facit reum nisi mens sit rea” stated long before by
St.AUGUSTINE, became, with slight change the best known maxim of the
English criminal law though the words ultimately used by COKE. As late as in
1798, KENYON, C.J. had stated that “the intent and act must both concur to
constitute the crime”. Since that time the English reports do not show any case
in which the authority ofLord KENYON has been denied by the English courts.
The maxi thus, which has been accepted by the English courts as a cardinal
doctrine of English law for centuries, recognizes that there are two constituent
elements in crime,
i) A physical element, and
ii) A mental element, and

It makes plain that at common law no man may be found guilty of crime and
therefore, legally punishable unless in addition to having brought about a harm
which the law forbids, he had at the time a legally reprehensible state of mind. It
is, therefore, necessary to reach an understanding of these two constituent parts
of criminal responsibility.
According to AUSTIN intention and negligence are the alternative forms in
which ‘‘mens rea” can exhibit itself. It is a condition precedent for the existence
of guilt. In other words, a person is liable to be punished if he does a wrongful
act intentionally or negligently.
SALMOND calls it the physical or material condition of liability. If there is no
act, there can be no punishment.
To quote Justice BRYAN : “the thought of man cannot be tried, for the devil
itself knoweth not the thought of man KENNY gives the following example : “a
man takes an umbrella from a stand at his club with intent to steal it, but finds it
his own”. He has committed no offence. The second condition 6f penal 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. The
conditions of penal liability, the act does not constitute a guilt unless it is done
with a guilty intention. Two things are required to be considered in this
connection and those are the act and the “mens rea” or the guilty mind ofthe
doer of the act. "Mens rea” requires the consideration of intention and
negligence. The act is called the material condition of penal liability and the
"mens rea” is called the formal condition of penal liability.
THE MEASURE OF LIABILITY
The nature, the kinds and the conditions of liability have been discussed. Now a
practical question remains to be answered, e.g. “what is the measure of liability"
In other words, it means that what are the consideration sin determining the
punishment for a criminal wrong and what are the consideration in determining
the amount payable to the plaintiff by the defendant as redress for a civil wrong.
The principle to determine the punishment in the case of a crime, and the
damages of compensation in the case of a civil wrong are entirely different from
each other.

THE MEASURE OF CRIMINAL LIABILTY DEPENDS UPON THE

THEORY OF PUNISHMENT, ON THE CONCEPT OF THE STATE
The measure of the criminal liability is different in different legal systems. The
measure of the liability is determined on various considerations:
a) First, the measure of liability in a particular society depends on the theory or,
in other words the aim of the punishment, recognized by the society. If the
punishment is for the purposes of the retribution, the law will look into the
motive of the wrongdoer and would take it as the chief measure of the liability.
If the purpose of punishment is to reform the wrongdoer, the measure of the
liability would be the character of the wrongdoer and so on.
b) Second, the measure of the liability depends upon the concept ofthe state and
the kind of the government in a particular society. In Nazi Germany to be a jew
was the gravest offence, and similarly to speak and to act against the wishes of
the dictator was a very serious crime. In a socialist state the grave offences are
those that undermine the interest of the society.
c) Third, the measures of the liability also on the values which are recognized n
a particular society. In India, where sex morality is considered to be a great
virtue the punishment for sexual offences has been very severe since early time,
but in England, where the sex morality is not the same as it is in India, adultory
is not an offence and in some cases seduction is a civil wrong and the
wrongdoer is liable only for compensation.
MODERN PRINCIPLE
Thus, in modem times the principle is that all the offences do not involve equal
guilt on the part of the wrongdoer and all the offender are not guilty for the
same offence. This being so, the punishment of all kinds of offences and for all
wrongdoers having committed the same offence cannot be uniform. The aim of
the law is to bring the maximum good at the costs of the maximum sacrifice,
therefore, in awarding the punishment it proceeds on foe same line. If the
punishment is same for assault and murder, a person who intends to cause injury
to his enemy would prefer to cause the later kind of the injury.
Thus, the uniform punishment for every offence would bring more evil than
good. Similarly, if the punishment is very severe such as hanging for petty
thefts it may bring down the crimes, but the "evil so prevented would be far
outweighted by that which the law would be called on to inflict in the cases in
which its threats proved unavailing”.
Therefore, the different offences have different punishments and secondly the
judge is left with ample direction in awarding punishments. The law has
generally fixed the maximum punishment that can be awarded in a particular
offence and the judge awards the punishment within the limit taking into
consideration the nature of the guilt, and the character of the offender, etc.

In modern times, thought there is a great theoretical support ofthe reformative

theory of punishment in practice, the punishment to some extent, serves the
retributive purpose and in the most part the deterrent purposd. Therefore, the
factors which are taken into consideration in determining the liability are the
following.
1) Motive for the commission of the offence.
2) The magnitude of the offence
3) The character of the offender
1) Motive for the Commission of the Offence.
The motive ofthe offence is a very important factor in determining the liability.
If the motive to commit the offence is very strong, the punishment would be
severe, because the punishment aims at counteracting the motives which made
the offender to commit the crime.

2) The Magnitude of the Offence

The other things being equal, if an offence brings greater evil consequences or
has greater evil tendencies the punishment should be severe. Some criticize this
view and say that the liability should not be determined on the basis of the evil
caused to a person, but it should be determined on the basis of the benefit
derived by the offender by his wrongful act. It is submitted that the punishment
on the basis of the magnitude of the offence greatly helps in preventing
offences, and where the offender is to choose one wrongful act out of many of
the same nature, he would prefer to commit one for which there is lesser
punishment. Thus, the severe punishment for grave offences deters the
wrongdoer from committing it.

3) The Character of the Offender

The character of the offender is also a fact or in the measure 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.
SOME OTHER FACTORS
There are some other factors also which are taken into consideration in
determining the punishment. One such factor is the nature of the offence. The
offences which are inhuman and heinous deserve severe punishment. The
sensibility of the offender is also taken into consideration. A simple censor or
rebuke might hurt the sensibility of a wrongdoer who did a wrong casually in
the heat of a passion or anger and he may not commit the offence again, but to a
habitual offender the censor or rebuke will have no effect, therefore, he should
be given a severe punishment for the same offence.

THE MEASURE OF CIVIL LIABILITY

In the case of a civil wrong, motive is irrelevant. It is only the magnitude ofthe
offence that determines the liability. The liability of the offender is not
measured by the consequences which he meant to ensure, but by the evil which
he succeeded in doing.
The liability consists of the compulsory compensation to given to the injured
person and that is to be considered as a punishment for the offence. In penal
redress, compensation in money is given to the injured person and punishment
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 considered to be sufficient.
The purpose of civil liability is compensation to the injured parts. The quantum
of damages is, however, dependent on the actual loss suffered by the plaintiff. It
must be noted that neither the character nor motive1 of the defendant are
relevant in determining he liability in civil cases. Law takes into consideration
only the actual consequences that follow a wrongful act and not the probable or
intended ones. However, in certain cases higher damages may be awarded
where defendant’s conduct has aggravated the plaintiffs sufferings. In others
higher damages may be justified in view of the defendant’s behaviour. Thus, the
court would award higher damages to a woman plaintiff in a defamation case as
compared with the male plaintiff because law expects greater respect for woman
in the society.
It would thus be seen that liability arises out of the legal sanctions provided by
the state. It is because of these legal sanctions that the laws seeks to protest the
interest of the individuals in the society. These sanctions are an effective
measure to ensure performance of duties by persons and refrain from
committing breaches thereof commit the offence again, but to a habitual
offender the censor or rebuke will have no effect, therefore, he should be given
a severe punishment for the same offence.