Topic: Legal and Extra-Legal Remedies: Distinction

Subject: Torts

Name: Swapnil Das

I.D. – LLB/2717/2020
The Law of Torts is said to have developed along the lines of the Latin maxim ‘ubi jus ibi
remedium’, which translates to “where there is a right there is a remedy 1”. What this basically
entails is that if an individual has a right, then he has a right to be granted necessary remedies if
he is injured in the exercise of said right2, to ensure that his position prior to the injury is restored
to him. Broadly speaking, such remedies are divided into two groups- legal and extra-legal
remedies (often referred to as judicial and extra-judicial respectively)3

This essay aims to distinguish between legal and extra-legal remedies by doing the following-

 Very briefly explain what legal and extra-legal remedies are

 Sub-categorize the two different categories of remedies

 Put forth some details about the different sub-categories

 Analyze all the examples to try and understand the fundamental differences between
legal and extra-legal remedies

1
Jonathan Law, 'Ubi jus ibi remedium' (Oxford Reference, 1 March
2009) <https://www.oxfordreference.com/view/10.1093/oi/authority.20110803110448446> accessed 10 December
2020.
2
Lakshmi Somanathan, 'Nature and Scope of Law of Torts in India' (Legal Services India, 17 March
2015) <http://www.legalserviceindia.com/articles/torts_s.htm> accessed 10 December 2020.
3
Ratanlal and Dhirajlal, The Law of Torts (28th edn, Lexis Nexis 2013) 161.
LEGAL REMEDIES:

Legal remedies are granted to aggrieved individuals by a court of law4

Broadly speaking, there are 3 different varieties of legal remedies-

(1) Damages- Damages are the pecuniary compensations that are awarded by courts to
individuals for the injuries caused to him by any wrongful act committed by the
defendant. The primary purpose of damages is to compensate the individual for the
losses he has suffered due to the aforementioned wrongful act5

(2) Injunction- Injunctions are court orders that restrain the “commission, repetition or
continuance” of any wrongful act committed by the defendant. For a court of law
to order an injunction, it must be proven that the danger anticipated because of the
wrongful act of the defendant will be irreparable. Injunction orders often involve
the balancing between two very important rights granted to Indian citizens- the
right to privacy and the right to freedom of expression, to ensure that proper
justice is delivered.6

(3) Specific Restitution- Specific restitution of property entails the right of a person to
recover any property of his that has been wrongfully taken from him by the
defendant. 7

EXTRA-LEGAL REMEDIES:

4
Ibid.
5
Ibid 162.
6
Ibid 207.
7
Ibid 209.
Extra-legal remedies are available to individuals by accord of their own actions 8and involve
taking the law in one’s own hand (lawfully) to protect oneself from legal injuries without
involving a court of law.

Extra-legal remedies can be classified into 5 different varieties-

(1) Expulsion of trespasser- One does not owe the same duty of care to a trespasser
on his property that he owes to everyone else. 9
To protect his own self, he is
entitled to use a reasonable amount of force to expel said trespasser from his
property.10

(2) Re-entry on land- If a person is wrongfully deprived from accessing his own
land by a trespasser, he will not be civilly liable if he were to forcibly re-enter
his land and use no more force than is necessary to expel the aforementioned
trespasser11

(3) Re-caption of goods- If someone were to bring any goods wrongfully acquired
from another person onto their own property, he gives an implicit license to the
wronged individual to enter their property for the purpose of re-caption of the
aforementioned goods 12

(4) Abatement of nuisance- If one party is injured by nuisance committed by

another party, he is entitled to remove the nuisance in a peaceful manner.
Generally, one is supposed to request the other party to remove the nuisance
themselves, but in case it is pointless, or if urgent action is necessary, this is not
mandatory.13

(5) Distress damage feasant- If an individual’s property (usually cattle or other

animals, but including inanimate objects too) enters another’s land and causes
damage to said land, then the aggrieved individual is entitled to impound the
8
Ibid 161.
9
WE Peel and J Goudkamp, Winfield & Jolowicz on Tort (19th edn, Sweet & Maxwell Ltd 2014) 489.
10
Ibid 584.
11
Ratanlal and Dhirajlal, The Law of Torts (28th edn, Lexis Nexis 2013) 344.
12
Ibid 345.
13
WE Peel and J Goudkamp, Winfield & Jolowicz on Tort (19th edn, Sweet & Maxwell Ltd 2014) 1714.
 property that caused the damage, and retain them as “a pledge for the redress of
the injury he has sustained”. However, it must be noted that no right to sale
arises from this remedy. 14

DIFFERENCES:

(1) One of the most obvious differences that is immediately observable after due analysis, is
that availing legal remedies requires one to follow the due process of law in a court.
There is no such requirement if you want to avail an extra-legal remedy- one can simply
remedy the wrong done to himself.

(2) Following from the first difference, it is again evident that if one resorts to extra-legal
remedies, he can get immediate relief for himself. However, if he were to opt for legal
remedies, he would have to wait for a substantial amount of time to get due relief,
because the legal process is time consuming. This is one of the most important
justifications for the existence of extra-legal remedies.

(3) If one were to avail legal remedies, then he would have to restrain himself from using any
force against the defendant. However, if he were to opt for extra-legal remedies, he is
entitled to use only as much force as is necessary to undo the legal injury inflicted upon
him. However, it must be ensured that said force is within reasonable limits.

(4) Following from the previous point, it is evident that because one is permitted to use force
to avail extra-legal remedies, there is a risk of surpassing reasonable limits and hence, the
originally aggrieved individual can end up being liable in a court of law. There is no such
risk if one avails legal remedies.

CONCLUSION:

14
Ratanlal and Dhirajlal, The Law of Torts (28th edn, Lexis Nexis 2013) 342.
After the sub-categorization of legal and extra-legal remedies, we were able to analyze them
properly and then enumerate 4 major points of distinction between the two. Considering all the
differences, one can safely say that both legal and extra-legal remedies are very useful in
ensuring that proper justice is meted out to injured parties. They work in tandem, with legal
remedies providing justice in the court of law when necessary and extra-legal remedies ensuring
that no petty issues that one can solve oneself end up in the courts. However, it is very necessary
to avail extra-legal remedies extremely judiciously, because the provisions that allow one to use
force to undo legal injuries are very prone to misuse.

BIBLIOGRAPHY:
Books:

(1) Peel W.E. and Goudkamp J., “Winfield & Jolowicz on Tort” (Sweet & Maxwell
Ltd 2014) 

(2) Ratanlal and Dhirajlal, “The Law of Torts” (Lexis Nexis 2013)

Articles:

(1) Lakshmi Somanathan, “Nature and Scope of Law of Torts in India”, 2015, Legal Services
India

Miscellaneous:

(1) “Ubi Jus Ubi Remedium”, Oxford Reference