THE CONCEPT OF LIABILITY UNDER JURISPRUDENCE: AN OVERVIEW

By

GARIMA SINGH & SHARVIN VATS

ABSTRACT

Every legal system contains power conferring laws and duty imposing laws. As Society
progress and become more populous, diversified, and complex it requires social and legal
control. Legal institutions established and regulated by numerous laws characteristically
perform the social functions. Legal system acts as a mediator between social ideals and
social reality. Liability is the result of a violation of the law. Law lays down is down the
right and duties on the individual. The law awards legal rights to one individual and
imposes the duty upon another person. A person should not infringe is the legal right of
others. If anybody violates the legal right of another, he is said to have committed a
wrong. If there is a wrong there is a liability.

KEYWORDS: Liability, Wrong, Legal System, Duty, Responsibility

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 ⦁ INTRODUCTION

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 is entitled 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 juries”, 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 has felt the impact of
new jurisprudence.

⦁ DEFINITION OF LIABILITY

Liability, as defined by SALMOND, is the bond of necessity that exist 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 several 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 between the arisen out of English lawyers seem
to have kept up the distinction between contract and delict chiefly because of the rule

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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" 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".

In case of BURKE V. BURKE, Justice Helper said: The word liability is a broad legal
term. It has been referred to as of the most comprehensive significance, including almost
every character of hazard of responsibility, absolute, contingent, or likely. It has been to
mean all character of debts or obligations, an obligation one is bound in law or justice to
perform, an obligation which may not ripen into a debt, any kind of debt or liability,
either absolute or contingent, express or implied, condition of being actually or
potentially subject to an obligation, condition for being responsible for a possible or
actual loss, penalty, evil, expense or burden

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
forbearances, 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

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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. 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.

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 [Link] duty to fulfil 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-contracto” 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 subdivisions of the same class.

⦁ KINDS OF LIABILITY

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

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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 is 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 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. Offences which are pursued by the sovereign or by the
subordinates of the sovereign are 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 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

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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.

It is submitted that most of those points of distinction between the two are not well
founded. To take the first point, there are wrong which are against the state or society, but
they are not considered as crimes, for example, a breach of a contract by an individual
made with the state is not a crime. In the same way, there are wrongs which are only
against a private individual made with the state is not a crime. In the same way, there are
wrongs which are only against a private individual, but they are considered as crimes.
Secondly sometimes civil proceedings result in punishment. For example, in the case of
disobedience of an injunction granted by a court punishment is awarded although it is
civil proceeding. Thirdly to say that the measure of criminal liability is intention and of
civil liability in the wrongful act itself is also not correct. In modern times “mens rea”
(intention) has gone under an eclipse and the question of intention has become more of a
form than of a substantial truth. Though in some cases civil and criminal both the
proceedings can be instituted for the same act they are always different and are regulated
by two different sets of rules.

⦁ THEORY OF REMEDIAL AND PENAL LIABILITY

Civil and criminal liability cannot be treated as identical with that between remedial and

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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.

⦁ 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 debt exists in law, but 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.

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 ⦁ Where Specific Performance is Inexpedient or Inadvisable

In the third place, there are cases where though specific performance of duty is plausible,
the duty 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 fulfilment 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 fulfilment 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.

⦁ 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 reus” 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 the physical element of the crime and
“mens rea” is the mental element.

Generally, a man is held criminally liable only for those wrongful acts which he does
either wilfully 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

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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".

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 of Lord 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 of 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

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conditions of penal liability, the act does not constitute guilt unless it is 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 of the 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.

⦁ CONCLUSION

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 seek to protect 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. Civil and criminal
liabilities ensure out of the legal sanctions. The remedy for civil wrongs is compensation
or damages while for crimes, it is punishment. But as stated earlier, criminal liability is
not penal in nature or all civil liability remedial. It is for this reason that in modem times
much importance is not given to the classification of liability in most of the developed
legal systems of the world.

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REFERENCES

⦁ Legal Liability, Wikipedia, [Link]

⦁ State Liability in Tort-Need for a Fresh Look by Aman Hingorani,

[Link]

⦁ Dr. [Link], Jurisprudence Legal theory, (Allahabad Law Agency, Haryana).

⦁ Prof. Narender Kumar, Constitutional Law of India, (Allahabad Law Agency,

Haryana 8th Edn., 2011).

⦁ R.V Kelkar, Lectures on Criminal Procedure Code, (Eastern Book Company, 6th
Edn., 2017).

⦁ Ratanlal And Dhirajlal, The Code of Criminal Procedure, (Wadhwa & Company
Nagpur, 17th Edn. 2004).

⦁ Product Liability,
[Link]

⦁ Legal Dictionary, [Link]

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