MEASURE OF CIVIL AND CRIMINAL LIABILITY

CHANAKYA NATIONAL LAW

UNIVERSITY

Final draft for fulfilment of project of Jurisprudence II

On
“MEASURE OF CIVIL AND CRIMINAL LIABILITY”

Submitted to: - Dr. Manoranjan Kumar

Faculty of Jurisprudence II Submitted by: KartikayTrivedi
Roll no.1532
3rd year B.A. LL.B. (Hons.)

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 MEASURE OF CIVIL AND CRIMINAL LIABILITY

TABLE OF CONTENTS

RESEARCH METHODOLOGY ................................................................................................ 4

CHAPTER 1- INTRODUCTION: LIABILITY ............................................................................. 5
CHAPTER 2- CIVIL LIABILITY AND ITS MEASURES........................................................... 7
CHAPTER 3 – CRIMINAL LIABILITY AND ITS MEASURES ................................................ 9
CHAPTER 4 - CONCLUSION, CRITICISM AND SUGGESTIONS ........................................ 14
BIBLIOGRAPHY ......................................................................................................................... 16

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 MEASURE OF CIVIL AND CRIMINAL LIABILITY

ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Manoranjan Kumar without the kind and support of whom
the completion of the project would have been a herculean task for me. He took out time from his
busy schedule to help me to complete this project and suggested me from where and how to collect
data.

Acknowledges are also due to my friends who gave their valuable and meticulous advice which
was very useful in writing the project.

I would also like to express my gratitude towards the library staff for working long hours to
facilitate us with required material going a long way in quenching our thirst for education.

I would also like to express my gratitude towards my parents and all those unseen hands who
helped me out at every stage of my project.

KARTIKAY TRIVEDI

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 MEASURE OF CIVIL AND CRIMINAL LIABILITY

RESEARCH METHODOLOGY

AIMS AND OBJECTIVES-

The research will do the research to understand the various measures of civil and criminal
liability.

HYPOTHESIS-
The researcher strongly believes that motive, magnitude of the offence along with the character
of the offender constitutes the measures of criminal liability whereas there is only the magnitude
of the offence in civil liability.

METHOD OF RESEARCH-
The researcher will emphasize and use the doctrinal method to prepare the project.

SOURCES-

Primary Sources-

 Books
 Websites

Secondary sources-

 Journals
 Articles

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 MEASURE OF CIVIL AND CRIMINAL LIABILITY

CHAPTER 1- INTRODUCTION: 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
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 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.

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.2

1
P.B.Mukherji, The new jurisprudence, P.I3
2
MARKBY, Elements of Law (3rd Ed. 1885) P.292

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The 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-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 subdivisions of the same class.

DEFINITIONS

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.3 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".4 Very likely the Roman law had some good practical reason
for so doing.

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. He 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”.5

3
MARKBY : Op.eit. PP 293-294
4
SALMOND : Jurisprudenc (12th Ed.) P.349
5
https://www.scribd.com/presentation/273523610/Liability-UNDER-jurisprudence

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CHAPTER 2- CIVIL LIABILITY AND ITS MEASURES

Civil liability is the enforcement of the right of the plaintiff against tire defendant in civil
proceedings. 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. 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. 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.6

Civil liability gives a person rights to obtain redress from another person e.g. the ability to sue for
damages for personal injury. There is also the right to obtain an injunction. For there to be an
award of damages, the injured party has to have suffered an actual loss, be it personal injury,
damage to property, or financial loss. The burden of proof is "the balance of probability" which is
much lower than for criminal matters. If there has been a relevant criminal conviction in a
particular matter, then the burden of proof in any related civil action is reversed, so that the
defendant has to prove he is not liable. An example of this would be a conviction of a company
for breach of health and safety legislation, followed by the injured employee suing the company
for damages for personal injury. A disincentive to suing is that the losing party pays the winners
costs. In fact, this works out as a substantial proportion of the costs, rather than 100%, so a
successful plaintiff has his award of damages diminished in practical terms. As a matter of public
policy, it is not possible to have an enforceable insurance policy in relation to criminal penalties.7

THE MEASURE OF CIVIL LIABILITY

In the case of a civil wrong, motive is irrelevant. It is only the magnitude of the offence that
determines the liability. The liability of the offender is not measured by the consequences which

6
V.D. Mahajan : Jurisprudence & Legal Theory. P. 366.
7
http://www.rsc.org/images/2_difference_tcm18-17644.pdf

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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 motive8 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 plaintiff’s sufferings. In
others higher damages may be justified in view of the defendant’s behavior. 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.9

8
By way of exception, motive is relevant in only a few civil wrongs such as defamation, conspiracy, deceit,
malicious prosecution, etc. the reason being that they are crime also and a crime requires "mens rea"
9
https://lawshelf.com/courseware/entry/civil-and-criminal-liability

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CHAPTER 3 – CRIMINAL LIABILITY AND ITS MEASURES

Criminal liability is the liability to be punished in criminal proceeding. In criminal matters, it is

usually the state prosecuting the defendant before a magistrate, or a judge and jury in the Crown
Court. The basic assumption in criminal liability is that there is both a mental element and physical
element to the offence. For example, theft involves "dishonestly" which is a question of mental
attitude, and "appropriating" which is a physical act. The burden of proof for criminal offences is
that of "beyond reasonable doubt". It should be realised that various offences in relation to, for
example, road traffic law or environmental law have been so structured that the "mental element"
is in fact not required for a conviction. This has been as a matter of public policy to make it possible
to obtain convictions which otherwise would be very difficult. The penalties for criminal offences
are fines and imprisonment, as well as other non-custodial punishments.

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. 10

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 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
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

10
V.D. Mahajan : Jurisprudence & Legal Theory. P. 367.

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non facit reum nisi mens sit rea” stated long before by St.AUGUSTINE,11 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 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 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.12

11
St AUGUSTINE had said : "Ream Lmguam non facit nisi mens rea", sermons no. 180 C.2; cited m Pollock & Mai
Hand, Hist. Of English law, 11476, N.5
12
http://www.rsc.org/images/2_difference_tcm18-17644.pdf

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THE MEASURE OF CRIMINAL LIABILTY

It 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 of the 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, adultery is not an 934 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 outweighed by that which the
law would be called on to inflict in the cases in which its threats proved unavailing”. Therefore,

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the different offences have different punishments and secondly the judge is left with ample
direction in awarding punishments. 13

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 of the reformative theory of punishment in practice, the punishment to some extent, serves
the retributive purpose and in the most part the deterrent purposed. Therefore, the factors which
are taken into consideration in determining the liability are the following.

1) Motive for the commission of the offence.

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 would be severe, because the punishment aims
at counteracting the motives which made the offender to commit the crime.

2) Magnitude of the Offence

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) Character of the Offender

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.

13
V.D. Mahajan : Jurisprudence & Legal Theory. P. 368.

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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.14

14
http://www.infipark.com/articles/liability-distinguish-civil-criminal-liability-penal-remedial-liability/

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CHAPTER 4 - CONCLUSION, CRITICISM AND SUGGESTIONS

According to Austin, liability consists of 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 arises from a
breach of duty which may be in the form of an act or omission. Liability has occupied a place of
pride in the hierarchy of legal concepts. It has been used to include three things:

1. To express the position of a person who undertakes to do some-thing.

2. To express the condition of a person who has failed in the performance of duty; and

3. To express the condition of a person who has not failed to perform his contract but has caused
damage to the other person.

“Liability or responsibility, says Salmond : “is the bond of necessity that exists between the wrong-
doer and the remedy of the wrong.”Markby says : “The word liability is used to describe the
conditions of a person who has a duty to perform.” Thus, liability is the plight, condition, or the
state of the person who has acted, for borne or omitted contrary to law. It may also be described
as the state of the person who has violated a right or acted contrary to a duty. Liability is
either “civil” or “criminal”, either “remedial” or “penal”. Whilst criminal liability is always penal,
civil liability may be either remedial or penal. 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 of the reformative theory of punishment
in practice, the punishment to some extent, serves the retributive purpose and in the most part the
deterrent purposed.

A civil case is initiated when a person or corporation claims that another person or corporation
has failed to carry out a legal duty that was owed to the plaintiff, and can be brought before both
state and federal courts. The plaintiff may come before the court to request the defendant be
ordered to fulfill his or her legal duty or provide compensation for the harm caused to the

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plaintiff.In the example of a car accident, the civil legal duty is an expectation that the defendant
will not act in a reckless or negligent manner while operating his or her vehicle on the road. If
you have been involved in a car accident, you may have the right to bring a civil claim against
the driver or his or her insurance company to receive monetary compensation for your injuries
because of the driver's fault or negligence.

Compensation for physical and mental pain and suffering that resulted from the accident are
known as "general damages," and can only be recovered from a personal injury civil lawsuit. In
addition, you may be entitled to receive payment for property damage to your vehicle. Criminal
lawsuits are initiated by the local government, typically at the city or county level, by the
prosecutor, where the defendant is accused of a crime through a formal accusation known as an
indictment. The victim of the crime is not responsible for bringing the case before the court like
you do with a civil case; the government prosecutes on behalf of the victim. Once the court has
determined that the defendant is guilty for his or her crime, the court will order a sentence on the
defendant. The sentence could include a fine, incarceration, or released supervision in the
community. The burden of proof is significantly higher for a criminal case than it is in a civil
lawsuit. The government must prove the defendant's guilt beyond a reasonable doubt before a
jury of peers. However, if the defendant is found guilty of criminal charges, this can be used as
evidence in a civil liability case.

The Hypothesis of the researcher came to be TRUE.

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BIBLIOGRAPHY

 Books
1. P.B.Mukherji, The New Jurisprudence
2. MARKBY, Elements of Law
3. V.D. Mahajan : Jurisprudence & Legal Theory

 Websites
1. https://www.kylawpractice.com/blog/2015/september/what-is-the-difference-between-
civil-and-crimina/
2. http://www.rsc.org/images/2_difference_tcm18-17644.pdf
3. https://www.academia.edu/37839538/Criminal_Liability
4. http://www.infipark.com/articles/liability-distinguish-civil-criminal-liability-penal-
remedial-liability/
5. https://lawshelf.com/courseware/entry/civil-and-criminal-liability

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