Austin’s Theory or Law as the Command of the Sovereign

Austin defines Jurisprudence as the "Philosophy of Positive Law". Every law is a command & it obtains its
authority from the sovereign. John Austin says that where there is law, there are patterns of
commanding and obeying.

Austin believed that every legal system had to have a sovereign who creates the law (origin) while
remaining unaffected.

He confines the term Jurisprudence as study of law as it is & not what it ought to be.

Here is a list of key terms in Austin’s theory

1. Command:
Commands, according to Austin, always involve three things :
✓ a desire concerning someone’s behavior
✓ an expression of that desire
✓ a sanction, threatened harm for non-compliance
The first two elements are common between requests and commands while the last one
distinguishes commands from requests.

2. Duty (or obligation):

According to Austin, the terms “command,” “sanction,” and “duty” or “obligation” are all
defined in terms of one another. To receive a command is equivalent to being threatened with a
sanction and being threatened with a sanction is equivalent to having a duty. This, according to
Austin, is why people are obliged to obey the law.

3. Sovereign:
A sovereign, according to Austin, is someone that the “bulk” of the population is in the habit of
obeying while not being in the habit of obeying anyone else.

Criticism of John Austin’s theory:

✓ Not all laws fit the model of commands; some appear to be more like what we called
instructions.
✓ Having an obligation is not generally thought to be the same thing as being threatened with a
sanction.
✓ We recognize new sovereigns even before the bulk of the population has developed habits of
obeying them.
✓ There is one last issue that will bedevil both Austin and Hart. Judges often decide cases based on
what is called “customary law.” This does not seem to come from the commands of a sovereign.
✓ According to this theory customary law is not a part or sources of law, because it is not a
command of the sovereign.
 Custom as a source of Law
Custom can simply be explained as usage or practices that have been carried out over a long period and
reflects legal obligation. It can be also explained as long established practices or unwritten rules which
have acquired binding or obligatory character. In ancient societies, custom was considered as one of the
most important sources of law; In fact it was considered as the real source of law.

Kinds of Customs

Customs can be broadly divided into two classes:

1. Customs without sanction:

These kinds of customs are non-obligatory in nature and are followed because of public opinion.

2. Customs with sanction:

These customs are binding in nature and are enforced by the State. These customs may further be
divided into the following categories:

❖ Legal Custom:

Legal custom is a custom whose authority is absolute; it possesses the force of law. It is recognized and
enforced by the courts. Legal custom may be further classified into the following two types:

✓ General Customs:

These types of customs prevail throughout the territory of the State.

✓ Local Customs:

Local customs are applicable to a part of the State, or a particular region of the country.

3. Conventional Customs:

Conventional customs are binding on the parties to an agreement. When two or more persons enter
into an agreement related to a trade, it is presumed in law that they make the contract in accordance
with established convention or usage of that trade. For instance an agreement between landlord and
tenant regarding the payment of the rent will be governed by convention prevailing in this regard.

Following are the essential elements of a Custom:

1. Antiquity:

A custom must be in existence from time immemorial. The custom must be ancient, immemorial and
established by common consent, they must be accepted as law governing a particular family, caste or
locality as the case may be.
 2. Continuance:

A custom must be practiced without interruption; continuity is an essential feature of the custom.
Continuity does not mean that it should be in operation all the time. It means that there should be a
continuous availability of the terms of the customs to deal with particular rule of conduct. If a custom
becomes legally unenforceable even for a short time it would not be recognized as a valid' custom.

3. Peaceable enjoyment:

It is essential that custom must have been enjoyed peacefully by the concerned people.

4. Matter of right:

Custom must have been enjoyed as a matter of right. This right should be enforceable. Thus custom
must result in creating obligatory force at the one hand and claim on the other hand. If a practice is
observed as a courtesy and not as a matter of right then it can be termed as "custom" in legal sense.

5. Certainty:

Custom must be certain. It means that it must be free from any ambiguity. If the nature of the custom is
not certain then it loses its validity. Custom originate from general consent, it is hard to determine
existence of consent, on something which is not certain.

6. Consistency:

A custom must not be in conflict with other prevailing customs. The customs must not be against other
custom. Difference or inconsistency in custom will amount to different rule of conduct for a given
situation; it will negotiate the general consent.

7. Not Opposed to Morality and Public Policy:

A custom should be neither immoral nor opposed to public policy. Immoral custom is void. The
immorality of a custom is to be tested in context of the whole community not by a part of it.

8. Conformity with statute law:

Custom should be conformity with statute law. A legislative enactment can abrogate a custom. In case
of inconsistency between custom and statutory provision, former must give way to the latter.

9. Onus:

The burden of proving the existence of a custom lies on the person who alleges it. The burden lies on
them to prove the custom. A custom which has been judicially recognized needs no further proof.
 Legislation as a Source of Law
“Legis” means law and “latum” means making. Legislation means lawmaking. It also refers to the law
made by the legislature. It is the formal declaration of the legal rules by the legislative organ of the body
politic.

According to Salmond, ‘Legislation is that source of law which consists in the declaration of legal rules by
a competent authority.’

According to Austin, ‘There can be no law without a legislative act.’

Purpose of Legislation

Legislation can have many purposes, for example, to regulate, to authorize, to prescribe, to provide, to
sanction, to grant, to declare or to restrict and repeal.

Classification of Legislation

Legislation may be broadly classified into

1. Supreme &

2. Subordinate legislation.

1. Supreme Legislation

The Supreme legislation is by the sovereign power of the state. It cannot be repealed, annulled or
controlled by any other legislative authority. It is considered not only supreme but legally omnipotent.
There is no legal limitation on its power. Though there are certain constitutional restrictions upon its
power.

2. Subordinate Legislation

Subordinate legislation is legislation by any other authority other than the Supreme authority in the
state. It is made under the powers delegated by the Supreme authority. Such legislation owes its
existence, validity, and continuance to the Supreme authority.

Five different forms of subordinate legislation can be identified. These are:

• Colonial Legislation

The countries which are not independent, and are under the control of some other state have no
Supreme power to make law. Such countries are of various classes: as colonies, provinces, or domain.

The laws made by them are subject to the Supreme legislation of the state under whose control they
are.
As the colonies are fast achieving independence, therefore in the near future, we may not have this class
of subordinate legislation.

• Executive Legislation

When legislative powers are delegated to the executive, it is called executive legislation.

Though the important function of the executive is to implement the laws and carry on the
administration, it is always entrusted with some subordinate legislation powers also.

• Judicial Legislation

Powers are given to the administration of justice to make rules and regulation for its procedure. In India,
the Supreme Court and the high court both have the power to make rules for their respective procedure
and administration.

• Municipal Legislation

Municipal bodies are given powers to make bye-laws concerning their local matters. Bye-law made by a
local body operates within its respective locality.

In India, such municipal bodies are Municipal corporations, Municipal Boards, ZilaParishads, etc.

• Autonomous Legislation

When the Supreme authority grants powers upon a group of individuals to legislate on the matters
entrusted to them as a group, the law made by the latter is called the autonomic law and the body is
known as an autonomous body.

A railway is an autonomous body. It makes bye-laws for the regulation of its administration, etc.

• Delegated Legislation

Delegated legislation is a kind of subordinate legislation. The term delegated legislation has two
meanings-

1. Firstly, it means the exercise of power that is delegated to the executive to make rules.

2. Secondly, it means the output, rules or regulations etc. made under the power so given.

Precedent as a Source of Law

Precedent means judgment or decision of a court of law cited as an authority for determining similar set
of cases or facts.

According to Salmond,

• ‘In loose sense it includes merely reported case law which may be cited & followed by courts.’
 • ‘In strict sense, that case law which not only has a great binding authority but must also be
followed.’

According to Bentham precedents are ‘Judge made Law.’

According to Austin precedents are ‘Judiciary’s Law.’

Judicial decisions can be divided into following two parts:

• Ratio decidendi

This Latin term literally loosely translates as the reason for the decision. The ratio decidendi of a case is
not the actual decision, or order, like ‘guilty’ or ‘the defender is liable to pay compensation’. The ratio
decidendi establishes a precedent. This rule, which is an abstraction from the facts of the case, is known
as the ratio decidendi of the case.

• Obiter dictum

This is Latin for ‘a word said while travelling’ or ‘along the way’. In a judgment, any statement of law that
is not an essential part of the ratio decidendi, those statements are referred to as obiter dictum.
Although obiter dicta statements do not form part of the binding precedent, they can be persuasive
authority if taken into consideration in later cases. That is, if the judge in the latter case considers it
appropriate to do so.

Circumstances destroying the binding force of Precedents;

1. Abrogated Decisions:

Precedent ceases to be binding if it is inconsistent or abridges a statute or statutory rule

2. Ignorance of Statute:

A precedent is not binding if it was adjudicated with ignorance of a statute or rule having the force of
statute i.e. delegated legislation.

3. Difference in facts of the case:

A previous case is only binding in a later case if the legal principles involved is the same and the facts are
similar. Distinguishing a case on its facts, or on the point of law involved, is a device used by judges to
adjudicate a case through precedent.

4. Overruling:

A higher court can overrule a decision made in an earlier case by a lower court. Overruling can occur if
the previous court did not correctly apply the law, or because the later court considers that the rule of
law contained in the previous ratio decidendi is no longer desirable.
 5. Reversing

Reversing is the overturning on appeal by a higher court, of the decision of the court below that hearing
the appeal. The appeal court will then substitute its own decision.

6. Concession

Concession made by counsel on a question of law is not binding as precedent.

7. Consent

When a direction or order is made by consent of the parties, the Court does not adjudicate upon the
rights of the parties nor lay down any principle.

8. Specific Exclusion

A judgment stating therein itself that the ratio decidendi laid down there in shall not be binding
precedent nor shall be followed or relied upon , cannot be treated as binding precedent.

Right
According to Holland, ‘A right is a capacity residing in one man of controlling, with the assent and the
assistance of the state, the action of others. Every right gets its validity by State.’

According to Salmond, " Legal right" as "an interest recognized and protected by the rule of legal
justice".

According to Austin "A person can be said to have a right only when another or others are bound by
law"

Essential elements of Legal Right

According to Salmond, every legal right has five essential elements they are as follows-

i) The person of inheritance/ Subject of the right-

The first essential element of the legal right is that there must be a person who is the owner of the
Right. He is the subject of the legal right. He is sometimes described as the person of inheritance.

The owner of a right need not be a determinant or fixed person. If an individual owes a duty towards
Society at large, and indeterminant body is the subject of inheritance.

ii) The person of incidence / Subject of the Duty -

A legal right occurs against another person or persons who are under a corresponding duty to respect
that right. Such a person is called the person of incidence or the subject of the duty.
Example- If X has a particular right against Y, X is the person of inheritance and Y the subject of
incidence.

iii) Subject matter or Contents of legal rights-

Contents of legal right deals with the subject matter of the legal rights. It relates to some act to do or
not to do any act or tolerance. It obliges a person to act or hold back in favor of the person who is
entitled to the rights.

iv) Object of the legal rights-

The thing or an object over which the right is exercised is called 'Object of Right'. In above example Car is
the object of right.

v) Title-

Title is nothing but the name given to the legal right. Title is a process, by which the right is
vested/conferred. Purchase, gift, etc confers title on person.

Features/Nature of Rights:

1. Rights exist only in society. These are the products of social living.
2. Rights are claims of the individuals for their development in society.
3. Rights are recognized by the society as common claims of all the people.
4. Rights are rational and moral claims that the people make on their society.
5. Rights are equally available to all the people.
6. The contents of rights keep on changing with the passage of time.
7. Rights are not absolute. These always bear limitations deemed essential for maintaining public
health, security, order and morality.
8. Rights are inseparably related with duties. There is a close relationship between them “No
Duties, No Rights. No Rights, No Duties.” “If I have rights then it is my duty to respect the rights
others in society”.
9. Rights need enforcement and only then rights can be really enjoyed by the people.

Ownership
According to Austin, ‘Ownership as a right which avails against anyone who is subject to the law
conferring the right to put things to user of indefinite nature’. Austins’s definition thus point out three
attributes of ownership:

✓ Indefinite user
✓ Unrestricted disposition
✓ Unlimited duration
According to the Salmond, ‘Ownership denotes the relationship between a person and an object
forming the subject-matter of his ownership’. Salmond’s definition thus point out two attributes of
ownership:

✓ Ownership is a relation between a person and right that is vested upon him.
✓ Ownership is incorporeal body or form.

Subject Matter of Ownership, normally ownership implies the following:

✓ The right to manage

✓ The right to posses
✓ The right to manage
✓ The right to capital
✓ The right to the income

Incidence of Ownership

1. The owner has the right to possess things that he owns.

2. The owner normally has a
• right to use,
• right to decide how it shall be used,
• right to manage, right os income or
• enjoy the things that he owns.
3. The owner has
• the right to consume,
• destroy or
• alienate the things that he owns.

The right to consume and destroy are again straight forward liberties. The right to alienate
i.e. the right to transfer the existing rights involves the existence of power.

4. Ownership has the characteristic of being ‘indeterminate in duration’ and Ownership has
a residuary character.

According to Salmond “the owner’s rights are indeterminate and residuary in a way in which
these other rights are not”.

5. Ownership may be absolute or restricted.

6. Ownership can be restricted during national, state or financial emergency.
7. Law does not confer ownership on an unborn child or an insane person because they are
incapable of conceiving the nature and consequences of their acts
8. Right to ownership does not end with the death of the owner but instead it is transferred to
heirs.

Types of Ownership
 Corporeal Ownership
1. Corporeal Ownership signifies ownership in
a physical object.
2. Corporeal things are things which can be
perceived by senses.
Sole Ownership
When an individual owns, it is sole ownership
Trust Ownership
1. There is no co-ownership.
2. The person on whom the responsibility lies
for the benefit of the others is called the
Trustee.
3. The trustee has no right to the beneficial
enjoyment of the property.
4. Ownership is limited. A trustee is merely an
agent upon whom the law has conferred the
duty of administration of property.
5. Trusteeship may change hands.
Legal Ownership
Legal ownership is that ownership which has its
basis in common law.
Vested Ownership
1. Ownership is vested when the title is perfect.
2. Vested ownership is absolute.
Absolute Ownership
Ownership is absolute when possession,
enjoyment, disposal are complete and vested
without restrictions save as restriction imposed
by law.
Incorporeal Ownership
1. Incorporeal Ownership is a right or an
interest.
2. Incorporeal things cannot be perceived by
senses and are in tangible.
Co-Ownership
When there is more than one person who owns
the property
Beneficial Ownership
1. There can be co-ownership.
2. The person for whom the trust is created is
called the Beneficiary.
3. The Beneficiary has the full rights to enjoy the
property.
4. Ownership is complete.
5. Beneficial Owners remain the same.
Equitable Ownership
Equitable ownership comes from equity
divergence of common law. Thus, distinction
between legal and equitable ownership is very
thin.
Contingent Ownership
1. Ownership is contingent when it is capable of
being perfect after fulfilment of certain
condition.
2. Contingent ownership becomes vested when
the conditions are fulfilled.
Limited Ownership
Limited Ownership is subjected to the
limitations of use, disposal or duration.

Possession
Possession literary means physical control over a thing or an object. It expresses the closest relation of
fact that can exist between a thing and the person, who possess it. In law, possession means it includes
not only physical control over a thing but also an intention to exercise that physical control.

According to Salmond, "possession is the continuing exercise of a claim to the Exclusive use of an
object."
Savigny defines Possession as, "intention coupled with physical power to exclude others from the use of
material object.

Salmond criticized Savingy's definition and ground that Savingy committed an error by including the
element of physical power in his definition.

Elements of Possession

From the above definition we could see in that possession has two essentials -

1. Actual power over the object possessed. i.e. corpus possessionis and
2. Intention of the possessor to exclude any interference from others. i.e. animus possidendi.

According to John Salmond, both corpus and animus must be present to constitute Possession.
Ownership is a legal concept whereas Possession is factual as well as legal concept.

Persons
The term Person is derived from the Latin word 'Persona' it means those who are recognised by law as
being capable of having legal rights and duties.

According to Salmond, ‘A person is any being whom the law regards as capable of rights and bound by
legal duties.’

Savigny defines the term person as the subject or bearer of a right.

According to Gray, ‘ A person is an entity to which rights and duties may be attributed.’

According to Austin the term 'person' includes physical or natural person including every being which
can be deemed human.

According to Section 11 of the Indian Penal code the word person includes any company or association,
or body of Persons, whether Incorporated or not.

Kinds of Persons

There are two kinds of persons are as follows

1. Natural Person :

A natural person is a human being possessing natural personality. According to Holland, a natural person
is a human being as is regarded by the law as capable of rights and duties.

2. Legal persons / Artificial persons :

A legal person has a real existence but it's personality is fictitious. He is called fictitious because he does
not exist in fact but is deemed to exist in the eye of law.
Kinds of legal persons

They are three kinds of Legal Person are as follows

• Institutions are not personified or group of persons but institutions itself are legal persons, such
as, mosque, library, hospital etc.
• Funds or estates are used for specific purpose. Property or fund of deceased person for trust or
charity is kind of legal person.
• Corporations are a group or series of persons and natural persons are its members.

Kinds of Corporation

They are two kinds of Corporation

• Corporation Aggregate is a group or collection of persons who become joint to accomplish a

task. Even if all members of this corporation die, it will remain live and continue until death by
law. Common example of this corporation is Municipal Corporation or registered company.
• Corporation Sole is series of successive persons or individuals. It consists of only one person at a
time like king, postmaster general, Assistant Commissioner, or Prime Minister. When a person
dies, second one comes, fills in vacancy and performs functions.

Legal status of Dead Person:

Dead persons have no legal personality and hence, cannot sue and be sued. Dead men are no longer
persons in the eye of law. Legal personality of a person dies with him.

They do not remain the owners of their property until their successors enter upon their inheritance.
When a person dies leaving Will, his property is distributed according to the Will.

There are three things in respect of which living men extend even after their death. Those are his body,
his reputation and his property.

1) His Body:

A living person is interested in the treatment to be given to his own body. A person is interested in a
decent funeral and good burial. Criminal law secures a decent burial for all dead persons and the
violation of a grave is a criminal offence. It is to the respect the feelings of the relatives of a dead person,
not in protection of dead person's right.

2) His reputation:

Everyone is interested in maintaining reputation even after death. The reputation of a dead person
receives some degree of protection from the criminal law. Defamation suit can be filed for loss of
reputation of a dead person. This right is in reality not that of the dead person but of his living
descendants.
3) His Property/ Estate:

A man is dead but his hand may continue to regulate and determine the enjoyment of the property he
owned while he was alive. He can dispose of his property by WILL.

Legal Status of Lower Animals

They are no persons because they do not possess rights and obligations. Some people say that they are
persons because law prohibits cruelty to them. They should be treated sympathetically and kindly. But
this is our cultural heritage and the duty of society and not the duty of animals. Rights always correlate
with duties. Since they do not have any duty so no rights and are not persons in modern law master of
animals can be sued and punished and not the animals itself.

Legal Status of Unborn Babies

In civil law they can sue after they are born through their next friends or at attaining the age of majority.
A child in womb has certain rights and inherits property. These all things are subject to his living birth.

Following are important points

• He can claim damages after birth, for the injuries he received before birth.
• He can claim compensation for the death of his father or mother in fatal accidents.
• He inherits even his father is died before his birth. He is natural person even his birth is only for
a moment.
• A woman cannot be punished after conviction if she is pregnant, till birth of baby.

Titles
Title is a link between a person and an object to establish ownership of property. Right of possession on
ownership comes in term of de facto first and later de jure. For example, I have a watch on my hand.
How it can be said that it is my, or I have title over it. I have either purchased it, or someone has gifted
me, or I have inherited it from elsewhere.

Title is created even of stolen objects. It is right of ownership in fact and in law over property.

According to Salmond, title is the fifth element of a legal right. He said “Every legal right has a title, that
is to say, certain facts or events by reason of which the right has become vested in its owner.”

Kinds of Title

Vestitive facts are those which have relation to right. They relate to the creation, extinction and transfer
of rights.

1. Investitive facts create them and

2. Divestitive facts destroy them.
 1. Investitive facts create rights. This right is created first time on the objects, which are
ownerless. When I catch fish it is my original title and if I purchase it from elsewhere then it is
called derivative title. Derivative right is second right, which is created after gone away of
original right.
• Original title - A right may be created de novo and it may have no previous existence. Such a
right is called an original title.
• Derivative title - If a right is created by the transfer of an existing right, it is called a derivative
title.

2. Divestitive facts are those which relate to the extinction and transfer of rights. They are divided
into alienative facts and extinctive facts.
• Extinctive facts- The facts of which the legal result is to destroy rights are called extinctive
divestitive facts.
• Alienative facts-The facts of which the legal result is to transfer right from the owner are called
alienative derivative facts.

Property
The term property is commonly used to define the objects which are owned. In other words, property
denotes those things in which right of ownership can be expanded. The term property includes both
living and non-living things. Lands, chattels, shares, and debts are included in the property.

Salmond says that the law of property is the law of proprietary rights ‘right in rem’, the law of
proprietary rights ‘right in personam’ is distinguished from it as the law of obligations.

Kinds of Property

Property is essentially of two kinds

1. Corporeal Property and

2. Incorporeal Property.

Corporeal Property can be further divided into

• Movable and Immovable Property and

• Real and Personal property.

Incorporeal property is of two kinds

• Rights in re propria and

• Rights in re aliena or encumbrances.

Movable and Immovable Property

A corporeal property can be movable or immovable.

Immovable property includes land, house, walls etc. It includes that property which cannot be moved
from one place to another. Objects which are physically attached to the earth and permanently fastened
to anything attached to the earth are termed as immovable property.

Movable property are those properties which can be easily moved from one place to another by the
help of a person. It includes chattels, ornaments, etc.

Real and Personal Property

There is no such distinction between real and personal property.

Real property means all rights over the land which is recognized by law.

Personal property means all other proprietary rights whether right in rem or right in personam.

Jura in re aliena

It includes property, the ownership of which is in the hand of one person and it is used by other person.
They are called as encumbrances (Burden). It is categorized into following:

• Lease;
• Servitude;
• Securities;
• Trusts;

Right in re propria

Proprietary rights are of both materials as well as non-material things. Material things are the physical
objects and non-material things are the rights attached to the things.

Right in re propria is mainly over non-material things. The person having right over the thing which he
attains due to his skill and labour. It is categorized into following:

• Patent
• Copyright
• Commercial Goodwill

Modes of Acquisition of Property

Acoording to Salmond there are various modes of acquisition of property. He has described four modes
of acquisition of property:

1. Possession
2. Prescription
3. Agreement
4. Inheritance
 1. Possession

Possession means physical control or acquisition of property by a person. Ownership of a property is

based on the possession of the property. For any proprietary matter, law gives first priority to a person
who is in possession of the property.

There are many situations where a person is in the possession of the property but he is not the real
owner of the property. The title of property belongs to someone else.

The owner of the title of the property enjoys absolute right over the property. But the person having
possession of the property does not have an absolute right, he has an only relative title.

2. Prescription

According to SALMOND, “prescription is the effect of lapse of time in creating and destroying right.”It is
of two kinds:

• Positive or acquisitive prescription

When the right over property is acquired by lapse of time, it is called positive prescription.

For instance, when a person makes a continuous use of a well located in someone else land, he
automatically acquired a right over the well as prescribed under the Indian Easement Act.

• Negative or extinctive prescription

Negative prescription is when a person destroys his right by the effect of lapse of time. It occurs when
the person’s right already exists.

For instance, right to sue for the non- payment of debt is destroyed after a period of time.

3. Inheritance

Another method of acquisition is inheritance. When a person dies, there are some of his rights which are
transferred to his heirs and successors. Whereas there are some other rights also which cannot be
transferred. The rights which can be transferred are called heritance or inheritable rights.

Proprietary rights are inheritable rights as it can be transferred after the death of its owner. But
personal rights such as the right to life or reputation are not inheritable.

However, there are certain exceptions to it. Some proprietary rights are also not inheritable. For
instance, lease for the life of lessee only or in the case of joint ownership.

In case of succession of proprietary rights, if a person has made a will then succession will take place
according to the will. But if the person dies without making a will then succession will take place as per
the law.

4. Agreement
Property can also be acquired by an agreement enforceable by law. A person having ownership of a
property has a right to transfer the ownership of the property to another person with or without
consideration.

PATON follows that an agreement should fulfill four conditions:

• There should be two or more parties.

• Mutual consent of the parties.

• It should be communicated.

• There should be common intention to communicate a legal relationship.

Kinds of Agreement

Salmond Classifies agreement into 3 kinds. They are as follws;

1. Valid Contracts

It is an agreement that is legally binding and enforceable. It must qualify all the essentials of an
Agreement.

2. Void Contract Or Agreement

An agreement which ceases to be enforceable by law becomes void when it ceases to be enforceable.

3. Voidable Contract

An agreement which is enforceable by law at the option of one or more of the parties thereto, but not
at the option of the other or others, is a voidable agreement

A voidable agreement is a Valid agreement. In a voidable agreement, at least one of the parties has to
be bound to the terms of the agreement.

Obligation
Obligation means to do or not to do an act, or to perform some work or an act.

According Salmond" An obligation, therefore, may be defined as a proprietary right in personam or a

duty which corresponds to such a right."

Obligations are all in one class of duties, namely those which are co-relatives of rights in personam.

According to Anson, "an obligation is a control exercisable by definite persons over definite persons for
the purpose of Definite acts or forbearance reducible to a money value"
According to Savigny an obligation is the control over another person, yet not over his person in all
respects (in which case his personality would be destroyed), but over single acts of his which must be
conceived of subtracted from his free will and subjected to our will

According to Prof. Paton, an obligation is that part of law which creates right in personam.

Sources of Obligation

There are four sources of an obligation which are as follows -

1. Contractual obligation (obligations arising from contract) -

Contractual obligations are those which are created by contracts or agreements.

These obligations create rights in personam between the parties.

The rights so created are generally proprietary rights. Sometimes a contract creates rights which are not
proprietary though they are in personam.

2. Delictual Obligation (obligations arising from tort) -

Delictual obligations arises from tortious liability.

According to Salmond, " A Tort may be defined as a civil wrong for which the remedy is an action for
damages and which is not solely a breach of contract or the breach of Trust or other merely equitable
obligations.

Delictual obligations are those in which a sum of money is to be paid as compensation for a tort

3. Quasi-contractual obligations (obligations arising from quasi-contract) -

The term "Quasi" is a Latin word which, which means "as if" or "similarly".

Quasi-contract is not a real contract entered into by the parties intentionally.

It resembles a contract, in which law imposes an obligation on a person to perform an obligation on the
ground of equity.

Quasi-contract is based on the principle of equity that "A person shall not be allowed to enrich himself
unjustly at the expense of another". In other words, A person should not receive or accept any benefit
unjustly. If so, he has an obligation to give it back to the right owner. Such obligations is called Quasi-
contractual obligation.

4) Innominate obligation

Innomited obligations are all the obligations which are other than those falling under the heads of
contractual obligation, delictual obligations and Quasi-contractual obligation.
Kinds of Obligation

There are two kinds of obligation which are as follows:

1. Sole obligation -

A sole obligation is an obligation where there is one person on each side. This is a normal type of
obligation in which there is one creditor and one debtor.

Example of Sole Obligation -

X promises to Y to pay $100. In this example, there is only one creditor and only one debtor. This is sole
obligation

2. Solidary obligation -

In solitary obligation, there are two or more debtors owe the same thing to the same creditor.

Consequences of Solidary Obligation

1. One of the several debtors can be made liable for the payment or the performance of the entire
obligation. (full payment by any of the debtor extinguishes the obligation)
2. One of the solidary creditors can demand the payment or performance of the entire obligation
from the debtor or any of the debtors. (There is mutual representation w/ power to exercise the
rights of others in the same manner as their own rights)

There are three kinds of solidary obligation:

(a) Several solidary obligations -

Solidary obligations are several when, although the thing owed is the same in each case, there are as
many distinct obligations and causes of action as there are several debtors.

(b) Joint solidary obligation -

Solidary obligations are joint when though there are two or more debtors, there is only one debt or
other cause of action, as well as only one thing owed. The creditor must sue all of them and release of
one operates as a release of others. For example when a Firm contracts a Debt all the partners are
jointly liable. In English law, the liability of joint debtors is joint while in India it is joint and several

(c) Joint and several solidary obligations -

Certain solidary obligations are both joint and several. These obligations stand Midway between the
above two. In this the creditor can sue one, some or all of them and release of one will not operate as a
release of all other feasors.
 Theories of Punishment
Punishing criminals is a function of the State. In the past, there were no strict rules for punishment and
the quantum and extent of punishment largely depends on the King or the ruler. However, modern
punishments are based on the nature of offense and are largely brough by the British and Western
countries. Penologists have formulated several theories that deal with punishments.

The five modern theories are:

1. Deterrent Theory
2. Retributive Theory
3. Expiation Theory
4. Protective or Preventive Theory
5. Reformative Theory

1. DETERRENT THEORY

The term “Deter” means to abstain from doing an act. The main purpose of this theory is to deter
(prevent) the criminals from doing the crime or repeating the same crime in future. Under this theory,
severe punishments are inflicted upon the offender so that he abstains from committing a crime in
future and it would also be a lesson to the other members of the society, as to what can be the
consequences of committing a crime. This theory has proved effective, even though it has certain
defects.

2. RETRIBUTIVE THEORY

This theory of punishment is based on the principle- “An eye for an eye, a tooth for a tooth”. The object
of this theory is to make the criminal realize the suffering of the pain by subjecting him to the same kind
of pain as he had inflicted on the victim.

This theory aims at taking a revenge rather than social welfare and transformation.

This theory has not been supported by the Criminologists, Penologists and Sociologists as they feel that
this theory is brutal and babric.

3. PREVENTIVE THEORY

This theory too aims to prevent the crime rather than avenging it. As per this theory, the idea is to keep
the offender away from the society. This criminal under this theory is punished with death, life
imprisonment etc. This theory has been criticized by some jurists.
 4. REFORMATIVE THEORY –

This theory is the most humane of all the theories which aims to reform the legal offenders by individual
treatment. The idea behind this theory is that no one is a born Criminal and criminals are also humans.
Under this theory, it is believed that if the criminals are trained and educated, they can be transformed
into law abiding citizens. This theory has been proved to be successful and accepted by many jurists.

5. EXPIATORY THEORY –

Under this theory, it is believed that if the offender expiates or repents and realizes his mistake, he must
be forgiven.

Natural Law

Natural Law or Law of Nature or Moral Law is a universal law that is set by nature.

• It is called lex naturalis in Latin.

• It refers to the use of reason to analyze human nature and deduce binding rules of moral
behavior.

• This law refers to the basic principles of natural rights and wrongs and leads to Principles of
Natural Justice.

• It is often said that this law is a Command of the God that is imposed on Men.

• This law is established by reason by which the world is governed. It is an unwritten law and
there is no specific code or Act for this though this is found in every Act.

• This law is also called Eternal Law because it has existed since the beginning of the world.

• Because it is based on the the very basic principles supposed to be to be laid down by God for
guiding human, this law is also called Natural Law.

• Since this law is based on reasoning and rational thinking, it is called Rational Thought

• Natural law exists only in ideal state and differs from law of a State.

• Philosophy of Natural law has inspired legislation and the use of reason in formulating a System
of law

• All the above points can be summed up by saying: Natural law is the idea that there are rational
objective limits to the power of legislative rulers. The foundations of law are accessible through
human reason and it is from these laws of nature that human created laws gain whatever force
they have.

• Aristotle is the Father of Natural Law. Socrates and Plato posted the existence of natural justice
or natural right.
The Natural Law Theory, according to Salmond, consists of 'objective moral principles which depend on
the essential nature of the universe and which can be discovered by natural reason'.

• The theory says that a higher or universal law exists that applies to all human beings, and
written laws should imitate these inherent principles.

• If a written law is unjust, then it is not a true (natural) law and need not be obeyed.

• This theory asserts that there are laws that are imminent in nature, to which enacted laws
should correspond as closely as possible.

• This view is frequently summarized by the maxim - an unjust law is not a true law - lex iniusta
non est lex, in which ‘unjust’ is defined as contrary to natural law.

• Natural law is closely associated with morality and, in historically influential versions, with the
intentions of God.

• Natural law is sometimes identified with the maxim that "an unjust law is no law at all".