LEGAL THEORY

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INTRODUCTION
Questions [10]

1. Explain the nature and value of Jurisprudence.

2. ‘Jurisprudence is the precipitation of values and articulation of the needs of ages
and eras’ – analyze and examine.
3. It is said that the word ‘Jurisprudence’ has meant many different things at
different times. State your views on this matter.

Introduction: The word ‘Jurisprudence’ has been derived from the Latin word
‘jurisprudentia’, which in it’s widest sense means ‘knowledge of law’. The Latin word
‘juris’ means law, and ‘prudentia’ means skill or knowledge. Thus, jurisprudence
signifies knowledge of law and its application. In this sense it covers the whole body of
legal principles in the world. The history of this concept of law reveals that jurisprudence
has assumed different meanings at different times. It is therefore difficult to attempt a
singular definition of this term. It has a long history of evolution beginning from the
classical Greek period to the 21st century modern jurisprudence with numerous changes
in its nature in various stages of its evolution.

Meaning: Jurisprudence in its limited sense means elucidation of the general principles
upon which actual rules of law are based. It is concerned with rules of external conduct
which persons are constrained to obey. Therefore, etymologically jurisprudence is that
science which imparts to us the knowledge about law. ‘Law’ of course is a term of
various connotations, for example there are various branches of law prevalent in a
modern State such as contracts, torts, crimes, property etc and in jurisprudence we have
to study the basic principles of each of these branches, we’re not concerned with detailed
rules of these laws.

In yet another sense, jurisprudence may be regarded as the philosophy of law dealing
with the nature and function of law. This approach to jurisprudence is receiving primacy
in modern times keeping in view the rapid social changes taking place all around the
world in recent years. This approach has been termed as ‘functional jurisprudence’, the
thrust being on inter-relationship between law and justice.

Definitions: The term ‘jurisprudence’ has meant different things at different times. The
variation is due to the different methods of inquiry and approach to the study of the
subject. Thus though it is impossible to give an exact definition of jurisprudence, several
scientists have attempted to explain what they believe is jurisprudence.

Professor Gray has opined that, “jurisprudence is the science of law, the statement and
systematic arrangement of the rules followed by the courts and the principles involved in
those rules.”

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Salmond defines jurisprudence as the “Science of the first principles of the civil law.”

Scope of Jurisprudence: It is generally believed that the scope of jurisprudence cannot

be circumscribed. Broadly speaking, jurisprudence includes all concepts of human order
and human conduct in State and society.

Jurisprudence involves certain types of investigation into law; an investigation of an

abstract, general and theoretical nature which seeks to lay bare the essential principles of
law and legal systems. Salmond observed, “in jurisprudence we are not concerned to
derive rules from authority and apply them to the problem, we are concerned rather to
reflect on the nature of legal rules, on the underlying meaning of legal concepts and on
the essential feature of the legal system. Thus, whereas in law we look for the rule
relevant to a given situation, in jurisprudence we ask, what is it for a rule to be a legal
rule, and what distinguishes law from morality, etiquette and other related phenomenon.
Therefore, it can be concluded that jurisprudence comprises of philosophy of law and its
object is not to discover new rules but to reflect on the rules already known.

Purpose of Jurisprudence

It is essential for a lawyer, in his practical work, to have knowledge of jurisprudence.

Such a study
• Serves to train the mind into legal ways of thought
• Affords a key to the solution of many provisions of civil law, which would
otherwise appear to be singular and unaccountable.
Without such knowledge, no lawyer, however eminent, can really measure the meaning
of the assumptions upon which his subject rests.

Uses and Value of Jurisprudence

There is a general confusion about practical utility of jurisprudence as a subject. It is

often alleged that jurisprudence being an abstract and theoretical subject, is devoid of any
practical utility. However this view is narrow-minded and incorrect. Just as a
mathematician investigates number theory not with the aim of seeing his findings put to
practical use but by reason of the fascination which it holds for him, likewise the writer
on jurisprudence may be impelled to his subject by its intrinsic interest.

Jurisprudence is not without practical value as well. It has been rightly said that
Jurisprudence is the ‘eye of the law’. It seeks to rationalize the concepts of law, which
enable us to solve the different problems involving intricacies of law. In other words, it
serves to render the complexities of law more manageable and rationale and in this way it
can help improve practice in the field of law.

That apart, jurisprudence also has great educational value. The logical analysis of legal
concepts widens the outlook of lawyers and sharpens their logical technique. It helps in
rationalizing the thinking of students and prepares them for an upright civil life. It also

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helps judges and lawyers in ascertaining the true meaning of laws passed by the
Legislature by providing the rules of interpretation. It furnishes them with an opportunity
to pinpoint the shortcomings and defects in the laws framed by the legislature and
improvise them through their judicial interpretation.

Law also has to take note of the needs of society and of the advances in the related and
relevant disciplines such as sociology, economics, philosophy etc. It is not the form of
law but the social function of law which has relevance in modern jurisprudence.

Conclusion: Jurisprudence deals with law from the philosophical point of view, and is
therefore sometimes described as an abstract subject. This is however a misconception.
Jurisprudence does have multifarious practical applications inasmuch as it may be said to
be the foundation of all branches of law.

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THE NATURE OF LAW

What is Natural Law? State the utility of Natural Law in this century. [16]

Introduction: The natural law philosophy has occupied an important place in the realm
of politics. The natural law theory reflects a perpetual quest for absolute justice. The roots
of this theory are found in the philosophies of ancient Greek philosophers. Socrates, Plato
and Aristotle accepted that the postulates of reason have a universal force and men are
endowed with reason irrespective of race or nationality.

In ancient societies, natural law was believed to have divine origin. During the medieval
period it had religious and super-natural basis, but in modern times it has a strong
political and legal mooring. It has been rightly pointed out by Lord Lloyd that natural law
has been devised as a mere law of self preservation or a law restraining people to a
certain behaviour. It has found expression in modern legal systems in the form of socio-
economic justice. The entire human rights philosophy is an outcome of the growing
importance of the principles of natural justice. The natural law theory acts as a catalyst to
boost social transformation thus saving the society from stagnation.

Meaning: There is no unanimity about the definition and exact meaning of natural law
and the term ‘natural law theory’ has been interpreted differently in different times
depending on the needs of the developing legal thought. But the greatest attribute of the
natural law theory is its adaptability to meet new challenges of the transient society.

The exponents of natural law philosophy conceive that it is a law, which is inherent in the
nature of man and is independent of conventions, legislation or any other institutional
device.

From the jurisprudential point of view, natural law means those rules and principles,
which are supposed to have originated from some supreme source other than any political
or worldly authority. Some thinkers believe that these rules have a divine origin; some
find their source in nature while others hold that they are the product of reason. Event the
modern sociological jurists and realists have sought recourse to natural law to support
their sociological ideology and the concept of law as a means to reconcile the conflicting
interests of individuals in the society.

Main Characteristics of Natural Law

The phrase ‘natural law’ has a flexible meaning and has been interpreted to mean
different things in the course of its evolutionary history. However, it has generally been
considered as an ideal source of law with its invariant contents. The chief characteristic
features of natural law are

1. It is a priori method as opposed to an empirical method. A priori method accepts

things or conclusions in relation to a subject as they are without any enquiry or

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observation. Whereas an empirical or a posteriori approach tries to find out the

causes and reasons in relation to subject matter.

2. It symbolizes physical law of nature based on moral ideals, which has universal
applicability at all places and times.

3. It has often been used either to defend a change or to maintain status quo
according to the needs and requirements of the time. For example, Locke used the
natural law theory as an instrument of change, but Hobbes used it to maintain
status quo in the society.

4. The concept of ‘Rule of Law’ in England and India and ‘due process’ in USA are
essentially based on the natural law philosophy.

Natural Law as distinguished from other Laws

The natural law, by its very nature and contents differs from other laws.

• Natural law is eternal and unalterable, but the other forms of law are subject to
periodic changes and alterations.

• Natural law is not made by man, it is only discovered by him. Whereas the other
laws are created, evolved, modified and altered by man.

• Natural law is not enforced by any external agency, but every other form of law
is enforced by the State or sovereign and there is always a coercive force behind
it.

• Natural law is not promulgated by legislation. It is an outcome of preaching of

philosophers, prophets, saints and thus in a sense it is a higher form of law to
which all forms of man-made laws should pay due obedience.

• Unlike other forms of law, natural law has no formal written Code, nor a precise
penalty for its violation or specific reward for abiding by its rules.

• Natural law has an eternal lasting value, which is immutable.

• The central idea behind natural law is that it embodies moral principles which
depend on the nature of the Universe and which can be discovered by natural
reason. But human law can only be said to be law in so far as it conforms to
those principles.

Critical Appraisal of Natural Law Theory

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A brief survey of the Natural law theory reveals that the concept has been used to support
different ideologies from time to time. It has been used to support absolutism,
individualism and has even been used by revolutionists to overthrow the government.
The natural law principles of justice, morality and conscience have been embodied in the
various legal systems. Natural law being regulated by the law of nature is inevitable and
obligatory whereas man-made positive laws are arbitrary and contingent. Natural law is
not variable since it emanates from ‘human reasoning’, which is known for its uniformity
and general acceptance.

The part played by the natural law in the development of modern law can hardly be
exaggerated. Legal history testifies that it is natural law, which directly or indirectly
provided a model for the first man-made law. Oppenheim recognized the contribution of
natural law and observed, “but for the system of the law of nature and doctrines of its
prophets, modern constitutional law and the law of nations would not have been what
they are today.

Criticism of the Natural Law Theory

Despite the merits of the Natural law theory it has been criticized for its weaknesses on
the following grounds

1. The moral proposition i.e. ‘ought to be’, may not always necessarily conform to
the needs of the society. For instance, it is natural for men to beget children.
However due to growing population some countries may impose certain
restrictions. Therefore giving birth to children may be a natural phenomenon but
it may not always be considered as obligatory moral duty of men to conform to
this conduct.

2. The concept of morality is a varying contingent changing from place to place;

therefore it would be futile to think of universal applicability of law. For example,
one society may adhere to monogamy, while another may permit plurality of
marriages.

3. The rules of morality embodied in Natural law are not amenable to changes but
the legal rules do need to change with the changing needs of society.

4. Legal disputes may be settled by law courts, but the disputes relating to the
morality and law of nature cannot be subjected to judicial scrutiny. The verdicts
passed in such cases can always be questioned.

5. Though apparently law and morality may appear to be in conflict with each other,
the fact remains that in order to decide whether a particular law is ‘just’ or
‘unjust’ it has to be tested on the basis of the principles of morality.

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Conclusion: According to the Natural law theory, there are objective principles, which
depend on the essential nature of the universe, and which can be discovered by natural
reason. Natural law is very different from positive man made law and though there has
been quite a bit of criticism of this doctrine, yet it has been revived to a large extent in the
20th century.

In the words of Dr Friedmann, “The most important and lasting theories of natural law
have undoubtedly been inspired by two ideals – of a universal order governing all men
and of the inalienable right of the individuals.”

‘Law is a command of the Sovereign’. Explain this statement of John Austin

with criticisms. [16]

Introduction: The numerous criticisms found in the Natural Law theory, acted as a
stimulus to find a new and more acceptable theory for law. The Positivist theory of law
sought to satisfactorily explain the meaning of law.

Positivism simply means that the law is something that is ‘posited’, that is to say laws are
made in accordance with socially accepted rules. The positivist view on law can be seen
to cover two broad principles:

• Firstly, that laws may seek to enforce justice and morality, but their success or
failure in doing so does not determine their validity. Provided a law is properly
formed, in accordance with the rules recognized in the society concerned, it is a
valid law, regardless of whether it is just by some other standard

• Secondly, that law is nothing more than a set of rules to provide order and
governance of society

John Austin and Hans Kelson are regarded as legal positivists and the theories put forth
by them are regarded as the Positivist theory of Law.

Austin sought to distinguish law by its formal criteria and not by its contents. He put
forth his Austinian Theory of law, also known as the Imperitive theory of law.

John Austin’s theory of law is strongly influenced by Jeremy Bentham. According to

Austin, law is a phenomenon of large societies with a sovereign: a determinate person
who has supreme and absolute de facto power – he is obeyed by all but does not similarly
obey anyone else. The laws in that society are a subset of the sovereign's commands:
general orders that apply to classes of actions and people and that are backed up by threat
of force or “sanction.”

The three basic points of Austin's theory of law are, that:

• the law is command issued by the uncommanded commander--the sovereign;

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• such commands are backed by sanctions; and

• a sovereign is one who is habitually obeyed.

The sovereign is the most politically powerful person, who is not under the command of
any other person. For example an order passed by a policemen or a teacher will not be
considered law because there is someone more powerful than both of them.

A point to be noted as well is that only an order meant to be obeyed by all will be
considered law. If the sovereign was to order his servant to perform a certain task or
order his cook to prepare a certain dish, these orders would not be considered law as they
were only meant for a single individual and not the general populace. However an order
such as stopping at a red light is meant for all and can thus be considered as law.

The violation of any of these orders will result in a prescribed punishment. As opposed to
Natural Theory, Austin proclaimed definite punishments or sanctions for the violation of
a law and not just moral punishments. His theory stated that a person shall be punished
for breaking the law.

Criticism of Austinian Theory

Criticism by Historical School

Sir Henry Maine, the main exponent of the historical school, has criticised Austin’s
imperitive theory on two grounds

• Law is not invariably linked with the sovereign. In early communities rules which
regulated life were derived from immemorial usages and these rules were
administered by domestic tribunals in families or village communities. Therefore
the proposition that a sovereign is an essential pre-requisite of law carries no
weight.

• There are rules of customary law, international law and even constitutional law
which are habiltually obeyed and yet do not fall within the Austinian definition of
law.

However, Salmond in his response to Maine’s criticism, argued that Austin’s theory of
law as it exists applies to modern mature states. It does not concern itself with the early
societies. The rules referred to by Maine cannot be called law proper, they could at most
be called the rules of positive morality and not of civil law. Salmond calles these rules as
historical sources from which law is developed, they are not law themselves.

Moral Criticism

Though Salmond rejected the historical criticism, he appreciated the inadequacy of the
imperitive theory of civil law. He observed “It is one sided and inadequate – the product
of an incomplete analysis of historical conceptions.” Salmond’s main criticism against

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the imperitive theory is that it disregards the moral and ethical elements in law. The
theory ignores the intimate relation between law and justice. Any definition of law
without reference to justice is evidently inadequate.

In all fairness to the Imperitive theory it must be remembered that, as pointed out by
Austin, his theory of civil law is only a formal and not a substantive treatment of the law.
The question of morality and public opinion are concerened with the law only in the
substantive aspect.

Other Criticsim
• In Austin’s theory the sovereign has absolute and limitless power. There is no
check on the laws a sovereign can pass. Should the sovereign decide to make
murdering a man a legal action then, though this is contrary to moral law, by
Austin’s theory it will still be legal. Absolute power eventually leads to rebellion.
In the words of Lord Acton, a famous English historian, ‘Power corrupts and
absolute power corrupts absolutely.’ The people will eventually revolt against an
absolute ruler, as can be seen through numerous instances in history.

• There is no stability of law. This is a major drawback of Austin’s theory. Each

time there is a new sovereign a new set of laws may be formulated that are
contradictory to the previous laws.

• The sovereign is not in the purview of his own law.

• It is not only the sanctions behind law that have to be considered, but also other
factors like general recognition, public opinion, the will to be governed etc.

• According to Cicero and Kant, law is based on reason. Laws flow from reason
and not from the Sovereign, as reasonableness is one of the primary ingredients of
law.

Conclusion: According to the Austinian Theory of law, civil law consists of general
commands issued by the State to its subjects and enforced through the agency of Courts
of law by the sanctions of physical force.

However, one cannot accept Austin’s theory on the grounds of the criticism levelled
against it by several jurists. But in the end, from a formal point of view, Austin’s theory
is on the whole forceful and the various criticism considered do not shake it off its
foundation.

Grundnorm [10]

Introduction: A connected theory to that of Hart’s analysis of law, is the theory of the
Austrian jurist, Hans Kelsen, the great jurist, who was responsible for the framing of the
Austrian Constitution. Kelsen advocated the ‘pure’ theory of law. He called it pure,

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because the theory describes only the law, excluding everything that is strictly not law. It
seeks to lay down what is the law, and not what the law ought to be.

Kelsen was of the view that, to be acceptable, any theory of law must be ‘pure’, that is,
logically self-supporting, and not dependent on any extraneous factors, i.e. not influenced
by factors like natural law or sociological or political or historic influences.

Kelsen considered the systematic character of the legal system to consist in the fact that
all its rules or norms are derived from the same basic rule or rules, which he has called
‘grundnorms’. Where there is a written constitution, as in India or the United States, the
basic grundnorm will be that the constitution ought to be obeyed. However, where there
is no written constitution, as in England, Kelsen postulates that we must look to social
behaviour for the grundnorm. The English legal system, according to him, is based on
several such basic rules, such as the theory of parliamentary supremacy, the binding force
of precedents, and so on. Such basic rules are very important to any legal system; they are
to a legal system what axioms are to geometry; they constitute the initial hypothesis from
which all other legal propositions are derived.

Hart's view differs from that of Kelsen's, inasmuch as Hart refuses to look upon such
rules as hypothesis. According to Hart, the basic rules of a legal system do not consist of
something, which one has to assume or postulate. Rather, it is itself a rule accepted and
observed in a particular society. According to Hart, although the rule of parliamentary
sovereignty in England cannot be derived from any other rule of English law followed in
practice and looked upon as a standard, which has to be complied with.

Conclusion: Kelsen considered the systematic character of the legal system to consist in
the fact that all its rules or norms are derived from the same basic rule or rules, which he
has called ‘grundnorms.’

Critically examine ‘Legal Realism’ as expounded by Holmes. Compare his view

with that of Salmond. [16]

Discuss the law as a practice of courts. [10]

Introduction: One version of legal realism was the one propounded by Samlond, who
pointed out that all law is not made by the legislature. In fact he argued that in England
much of it was made by law courts. Nevertheless, all laws, however made, are recognised
and administered by the courts. Therefore, if a rule is not recognised by a Court, it is not
a rule of law. Thus, according to Salmond, it is the courts and not the legislature that we
must turn to if we wish to ascertian the true nature of law. Accordingly, he defined law as
the body of principles recognised and applied by the State in the administration of justice,
as the rules recognised and acted upon by the Courts.

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However, there has been another version of legal realism, particularly in the United
States of America. According to this theory propounded by American jurists, law is in
reality judge-made. The origin of this theory is traced to Justice Holmes, and the theory
has a substantial following in the United States. Holmes highlights the situation not of the
judge or the lawyer, but of what he calls ‘the bad man’, i.e. the man who is anxious to
secure his own selfish interests. Such a man is not interested in knowing what the
statutues or the text books say, but what the Courts are likely to do in fact. This theory
makes a distinction between law in books and law in action. According to this theory,
what the courts will actually do cannot necessarily be deduced from the rules of law in
text books or even from the words of the statutes themselves, since it is for the Courts to
say what the words mean. As Gray observed, “The Courts put life into the dead words of
the statute.” This approach is a reaction to the traditional approach that judges do not
really create the law, but only declare what the law already is.

This school fortifies sociological jurisprudence, and recognises law as the result of social
influence and conditions and regards it as based on judicial decisions. In the words of
Holmes, “The life of the law has not been logic; it has been experience.” Or as Paton
pointed out, “Law is what the Courts do; it is not merely what the Courts say. The
emphasis is on action.”

However, the American realists point out that when Courts must choose between
alternatives, much will depend on the subjective element of a judge. The judicial process,
they argue, is not like that of a slot machine. Much will depend on the temperament,
upbringing, social background, realities, learning etc of the judge. Therefore, they
contend that law is nothing more than the prediction of what the Courts will decide.

It is also argued that the language of several statutes is uncertain and the Courts are
therefore called upon to decide what a particular word or phrase means. Thus, for
instance, the English Road Traffic Act makes it an offence to drive a vehicle in a manner
dangerous to the public. An interesting question brought before the Court was whether a
person who steers a broken down vehicle on tow can be said to be driving it. Since the
Parliament and not defined the word ‘driving’, the word would have to be understood in
the ordinary sense. However, the ordinary usage of the word is not wide enough to cope
up with such a marginal situation, as it does not draw a very clear or distinct line between
what is driving and what is not driving. Faced with this question for the first time in
1946, the Court had to draw such an arbitrary line and further define the term ‘driving’ in
Wallace v. Major.

A note can also be made of Scandinavian Realism, the founder whereof was Axel
Hagerstrom. Whilst the American realists preferred to revolve around what the Courts did
and what the judges said, the Scandinavian School sought to develop a formal philosophy
of law, showing how law is not an inextricable part of society as a whole. The
Scandinavain Realist do not look at law as a divine command. According to them, law
creates morality and not the other way around.

Criticism

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The view that a statement of law is nothing more than a prediction of what the Courts
will decide is subject to certain criticism.

Legal situations are not predictions

It should be noted that a statement of law is seldom treated as a prediction, which a

counsel submits before a Court. He is not forecasting what the judge will decide, but he is
asking what the judge should decide. Further, a judicial decision is not a prediction of
what the higher Courts would do, but it is a judgment as to what the law now is.
Similarly, a legislature is not predicting what will be done, but it lays down what shall be
done.

The theory represents a fraction of the siuation

Though the realist view may be true to some extent in those situations when a new
principle of law is evolved, yet it should be noted that most of our law is settled and
stabilised. It should also be noted that several points of law never reach the Court, for the
simple reason that the principle of law is so clear that the parties adhere to it.

Thus, it is argued that the creative days of the judge is now a thing of the past. It is argued
that today the law is so complete that the task of the judges is the more or less automatic
task of applying settled laws to the cases before them.

However, this criticism is not without an answer. Legal rules are still not as certain as
was once imagined and the element of choice still faces a Court of law. To quote one
example, in England the unlawful and intentional killing of a human being is the common
law crime of murder. But what would be the position if X intentionally inflicts a mortal
wound on Y, and then, mistakenly thinking him to de dead, throws the body into a lake,
with the result that Y dies, not from the wound but from drowning? Would this amount to
murder? Until 1954, the English law had no answer to this question, when these facts
were before the Court in Thabo Meli v. R, in which case the Court had to further develop
the English law of murder.

The theory of uncertainty of language is not always correct.

It may be noted that in some border-line cases, the language may be uncertain, as in the
example of the word ‘driving’ given earlier. But to generalise that all language is
uncertain is to exaggerate the situation without foundation. In marginal cases, the
meaning of the word may be uncertain, but this proves that the meaning of the word is
certain in other cases. Therefore, the realistic approach of law based on the uncertainty of
language is a generalisation of an exceptional situation.

Conclusion: The origin of the theory of Legal Realism can be traced to Justice Holmes.
The theory propounds that it is the courts and not the legislature that we must turn to if

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we wish to ascertian the true nature of law. The theory works on the belief that “the
Courts put life into the dead words of the statute.” However, there has been some
criticism of this theory.

Critically evaluate H.L.A Hart’s ideas regarding law as a system of primary

and secondary rules. [10]
Introduction: Different jurists had different opinions and different views of law. One
particular view was to analyze law in terms of legal rules. It should be noted that legal
rules are imperative or prescriptive, rather than indicative or descriptive. In. other words,
legal rules are not concerned with what happens, but with what should be done. The legal
rules again differ from commands, because commands order the doing of one particular
act, while legal rules deal with general and repeated activity. In this sense, legal rules
resemble technical rules or directives for achieving certain results. Thus, for instance,
certain rules may provide the mode of preparing a good dish. Legal Rules are more like
the rules of a recipe than commands. But the fundamental difference between rules of
recipe and legal rules is that the legal rules are not merely an instrument for producing
certain kinds of society, but the legal rules and their observations are themselves part of
such society.

It has also been pointed out that observing a rule is different from merely acting out of
habit. What is done out of mere habit is done without any sense of obligation to do it,
while observance of a legal rule is merely external. Internally, it is coupled with an
attitude that such external behaviour is obligatory. Therefore, a legal right can be defined
as one, which prescribes a code of conduct, which is done with the feeling that such
conduct is obligatory. This feeling is not a psychological illusion peculiar to the person
observing the rule. A person who has to act according to a rule will also expect others to
act according to the rule. This sense of obligation arises neither out of mistake nor out of
illusion. .

The above is, in short, Professor Hart's theory of law, as set out in his treatise, The
Concept of Law.
Hart's definition of law can be stated as follows: “Law consists of rules which are of
broad application and non-optional character, but which are at the same time amenable to
formalisation, legislation and adjudication.”

Hart calls these rules of law primary rules, which would simply impose duties. But the
unity among these rules is brought about by secondary rules, which are power-conferring
rules. For example, the Indian Penal Code consists of primary rules, while the
Constitution of India consists of secondary rules, as it consists of a number of power-
conferring rules.

Legal rules, as defined above, must be distinguished from rules of games, clubs, and
societies, and moral rules, which are also observed with a sense of obligation. The first
difference between moral rules and other rules (including legal rules) is that the latter can

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be amended and can be subject to adjudication, while morality can neither be amended by
an authoritative body; nor is it susceptible to the process of adjudication.
Secondly, legal rules and moral rules can be distinguished from rules of games, etc.
Obedience to legal and moral rules is general in application, while the rules of games are
applicable only to a limited number of persons who are playing the game. Again, one
could withdraw from the game, the club or the society, while in the case of legal and
moral rules, such withdrawal from a State or society is practically impossible.

Comparison of Hart’s Analysis and Austin’s Theory

Hart's analysis of legal rules is different from the Austinian concept of legal rules.
According to Austin, the command of the State is imposed and one is obliged or
compelled to obey it. According to Hart, a legal rule is observed because one has a sense
of obligation to observe it. Law prescribes, not a command, but a standard of conduct.
This standard is adhered to, not only because there is a sense of obligation to adhere to it,
but also because there is, an expectation that others have some obligation to adhere to it.
Therefore, even a person who cannot be compelled to obey the law is still reckoned as
having an obligation to obey. According to this view, law is concerned with obligation
rather than coercion.

Conclusion: According to Hart, the basic rules of a legal system do not consist of
something which one has to assume or postulate. Rather, it is itself a rule accepted and
observed in a particular society.

Status of International Law [10]

Introduction: Public International Law (or the Law of Nations) according to Lord
Birkenhead, consists of rules, acknowledged by the general body or civilized independent
States, to be binding upon them in their mutual relations. It consists of those rules, which
govern Sovereign States in their relations and conduct towards each other. According to
Salmond, it is essentially a species of conventional law, and has its source in international
agreement. It consists of those rules, which Sovereign States have agreed to observe in
their dealings with one another.

International agreements are of two kinds, being either express or implied. Express
agreements are contained in treaties and conventions. Implied agreements are evidenced
chiefly by the custom or practice of States. In a wide sense, the whole of international law
is conventional. In a narrow sense, international law derived from express agreements is
called the conventional law of nations.

International law is that body of rules, which regulate the relations between the different
States, as also the relations between the individuals and the States. International law, as it
has developed, is more or less customary and conventional, and these rules have
developed as a result of international conferences, opinions, and writings of the jurists.

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According to Dr. Sethna, "We should describe international law as all that body of
customs, usages, conventions, and principles of international propriety and natural justice
as have been accepted or recognized by the nations of the world (in the case of general
international law) or by some, of the nations of the world (in the case of particular
international law) with a view to their observance.

Whether or not international law is really law, is a celebrated though sterile controversy.
Austin and his followers deny the existence of the law of nations, and do not consider it
as law proper, because in their opinion, there is no sanction behind international law.
According to them, it may, at best, be considered as international positive morality, and
can be described as law only by courtesy. This is because of the fact that rights with
which international law is concerned cannot be described as legal rights. Law necessarily
requires some political arbiter or some authority, which can enforce the law. Law,
without such a force or such an arbiter, becomes a contradiction in terms. In international
law, one finds that the only sanction is international opinion; international censure or
international contempt operates behind international law. According to the Austinians,
this is not sufficient for the purpose of enforcement of a law. The ultimate sanction
behind internationa1 law is war, no doubt, but such a sanction would lead to nothing but
destruction.

Modern jurists are, however, of the opinion that law need not have sanction or force for
its enforcement. Even in civil law, the ultimate sanction lies in the physical power of the
State to bring offenders to justice, but here also, some of the civil law is only permissive,
i.e., it is a law with rights but without remedies or without legal sanctions. If this is true
of civil law, then it can also hold good for international law. The fear of the atom bomb
and devastating weapons of mass destruction would act as a sufficient deterrent to nations
not to resort to war. Even in civil law, the fear of punishment does not necessarily deter a
person from committing an offence, and similarly, it is possible that there may be some
States, which are not deterred by the fear of war or the atom bomb. From this it follows
that restraint is not necessarily an important element in any law, though it is a powerful
characteristic of civil law.

Therefore, it would not be right to say that international law is not law in the real sense of
the term, because if has no legal sanction behind it. As a matter of fact today international
censure is a more powerful weapon than the sanction behind a civil law.

It’s Nature

Writers are not unanimous in their analysis of the essential nature of the law of nations
(i.e., international law). Various theories have been put forth from time to time by various
legal experts:
1. According to one theory, the law of nations includes a branch of natural law,
namely, the rules of natural justice as applicable to the relationship between States
inter se.

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2. According to the second theory, the law of the nations is a kind of customary law,
namely; the rules actually observed by States in their relations with one another.
3. According to the third theory, it is a kind of Imperative law, namely, the rules
enforced upon States by international opinion, having the sanction of the threat or
fear of war.
4. According to the fourth theory, the law of nations is a kind of conventional law.

According to Salmond, the prevalent opinion accepts the fourth theory, viz., that the law
of nations is a species of conventional law. Ordinarily, conventional law is purely based
on agreement, which may be either between private individuals or nations and States.

Conclusion: International law is that body of rules, which regulate the relations between
the different States, as also the relations between the individuals and the States. Writers
are not unanimous in their analysis of the essential nature of international law. Various
theories have been put forth from time to time by various legal experts

Explain the function and purpose of law. [16]

Introduction: Most jurists agree that law is an instrument of society to establish justice.
But there is not much agreement in defining justice. Generally, the term ‘justice’ has two
meanings. In the wider sense, justice is synonymous with morality, but in the narrower
sense it refers to one aspect of morality. In this sense justice would mean that the like
must be treated alike. In other words, it means fair and equal treatment of all.

Justice, in the sense of equality has two spheres

• Distributive justice
• Corrective justice

Distributive justice works to ensure a fair division of social benefits and burdens. The
task of establishing of distributive justice is primarily achieved through Constitution
making and by legislation. The function of the Courts is chiefly to apply these rules for
the purpose of establishing corrective justice.

Distributive justice works to ensure a fair division of social benefits and burdens amongst
the members of a community, as for instance that every person has a right to the property
legally acquired by him. Distributive justice thus serves to secure a balance or
equilibrium amongst the members of a society. This balance can, however, be upset, as
when A wrongfully seizes B’s property. At this point corrective justice will move in to
correct the disequilibrium and the court will compel A to make restitution to B.

So far as distributive justice is concerned there is one difficult problem. It is true that
distributive justice aims at arriving at a balance in the society by providing for equitable
division of benefits and burdens and further by equal dispension of justice. But while
achieving that balance, another factor is to be taken into consideration. In a society, there

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is conflict, not only between person and person, but also between interest and interest.
For example, the right to employment and the right to property may conflict with each
other. Then, society has to achieve a balance by reconciling such conflict of interests.

Roscoe Pound calls this social engineering. Here, the function of law is to satisfy, to the
maximum extent, the desires, interests and claims of the various members of the
community and thus achieve a smooth running of machinery of the society. According to
this theory of social engineering there are several interests which are of a great advantage
to a person, ex bodily security, freedom of speech etc. Not all such interests are, however,
protected – or sometimes even recognised – by law. Thus, the right to privacy is not fully
recognised by English law, even today. Which interests should be recognised by law is a
question which is answered partly by sociology, partly by ethics and partly by law. Thus,
the reconcilation of competing and conflicting interests is the ultimate aim of social
engineering.

When one speaks of equality and justice, one has to be very clear in one’s mind on one
question. Equality has been defined as the like treatment of the like. But the basis of
grouping the people for this purpose is the crux of the problem. Equality and justice can
be achieved only when people are grouped together for this purpose on a rational and
reasonable basis. This has been termed as reasonable classification for the purpose of
Article 14 of the Constitution of India.

However, it cannot be said that justice is the only possible or even desirable goal of law.
Indeed, the very idea of law represents a basic conflict between two different needs – the
need for uniformity and the need for flexibility. Uniformity is necessary to ensure that
there is certainty and predictability. If the rules of law are fixed and generalized, the
citizen can plan his activities with an ample measure of certainty. Another advantage of
uniformity is that the judge applies fixed rules, and not his whim of the moment. Yet
another advantage is the stability and security, which the social order derives from
uniform and unchanging rules of law
.
Yet, there is also a need for a certain degree of flexibility. The existing rules may not
provide for borderline cases, and indeed, no rule can make provisions for every possible
case. Some measure of discretion thus becomes valuable. Again, flexibility is necessary
to enable the law to adapt itself to social change. If the law, as it exists, is unalterable, the
necessary changes would have to come by revolution, violence and upheavals. On the
other hand, law that is capable of adoption, whether by legislation or judicial
development, allows for peaceful changes from time to time.

Conclusion: In conclusion, it can be said that the function of law is to achieve justice,
stability and peaceful change in a society.

Constitutional Law. [10]

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Introduction: The organization of a modern State is of extra-ordinary complexity. Such

an organization consists of two distinct parts. The first consists of its fundamental
elements. The second consists of the details of State structure and State action. The
essential part is known as the Constitution of the State. Constitutional law is a body of
those legal rules, which determines the constitution of the State. The distinction between
Constitutional law and ordinary law, according to Salmond, is one of degree rather than
one of kind. The more important fundamental and far reaching any principle or practice
is, the, more likely it is to be classed as constitutional. But in countries, which have a
written constitution (like India), the distinction may not be as obscure as it is in countries
without a written Constitution (like the United Kingdom).

The concept of Constitutional law presents some difficulty to a student of Jurisprudence.

If Constitutional law is the body of those legal principles, which determines the
constitution of a State, the problem is, how can the Constitution of a State be determined
by law at all? There can be no law unless there is already a State, and there can be no
State without a Constitution; if the State and the Constitution are prior to the law, how is
it that the law determines the Constitution? Therefore, can it not be said that
Constitutional law is not a law in reality at all? Salmond maintains that the constitution is
both a matter of fact and of law. The Constitution consists not only of legal rules, but also
of Constitutional practices. Constitutional practices are logically prior to Constitutional
law. Therefore, may be a State and a Constitution without any law, but there can be no
law without a State and a Constitution. Therefore, no Constitution can have its source and
basis in the law. It has of necessity an extra-legal origin.

The Constitutional facts, which are extra-legal, will be refracted with more or less
accuracy in Courts of justice as Constitutional law. The law will develop for itself a
theory of the constitution, as it, develops a theory of many other things, which may come
in question in the administration of justice. For example, the Constitutions of the United
States of America had their extra - legal origin in the independence it achieved by
rebellion against the lawful authority of the English Crown. The constituent States of the
United States of America established Constitutions for themselves by way of popular
consent after the attainment of independence. Before these Constitutions were actually
established, there was no law save that of England. These Constitutions were established
in defiance of the law of England. Therefore, the origin of these Constitutions was not
merely extra-legal; it can even be said to be illegal. But as soon as these Constitutions
succeeded in becoming de facto established, they were treated as legally valid by the
Courts of these States. Constitutional law followed hard upon the heels of the
constitutional fact. Salmond concludes by observing, “Constitutional law, therefore, is the
judicial theory reflection, or image of the Constitution de facto, that is to say, of
constitutional practice.”
Amendment of a Constitution

Essentially, a new constitution reflects the problems of the day and the ultimately
accepted solutions. However, like any other statute, the Constitution needs to keep pace
with changing times. Hence the necessity for provisions for its amendment. In the words

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of Burke, “A constitution without some means of change is without the means of its
conservation.”

The procedure for the amendment of the American Constitution is a highly rigid and even
complicated one contained in Art. V. of the Constitution of the United States. In England,
there being no written Constitution, the Constitution can be amended by Parliament like
any other law, as the doctrine of Parliamentary Sovereignty prevails in that country. In
India, the provisions relating to the amendment of the Constitution are contained in Art.
368 of the Constitution, and have been the centre of lively controversies in several
judicial decisions.

It is sometimes urged that the Constitution is a sacred law of the land, and therefore,
frequent amendments are undesirable. The answer is that the Constitution is no doubt a
sacred document, but human life is even more sacred, and any amendment for
maintaining the dignity of human life cannot be considered to be unnecessary. A
constitution is, therefore, not, like the ark of the covenant, too sacred to be touched. It can
never be looked upon as a body of eternal principles operating in a vacuum.

Conclusion: Constitutional law is a body of those legal rules, which determines the
constitution of the State. The Constitution consists not only of legal rules, but also of
Constitutional practices.

OTHER QUESTIONS

Discuss the purpose of legal theory. [10]

Explain the term law. [10]

Distinguish between law and fact. [6]

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ADMINISTRATION OF JUSTICE

What is the necessity for administration of justice? [10]

OR
Bring out the distinction between civil and criminal justice. [16]

Introduction: The two most essential functions of a State are war and administration of
justice. If a State is incapable of performing these functions, it cannot be called a ‘State’.
Administration of justice implies the maintenance of peace and order within a political
community by means of physical force of the State. It is the modern and civilized
substitute for the primitive practice of private vengeance and violent self-help. Physical
force of the State is the prime requirement for a sound administration of justice.

Lord Bryce once observed that there can be no better test of the excellence of a
Government than the efficiency of its judicial administration. As rightly pointed out by
Salmond, it is through the instrumentality of law that justice is administered. According
to him, “law is a body of principles recognized and applied by the State in the
administration of justice.”

The Concept of Justice

The concept of justice is as old as origin and growth of human society itself. The concept
became more conspicuous with the growth of State, which ensures justice to its people
through the instrumentality of law. As law grew and developed, the concept of justice
also expanded its tentacles to different spheres of human activities. Thus, for example,
today we have civil justice, criminal justice, economic justice, social justice and so on.

The essence of legal justice lies in ensuring uniformity and certainty of law and at the
same time ensuring that the rights and duties are duly respected by the people. In other
words, the citizens are expected to shape their conduct so as to ensure that they do not
violate the rights of their other fellowmen and at the same time they abide by the duties
imposed on them by the law.

Yet another essential attribute to the notion of justice is the element of impartiality
imbibed in it. One has to be just and fair not only to himself but towards all members of
the society. The violation of justice, which is enforced by the law results into State
sanction, which we generally call punishment. This is indispensable for sound
administration of justice. As Chief Justice Coke pointed out, “wisdom of law and justice
is wiser than man’s wisdom”, meaning thereby that legal justice represents the collective
wisdom of the community.

Importance of Administrative Justice

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Man is selfish in nature and some kind of external and coercive authority is needed to
keep him within limits and restrain his unfettered liberty. Unlimited and unrestrained
liberty would lead to a state of anarchy and chaos. In the words of Herbert Spencer,
“every man is free to do what he desires provided he infringes not with the equal freedom
of any other man.” Thus liberty implies freedom of action so far permitted by law. It,
therefore, follows that legal liberty depends on the existence of the authority of the State.

Force is necessary to prevent the recalcitrant minority from gaining an unfair advantage
over law-abiding people in general. Therefore State force is inevitable for the protection
of rights of individuals in society. As aptly put by Jeremy Taylor, “a herd of wolves is
quieter and more at one than so many men, unless they all had one reason in them or have
one power over them.”

Advantages and Disadvantages of Administration of Justice

Administration of justice through courts of law has now become one of the most
important functions of the State. The courts administer justice according to laws framed
by the legislature. The chief merits of administration of justice are its uniformity,
certainty, impartiality and equality. The laws being mostly codified are known to the
citizens, which enable them to regulate their conduct accordingly. Codification also helps
judges in applying the law uniformly without any fear or favour.

Despite the aforementioned advantages, the administration of justice suffers certain

disadvantages also. The main disadvantages being the rigidity, formality and complexity
of laws. Salmond observed that law, undoubtedly, is a remedy for greater evil, but it
brings with it evil of its own.

Be that as it may, it must be stated that the advantages of the administration of justice far
outweigh its disadvantages.

Civil and Criminal Justice

Broadly speaking, justice may be of two kinds – civil and criminal justice. Blackstone
referred to them as private wrongs and public wrongs. The former are violations of civil
or legal rights of individuals called civil injuries, while the latter are in the nature of
violations of public rights and duties, which affect the community as a whole and are
called crimes or misdemeanors. Thus a crime is a wrong against the community as a
whole and is punishable by the State, the civil wrong, on the other hand, is an
infringement of the legal right of individuals, which does not affect the society in general
and is redressible by monetary compensation.

From the point of view of procedure as well, civil justice differs from criminal justice.
Apart from the fact that civil justice is administered in civil courts whereas criminal
justice is administered in criminal courts, in the former the remedies are sought by the
aggrieved party and may generally result into award of compensation or dismissal of the

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case. But criminal proceedings are instituted by the State and a criminal trial may result
in convictions or acquittal of the accused.

It is generally believed that crimes are more serious and harmful in their consequences as
compared with civil wrongs. While crimes affect the public at large, civil wrongs injure
only the private individual.

It mat thus be concluded that the difference between criminal justice and civil justice is
not to be considered in terms of nature and consequences of the act, but the legal
implications, which follow as a result of the act. Though the line of distinction between
civil and criminal justice may be very thin and even overlapping at times, yet this
distinction has a practical implication keeping in view the object, method of enforcement
and impact of the individual and the society. The exceptions do not in any way
undermine the basic difference between civil and criminal justice.

Conclusion: Administration of justice is the maintenance of right within a political

community by means of physical force of the State. It is one of the primary functions of
the State and of abject importance, though it does have its disadvantages. Broadly
speaking, justice can be classified as civil and criminal justice, where criminal justice
attempts at punishment and civil justice attempts at remedy.

Explain the purpose of criminal justice. [16]

OR
Discuss various theories of punishment. [10]
OR
Analyze punishment as a means to an end. [6]

Introduction: One of the essential functions of a State is administration of justice.

Broadly speaking, justice may be of two kinds – civil and criminal justice. Violations of
public rights and duties, which affect the community as a whole, attract the
administration of criminal justice.

The main purpose of administration of criminal justice is to punish the offender. It is the
State, which punishes the criminal. Punishment necessarily implies some kind of pain
inflicted upon the offender or loss caused to him for his criminal act, which may either be
intended to deter him from repeating the offence or may be an expression of society’s
disapprobation for his anti-social conduct or it may also be directed to reform and
regenerate him and at the time protect the society from law-breakers. Whatever be the
end of criminal justice, the fact remains that the importance of punishment has been
recognized even under the ancient legal systems of the world for the protection and
welfare of the State and its people. According to Manu, “punishment keeps the people
under control, protects them and it remains awake when people are asleep.”

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Various theories of punishment have been propounded to justify the ends of criminal
justice and punishment.

Theories of Punishment

Deterrent Theory

The main object of punishment is to make the commission of an offence an ill bargain for
the offender and deter others from committing crimes. As Salmond put it, “punishment is,
before all things, deterrent and the chief aim of law of crime is to make the evil doer an
example and a warning to all that are like minded.” Considered from this point of view,
punishment is a means of attaining social security as it seeks to protect the society by
deterring potential offenders. The deterrent theory therefore justifies exemplary
punishment because it not only dissuades the offender from repeating the crime but also
deters others from indulging into such criminal activities.

It is significant to note that the deterrent theory of punishment was supported by Manu,
the great law commentator of ancient India. He treated punishment or danda as the
source of righteousness because people are refrained from committing wrongful acts
through the fear of punishment. Most penal systems made use of the deterrent theory as
the basis of the sentencing mechanism till early 19th century.

The critics of the deterrent theory argue that it has proved to be ineffective in restricting
crimes. An example of this was given citing the period during the reign of Queen
Elizebeth, who was a staunch supporter of this theory. She gave severe punishments to
even the smallest offences such as pick pocketing. Yet offences were rampant and pick
pockets were seen busy in their criminal activity among the crowds gathered to watch the
execution of a condemned pick pocket. This indicates the futility of the deterrent theory
of punishment. Undoubtedly, the rigour of the deterrent punishment acts as a sufficient
warning to the offenders and also to others, but it invariably fails in cases of hardened
criminals.

Retributive Theory

In primitive societies punishment was mainly retributive. It was regarded as an end in

itself. According to this theory, evil should be returned for evil without any regard to
consequence. This theory is based on the rule of natural justice, which is expressed by the
maxim ‘an eye for an eye and a tooth for a tooth.’ The theory therefore emphasizes the
pain to be inflicted on the offender by weigh of punishment must outweigh the pleasure
derived by him from his criminal act. Thus the retributive theory suggests that
punishment is an expression of society’s disapprobation for an offender’s criminal act.

Retribution by Expiation

Closely connected with the idea of retribution is the notion of expiation, which means
blotting out the guilt by suffering an appropriate punishment. This, in other words means,

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that guilt plus punishment is equal to innocence. The philosophy underlying expiatory
theory is that to suffer punishment is to pay a debt due to the law that has been violated.
Though expiatory theory is based on self-satisfaction, its practical utility cannot be
undermined. It is an expression of refinement and purification of the criminal by self-
motivation, which ultimately gives him satisfaction that his guilt has been washed off and
he is relegated to a position as if he has done no wrong. Expiation in the form of penance
occupied an important place in the ancient Indian penology.

Preventive Theory

The preventive theory is founded on the idea of preventing repetition of crime by

disabling the offender through measures such as imprisonment, forfeiture, death
punishment, suspension of licenses etc. This theory does not lay much emphasis on the
motive of the wrongdoer, but seeks to take away his physical power to commit the
offence. It pre-supposes that need of punishment for crime arises simply out of social
necessities. In punishing a criminal the community protects itself against anti-social acts,
which endanger social order in general.

The real object of penal law is to make the threat generally known rather than putting it
occasionally into execution. This makes the preventive theory realistic and humane. It is
effective for discouraging anti-social conduct and a better alternative to deterrence or
retribution, which now stands more or less discarded as methods of dealing with crime
and criminals.

Reformative Theory

The reformative theory of punishment emphasizes on reformation of offenders through

the method of individualization. It is based on the humanistic principle that even if an
offender commits a crime; he does not cease to be a human being. Therefore an effort
should be made to reform him during the period of his incarceration. While awarding the
punishment, the Judge must take into consideration the age and character of the offender,
his antecedents and also the circumstances under which he committed the criminal act.
Thus as opposed to deterrent theory, the reformative theory aims at socialization of the
offender so that the factors which motivated him to commit the crime are eliminated and
he gets a chance of leading a normal life in the society.

A crime is committed as a result of the conflict between the character and the motive of
the criminal. One may commit a crime either because the temptation of the motive is
strong or because the restraint imposed by character is weak. This theory considers
punishment as a curative, serving the same purpose as a medicine to cure a disease. The
reformative theory seeks to bring about a positive change in the attitude of the offender
so as to rehabilitate him as a law-abiding member of society. Thus, punishment is used as
a measure to reclaim the offender and not to torture him. The theory, therefore, condemns
all kinds of corporal punishments. The major thrust of the reformist theory is
rehabilitation of inmates in penal institutions so that they are transformed into good
citizens.

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The Theory of Compensation

According to this theory the object of punishment must not merely be to prevent further
crimes, but also to compensate the victim of the crime. This theory further believes that
“the main spring of criminality is greed, and if the offender is made to return the ill-
gotten benefits of the crime, the spring of the criminality would be dried up.”

Though there is considerable truth in this theory, it must be pointed out that this theory
over simplifies the motive of crime, and the motive of crime is not always economic.
Offences against the State, against justice, against religion, against marriage and even
against a person may not always be actuated by economic motives. There may be other
more complicated motives. In such cases the theory of compensation may be neither
workable nor effective. Even in cases where the motive is economic gain; the economic
condition of the offender may be such that compensation is not available. Therefore, this
theory can at best play a subordinate role in the framing of a penal code.

Conclusion: The main purpose of administration of criminal justice is to punish the

offender. Various theories of punishment have been suggested and implemented.
However, justice cannot be achieved from a single standard of punishment. A perfect
penal code must be judicious combination of all these various purposes of punishment. In
the words of Dr Sethna, “the theories of retribution, reformation, determent and
prevention go hand-in-hand, and exist for the preservation of moral order, the protection
of society and the rehabilitation of the offender himself.”

Discuss the purpose of civil justice with reference to primary and

sanctioning rights. [6]

Introduction: One of the essential functions of a State is administration of justice.

Broadly speaking, justice may be of two kinds – civil and criminal justice. The
administration of civil justice consists in the enforcement of rights as opposed to the
punishment for wrongs. The right to be enforced may either be a primary or a sanctioning
right.

Primary and Sanctioning Rights

Primary rights are those rights, which do not have the violation of another right. On the
other hand, a sanctioning right is one which arises out of the violation of another right. It
is also called a remedial right because it comes into existence consequent to violation of a
private right. Thus one’s right not to be libeled or assaulted is a primary right, but the
right to obtain pecuniary compensation on being libeled or assaulted by some other
person is a sanctioning right.

The enforcement of primary rights is called specific performance wherein the defendant
is compelled to do the very act which had been agreed upon to be done. It may also

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include refraining the defendant from committing or continuing nuisance or trespass or to

repay money received by mistake or obtained by fraud.

In case of sanctioning or remedial rights, the purpose may be either

• Imposition of a pecuniary penalty upon the defendant for the wrong which he
has committed.
• Providing for pecuniary compensation to the plaintiff in respect of the damages,
which he has suffered from the defendant’s wrongful act.

In the former, pecuniary penalty is payable to the State, while in the latter the pecuniary
compensation is payable to the plaintiff whose right is violated or to whom the injury is
caused.

The right to receive pecuniary compensation of damages from the wrongdoer may be
divided into two kinds
• Restitution
• Penal redress

As regards the injured party i.e. plaintiff, these two are the same in their nature and
operation, but with reference to the wrongdoer i.e. defendant, they are very different. In
restitution, the defendant is compelled to give up or restore the pecuniary value or some
benefit, which he has wrongfully obtained by causing damage to the plaintiff. The penal
redress, on the other hand, involves not only restoration of all benefits which the
wrongdoer has derived from his wrongful act, but also a full redress for the plaintiff’s
loss.

Penal and Remedial Proceedings

All legal proceedings before Courts of law may be classified into five distinct heads.
1. Action for specific enforcement
2. Action for specific restitution
3. Action for penal redress
4. Penal sanctions
5. Criminal prosecution

The first two may be called remedial proceedings and form the sources of remedial
liability, while the last three carry with them as element of punishment and therefore are
primarily penal actions as they give rise to penal liability. The purpose of remedial
proceedings is to remedy the wrong, while those of penal proceedings is to punish the
wrongdoer.

Conclusion: The administration of civil justice consists in the enforcement of rights. The
right to be enforced may either be a primary or a sanctioning right. Primary rights are
those rights which do not have the violation of another right, while sanctioning rights are
those which arises out of the violation of another right.

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Secondary functions of the Court. [10]

Introduction: The primary function of a Court of law is the administration of justice, that
is to say the application by the State of the sanction of physical force to the rules of
justice. It is to administer justice that the tribunals of the State are established. But there
are 5 secondary functions, which the Courts also perform.
• Petition of Right
• Declaration of Right
• Administration
• Titles to Right
• Supervision of lower courts

Secondary functions of the Court

Petition of Right

In England, proceedings against the Crown can be taken only by a petition of right in a
Court of law, which determines the rights of the parties. This is not essentially
administration of justice for the essential element of coercive force is lacking. The State
is to judge its own cause and cannot exercise constraint against itself.

Declaration of Right

A person may seek the assistance of a Court of justice, not by way of obtaining redress,
but by way of having it declared that he has or has not a certain right. The Court of
justice, after hearing the parties, has the authority to either make or refuse to make the
necessary declaratory order.

Administration

Courts of justice sometime undertake the management and distribution f property. for
example, the administration of a trust, the liquidation of a company etc.

Titles to Right

Cases where a judicial decree is employed as a means of creating, transferring or

extinguishing rights falls under this category. For example, an adjudication of
bankruptcy, a grant of probate or letters of administration etc.

Supervision of Lower Courts

Superior Courts are often armed with the power of supervising the Courts below them.
Such a power is given to the High Courts in India by Article 227 of the Constitution.

Conclusion: Thus, apart from its primary function, the administration of justice, a Court
of law most also perform the aforementioned secondary functions.

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THE SOURCES OF LAW

Explain the various sources of law. [16]

Introduction: The term ‘sources of law’ has been interpreted by different writers in
various ways and it has been used in different senses. In the Indian context, the
expression ‘sources of law’ is generally used in two senses. In the first sense, according
to Hindu scriptures (duty is the foundation and head of all law) and according to modern
jurisprudence (Law emanates from the sovereign). In the second sense, the expression
‘sources of law’ means where one must resort to get at law. In other words, the evidence
of records of land or books or reports which have to be looked into for the purpose of
learning or knowing law.

Salmond preferred to emphasize on two main sources of law

• Material sources
• Formal sources

Material sources are further sub-divided into legal and historical sources. Formal sources,
on the other hand, are that from which a rule of law derives its force and vitality. Thus,
the will of the State as manifested in the statute Book or decisions of Courts are formal
sources of law, while legislation, customs, agreements and professional opinions of
jurists are the material sources of law.

Formal Sources

A formal source of law is defined by Salmond as that from which a rule of law derives its
force and validity. The formal source of the law is the will of the State, as manifested in
statutes or decisions of the Courts. It is that from which the authority of the law proceeds.

However, this approach depends upon the particular definition of law adopted by
Salmond, if law is regarded as being created by the will of the state, then that is the
formal source of law. If law is the command of the sovereign, then such sovereign is the
formal source.

However, looked at from another angle, one could reach the conclusion that the formal
source of law is to be found elsewhere. If law is valid because it is the embodiment of
natural law or absolute justice, then the source of law is the ideal laid down by us. If law
is valid because it is the product of an inner sense of right, then such sense of right is the
source of law. This is the viewpoint adopted by the historical school. Thus, Del Vecchio
regards the source of law as being the nature of man. If law is valid because it is the
product of custom, then the habits of the people are the source of law. The followers of
this view thus do not regard the State as the source of law.

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Material Sources

The material sources of law are those from which is derived the matter, though not the
validity, of the law. The matter of the law, as stated above, may not be drawn from all
kinds of material sources.

Kinds of Material Sources

Material sources are of two kinds - Historical and Legal sources

Historical Sources

Historical sources are sources where rules, subsequently turned into legal principles, were
first found in an unauthoritative form. They are not allowed by the law Courts as of right.
Some examples are religion, morality and opinion of text writers. They operate only
mediately and indirectly.

To take a concrete illustration, one can say that both Acts of Parliament and the works of
Bentham are material sources of English law. Yet, where the Acts of Parliament become
law forthwith and automatically, what Bentham says may or may not become law. Even
if it does, it does so, not as a matter of right, but because of its acceptance by the
legislature or the judiciary.

In the same way decisions of the Supreme Court of India are binding precedents for all
other Courts in our country, but the decisions of the US Supreme Court are not binding
on India and they may or may not be followed in Indian Courts.

In India, much of the early law is based on the precepts of religion. The Codes of Manu
were almost entirely based on religious precepts. Likewise, in Aurangzeb’s reign, most of
the law had its origin in the holy Quran. Similarly, in ancient Iran, most of the law was of
a religious nature, embodied in the holy Vandidad.

Legal Sources

Legal sources are those sources, which are instruments or organs of the State by which
legal rules are created, for example legislation and customs. They are authoritative and
are allowed by Courts as of right. They are the gates through which new principles find
their way into the realm of law.

The five kinds of legal sources are discussed below

Legislation

Legislation is the making of law by the formal and expressed declaration of rules by
some authority in the political body, which is recognized by the Courts of law as

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competent for that purpose. Law, which has its origin in legislation, is called enacted law.
It is also called statute law.

Precedent

Precedents establish the law by the recognition and application of new rules by the Courts
themselves in the administration of justice. Precedents produce case law.

Judicial decisions form an important source of law. It was on the raw materials of custom
that the judges fashioned up rules of law. Like sculptors working on marble, the judges
worked on the raw material of custom supplied and thus made a valuable contribution to
the law of the land.

Custom

Law based on custom is known as customary law. In fact, custom is one of the most
fruitful sources of law. Custom is to society what law is to the state. Each is the
expression and realization, to the measure of men’s insight and ability, of the principles
of right and justice.

Agreement

An agreement may be defined as the expression by two or more persons, communicated

each to the other, of a common intention to affect the legal relations between them. The
terms of an agreement constitute conventional law for the parties. Conventional law is
that which is constituted by agreement as having the force of special law inter partes, in
derogation of, or in addition to, the general law of the land. The rights and duties arising
out of such an agreement apply only to the parties of the agreement, and not to others
who are not parties thereto.

Treaties and conventions between nations also fall under this head. Thus a rule of civil
law may be over ridden by a treaty between two nations.

Professional Opinion

Professional opinion of eminent jurists may be called juristic law.

In fact, juristic writing and professional opinion have played a very important role in
legal evolution. Lord Eldon once remarked that a writer who had held no judicial position
could not properly be cited as an authority. However, this view has been gradually
modified and it has now become the convention that the works of dead authors can be
cited, not as binding authorities, but as expert evidence as to the state of the law.

Legal and Historical Sources Distinguished

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1. Legal sources are those sources which are recognized as such by law itself.
Historical sources are those which lack formal recognition by the law. They are
thus destitute of legal recognition.

2. The legal sources are authoritative, whereas historical sources are

unauthoritative.

3. Legal sources are allowed by Courts of law as of right, historical sources can
stake no such claim.

Conclusion: The term ‘sources of law’ has been interpreted by different writers in
various ways and it has been used in different senses. Salmond emphasized on two main
sources of law - Material sources and Formal sources. The material sources of law are
those from which is derived the matter, though not the validity, of the law. Material
sources are further sub-divided into legal and historical sources. Formal sources, on the
other hand, are that from which a rule of law derives its force and vitality.

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LEGAL THEORY

LEGISLATION

Discuss legislation as a source of law. [10]

Distinguish between supreme and subordinate legislation. [6]

Discuss the advantages of legislation as a source of law over precedent.

[10]

Introduction: There are two obvious reasons for legislation being regarded as one of the
most effective sources of law. Firstly, it involves laying down of legal rules by the
legislature, which the State recognizes as law. Secondly, it has the force and authority of
the State. It is for this reason that Dias and Hughes have rightly said that deliberate law
making by an authoritative power i.e. the State is called ‘legislation’ provided that
authority is duly recognized as the supreme power by the Courts.

The term ‘legislation’ is derived from Latin words, legis meaning law and latum which
means ‘to make’ or ‘to set’. Thus, the word ‘legislation’ means ‘making of law.’
Legislation is that source of law, which consists in the declaration of legal rules by the
competent authority.

The term ‘legislation’ has been used in different senses. In its broadest sense, it includes
all methods of law making. In its technical sense, however, legislation includes every
expression of the will of the legislation, whether while making law or not. Thus
ratification of a treaty with a foreign state by an Act of Parliament shall be considered
law in this sense. But in strict sense of the term, legislation means enacted law or statute
law passed by the supreme or subordinate legislature.

Supreme and Subordinate Legislation

Supreme Legislation

Legislation is either supreme or subordinate. The former is that which proceeds directly
from the sovereign power in the State, and is therefore free from any external control. It
is also incapable of being annulled or repealed. The British Parliament is, in every sense,
a sovereign law making body, because there is no external restraint on its absolute
authority. Its laws cannot be questioned in any Court of law. Though the Parliaments of
the U.S.A and India are also sovereign according to the literal meaning of the word, in
reality it is not true as the validity of their laws can be challenged in a court of law, which
may even declare them ultra vires. But according to the modern concept of sovereignty,
even legal restraints are not inconsistent with the idea of sovereignty. So looking at it
from the modern concept, all federal legislatures also are sovereign and supreme bodies.

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Subordinate Legislation

Subordinate legislation is that which proceeds from any authority other than the
sovereign power, and is, therefore, dependent for its continued existence and validity on
some supreme or superior authority.

Subordinate legislation may take any one of the following five forms

1. Executive – The executive is entrusted with the working of the administrative

department of the state, but it also enjoys certain subordinate legislative powers,
which have been expressly delegated to it by Parliament or pertain to it by the
common law.

2. Judicial – The superior Courts have the power of making rules for the regulation
of their own procedure. Thus, the high courts of India are empowered to make
rules to regulate their own procedure.

3. Colonial – The powers of self-government entrusted to the colonies and other

dependencies of the Crown are subject to the control of the Imperial Legislature,
which may repeal, alter or supersede any colonial enactment.

4. Municipal – Municipal authorities are entrusted with the power of establishing

special law for the districts under their control. These are sometimes called
byelaws.

5. Autonomic or Autonomous – By autonomic legislation is meant that species of

enacted law which has its source in various forms of subordinate and restricted
legislative authority possessed by private persons and bodies of persons. A
railway company. For example, may make rules for the regulation of its
undertaking, or a university may make statutes for governing its members.
Legislation thus effected is called ‘autonomic’ or ‘autonomous’.

Merits of Legislation over Other Sources of Law

In the words of Salmond, “so great is the superiority of legislation over all other methods
of legal evolution, that the modern tendency is to acknowledge its claim exclusively, and
to discard the other instruments as relics of the infancy of law.” Of all the main sources of
law, legislation is the most recent and most powerful.

In primitive and ancient societies, as law and religion blended together, custom was the
most important source of law and legislation played a very small role, at times being non-
existent. But custom can hardly be an adequate source of law in the dynamic modern
world. Therefore, custom can hardly be considered as a rival to legislation as a source of
law, though it continues to be a subsidiary source of law, even in modern times.

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LEGAL THEORY

The other source with which the merits of legislation are to be compared is precedents or
case law. The advantages of legislation can be best considered by contrasting it with
precedent.

The following are the 7 important merits of legislation.

Abrogative Power

Legislation is both constitutive and abrogative, while precedent merely possesses

constitutive efficacy. In other words, whereas legislation can both make and unmake,
precedent can only make new laws. The first virtue of legislation lies in its abrogative
power. It is not only a source of new law, but it is also the most effective instrument of
abolishing the existing law. The legislature can amend, repeal or enact new law. It can be
progressive. Precedent, on the other hand, does not possess that abrogative power, which
is so necessary for legal reform.

Efficiency

Legislation allows an advantageous division of labour, which results in increased

efficiency. It differentiates the legislature from the judiciary. The duty of the legislature is
to make laws, while the duty of the judiciary is to interpret and apply the law. Precedent,
on the other hand, unites in the same body, the business of making the law and that of
enforcing it, and this may not always be the best formula for efficiency.

Declaration

Legislation is also superior to precedent, because before a statute is applied by Courts of

justice, it is formally declared. Justice requires that laws should be known before they are
applied and enforced by the Courts. Case law, on the contrary, is created and declared in
the very act of applying and enforcing it. The Courts of law apply it as soon as they make
it, without any formal declaration about it.

Provision for future cases

Legislation makes rules for cases that have not yet arisen, whereas precedent must wait
until the actual concrete instances come before the Courts for decisions. Thus, legislation
makes room for certainty. But for it, the legal position in certain cases would have been
uncertain and indefinite. It has, therefore, rightly been said that case law is essentially
incomplete, uncertain and unsystematic, while if statute law shows the same defects, it is
only because of the incapacity or lethargy of the legislatures

Forms

Statute law is also superior to case law in point of form. It is brief, clear, easily accessible
and understandable, while case law is buried in the huge and growing mass of records of
litigation.

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LEGAL THEORY

Greater access and generality

Another advantage of legislation is that whereas precedents are scattered and therefore,
inconvenient to refer to, enacted law is codified, easily available and general in
application.

Reliability

Finally, codified law is more reliable than individual judgment. As rightly observed by
Dr Sethna, “the human mind is not infallible and the judge is no exception.” The
collective wisdom of the legislature can, therefore, be regarded as a more reliable means
of protection than the fancy of an individual judge,

Defects of Legislation

Apart from its considerable merit, legislation also has three main defects.

No scope for judicial discretion

It has often been said that where there is an express provision of the law, the judge is tied
down to it and has to follow it, even if it results in injustice. On the other hand, precedent
allows a judge to give a decision on the merits of a particular case, without being rigidly
tied down to watertight rules of enactment.

Though there is considerable strength in this criticism, the remedy lies in enacting
legislations which are not absolutely binding on the judge and which provides a scope of
judicial discretion.

Lack of clarity

It is said that statute law is often worded in cumbersome language, which makes little
sense to a layman, whereas precedent is often found to be clear and simple worded.

There is not much strength in this criticism, and the remedy lies in employing competent
draftsmen to frame the statutes.

Rigidity

Lastly, it is said that statutes are extremely rigid and leave little scope for selective
application, thus resulting in injustice in extreme cases.

The remedy again is to provide an inbuilt flexibility in the statute itself, so that there is
greater scope for judicial discretion.

Conclusion: Legislation means enacted law or statute law passed by the supreme or
subordinate legislature. Supreme legislature is that which proceeds directly from the

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sovereign power in the State, and is therefore free from any external control, whereas
subordinate legislation is that which proceeds from any authority other than the sovereign
power, and is, therefore, dependent for its continued existence and validity on some
supreme or superior authority. The advantages of legislation is great and is best seen
when compared to that of precedents.

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LEGAL THEORY

PRECEDENT

Examine with the help of illustrations the authority of precedents. [10]

Introduction: The term ‘sources of law’ has been interpreted by different writers in
various ways and it has been used in different senses. In the Indian context, the
expression ‘sources of law’ is generally used in two senses. In the first sense, according
to Hindu scriptures (duty is the foundation and head of all law) and according to modern
jurisprudence (Law emanates from the sovereign). In the second sense, the expression
‘sources of law’ means where one must resort to get at law. In other words, the evidence
of records of land or books or reports which have to be looked into for the purpose of
learning or knowing law.

Salmond preferred to emphasize on two main sources of law

• Material sources
• Formal sources

Material sources are further sub-divided into legal and historical sources. Formal source,
on the other hand, are that from which a rule of law derives its force and vitality. Thus,
the will of the State as manifested in the statute Book or decisions of Courts are formal
sources of law, while legislation, customs, agreements and professional opinions of
jurists are the material sources of law.

Judicial precedents are a material source of law. A precedent is a statement of law found
in the decision of a superior court, which has to be followed by that court and by courts
inferior to it. Precedents have a binding force on judicial tribunals for deciding similar
cases in the future.

According to Salmond, the doctrine of precedents has 2 meanings

• In a loose sense, precedents include merely reported case law, which may be
cited and followed by the courts
• In its strict sense, precedent means that case law which not only has a great
binding authority but must also be followed.

Authority of Precedents

Precedents are of greatest importance in any system of law, which is mostly unwritten, as
in England. Whatever may be the position in theory, it must be admitted that, in practice,
the Common law of England has been the work of English judges. In the words of
Salmond, “the importance of judicial precedents has always been a distinguishing
characteristic of English Law”.

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LEGAL THEORY

A precedent is held in such high esteem in England that, Salmond says that a judicial
precedent speaks in England with authority; it is not merely evidence of the law, but a
source of it; and the Courts are bound to follow the law that is so established. This is
chiefly due to the peculiarly powerful and authoritative position which has been at all
times occupied by the English judges. They are, in themselves, a compact body of legal
experts, and the Common law of England is almost the entire product of decided cases.
Neither Roman law nor the various legal systems based on it allot such a degree of
authority to precedent. In England, the bench has always given the law to the bar,
whereas in Rome, it was quite the opposite.

The principle that a Court is bound by the pronouncements of Courts superior to it is

simple and understandable, but English law has gone much further, for even in modern
times, Courts even on the higher level are bound by their own decisions. This rule applies
to the Court of Appeal, Division Courts and Courts of Criminal Appeal. Before 1966, the
House of Lords too was bound by its earlier decisions, However, in 1966, the House of
Lords announced that too rigid an adherence to precedent might do injustice in a
particular case; therefore they decided to depart from a previous decision when it was
right to do so. This is so because there are previous decisions which, if seen in the light of
experience of mature consideration, are bad decisions, although their number at present is
small. However, this trend is likely to increase with the passage of time, and
accompanying changes in moral ideas. This is particularly important in commercial
matters where custom is still somewhat fluid.

Another ground for refusing to attach too much importance to the decisions of the earlier
judges was that in those days, the same persons, sat as judges, both in the Court of
Chancery as well as in the House of Lords and hence there was poverty of legal learning.

Further, when a decision of the House of Lords is on the construction or interpretation of

legislation or of a document it is easy for any Court to depart from its spirit, by showing
that the decision was on the particular words before the House. Thus, if a Court can
spuriously distinguish its own decisions, what harm is there in theory that it is bound?
The answer is that it complicates the law, and as pointed out by Maitland, it is perhaps
the main fault of judge-made law that its destructive work can never be cleanly done. “Of
all vitality and therefore of all parent harmfulness, the old rule can be deprived, but the
moribund husk must remain in the system, doing latent mischief.” This remark must be
construed as applying only to the process of restrictive- distinguishing, and not
overruling. Where a court is permitted to overrule a precedent, the operation is a clean
one. In short, it’s a mistake to suppose that predictability of legal decision is always best
secured by a system which accords binding force to a precedent under which the judges
are restive.

Thus, the argument for changing the rule of precedent is stronger for the highest Court of
the land than any other Court, for if a lower Court goes wrong, there is always the
possibility of the mistake being rectified by a higher Court. In settling the relative
importance of legal certainty and flexibility, much depends on the particular part of the

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law to which one is referring. Certainty is important in the case of property and criminal
law, but may not be so important in say, the law of contracts. The present doctrine of
precedent makes no distinction between these different branches of the law. It is,
therefore, refreshing to see that the House of Lords has finally decided to shake off the
yoke of the binding nature of precedents; and is not bound by its earlier decisions. The
Supreme Court of India is likewise not bound by its own previous judgments.

Conclusion: A precedent is a statement of law found in the decision of a superior court,

which has to be followed by that court and by courts inferior to it. Precedents have a
binding force on judicial tribunals for deciding similar cases in the future.

What is precedent? Explain circumstances, which weaken the binding force

of a precedent. [16]

Explain Stare Decisis [10]

Binding judicial precedents is a concept of common law. Discuss. [6]

What are persuasive precedents? [6]

Introduction: The term ‘sources of law’ has been interpreted by different writers in
various ways and it has been used in different senses. In the Indian context, the
expression ‘sources of law’ is generally used in two senses. In the first sense, according
to Hindu scriptures (duty is the foundation and head of all law) and according to modern
jurisprudence (Law emanates from the sovereign). In the second sense, the expression
‘sources of law’ means where one must resort to get at law. In other words, the evidence
of records of land or books or reports which have to be looked into for the purpose of
learning or knowing law.

Salmond preferred to emphasize on two main sources of law

• Material sources
• Formal sources

Material sources are further sub-divided into legal and historical sources. Formal source,
on the other hand, are that from which a rule of law derives its force and vitality. Thus,
the will of the State as manifested in the statute Book or decisions of Courts are formal
sources of law, while legislation, customs, agreements and professional opinions of
jurists are the material sources of law.

Judicial precedents are a material source of law. A precedent is a statement of law found
in the decision of a superior court, which has to be followed by that court and by courts
inferior to it. Precedents have a binding force on judicial tribunals for deciding similar
cases in the future.

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LEGAL THEORY

According to Salmond, the doctrine of precedents has 2 meanings

• In a loose sense, precedents include merely reported case law, which may be
cited and followed by the courts
• In its strict sense, precedent means that case law which not only has a great
binding authority but must also be followed.

Nature of Judicial Precedent

A judicial precedent is purely constitutive in nature and never abrogative. In other words
it means that a judicial precedent can create law, but cannot abolish it. The judges are not
at the liberty to substitute their own views where there is a settled principle of law.
Judges can only fill the gaps in the legal system and remove imperfections in existing
law.

Kinds of Precedents

Broadly speaking, precedent may either be authoritative or persuasive.

An authoritative precedent is one which has a binding force and the Judge must follow it
whether he approves or not. Authoritative precedents are the decisions of a superior court
of justice, which are binding on subordinate courts.

Persuasive precedents, on the other hand, are those which the Judge is under no
obligation to follow but which may be taken into consideration.

In the Indian context, decisions of the House of Lords, Privy Council and Supreme Court
of USA or Canada have only persuasive value, but decisions of the Supreme Court of
India are binding on all courts in India and they constitute authoritative precedents.
Article 141 of the Constitution of India gives a constitutional status to the doctrine of
precedents in respect of law declared by the Supreme Court of India. Precedents, which
enunciate rules of law, form the basis of administration of justice in India.

Doctrine of Stare Decisis

The origin of the doctrine of Stare Decisis (binding force of precedents) can be traced on
the practice of law reporting i.e. reporting and publishing decisions of the Court. Until the
15th century, legal treatises seldom contained references of judicial decisions. Thereafter,
appeared Bracton’s Notebook and the Year Books, the latter being regarded as the first
Law Reports of England.

However, it was only in the 17th century that decisions of only the Exchequer Courts
came to possess binding efficacy. It was towards the end of the 18th century that the
necessity for recognizing the binding force of precedents was realized. Then, in 1833, the
famous decision of Chief Justice Park in Mirehouse v. Rennel reiterated the urgent need
for recognizing the binding force of precedents. Then came the Supreme Court of
Judicature Acts of 1873 and 1875, and finally the theory of stare decisis was firmly

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established. Today, it is characteristic feature of both the English and the Indian legal
systems.

The doctrine of Stare Decisis has also been recognized by the Constitution of India.
Article 141 gives it constitutional sanction and provides that the law declared by the
Supreme Court shall be binding on all Courts in India. Although the expression ‘all
courts’ is wide enough to cover the Supreme Court itself also, it has been held that the
expression does not include the Supreme Court. Thus the Supreme Court is free – like the
House of Lords – to depart from its previous decisions, if valid reasons exist for doing so.

Certainty in the applicability of law would be considerably eroded, and suffer a serious
set-back, if the highest court in the land frequently overruled the view expressed by it in
the field for a number of years. It would create uncertainty, instability and confusion if
the law propounded by this Court on the faith of which numerous cases have been
decided and many transactions have taken place, is held to be not the correct law after a
number of years.

But, the doctrine of Stare Decisis should not be regarded as a rigid and inevitable
doctrine, which must be applied at the cost of justice. There may be cases where it may
be necessary to rid the doctrine of its petrifying rigidity. The Court may, in an appropriate
case, overrule a previous decision taken by it, but that should be done only for substantial
and compelling reasons.

Circumstances which Destroy the Binding Force of Judicial Precedents

Once a decision is overruled by any subsequent ruling, it loses all its binding authority.
But there are certain other circumstances, which also destroy or weaken the binding force
of judicial precedents either partially or wholly

1. Ignorance of Statue – A precedent is not binding if it is rendered in ignorance of

any statute or any other rule having the force of a statute. It is also binding if the
court had the knowledge of the existence of the statute but it failed to appreciate
its relevance to the matter in hand due to negligence or ignorance.

2. Inconsistency between earlier decisions of higher court – A precedent loses its

binding force completely if it is inconsistent with the decision of a higher court.
However, the court is bound to refuse to follow a decision of its own which,
though not expressly overruled, cannot, in its opinion, stand with a decision of
the House of Lords or if it finds that there is inconsistency between its earlier
decisions.

3. Inconsistence between earlier decisions of the court of the same rank – A court is
not bound by its own earlier decisions, which are conflicting with each other.
The conflict may arise due to inadvertence, ignorance or forgetfulness in not
citing earlier decisions before the Court. In such a case the earlier decisions are
not binding on the court.

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LEGAL THEORY

4. Precedent sub silentio - A decision is said to be sub silentio when the point of
law involved in it is not fully argued or not perceived by the court.

5. Decision of equally divided court- There may be cases where the Judges of the
Appellate Court are equally divided. In such a case practice is to dismiss the
appeal and hold that the decision appealed against is correctly decided. But this
problem does not arise now days because Benches are always constituted with
uneven number of Judges. In India, however, where the Judges in a Division
Bench of a High Court are equally divided, the practice is to refer the case to a
third Judge whose decision shall be treated as final, unless it is set aside by the
Supreme Court.

6. Erroneous decisions - The decisions which are founded on misconceived

principles or in conflict with the fundamental principles of law lose their binding
force totally.

7. Abrogated decisions - A decision ceases to be binding if statute inconsistent with

it is subsequently enacted. So also it ceases to be binding if it is reversed,
overruled or abrogated. If a decision is wrong or irrational, it may be abrogated
by a subsequent enactment or decision of a higher court.

8. Affirmation or reversal on a different ground - When a higher court either

affirms or reverses the judgment of the lower court on a ground different from
that on which the judgment rests, the original judgment is not deprived of all the
authority but the subsequent court may take a view that a particular point which
the higher court did not touch, is rightly decided.

Conclusion: A judicial precedent can create law, but cannot abolish it. The doctrine of
stare Decisis has been recognized by Article 141 of the Indian Constitution, which gives
it constitutional sanction and provides that the law declared by the Supreme Court shall
be binding on all Courts in India. However there are certain circumstances that weaken
the binding force of precedents.

What is ‘ratio decidendi’? Explain various methods of determining it. [10]

Obiter Dicta [10

Distinguish between Ratio decidendi and Obiter dicta. [6]

Introduction: The term ‘sources of law’ has been interpreted by different writers in
various ways and it has been used in different senses. In the Indian context, the

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LEGAL THEORY

expression ‘sources of law’ is generally used in two senses. In the first sense, according
to Hindu scriptures (duty is the foundation and head of all law) and according to modern
jurisprudence (Law emanates from the sovereign). In the second sense, the expression
‘sources of law’ means where one must resort to get at law. In other words, the evidence
of records of land or books or reports which have to be looked into for the purpose of
learning or knowing law.

Salmond preferred to emphasize on two main sources of law

• Material sources
• Formal sources

Material sources are further sub-divided into legal and historical sources. Formal source,
on the other hand, are that from which a rule of law derives its force and vitality. Thus,
the will of the State as manifested in the statute Book or decisions of Courts are formal
sources of law, while legislation, customs, agreements and professional opinions of
jurists are the material sources of law.

Judicial precedents are a material source of law. A precedent is a statement of law found
in the decision of a superior court, which has to be followed by that court and by courts
inferior to it. Precedents have a binding force on judicial tribunals for deciding similar
cases in the future.

According to Salmond, the doctrine of precedents has 2 meanings

• In a loose sense, precedents include merely reported case law, which may be
cited and followed by the courts
• In its strict sense, precedent means that case law which not only has a great
binding authority but must also be followed.

Ratio Decidendi
It is well established that doctrine of precedents pre-supposes existence of the hierarchy
of courts. The general rule is that a court is bound by the decisions of all courts higher
than itself. Thus in England, a High Court Judge cannot question a decision of the Court
of Appeal, nor can the Court of Appeal refuse to follow the judgments of the House of
Lords.

In India, all High Courts of the States are bound by the decisions of the Supreme Court
and all courts subordinate to a High Court are bound by the High Court's decision.
However, the decision of one High Court is not binding on another High Court. It only
has a persuasive authority.

Having considered the extent to which courts are bound by previous decisions, it
becomes necessary to consider what actually constitutes the ‘decision’ in a case and what
is that which is actually binding on the lower courts.

A decision generally has two aspects, namely:

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LEGAL THEORY

1. What principle it lays down on the rule of law for which it becomes an authority.
This is generally called the ratio decidendi of the case.
2. What the case decides between the parties. Such matters become res judicata
between the parties and cannot be the subject of further dispute.

The term 'ratio decidendi' liberally means reason of the decision. It is the general
principle, which is deduced in a case. In, other words, ratio decidendi is the rule of law
upon which the decision is founded. It differs from res judicata which means decision
given in a particular case and which is conclusive between the parties to the case.

In the opinion of Salmond, ratio decidendi roughly denotes the law applied by and acted
on by the Court or the rule which the court regards as governing the case. Professor
Goodhart has criticised Salmond's views on ratio decidendi and pointed out that reason
for the decision is not necessarily the ratio decidendi because it may be bad and yet the
case may become an authority. He observed that ratio decidendi is not necessarily the
proposition of law stated in a judgment because the proposition may be broader than
necessary or it may be even narrower. According to him, ratio decidendi is nothing more
than the decision based on the material facts of the case. It implies that it is the deciding
Judge who decides what are the material facts and those can be discovered by a perusal of
judgment. The critics of Goodhart theory suggest that it overlooks two points. Firstly, the
theory ignores that it is within the function of the Judges in the subsequent cases to say
what they choose to regard as the material facts of the earlier case. Secondly, two persons
agree to a collection of individual facts and yet form different impressions whether the
two cases resemble each other sufficiently so as to be regarded as a precedent for
subsequent cases.

Obiter Dicta

In the course of judgment, a Judge may make various observations, which are not
precisely relevant to the issues before him. For instance, he may illustrate his reasoning
by reference to hypothetical situations. Whatever said by the Court by the way of the
statements of law, which lay down a rule, which is unnecessary for the purpose in hand,
are called obiter dicta. These dictas have the force of persuasive authority and are not
binding upon the courts. The courts may seek help from them but they are not bound to
follow them.

Obiter dicta literally means something said by the Judge by the way, which does not have
any binding authority. Professor Goodhart defines obiter dictum as “a conclusion based
on a fact the existence of which has not been determined by the court.”

As to the importance of obiter dicta, Lord Sterndale's observation may be quoted. He

observed: “Dicta are of different kinds and of varying degrees of weight. Sometimes they
may be called almost casual expressions of opinion upon a point, which has not been
raised in the case, and is not really present to the Judge's mind. Such dicta, though
entitled to respect due to the speaker, may fairly be disregarded by Judges before whom

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point has been raised. Some dicta, however, are deliberate expressions of opinion given
after consideration upon a point clearly brought and argued before the court. No doubt, it
is open to other Judges to give decisions contrary to such dicta but much greater weight
attaches to them than to the former class.”

Difference between Ratio Decidendi and Obiter Dictum

In a given case several questions, may arise before the Court. The Court may answer all
of them, although only some of them may, be necessary for the determination of the case.
The questions which were necessary for such determination would form the ratio and the
opinion of the Court on the other question would be obiter dicta.

Thus, ratio decidendi constitutes a legal source of law, whereas obiter dicta can at best
constitute only a historical source of law.

However, such a distinction though seeming simple is anything but in practice. It is not
always easy to distinguish between deliberate expressions of opinion given after due
considerations (ratio decidendi) and statements made by the way (obiter dicta). Very
often, the dividing line between the two is quite thin; and in a given case, it may become
extremely difficult to say what is a mere aside and what is one of the links in the chain of
judicial reasoning. This is so because a judgment is a fabric woven out of a lot of
different kinds of materials and frequently it is difficult to determine what exactly id
essential.

Conclusion: What principle a judgment lays down on the rule of law for which it
becomes an authority is generally called the ratio decidendi of the case. In the course of
judgment, a Judge may make various observations, which are not precisely relevant to the
issues before him. Whatever said by the Court by the way of the statements of law, which
lay down a rule, which is unnecessary for the purpose in hand, are called obiter dicta.

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LEGAL THEORY

CUSTOM

Discuss custom as a source of law. [10]

When does custom become law? [6]

Reasons for reception of customary law [10]

Introduction: Custom occupies an important place in regulation of human conduct in

almost all the societies. In fact, it is one of the oldest sources of law making. A custom
may be defined as a continuing course of conduct, which by the acquiescence or express
approval of the community observing it, has come to be regarded as fixing the norm of
conduct for members of society. However, the importance of custom as a source of law
continuously diminishes as the legal system grows. The reason being that with the
emergence and growing power of the State, custom is largely superseded by legislation as
a source of law.

It has been generally said that custom is to society what law is to the State. Each one of
them is the expression and realization, to the measure of men's insight and ability, of the
principles of rights and justice. The influence of custom on society is similar to that of
law on the State.

Definition and Nature of Custom

Dr. Allen defines custom as the uniformity of habits or conduct of people under like
circumstances. When the people find any act to be good and beneficial and apt and
agreeable to their nature and disposition, they use and practice it from time to time, and it
is by frequent use and multiplication of this act that the custom is made. He holds that
custom as a legal and social phenomenon grows up partly by forces inherent in society,
forces of purity of reason and necessity and partly of suggestions and imitation.

According to Herbert Spencer, “before any definite agency for social control is developed
there exists a control arising partly from the public opinion of the living, and more largely
from the public opinion of the dead. Thus, it is tradition passing on from one generation
to another that originally governed human conduct. This tradition is called custom.

Salmond opines that custom embodies those principles as are acknowledged and
approved, not by the power of the State, but by public opinion of the society at large.
When State takes up its function of administering justice, it accepts as valid the rules of
right already accepted by the society of which it is itself a product and it finds those
principles already realized in the customs of the realm. Salmond further observes that
when the State acquires more self-confidence, it seeks to conform national usage to the
law, rather than the law to national usage. Thus he states, “custom is the embodiment of

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those principles which have commanded themselves to the national conscience as

principles of justice and public utility.”

Reasons for Recognition of Custom

When a particular conduct is followed by people continuously for a long time, we call it
habit. But if some conduct or rule is followed by most people of a particular class or
locality, then whether the others should follow the same would invariably depend on the
generality of practice. It is not always necessary that the court should recognize all the
practices, which are prevalent in a community as custom. For instance, there is a practice
among Hindus that the male relatives of the deceased shave off their heads as a mark of
condolence, but if a man does not follow this custom, the court is certainly not going to
punish him. Similarly, the mourners in a funeral procession are supposed to wear black
clothes in England, but if a person does not follow this practice, he cannot be punished by
court for committing this breach of custom. Thus these are conventional customs
established by usage and long practice and the courts shall not take judicial notice of such
customs. In other words, such customs are not obligatory.

On the other hand, there are certain customs, which are binding and are enforceable by a
court of law since they are backed by the sanction of the State. For instance, a Hindu
marriage solemnized without the performance of Saptapadi is not legally valid and can
be set aside by the court.

In earlier stages of the development of society before the State came into existence,
people were being governed by the customary laws. Customary law of a particular class
or place is that which is universally followed, without interruption from time
immemorial. Thus prior to 1850 when civil and criminal laws were not codified, the
topics such as succession, marriage, adoption, contract, transfer of property and crimes
such as arson, hurt, murder, theft, treason were regulated by customary laws in the
absence of legislation on these subject. After the enactment of legislation on these
subjects, the customary law yielded to the statutory law on these issues. It would,
therefore, be seen that though customary law is the oldest of laws. Yet it is the weakest
and so it becomes inoperative as soon as legislation on it comes into existence.

An appraisal of Hindu jurisprudence would unmistakably reveal that customary law was
a rule of conduct authoritatively imposed by the divine power upon man, governing all
his activities, public or private and affecting his spiritual and temporal interests, Every
step in life is guarded in the interests of preservation of human society.

It is well known that ancient Hindu Law was predominantly duty-oriented. Hindu
community was deeply merged in religion and philosophy. The Srutis and Smritis
emphasized on ‘duties’ rather than ‘rights’. This, however, does not mean that the early
Hindu society did not recognize any rights. For instance, in a joint family, the husband
had a right over his wife's person and property, yet the wife had absolute right over her
Stridhan property.

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LEGAL THEORY

The present laws, that is, statutory or constitutional, are all man-made but the Hindu law,
in its nascent form was of divine origin, that is it was 'God-made'. Even ancient Greek
philosophers like Aristotle have said, “law is a form of order and, therefore, a good law
means a good order”. Cicero also said that no power should be above law.
Custom necessarily involves two conceptions, namely,
• The conviction or faith;
• Constant use.

Manu regarded custom as direct evidence of law. Broadly speaking, by custom he meant
practice of good men, which necessarily involves an element of reasonableness and
which is not opposed to public policy. He emphasized that one should follow the
righteous path that has been followed by one's ancestors. By following that path, one
does not suffer. Thus the importance of custom as a Source of law has been recognized
by different commentators of the ancient, Hindu scriptures. .
Recognising the importance of custom in Hindu law, even the Privy Council in Collector
of Madura v. Motoo Ramlinga, observed, “the clear proof of usage will outweigh the
written text of the law.”
It must be stated that custom has played a very important part in building up the system
of International law. Art. 38 of the Statute of International Court of Justice provides for
the application of international customs as evidence of a general practices accepted as
law. As Oppenheim rightly pointed out, “whenever and as soon as a line of international
conduct frequently adopted by States is legally considered as an obligation or right, the
rule which is abstracted from such conduct becomes a rule of customary International
law”. A custom to become a rule of International law must satisfy two criteria
• Its existence as a constant and uniform practice;
• Its acceptance as a rule of International customary law.

The diplomatic relations between States under International law are generally regulated
by customary usages and practices, which are recognized as law of nations.

Conclusion: Custom occupies an important place in regulation of human conduct in

almost all the societies. In fact, it is one of the oldest sources of law making. A custom
may be defined as a continuing course of conduct, which by the acquiescence or express
approval of the community observing it, has come to be regarded as fixing the norm of
conduct for members of society.

What are the different kinds of custom? [6]

Local Custom [10]

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LEGAL THEORY

General custom of the realm [10]

Introduction: Custom occupies an important place in regulation of human conduct in

almost all the societies. In fact, it is one of the oldest sources of law making. A custom
may be defined as a continuing course of conduct, which by the acquiescence or express
approval of the community observing it, has come to be regarded as fixing the norm of
conduct for members of society. However, the importance of custom as a source of law
continuously diminishes as the legal system grows. The reason being that with the
emergence and growing power of the State, custom is largely superseded by legislation as
a source of law.

It has been generally said that custom is to society what law is to the State. Each one of
them is the expression and realization, to the measure of men's insight and ability, of the
principles of rights and justice. The influence of custom on society is similar to that of
law on the State.

Definition and Nature of Custom

According to Herbert Spencer, “before any definite agency for social control is developed
there exists a control arising partly from the public opinion of the living, and more largely
from the public opinion of the dead. Thus, it is tradition passing on from one generation
to another that originally governed human conduct. This tradition is called custom.

Salmond opines that custom embodies those principles as are acknowledged and
approved, not by the power of the State, but by public opinion of the society at large.
When State takes up its function of administering justice, it accepts as valid the rules of
right already accepted by the society of which it is itself a product and it finds those
principles already realized in the customs of the realm. Salmond further observes that
when the State acquires more self-confidence, it seeks to conform national usage to the
law, rather than the law to national usage. Thus he states, “custom is the embodiment of
those principles which have commanded themselves to the national conscience as
principles of justice and public utility.”

Kinds of Customs

It is not necessary that a custom should be practiced all over the country. There may be a
custom which is practiced authoritatively only in a particular locality. Broadly speaking,
there are two kinds of custom, namely
• Conventional Custom
• Legal Custom.

Conventional Custom

A conventional custom is also called ‘usage’. It is an established practice whose authority

is conditional on its acceptance and incorporation in the agreement between the parties
bound by it. A conventional custom is legally binding not because of any legal authority

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LEGAL THEORY

independently possessed by it, but because it has been expressly or impliedly

incorporated in a contract between the parties concerned. When two parties enter into a
contract, generally whole terms of the agreement are not set out expressly and a large part
of most contracts is implied. The intention of the parties to the contract can be gathered
from the customary law prevalent in the trading community.

The development of conventional customs essentially involves three stages. Firstly, it

must be so well established as to have attained the notoriety of a usage. The existence of
a usage must be proved on the basis of evidence. In its second stage of development, a
conventional custom gets recognition through a judicial decision. At this stage it assumes
the form of a precedent. After having passed through these two stages the conventional
custom is finally accepted as a statutory law after its codification. This is its third stage of
development. The law relating to Bill of Exchange and most of the provisions of the Sale
of Goods Act have their origin in the conventional customs and usages which were
followed from time immemorial.

A conventional custom may either be

• Local
• National
In order to acquire the status of law, a conventional custom must fulfill the following
conditions:
1. It should be old enough to be in the knowledge of the people in general.
No specific period is, however, prescribed for a custom to be treated as ‘old
enough’ for this purpose. Even a relatively new conventional custom may also get
legal recognition provided it has been well established in the community.
2. A conventional custom shall be recognized as law so long as it is not
contrary to the general law of the country. It should be consistent with statute law.
3. It should be reasonable. Whether a particular custom is reasonable or not,
shall depend on the discretion of the court. According to Allen, it is the
unreasonableness of the custom which must be proved and not its reasonableness.
4. A conventional custom need not necessarily be confined to a particular
area. It may relate to any trade or commercial dealing which may be national or
even international.
5. A conventional custom or usage, which is contrary to any express
condition laid down in a contract, shall not be enforceable by law.

To be reasonable, a conventional custom must be in conformity with morality and public

policy. Thus, in a Bombay case of R. v. Karson,a custom authorizing a woman to leave
her husband at her will and marry another man was held to be void being against morality
and public policy.

Legal Custom

Legal customs are those which are operative per se as binding rules of law independent of
any agreement between the parties. Legal customs are of two kinds
• Local Custom

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LEGAL THEORY

• General Custom

Local Custom

A local custom is that which prevails in some defined locality whereas a general custom
is operative throughout the realm. When the word ‘custom’ is used simpliciter it refers to
local custom. Halsbury defined local custom as “a particular rule, which has existed
actually or presumptively from time immemorial, and has obtained the force of law in a
particular locality, although contrary to or not consistent with the common law of the
realm.” A local custom to be valid should be certain, reasonable, continuous, permanent
and should not be contrary to any existing law. It should be practiced by the people
voluntarily and not out of the fear of the force of the State. It should also not be opposed
to any other existing custom in the locality concerned. If the inhabitants of a particular
territory assert their customary right over the territory of others, such a right shall not be
recognized as a local custom.

General Custom

As stated earlier, a general custom prevails throughout the realm and constitutes one of
the sources of the common law of the country. For instance, the custom of eldest male
member of the family inheriting the entire property of the deceased karta of the joint
Hindu family was a well-established custom in India before the enactment of the Hindu
Succession Act. Likewise, the custom of prohibiting widow remarriage in most of the
communities in India prior to statutory enactment in this regard was a well established
general custom in this country.

A general custom is usually practiced by all the people living in the country and it is
prevalent throughout the land. Until the 18th century, the general customs of England
were recognized as common law but today it is not so. Now only the statute law passed
by the British Parliament and precedents are regarded as the sources of common law.
Therefore, at present the general customs of England are different from the common law.

According to Keeton, a general custom must satisfy certain conditions if it is to be a

source of law. It must not only be reasonable but also be followed and accepted as
binding. It must be in existence from the time immemorial and should not be in conflict
with the statute law of the country. It should also not be contrary to the common law of
the land.

Conclusion: It is not necessary that a custom should be practiced all over the country.
There may be a custom which is practiced authoritatively only in a particular locality.
Broadly speaking, there are two kinds of custom, namely
• Conventional Custom
• Legal Custom.

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LEGAL THEORY

Discuss the essentials of a valid custom. [10]

Valid Custom. [10]

Introduction: Custom occupies an important place in regulation of human conduct in

almost all the societies. In fact, it is one of the oldest sources of law making. A custom
may be defined as a continuing course of conduct, which by the acquiescence or express
approval of the community observing it, has come to be regarded as fixing the norm of
conduct for members of society. However, the importance of custom as a source of law
continuously diminishes as the legal system grows. The reason being that with the
emergence and growing power of the State, custom is largely superseded by legislation as
a source of law.

It has been generally said that custom is to society what law is to the State. Each one of
them is the expression and realization, to the measure of men's insight and ability, of the
principles of rights and justice. The influence of custom on society is similar to that of
law on the State.

Definition and Nature of Custom

According to Herbert Spencer, “before any definite agency for social control is developed
there exists a control arising partly from the public opinion of the living, and more largely
from the public opinion of the dead. Thus, it is tradition passing on from one generation
to another that originally governed human conduct. This tradition is called custom.

Salmond opines that custom embodies those principles as are acknowledged and
approved, not by the power of the State, but by public opinion of the society at large.
When State takes up its function of administering justice, it accepts as valid the rules of
right already accepted by the society of which it is itself a product and it finds those
principles already realized in the customs of the realm. Salmond further observes that
when the State acquires more self-confidence, it seeks to conform national usage to the
law, rather than the law to national usage. Thus he states, “custom is the embodiment of
those principles which have commanded themselves to the national conscience as
principles of justice and public utility.”

Requisites of a Valid Custom

In order to be a valid custom, it must conform to certain requirements laid down by the
law. The essential requisites of a valid custom are:

Reasonableness

A custom must be reasonable. It must be remembered that the authority of a prevailing

custom is never absolute, but it is authoritative provided it conforms to the norms of
justice and public utility. A custom shall not be valid if it is apparently repugnant to right
and reason and it is likely to do more mischief than good if enforced.

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LEGAL THEORY

A general observance of a custom leads to the presumption that it has a rational basis and
that it is useful and convenient. The party disputing the validity of a custom must satisfy
the court of its unreasonableness. In order to ascertain the reasonableness of a custom, it
must be traced back to the time of its origin.

As to the reasonableness of a custom to be recognized as valid, Dr. Allen observed, “the

true rule seems to be not that a custom will be admitted if reasonable, but that it will be
admitted unless it is unreasonable.” The period of ascertaining whether a custom is
reasonable or not, is the period of its inception. Sir Edward Coke pointed out that a
custom is contrary to reason if it is opposed to the principles of justice, equity and good
conscience. The courts should not lightly reject an established custom unless it is
manifestly repugnant to the notions of right and reason and opposed to public policy. As
Salmond rightly suggests, before a custom is denied legal recognition, it must be found
out that the mischief resulting from its enforcement outweighs the harm that would result
from the multiplication of the natural expectation of the people.

Consistency

A custom to be valid must be in conformity with statute law. In other words, it should not
be contrary to an Act of Parliament. A custom should necessarily yield where it conflicts
with a statutory law. This rule is observed as a positive principle of law in England and
countries like India, which follow English law. The Roman Law and various continental
systems, however, do not adhere to this rule.

Compulsory Observance

A custom to be legally recognized as a valid custom must be observed as of right. It

means that custom must have been followed by all concerned without recourse to force
and without the necessity of permission of those who are adversely affected by it. It must
be regarded by those affected by it not merely an optional rule but as an obligatory or
binding rule of conduct. If a practice is left to individual choice it cannot be treated as a
customary law. Before accepting a custom as a binding source of law, the court should
satisfy itself that it has transformed into an unmistakable conviction of the community as
to the rights and obligations of its members towards one another. Citing an illustration of
the compulsory observance of a valid custom, Blackstone pointed out, “A custom that all
the inhabitants shall be rated towards the maintenance of a bridge, will be good, but a
custom that every man is to contribute thereto at his own pleasure, is idle and absurd and
indeed no custom at all.”

If the observance of a custom is suspended for a long time, it would be assumed that such
a custom was never in existence.

Continuity and Immemorial Antiquity

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LEGAL THEORY

A custom to be valid should have been continuously in existence from the time
immemorial. To quote Blackstone, “A custom in order to be legal and binding, must have
been used so long that the memory of man runneth not to the contrary. If anyone can
show the beginning of it, it is no good custom.”

In India all that is required to be proved is that the custom has been in existence from the
ancient time. In other words, there is no definite year laid down in India to determine the
antiquity of a custom. But, it need not be beyond the human memory,

Certainty

In order to prove the existence of a custom since time immemorial, it must be shown that
it is being observed continuously and uninterruptedly with certainty. The element of
certainty evinces the existence of a custom, therefore, a custom cannot be said to be in
existence from the time immemorial unless its certainty and continuity is proved beyond
doubt.

Conclusion: A custom may be defined as a continuing course of conduct, which by the

acquiescence or express approval of the community observing it, has come to be regarded
as fixing the norm of conduct for members of society. In order to be a valid custom, it
must conform to certain requirements laid down by the law. The essential requisites of a
valid custom are
1. Reasonableness
2. Consistency
3. Compulsory Observance
4. Continuity and Immemorial Antiquity
5. Certainty

Distinguish between custom and prescription. [6]

Prescription [10]

Introduction: Custom occupies an important place in regulation of human conduct in

almost all the societies. In fact, it is one of the oldest sources of law making. A custom
may be defined as a continuing course of conduct, which by the acquiescence or express
approval of the community observing it, has come to be regarded as fixing the norm of
conduct for members of society. However, the importance of custom as a source of law
continuously diminishes as the legal system grows. The reason being that with the
emergence and growing power of the State, custom is largely superseded by legislation as
a source of law.

It has been generally said that custom is to society what law is to the State. Each one of
them is the expression and realization, to the measure of men's insight and ability, of the
principles of rights and justice. The influence of custom on society is similar to that of
law on the State.

PALLAVI BHOGLE
LEGAL THEORY

Definition and Nature of Custom

Dr. Allen defines custom as the uniformity of habits or conduct of people under like
circumstances. When the people find any act to be good and beneficial and apt and
agreeable to their nature and disposition, they use and practice it from time to time, and it
is by frequent use and multiplication of this act that the custom is made. He holds that
custom as a legal and social phenomenon grows up partly by forces inherent in society,
forces of purity of reason and necessity and partly of suggestions and imitation.

According to Herbert Spencer, “before any definite agency for social control is developed
there exists a control arising partly from the public opinion of the living, and more largely
from the public opinion of the dead. Thus, it is tradition passing on from one generation
to another that originally governed human conduct. This tradition is called custom.

Salmond opines that custom embodies those principles as are acknowledged and
approved, not by the power of the State, but by public opinion of the society at large.
When State takes up its function of administering justice, it accepts as valid the rules of
right already accepted by the society of which it is itself a product and it finds those
principles already realized in the customs of the realm. Salmond further observes that
when the State acquires more self-confidence, it seeks to conform national usage to the
law, rather than the law to national usage. Thus he states, “custom is the embodiment of
those principles which have commanded themselves to the national conscience as
principles of justice and public utility.”

Relation Between Custom and Prescription

Historically, prescription is a species of Custom. In early societies prescription was

regarded as personal custom. In this sense it was limited to the rights of a particular
person and his ancestors or predecessors in title. It was distinguished from a local custom,
which was limited to a particular place, and not to an individual person. The distinction
between custom and prescription may briefly be started as follows:

1. When a course of conduct is practiced for a long time, it gives rise to a rule of law
known as custom, but if it gives rise to a right, it is called prescription. Thus
custom is a source of law while prescription is a source of right.

2. In case of custom, the old rule as to time immemorial still subsists, but in the case
of prescription the fiction of lost grant operates and it is governed by statutory
prescribed time. Thus a prescriptive right to air or light can be acquired by
uninterrupted use for period of twenty years.

3. A custom originates from long usage whereas a prescription originates from

waiver of a right.

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LEGAL THEORY

4. A custom extends to a particular place, locality or community as a whole but

prescription is of a personal nature, which is confined to an individual or his
relatives or near-ones.

5. A custom to be valid must be inconformity with the principles of justice and

public utility, it is not so in case of prescription.

Conclusion: A custom may be defined as a continuing course of conduct, which by the

acquiescence or express approval of the community observing it, has come to be regarded
as fixing the norm of conduct for members of society. Historically, prescription is a
species of Custom. In early societies prescription was regarded as personal custom. In
this sense it was limited to the rights of a particular person and his ancestors or
predecessors in title. It was distinguished from a local custom, which was limited to a
particular place, and not to an individual person. The distinction between custom and
prescription has been explained.

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LEGAL THEORY

LEGAL RIGHTS
Explain the relationship between right and duty. [10]

Introduction: The real credit of development of human civilization goes to law and its
prohibitive processes, which apprised man of his rights and duties as a unit of society.
When people come in contact as members of society, they have certain legal rights and
duties towards one another. These rights and duties are regulated by the law prevalent in
the society.

Meaning and Definition: A legal right is an interest recognized and protected by the rule
of law, violation of which would be a legal wrong.

Sir John Salmond defines a right as “an interest recognized and protected by a rule or
justice. It is an interest in respect of which there is a duty, the disregard of which is
wrong.” A man had varied interests, but all of them are not recognized by law.

According to Dr Sethna, “A right is any interest either vested or created under a law or
under a contract.”

Duties

A duty is an obligatory act i.e. it is an act the opposite of which would be a wrong. The
commission of a wrong is the breach of duty and the performance of a duty is the
avoidance of a wrong.

Duties are of two kinds

• Legal
• Moral

A duty may be moral but not legal or it may be legal but not moral or it may be both
moral and legal at the same time. The law enforces the performance of a legal duty or
punishes the disregard of it.

Relationship between Right and Duty

It is a debatable question whether rights and duties are necessarily co-relative. According
tone view, every right has a corresponding duty. There can, therefore, be no duty unless
there is some one to whom it is due. According to this view, there can be no right without
a corresponding duty, or a duty without a corresponding right, just as there cannot be a
husband without a wife, or a father without a child.

The followers of this view point out that every duty is a duty towards some person or
persons, in whom, therefore, a corresponding right is vested. Conversely, every right is a
right against some person or persons upon whom, therefore, a co-relative duty is

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imposed. Every right or duty thus involves a vinculum juris or bond of legal obligation,
by which two or more persons are bound together. Thus, there can be no duty unless there
is someone to whom it is due. Likewise, there can be no right unless there is someone
from whom it is claimed.

The other school of thought distinguishes between relative and absolute duties. Relative
duties are those, which have rights corresponding to them, while absolute duties have no
such rights.

This school believes that the essence of a right is that it should be vested in some
determinate person and that it should be enforceable by some form of legal process to be
instituted by him. Thus, duties towards the public at large or towards indeterminate
portions of the public have no co-relative rights. Similarly, the duty to refrain from
committing a public nuisance has no co-relative rights. An example is where trustees hold
property on trust for ‘religious purposes’, even though there is no ascertained beneficiary,
the trustees are under a duty not to use the property for any other than a religious purpose.
The question is, to whom is this duty owed? If owed to anybody, it must be owed to the
public at large or to the State or to the Crown. But it makes no difference whether one
says that the duty is owed to one or the other or it is not owed to any one. I any event, the
law on this point is clear, it is the duty of the trustees to use the property only for those
purposes for which is ear marked.

According to Austin, every right implies a corresponding duty, but every duty does not
imply a corresponding right. Thus, it is the duty of the Magistrate to punish an offender if
his guilt is proved in a Court. However, it would be going too far to say that, in such a
case, the offender has a corresponding right to be punished.

Conclusion: In conclusion, it may be said that duties in the strict sense of the term have
corresponding rights, but duties in the wider sense do not.

What is right? What are the characteristics of Right? [10]

Introduction: The real credit of development of human civilization goes to law and its
prohibitive processes, which apprised man of his rights and duties as a unit of society.
When people come in contact as members of society, they have certain legal rights and
duties towards one another. These rights and duties are regulated by the law prevalent in
the society.

Meaning and Definition: A legal right is an interest recognized and protected by the rule
of law, violation of which would be a legal wrong.

Sir John Salmond defines a right as “an interest recognized and protected by a rule or
justice. It is an interest in respect of which there is a duty, the disregard of which is
wrong.” A man had varied interests, but all of them are not recognized by law.

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According to Dr Sethna, “A right is any interest either vested or created under a law or
under a contract.”

Characteristics of Legal Right

According to Salmond every legal right has the following five elements or characteristics
1. The Person of Inherence
2. The Person of Incidence
3. Contents of the right
4. Subject matter of right
5. Title of the right

The Person of Inherence

A legal right is always vested in a person who may be distinguished as the owner of the
right, the subject of it or the person of inherence. Thus, there cannot be a legal right
without a subject or a person who owns it. However, the owner of the right need not be
certain or determinate. For instance, an unborn child possesses a legal right although it is
not certain whether he would be born alive or not. Likewise, a right can be owned by the
society at large, it is a valid right though the subject of right is indeterminate.

The Person of Incidence

A legal right avails against a person upon whom lies the co-relative duty. He is
distinguished as the ‘person of incidence’. He is a person bound by the duty and so may
be described as ‘subject of the duty’.

Thus, if A has a particular right against B, A would be the person of inherence and B is
the person of incidence.

Contents of the right

The act or omission, which is obligatory on the person bound in favour of the person
entitled, is called the content or substance of the duty.

Subject matter of right

It is something to which the act or omission relates, that is, the thing over which a right is
exercised. This may be called the object or subject matter of the right.

Title of the right

Every legal right has a title, that is, certain facts or events which are events by reason of
which the right has become vested in its owner.

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To take an example that illustrates all these five characteristics of a legal right, suppose a
man buys a house from another. This buyer will be the person of inherence and the seller
and the other persons generally the persons of incidence. The subject matter of the right
will be the house and the contents of the right would lie in the fact that the seller and
every other person should not disturb the buyer’s peaceful possession and enjoyment of
the house. I this case, the title to the right is to be found in the fact of the sale of the
house, reflected in the sale deed under which the house was acquired by the purchaser
from the vendor.

Every right involves a three-fold relation in which the owner of it stands.

• It is a right against some person or persons
• It is a right to some act or omission of such person or persons.
• It is a right over or to something to which the act or omission relates.

It may be noted that every right involves a relation with its owner. An ownerless right is
not recognized by law, although it is not a legal impossibility. But it must not be
forgotten that, as explained above, although ownerless rights are not recognized, the
ownership may be uncertain or contingent.

From this it follows that an object is as essential an element in the idea of right as the
subject to whom the right belongs. A right, being a legally protected interest, the object of
the right is the thing in which the owner has his interest – whether material or immaterial
– which he desires to keep or to obtain, and which he is able to keep or obtain by means
of the duty which law imposes on other persons.

Then, there are also rights in respect to one’s own person. Every person has a right not to
be killed and the object of this right is one’s life. Similarly, one has a right not to be
physically injured or assaulted. One has a right of reputation, rights in respect of domestic
relations, rights over immovable property, rights to services and many such rights over
which man has a full right of enjoyment.

Conclusion: A legal right is an interest recognized and protected by the rule of law,
violation of which would be a legal wrong. Salmond has given five main characteristics
that every legal right should possess, each of which is discussed above. In addition to
these there is also the rights in respect to one’s own person.

Explain legal rights in its wider sense and also with different jural relations.
[10]

Define ‘Legal Right’ and distinguish it from liberty and power. [10]

Evaluate Hohfeld’s analysis of legal right. [10]

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Introduction: The real credit of development of human civilization goes to law and its
prohibitive processes, which apprised man of his rights and duties as a unit of society.
When people come in contact as members of society, they have certain legal rights and
duties towards one another. These rights and duties are regulated by the law prevalent in
the society.

Meaning and Definition: A legal right is an interest recognized and protected by the rule
of law, violation of which would be a legal wrong.

Sir John Salmond defines a right as “an interest recognized and protected by a rule or
justice. It is an interest in respect of which there is a duty, the disregard of which is
wrong.” A man had varied interests, but all of them are not recognized by law.

According to Dr Sethna, “A right is any interest either vested or created under a law or
under a contract.”

Legal Rights in a Wider Sense of the Term

A legal right, in the strict sense of the term, means an interest recognized by law, which
imposes a corresponding duty on others. But a legal right in the general sense of the term
may be defined as any advantage or benefit, which is, in any manner, conferred upon a
person by a rule of law. In this sense, there are three more kinds of rights.

Liberties

A person has liberty when there is an absence of the legal duty imposed upon him. The
sphere of his legal liberty is that sphere of activity within which the law is content to
leave him alone. In this sense, one has a right to publish his opinion on public affairs but
he has no right to express a defamatory or seditious libel. In brief, one’s liberty is his
ability to d a thing without being liable for it in law.

Just as the co-relative of right is duty, the co-relative of liberty is what may be called ‘no-
right’. The term ‘no-right’ means an absence of a right against another in a particular
respect. Thus, the owner of a land has the liberty to eject a trespasser and correspondingly
a trespasser has ‘no-right’ not to be ejected from his owner’s land.

‘No-right’

This is a term coined by Hohfeld. If X has a right to do a particular thing, it implies that
other persons, A, B, c etc shall have ‘no-right’ to prevent X from doing that thing. Thus,
no-right means the absence of any right in other persons to prevent or hinder a man from
exercising his right.

‘No-right’ thus means absence of a right against another person in a particular respect.
Therefore, it can be said that a trespasser has a ‘no-right’ not to be ejected forcibly from
the trespassed premises – and this corresponds to the owner’s liberty to eject him. Again,

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X may do whatever he likes with his house. It is his liberty or privilege. The correlative
‘no-right’ is that the other person has no right to interfere with X while he does as he
pleases with his house.

From the above, it is clear that a liberty or a privilege is the correlative of a ‘no-right’.
Hohfeld explains it by saying that if it is A’s right that B should stay off his land, the
correlative of the right is B’s duty not to enter A’s land.

The maxim ‘damnum sine injuria’ (detriment without legal injury) illustrates a ‘no-right’.
Consider a situation where X has bee running the only shop in his vicinity for several
years. One day Y opens a similar shop just across the street and because of cutthroat
competition X suffers a severe loss. In such a situation X cannot prevent Y from
continuing the business; his is a case of ‘no-right’.

Powers

A power may be defined as an ability conferred upon the person by the law to alter, by
his own will directed to that end, the duties, rights, liabilities or other legal relations,
either of himself or of other persons. For example, one’s right to make a will is his power
and one’s right to alienate his property during his own lifetime is also his power.

Tawney defines power as the capacity of an individual to modify the conduct of ther
individuals in the manner in which he desires.

Powers are either public or private.

• Public powers are those which are vested in a person as an agent of the state.
This power is sometimes called Authority.
• On the other hand, private powers are those which are vested in a person and are
to be exercised by him for his own purpose. Private power is called capacity.

Subjection is the correlative of power just as a duty is the correlative of a right in the
strict sense of the term.

Immunities

Immunity is an exemption one enjoys from having a given legal relation changed by
another. For example, a Lord is said to be immune from trial by jury when he has been
exempted from such a trial. One’s immunity arises on account of the absence of power or
the disability of others to interfere with one’s legal position. Therefore, disability is the
correlative of immunity.

According to Paton, immunity is a freedom on the part of one person against having a
legal relation altered by a given act or omission on the part of another person. Thus,
immunity is the advantage conferred by the absence of legal powers in other persons.

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Conclusion: A legal right, in the strict sense of the term, means an interest recognized by
law, which imposes a corresponding duty on others. But a legal right in the general sense
of the term may be defined as any advantage or benefit, which is, in any manner,
conferred upon a person by a rule of law. Liberty, power and immunity are three other
kinds of rights, arising from the wider sense of the term ‘legal rights’. The concept of
rights, liberties, powers and immunities may be stated as under
• Rights: What others must do for X.
• Liberties: What X may do for himself.
• Power: What X can do against other persons.
• Immunities: What others cannot do against X.

Explain different kinds of legal rights. [10]

Explain perfect and imperfect rights. [6]

Distinguish between right in rem and right in personam. [6]

Write a note on the rights in re-alina. [6]

Introduction: The real credit of development of human civilization goes to law and its
prohibitive processes, which apprised man of his rights and duties as a unit of society.
When people come in contact as members of society, they have certain legal rights and
duties towards one another. These rights and duties are regulated by the law prevalent in
the society.

Meaning and Definition: A legal right is an interest recognized and protected by the rule
of law, violation of which would be a legal wrong.

Sir John Salmond defines a right as “an interest recognized and protected by a rule or
justice. It is an interest in respect of which there is a duty, the disregard of which is
wrong.” A man had varied interests, but all of them are not recognized by law.

According to Dr Sethna, “A right is any interest either vested or created under a law or
under a contract.”

Classification of Legal Rights

Legal rights have been classified by various jurists in different ways.

Perfect and Imperfect Rights

A perfect right is one that corresponds to a perfect duty and a perfect duty is one, which
is not merely recognized, but also enforced by law. A duty is enforceable when an action

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or other legal proceedings will lie for its breach. In other words, a perfect right is
enforceable in law. An imperfect right is not.

An imperfect right is one, which though it is otherwise a legal right, it cannot be enforced
on account of some legal defect. Thus, claims barred by lapse of time and claims
unenforceable by action owing to the absence of some special form are instances of
imperfect rights. In all these cases, the duties and correlative rights are imperfect. No
action will lie for their maintenance; yet they receive recognition from law. They remain
valid for all purposes, save that of enforcement.

All these cases of imperfect rights are exceptions to the maxim ubi jus ibi remedium.
Thus, in the case of a debt barred by the Laws of Limitation, the debt is not rendered
extinct, but merely the right of action is barred, so that lapse of time does not destroy the
right, but merely reduces it from the rank of one which is perfect to an imperfect one. To
take an example, if A has given a loan to B, but cannot file a suit against B as it is time
barred, then, if despite this fact, B pays the amount to A, B cannot sue A and ask him to
return the money on the grounds that A could not have filed a suit against him to recover
the debt.

Salmond gives a few examples by which an imperfect rights may also be recognized:
1. An imperfect right serves as a good ground of defence, though not for any legal
action.
2. An imperfect right is sufficient to support any security giver for it, Ex, a mortgage
or a pledge remains perfectly valid, though the debt for which it was given as
security has become barred by the Limitation Act and thus unenforceable.
3. An imperfect right may become perfect, e.g., a debt which has become
irrecoverable by reason of limitation may become recoverable by reason of either
acknowledgment or part-payment under the Limitation Act.

Proprietary and Personal Rights

Proprietary rights are rights concerning property, corporeal or incorporeal. One often
speaks of a man’s proprietary rights as his estate or ‘assets’ or ‘property’. Thus, a man
has proprietary rights in his house, car, furniture etc.

Personal rights, on the other hand, are rights in regard to a person’s status or person.
Thus, the right to reputation, the right to freedom of speech and expression, the free
choice of a profession or vocation are all personal rights.

Difference between Proprietary and Personal Rights

There are four points of distinction between proprietary and personal rights:
1. Proprietary rights are valuable (i.e. they can generally be valued in terms of
money); personal rights are not.
2. The former are the elements of a man's wealth, the latter are elements of his well-
being.

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3. The former are inheritable, the latter are not.

4. Proprietary rights are more permanent than personal rights.

Inheritable and Uninheritable Rights

A right is inheritable if it survives its owner; it is uninheritable if it dies with him.

Proprietary rights are inheritable, while personal rights are uninheritable. In other words,
the heirs of a proprietary owner become owners after his death, which cannot be the case
with personal rights, which die with the owner.

Principal and Accessory Rights

A principal right is the main or primary right vested in a person under the law. An
accessory right is secondary right, which is connected to or arises out of the principal
right. Thus, the right of a person who has bought a tree is a principal right, but the right to
enjoy the fruits of the tree is an accessory right, which flows from the principal right. The
legal maxim accessorium sequitur principale means that the accessory right follows the
principal. If a person purchases land he has a right not only to the land (principal right),
but also to its title deeds (accessory right).

Positive and Negative Rights

According to their context, rights may also be classified as positive or negative. When a
person has a positive right he is entitled to something to be done by the person who has
the corresponding duty. Thus if A has bought goods from B, the latter has a positive right
to claim the purchase money from A. On the other hand, a negative right entitles its
owner to some forbearance on the part of the person who has the corresponding duty.
Thus, if A is taken as an apprentice in B's business, and A covenants not to serve in a
rival business for five years, B has a negative right to see that for five years, A forbears
from serving in a rival business.

Real and Personal Rights

A real right corresponds to a duty imposed upon persons in general; a personal right
corresponds to a duty imposed upon determinate individuals. A real right is available
against the world at large; a personal right is available only against particular persons.
Thus X’s right not to be assaulted or defamed is available against the whole world, but
X's right to proceed against his assailant or defamer is personal, being against a person
individually.

Real rights, moreover, are more valuable and advantageous than personal rights. Real
rights are mostly negative; personal rights are mostly positive.

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Rights in rem and Rights in personam

A right in rem is one which is available against the whole world. A right in personum is
one which is available against a particular individual only. In personal rights, it is a
personal relation that is the predominant factor, and therefore, such rights are called jus in
personam.

A right in rem is a right vested in some determinate person and available against the
world at large. Thus X's rights not to be defamed or assaulted are rights available against
the whole world. Such rights are rights in rem. Their number is countless. Thus, the right
to freedom of person, ownership and possession of property, the right to reputation are all
instances of rights in rem.

The very opposite of a right in rem is a right in personam. A right in personam is a right
available only against some determinate person or body, and in which the community, at
large has no concern. Thus, X agrees to sell his house to Y for a certain sum. X does not
carry out the contract. Y will thereupon have a right to sue X for damages for breach of
contract. Here, the mutual right of X and Y are created by their private mutual agreement.
These rights are personal to both. Third parties are not concerned with them. Such rights
are, therefore, called rights in personam, i.e., personal rights, as opposed to general
rights.

Generally speaking, rights in rem are negative rights, whereas rights in personam are
positive rights. Thus, a right to a debt or a right to a delivery of goods are rights which
are positive as well as in personam. On the other hand, a right to reputation or the right to
freedom of person, are rights which are negative as well in rem. However, this is only the
general rule, and some negative rights are also rights in personam. Thus, the right of an
employer to ensure that an employee does not work with a rival employer is a right in
personam, which is, at the same time, a negative right.

Rights in re propria and Rights in re aliena

The most absolute power which the law gives over a thing is called the right of property -
dominium. This is the real right in a thing which one’s own - jus in re propria. But a man
may have right in property less than full ownership, the dominium being, in fact, vested in
another. Such rights are called jura (rights) in re aliena.

Both can be created in respect of the same property. Salmond defined them as, “A right in
re aliena is one which limits or derogates from some more general right belonging to
some other person in respect of the same subject matter. All other rights, which are not
thus limited are jura in re propria."

Thus, X mortgages his house to Y and gives him possession thereof. X thereby creates an
encumbrance, by dividing his proprietary right in the house, of which Y becomes the

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temporary occupier. However, X still has the right to redeem the mortgage. This right,
which is for the time being detached from X's complete ownership of the house, is a right
in re aliena.

Servient and Dominant Rights

A right, which is subject to an encumbrance, may be designated as servient, while the

encumbrance, which derogates from it, may be called dominant.

Conclusion: A legal right is an interest recognized and protected by the rule of law,
violation of which would be a legal wrong. Legal Rights may be classified into different
categories, as explained above.

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OWNERSHIP
Define the term ‘ownership’. State its essential characteristics. [10]

State the incidents of ownership. [10]

Introduction: Ownership is a complex juristic concept, which has its origin in ancient
Roman law. Perhaps of all the rights, right to ownership is the most important right. The
earlier legal systems did not recognize the distinction between ownership and possession.
It was with the advancement of civilization that the two were considered as separate and
distinct concepts.

Ownership is the relation between a person and any right that is vested in him. When one
speaks of the ownership of a material object, this is merely a convenient and conventional
figure of speech. To own a piece of land means, in law, to own a particular kind of right
in that land.

Definitions: According to Salmond, “ownership denoted the relation between a person

and an object forming the subject-matter of his ownership. It consists in a complex of
rights, all of which are rights in rem, being good against all the world and not merely
against persons.”

According to Austin, “ownership is a right over a determinate thing, indefinite in point of

user, unrestricted in point of disposition and unlimited in point of duration.”

Ownership is thus the sum total of the rights of possession, disposition and destruction.

Characteristics of Ownership

On the analysis of the concept of ownership, it is seen the following characteristics or

incidents.

1. The owner has a right to possess the thing, which he owns. It is immaterial
whether he has actual possession of it or not, as long as he has a right to such
possession. Thus, if A's car is stolen by B, the latter has possession of the car, but
A remains the owner, with an immediate right to possession. Similarly, if A lends
this car to B on hire, A has neither possession of the car nor the immediate right to
possess it. However, A is still the owner, for he retains a reversionary interest in
the car, i.e., a right to repossess the car on the termination of the period of hire.

2. Generally, the owner has the right to use and enjoy the thing owned. Although
this is commonly called a right to possess and use such thing, as Salmond points
out, these rights are, in fact, liberties. The owner actually has a liberty to use the
things, i.e., he is under no duty not to use it, whereas others are under a duty not
to use it or otherwise interfere with it.

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3. Thirdly, the owner has the right to exhaust the thing while using it, if the nature of
the thing owned is such.

4. Generally, the owner has the right to destroy or alienate the thing he owns. Thus,
a man can effectively dispose of his property by a conveyance during his lifetime
or by will after his death. This is a general right, though in some cases, such a
right may be restricted by law.

5. Another important characteristic of ownership is that it is indeterminate in

duration. Those who are not owners may be entitled to possess or use a thing, but
the period for which they are so entitled is of a limited duration. In the case of an
owner, it is of an indeterminate duration.

Thus, the interest of a bailee or a lessee comes to an end when the period of hire
or of the lease comes to a close. But the owner's interest is perpetual, and does not
terminate even with the owner's death, because in that case, the property will go
to his legatee or heir or next-of-kin.

6. Ownership has a residuary character. It is possible that an owner has parted with
several rights in respect of the thing owned. Nevertheless, he continues to be the
owner of the thing in, view of the residuary character of ownership. For example,
if an owner gives a lease of his property to A and an easement to B, his ownership
of the land now consists of the residual rights, i.e., the rights which remain when
the lesser rights (i.e. the lease and the easement) have been taken away.

7. Ownership may either be absolute or restricted, that is, it may be exclusive or

limited. Ownership can be limited by agreements or by operation of law. When a
land or a thing is owned by more than one owner, they are called co-owners and
the right of each co-owner is limited to the right of other co-owners.

8. The right of ownership can be restricted in time of emergency. For instance,

building or land owned by private individuals can be requisitioned and used for
lodging army personnel during the period of war. Allotment of accommodation to
tenants by the Rent Controlling Authorities is yet another illustration to show that
ownership can be restricted.

9. An owner is not allowed to use his land or property in a manner that it is injurious
to others. In this sense, his right of ownership is not unrestricted.

10. Restrictions may also be imposed by law on the owner's right of disposal of the
thing owned. Thus any alienation of property made with intent to defeat or delay
the claims of creditors can be set aside. The power of disposition can also be
limited by the existence of the rights of encumbrancer such as a mortgagee etc.
The owners in India and in most of the countries are not free to sell their land or
property to aliens.

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11. 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.
.
Conclusion: Ownership is the relation between a person and any right that is vested in
him. It is the sum total of the rights of possession, disposition and destruction. An
analysis of ownership shows it has numerous characteristics. These characteristics have
been listed above.

Discuss the idea of ownership. [10]

‘Ownership is a bundle of rights.’ Discuss. [10]

Write a note on the subject matter of ownership. [6]

Introduction: Ownership is a complex juristic concept, which has its origin in ancient
Roman law. Perhaps of all the rights, right to ownership is the most important right. The
earlier legal systems did not recognize the distinction between ownership and possession.
It was with the advancement of civilization that the two were considered as separate and
distinct concepts.

Ownership is the relation between a person and any right that is vested in him. When one
speaks of the ownership of a material object, this is merely a convenient and conventional
figure of speech. To own a piece of land means, in law, to own a particular kind of right
in that land.

Definitions: According to Salmond, “ownership denoted the relation between a person

and an object forming the subject-matter of his ownership. It consists in a complex of
rights, all of which are rights in rem, being good against all the world and not merely
against persons.”

According to Austin, “ownership is a right over a determinate thing, indefinite in point of

user, unrestricted in point of disposition and unlimited in point of duration.”

Ownership is thus the sum total of the rights of possession, disposition and destruction.

Subject matter of Ownership

The primary subject matter of ownership consists of material objects like land and
chattels. However, a man's wealth may also consist of other things as for example,
interests in the land of other people, debts due to him by his debtors, shares in the
companies, patents, copyrights etc. Thus, X may have the right to walk over A’s land, or
to catch fish in B’s pond, or a debt of Rs. 10,000 owing from C, shares in D & Company
Ltd., various patents, copyrights, and so on. Yet, none of these is a physical or material
thing; they are in fact nothing other than rights. Salmond is of the view that the true

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subject matter of ownership has to be a right in all cases, because it would be a logical
absurdity if the subject matter of the ownership was sometimes a material object and at
other times a right.

There is great support found for Salmond’s view in English law. Nevertheless, if the term
is used as always applying to a right, it would not be in keeping with the law and legal
usage, because it is normal and natural to talk of owning thing such as land and chattels.
Further, since owning a chattel normally means having certain rights in respect of such
chattels, to describe this as owning rights in respect of the chattel would lead to a rather
complicated conclusion. Normally a man is said to have a right and not own a right. A
man does not own a right to his reputation; that is a right that he has.

It is, therefore, preferable to speak both of owning things in the sense of material objects
and also of owning rights. Precisely what ‘thing’ can form the subject matter of
ownership would depend on the rules of each system of law. Broadly speaking, under
most systems of law, certain things qualify as capable of being owned, but as not in fact
being owned, as for example living persons, corpses, the air, the sea, the sun, the moon,
the stars etc.

However, as Salmond points out, although these things are in principle incapable of
ownership, there is nothing in law or logic to warrant such a proposition. Thus, if English
Law were to permit slavery, living persons could be owned. Likewise, it is equally
possible to conceive that the law may also provide that the air and the sea might be
owned, sold, bought, rented, and so on.

It is also to be noted that where a thing is capable of being owned, the methods of
acquiring ownership over such a thing will vary from one legal system to another. As
Salmond points out, basically, one can acquire ownership in two ways.
• By operation of law
• By reason of some act or event.

As regards the first, the laws of intestacy and bankruptcy afford good examples, because
they operate to vest one man's property in another. As to the second, this may consist in
cases of original acquisition (i.e., taking a thing for the first time) or in derivative
acquisition, which consists in taking the thing from one person, either with or without his
consent, and vesting it in another.

Conclusion: Ownership is the relation between a person and any right that is vested in
him. It is the sum total of the rights of possession, disposition and destruction. Salmond is
of the view that the true subject matter of ownership has to be a right in all cases.
Nevertheless, if the term is used as always applying to a right, it would not be in keeping
with the law and legal usage. It is, therefore, preferable to speak both of owning things in
the sense of material objects and also of owning rights.

Discuss Trust and Beneficial ownership. [10]

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Introduction: Ownership is a complex juristic concept, which has its origin in ancient
Roman law. Perhaps of all the rights, right to ownership is the most important right. The
earlier legal systems did not recognize the distinction between ownership and possession.
It was with the advancement of civilization that the two were considered as separate and
distinct concepts.

Ownership is the relation between a person and any right that is vested in him. When one
speaks of the ownership of a material object, this is merely a convenient and conventional
figure of speech. To own a piece of land means, in law, to own a particular kind of right
in that land.

Definitions: According to Salmond, “ownership denoted the relation between a person

and an object forming the subject-matter of his ownership. It consists in a complex of
rights, all of which are rights in rem, being good against all the world and not merely
against persons.”

According to Austin, “ownership is a right over a determinate thing, indefinite in point of

user, unrestricted in point of disposition and unlimited in point of duration.”

Ownership is thus the sum total of the rights of possession, disposition and destruction.

Classification of Ownership

Ownership can be classified under many headings.

1. Corporeal and Incorporeal Ownership

2. Trust and Beneficial Ownership
3. Legal and Equitable Ownership
4. Vested and Contingent Ownership
5. Sole Ownership and Co-ownership
6. Co-ownership and Joint Ownership

Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is that which is

owned by two persons at the same time. The relation between them is such that one of
them is under an obligation to use his ownership for the benefit of the other. The former
is called the trustee and his ownership is ‘trust ownership’, while the latter is called the
beneficiary and his ownership is ‘beneficial ownership’. The ownership of the trustee is a
matter of form rather than of substance, it is nominal rather than real because he is
deprived of any right to the beneficial enjoyment of the trust property.

According to Salmond, the purpose of trust ownership is to protect the rights and interests
of persons who for any reason are unable to protect them effectively for themselves. The
main classes of persons in whose behalf the protection of trust is created are as follows :

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• Unborn persons whose rights and interests are to be protected;

• Persons under some kind of disability such as infancy, lunacy, etc., and are
incapable to safeguard their own interests in the property.
• Several persons having common interest in the property, that is, the co-owners of
the property.
• Persons having conflicting interest over the same property. Such property is
entrusted to the trustees and the law vests in them the rights and interests for safe
custody so that it is protected from destruction or ruin.

The origin of the trust ownership can be traced back to the law of equity in England. The
interests of the beneficiaries (cestui que trust) were not legally recognized under the
Common Law. Therefore, the Court of Chancery recognized trust ownership under the
equity law and thus extended protection to the rights of the beneficiaries. The trustee
could use the trust property only in the interest of the beneficiary and not for his own
interest.

The interest in trust ownership and also in the beneficial ownership can be transferred.
The trustee can alienate the trust property even without the consent of the beneficiary
provided such alienation is in the interest of the beneficiary.

The creation of a trust separates the trust ownership of the property from the beneficial
ownership of it and vests them in different persons. The extinction or revocation of a
trust, however, reunites both these ownerships in the same person.

Conclusion: Ownership is the relation between a person and any right that is vested in
him. It is the sum total of the rights of possession, disposition and destruction. Trust
property is that which is owned by two persons at the same time. The relation between
them is such that one of them is under an obligation to use his ownership for the benefit
of the other. The former is called the trustee and his ownership is ‘trust ownership’, while
the latter is called the beneficiary and his ownership is ‘beneficial ownership’.

“As a general rule a thing can be owned by one person only at a time.”
Discuss. State the exceptions, if any. [10]

Distinguish between sole and co-ownership. [6]

Introduction: Ownership is a complex juristic concept, which has its origin in ancient
Roman law. Perhaps of all the rights, right to ownership is the most important right. The
earlier legal systems did not recognize the distinction between ownership and possession.

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It was with the advancement of civilization that the two were considered as separate and
distinct concepts.

Ownership is the relation between a person and any right that is vested in him. When one
speaks of the ownership of a material object, this is merely a convenient and conventional
figure of speech. To own a piece of land means, in law, to own a particular kind of right
in that land.

Definitions: According to Salmond, “ownership denoted the relation between a person

and an object forming the subject-matter of his ownership. It consists in a complex of
rights, all of which are rights in rem, being good against all the world and not merely
against persons.”

According to Austin, “ownership is a right over a determinate thing, indefinite in point of

user, unrestricted in point of disposition and unlimited in point of duration.”

Ownership is thus the sum total of the rights of possession, disposition and destruction.

Classification of Ownership

Ownership can be classified under many headings.

1. Corporeal and Incorporeal Ownership

2. Trust and Beneficial Ownership
3. Legal and Equitable Ownership
4. Vested and Contingent Ownership
5. Sole Ownership and Co-ownership
6. Co-ownership and Joint Ownership

Sole Ownership and Co-ownership

Ordinarily, a right is owned by one person only, at a time; but duplicate ownership is also
possible. Two or more persons may have the same right vested in them. This may happen
in several ways, but the simplest case is that of co-ownership. The right is an undivided
unity. Co-ownership may be dissolved into sole ownership of parts (of the whole) by the
process known as partition.

Sole ownership means an exclusive ownership of an individual as against the whole

world. The right arises in case of a right of ownership. But in case of the ownership of a
right, sole ownership may be the ownership of a bare right or a limited right, i.e., a
limited right of an encumbrance against the right of someone else. In sole or exclusive
ownership, one person alone is the owner, but incase of co-ownership, or concurrent
ownership, two or more persons have interest in the same property or thing. Co-
ownership is also called duplicate ownership. In case of co-ownership, there is a common
subject matter, a common right and two or more persons sharing the same right.

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A very common example of co-owners is partners, who are the co-owners of the goods
that constitute their stock in-trade, of the lease of the premises where they conduct their
business, and of the debts, which their customers owe to them. It would not be correct to
say that the property owned by them is divided between them, each of them owning a
separate part of such property. Thus, if two partners have Rs. 10,000 in the Bank Account
of their partnership, it means that there is one debt of Rs. 10,000 owing by the Bank to
both of them, and not two separate debts of Rs. 5,000 (or in any other proportion) due to
each of them individually.

Conclusion: Ownership is the relation between a person and any right that is vested in
him. It is the sum total of the rights of possession, disposition and destruction. Sole
ownership means an exclusive ownership of an individual as against the whole world.
Co-ownership is also called duplicate ownership. In case of co-ownership, there is a
common subject matter, a common right and two or more persons sharing the same right.

How can legal ownership be distinguished from equitable ownership? [6]

Introduction: Ownership is a complex juristic concept, which has its origin in ancient
Roman law. Perhaps of all the rights, right to ownership is the most important right. The
earlier legal systems did not recognize the distinction between ownership and possession.
It was with the advancement of civilization that the two were considered as separate and
distinct concepts.

Ownership is the relation between a person and any right that is vested in him. When one
speaks of the ownership of a material object, this is merely a convenient and conventional
figure of speech. To own a piece of land means, in law, to own a particular kind of right
in that land.

Definitions: According to Salmond, “ownership denoted the relation between a person

and an object forming the subject-matter of his ownership. It consists in a complex of
rights, all of which are rights in rem, being good against all the world and not merely
against persons.”

According to Austin, “ownership is a right over a determinate thing, indefinite in point of

user, unrestricted in point of disposition and unlimited in point of duration.”

Ownership is thus the sum total of the rights of possession, disposition and destruction.

Classification of Ownership

Ownership can be classified under many headings.

1. Corporeal and Incorporeal Ownership

2. Trust and Beneficial Ownership
3. Legal and Equitable Ownership

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4. Vested and Contingent Ownership

5. Sole Ownership and Co-ownership
6. Co-ownership and Joint Ownership

Legal and Equitable Ownership

Sometimes one person may be the legal owner and another the equitable owner of the
same thing or right at the same time. Legal ownership is that which has its origin in the
rules of Common Law whereas equitable ownership proceeds from the rules of equity. In
many cases, equity recognizes ownership where law does not so recognize it owing to
some legal flaw or defect. For example, when a debt is verbally assigned by A to B, A
remains the legal owner of it but B becomes the equitable owner of it. Thus the debt is
only one although now it has two owners. This illustration shows that the distinction
between legal and equitable ownership is altogether different from the distinction
between legal and equitable right. In this case the right of both, A and B are legal rights
but the ownership of A is legal while that of B is equitable. In substance it may be said
that equitable ownership of a legal right is different from the ownership of an equitable
right. Likewise, the ownership of an equitable mortgage is different from the equitable
ownership of a legal mortgage.

Keeton has observed that equitable ownership always pre-supposes the existence of a
legal ownership, the legal owner being restrained by the rules of equity from using his
legal ownership to the detriment of the equitable owner. Conversely, a legal ownership
does not necessarily imply the existence of an equitable owner.

Conclusion: Ownership is the relation between a person and any right that is vested in
him. It is the sum total of the rights of possession, disposition and destruction. The
distinction between legal and equitable ownership is explained above.

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POSSESSION
Critically examine the legal concept of possession. [10]

Explain the reasons for safeguarding possession. [10]

Introduction: Possession is the most basic relation between man and things. Possession
of material things is essential to life because the existence of human life and human
society would be rather impossible without the consumption and use of material things.
Many important legal consequences flow from the acquisition and loss of possession.
Besides being prima facie evidence of ownership, it is also one of the modes of
transferring ownership. Possession is said to be nine tenths of the law, meaning thereby
that it is evidence of ownership and he who interferes with the possession of another,
must show either title or better possessory right.

In the words of Salmond, “the concept of possession is as difficult to define as it is

essential to protect.” The word possession has many meanings, depending upon the
context in which it is used and it is therefore futile to search for a proper legal definition
of possession.

Essentials for Possession

Possession involves two distinct elements, one of which is mental or subjective, the other,
physical or objective. These were distinguished by Roman lawyers as animus and corpus.
The subjective element is more particularly called ‘animus possidend’ or ‘animus
domini’. “Neither of these”, observes Salmond, “is sufficient by itself”. Possession
begins only with their union, and lasts only until one or the other of them disappears”

Animus Possidendi

Animus possidendi or the subjective element is the intent to appropriate to oneself, the
exclusive use of the thing possessed. It is an exclusive claim to a material object. It is the
intention of using the thing oneself and of excluding the interference of other persons.
.
To constitute the animus possidendi, there must be an intention to possess, and the nature
of the intention is governed by the following rules:
1. The animus need not necessarily be in the nature of a claim of right. It may be
consciously wrongful. Even a thief has possession, which is no less real than that
of a true owner.
2. The claim of the possessor must be one of exclusive possession, involving an
intent to exclude other persons from the use of the thing possessed.
3. The exclusion need not be absolute.

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4. The animus possidendi need not be a claim on ones own behalf; one may possess
a thing either on his own account or on account of another.
5. The animus possidendi need not be specific; it may be general. X may intend to
possess all the books on his bookshelf, though he might have forgotten the
existence of some of the books on the shelf. This general intention to possess all
the books in the bookshelf is sufficient animus for possessing each and every
book on the shelf.

Corpus
To constitute possession, the animus domini is not in itself sufficient; it must be
embodied in a corpus. Corpus is the effective realization in fact of the claim of the
possessor. Effective realization means that the fact must amount to the actual present
exclusion of all alien interference with the thing possessed, together with a reasonable
and sufficient security of the exclusive use of it in the future.

Legal Consequences of Possession

The following are the legal consequences, which flow from the acquisition and loss of
possession:

1. Possession is prima facie evidence of title of ownership.

2. Long adverse, possession confers title even to property, which originally belonged
to another.
3. Transfer of possession is one of the chief modes of transferring ownership.
4. The first possession of a thing which as yet belongs to no one (res nullius) is a
good title of right.
5. Even in respect of property a1ready owned, the wrongful possession of such
property is a good title for the wrongdoer, as against all the world – except the
true owner.
6. Possession is of such efficacy that a possessor may, in some cases, confer a good
title on another, even though he has none himself.

Conclusion: Possession is the most basic relation between man and things. In the words
of Salmond, “the concept of possession is as difficult to define as it is essential to
protect.” Possession involves two distinct elements, one of which is mental or subjective,
the other, physical or objective. There are certain legal consequences to possession,
which is why law protects possession.

Explain possession in law and possession in fact. [10]

Examine the concept of ‘possession in law’. [10]

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Y appointed X to clean the pool on his land. X, while executing the work,
found valuable rings embedded in the soil of the pool. Y and X each claim the
right to possession of the rings. Decide giving reasons. [6]

Introduction: Possession is the most basic relation between man and things. Possession
of material things is essential to life because the existence of human life and human
society would be rather impossible without the consumption and use of material things.
Many important legal consequences flow from the acquisition and loss of possession.
Besides being prima facie evidence of ownership, it is also one of the modes of
transferring ownership. Possession is said to be nine tenths of the law, meaning thereby
that it is evidence of ownership and he who interferes with the possession of another,
must show either title or better possessory right.

In the words of Salmond, “the concept of possession is as difficult to define as it is

essential to protect.” The word possession has many meanings, depending upon the
context in which it is used and it is therefore futile to search for a proper legal definition
of possession.

Kinds of Possession
Possession may be classified under four heads
• Corporeal and Incorporeal Possession
• Mediate and Immediate Possession
• Possession in law and Possession in fact
• Adverse Possession

Possession in Fact

The relation between a person and a thing, which he possesses, is called possession in
fact or defacto possession. It indicates physical control of a person over a thing. For
instance, if a person has caged a parrot, he would be deemed to have possession of it so
long as the parrot is in the cage but as soon as the parrot escapes from the cage or is set
free, he would lose possession over it. Certain points regarding possession in fact must be
carefully noted. They are:
• There are certain things over which a person cannot have physical control, for
example the sun, moon, stars etc.
• The physical control over the object need not be continuous. For instance, I
possess my coat when I am wearing it, I still have possession of it when I take it
off and hang it on a peg when I go to sleep. The basic idea is that I should be in a
position to resume control over it in normal course whenever I so desire. In other
words, physical control may continue even if a person relinquishes actual control
temporarily.

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• In order to constitute possession in fact, merely having physical control of a thing

is not enough but it must be accompanied by capacity to exclude others from the
possession of it. However, some jurists do not consider this element necessary for
possession.
• In order to determine the question of acquisition, abandonment or termination of
possession, the distinctive feature is the desire of the person, whether he desires to
retain possession or not.

Possession in Law

Possession in Law is also termed as de jure possession. It has already been stated that the
law protects possession for two obvious reasons, namely:
• by conferring certain legal rights on the possessor;
• by penalizing the persons who interfere with the possession of a person or by
making him pay damages to the possessor.

Whenever a person brings a suit for possession, the first thing that the Court ascertains is
whether the plaintiff was formerly in real possession of the thing in dispute. It is true that
in most of the cases actual or factual possession testifies legal possession yet there are
many situations when a person does not have possession in law although he is in actual
possession of the object.

In the legal sense, possession is used as a relative term. The law is generally not
concerned with the question as to who has the best title, but it is concerned as to which of
the parties before it has a better title.

Possession in law can be demonstrated by the case of South Staffordshire Waterworks

Co. v. Sharman. In this case, the plaintiff company owned a pond upon their land. The
company appointed the defendant to clean the pond on his land. During the cleaning
operations, the defendant found gold rings at the bottom of the pond. The Court held that
the company had the first possession of the rings by virtue of their being the owners of
the pond and hence the defendant acquired no title in the rings and therefore the company
was entitled to have the rings and not the defendant.

In short, it can be said that possession may be either possession in fact or possession in
law, in case of possession in law, defacto possession is not necessary. In fact it is a right,
which is recognized and protected by law. According to Salmond, there may be three
possibilities regarding possession in fact and possession in law

1. Generally in most cases both factual and legal possession exist together.
2. In certain cases, a person has legal possession of a thing but possession in fact is
with someone else. For example, in case of possession by the servant of his

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master's property, though the servant has real and factual possession over it but
the legal possession is still that of the master.
3. English law also accepts the concept of constructive possession in cases where
something less than possession in one person is deemed possession in law, and
conversely where the actual possession of some other party is reduced to
something less than legal possession. For example, if A wrongfully takes
possession of B’s watch, the law shall still afford its possessory remedies to B, on
the ground that he did originally have the possession and, therefore, he ought to
have possession even now. The fact that the law regards as possessors only those
who are actually in possession need not provide protection to those who though
not in possession, ought to have been in possession.

Conclusion: Possession is the most basic relation between man and things. In the words
of Salmond, “the concept of possession is as difficult to define as it is essential to
protect.” The relation between a person and a thing, which he possesses, is called
possession in fact or defacto possession. It indicates physical control of a person over a
thing. Possession in Law is also termed as de jure possession. It is a right, which is
recognized and protected by law.

Explain the modes of acquisition of possession. [10]

Introduction: Possession is the most basic relation between man and things. Possession
of material things is essential to life because the existence of human life and human
society would be rather impossible without the consumption and use of material things.
Many important legal consequences flow from the acquisition and loss of possession.
Besides being prima facie evidence of ownership, it is also one of the modes of
transferring ownership. Possession is said to be nine tenths of the law, meaning thereby
that it is evidence of ownership and he who interferes with the possession of another,
must show either title or better possessory right.

In the words of Salmond, “the concept of possession is as difficult to define as it is

essential to protect.” The word possession has many meanings, depending upon the
context in which it is used and it is therefore futile to search for a proper legal definition
of possession.

Modes of Acquisition of Possession

Possession is acquired whenever the two elements of corpus and animus are existent and
the loss of either of these elements will usually tend to destroy possession. There are
three known modes of acquiring possession, which are as follows
• By taking.
• By delivery.
• By operation of law.

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Taking

Taking is the acquisition of possession without the consent of the previous owner. Taking
may either be rightful or wrongful. It is not necessary that the thing taken in possession
must necessarily be already in possession of any previous owner. For instance, res
nullius, that is, a thing belonging to no one, has no previous possessor. Taking may be
original or derivative. The taking is original when the object taken has no owner (res
nullius) e.g. when a man catches a wild animal or a bird etc. When the possession of a
thing which already has a previous owner is taken, it is derivative taking. This derivative
taking may be rightful or wrongful. As pointed out by Professor Keeton, "Where an inn-
keeper seizes the goods of his guest, who has failed to pay his bill, there is an acquisition
of possession against the will of the previous possessor, but it is rightful taking of
possession. But where a thief steals a watch, it is still an acquisition of possession against
the will of the previous owner, but it is wrongful i.e. not in pursuance of legal right.

Delivery

When a person acquires possession with the consent or co-operation of the previous
owner, it is known as acquisition of possession by delivery. Delivery is of two kinds,
namely,
• Actual
• Constructive

Actual delivery is the transfer of immediate possession. It involves transfer of a thing

from the hands of one possessor to another. Actual delivery involves immediate transfer
of possession such as sale. The delivery of a chattel (thing) on loan or deposit is also an
example of actual delivery wherein there is transfer of immediate possession but the
mediate possession is reserved with the transferor.

In constructive delivery, there is no change in the position of immediate possession.

There is only transfer of mediate possession.

Operation of Law

Possession may also be obtained by operation of law. This happens when possession
changes hands as a result of operation of law. For example, if a person dies the
possession of his property is transferred to his successors and legal heirs. It may be noted
that long, continuous and uninterrupted adverse possession for a period of twelve years
extinguishes the claim of title of the true owner and adversary's adverse claim is
established. This effect of lapse of time on titles is called 'prescription' which is
acquisitive or positive in respect of the person in whose favour the right is created and
extinctive or negative in respect of the person whose right is lost or destroyed. Thus
prescription i.e., lapse of time has two effects, one is positive and the other is negative. If
the fact of possession is destroyed due to prescription, it is negative and if the fact of
possession is present, the right is created and the prescription shall be positive.

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Prescription gives a title of right to a person because of the coincidence of possession and
ownership.

Conclusion: Possession is the most basic relation between man and things. In the words
of Salmond, “the concept of possession is as difficult to define as it is essential to
protect.” Possession is acquired whenever the two elements of corpus and animus are
existent and the loss of either of these elements will usually tend to destroy possession.
There are three known modes of acquiring possession, which are as follows
• By taking.
• By delivery.
• By operation of law.

What are possessory remedies? [6]

Introduction: Possession is the most basic relation between man and things. Possession
of material things is essential to life because the existence of human life and human
society would be rather impossible without the consumption and use of material things.
Many important legal consequences flow from the acquisition and loss of possession.
Besides being prima facie evidence of ownership, it is also one of the modes of
transferring ownership. Possession is said to be nine tenths of the law, meaning thereby
that it is evidence of ownership and he who interferes with the possession of another,
must show either title or better possessory right.

In the words of Salmond, “the concept of possession is as difficult to define as it is

essential to protect.” The word possession has many meanings, depending upon the
context in which it is used and it is therefore futile to search for a proper legal definition
of possession.

Possessory Remedies

Possessory Remedies are those legal remedies, which exist for the protection of
possession even against ownership.

In many legal systems, possession is a provisional or temporary title, even against the
true owner himself. A wrongful possessor who is deprived of his possession, can recover
it from any person whatever, simply on the ground of his possession. Even the true
owner, who retakes his own must first restore possession to the wrongdoer, and then
proceed in due course of law on the ground of ownership. Adverse possession for 12
years or more results in ownership in the eyes of law. It is therefore, sometimes, said that
possession is nine points of the law.

Why Possessory Remedies are recognized

The concept of possession is of far-reaching importance in view of the fact that legal
consequences flowing from the acquisition of loss of possession are quite grave.

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Possession often amounts to evidence of ownership. Thus, a finder of goods becomes the
owner thereof as against the whole world – except the true owner – by virtue of the fact
of possession. Likewise, by adverse possession for twelve years or more, a person
becomes the legal owner of the property possessed, and the right of the original owner is
extinguished by perfect negative prescription.

Sayigny points out that the protection of possession is of considerable advantage for
protecting citizens and their property, and for the maintenance of public peace. The
protection of possession is absolutely necessary to prevent forcible interruption and
trespasses on the right of property and possession thereof.

The following are the three main reasons for providing possessory remedies:
1. The evils of violent self-help are deemed so serious that it must be discouraged,
by taking away all advantages which anyone derives from it He who helps
himself by force must restore it, even to a thief. The law gives him a remedy, and
with it he must be content.
2. The second reason providing possessory remedies is to be found in the serious
imperfection of early proprietary remedies. In the older legal systems, it was
extremely cumbersome to prove one's ownership to recover the property on the
ground of the title. Quite often, small technicalities would defeat one's title to
property.
3. The third reason for providing possessory remedies is that it is always more
difficult to prove ownership than to prove possession. Therefore, it is considered
unjust that a man should be allowed by violence to transfer the heavy burden of
proof from his own shoulder to that of his opponent. Everyone should bear his
own burden. He who takes a thing by force must restore it to him from whom he
has taken it; let him then prove, if he can, that he is the owner.

Conclusion: Possession is the most basic relation between man and things. In the words
of Salmond, “the concept of possession is as difficult to define as it is essential to
protect.” Possessory Remedies are those legal remedies, which exist for the protection of
possession even against ownership. The law has seen it vital to recognize possessory
remedies.

Distinguish ‘mediate possession’ from ‘immediate possession’. [6]

Introduction: Possession is the most basic relation between man and things. Possession
of material things is essential to life because the existence of human life and human
society would be rather impossible without the consumption and use of material things.
Many important legal consequences flow from the acquisition and loss of possession.
Besides being prima facie evidence of ownership, it is also one of the modes of
transferring ownership. Possession is said to be nine tenths of the law, meaning thereby
that it is evidence of ownership and he who interferes with the possession of another,
must show either title or better possessory right.

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LEGAL THEORY

In the words of Salmond, “the concept of possession is as difficult to define as it is

essential to protect.” The word possession has many meanings, depending upon the
context in which it is used and it is therefore futile to search for a proper legal definition
of possession.

Kinds of Possession

Possession may be classified under four heads

• Corporeal and Incorporeal Possession
• Mediate and Immediate Possession
• Possession in law and Possession in fact
• Adverse Possession

Mediate and Immediate Possession

Mediate possession is the possession of a thing through another person. It is also known
as indirect possession. For instance, if I purchase a book through any agent or servant, I
have mediate possession so long as the book remains in my agent's or servant's
possession. Salmond points out three categories of mediate possession as follows;
• Possession acquired through an agent or servant;
• Possession held through a borrower or hirer to tenant where the res i.e., the object
can be demanded at will; and
• Where the property is lent for a fixed period of time or delivered as security for
the repayment of a debt.

It is significant to note that in case of a mediate possession two persons have the
possession of the same thing at one and the same time. The existence of a mediate
possession can be used against third persons only and not against the person who has
immediate and real possession of the thing. Therefore, mediate possession obtained by
the master, landlord, pawnee from the servant, tenant, pawner respectively can be used
against the whole world excepting those persons through whom mediate possession has
come into existence.
The three-fold categorization of mediate possession has been criticized by some writers
on the ground that in case of an agent or servant, he does not possess the thing but merely
has the custody of it. The element of animus possidendi is wanting in those cases. Again,
in case of a bailment, it is the bailee and not the bailor who can sue for interference with
the possession of the bailee because he has the actual possession and not the bailor.
Yet another reason for not accepting the theory of mediate possession is that two persons
cannot be in possession of the same thing at one and at the same time adversely to each
other. As Salmond pointed out 'exclusiveness' is the essence of possession.
Immediate possession is also known as 'direct possession'. If the relation between the
possessor and the thing possessed is a direct one, it is called immediate possession. For

PALLAVI BHOGLE
LEGAL THEORY

example, if I purchase a book myself, I have immediate possession of it without any

intervening agency. The things in possession of a master, principal and owner are said to
be in their immediate possession.
The English law does not recognize the distinction between immediate and mediate
possession because at a time one and only one person can have exclusive possession over
a thing. English law does not accept the view that the servant possesses his master's
goods; he only may have custody of it. The distinction between immediate and mediate
possession is, however, explicitly recognized under the German law.

Conclusion: Possession is the most basic relation between man and things. In the words
of Salmond, “the concept of possession is as difficult to define as it is essential to
protect.” Mediate possession is the possession of a thing through another person. It is also
known as indirect possession. Immediate possession is also known as 'direct possession'.
If the relation between the possessor and the thing possessed is a direct one, it is called
immediate possession.

PALLAVI BHOGLE
LEGAL THEORY

PERSONS
What is the legal status of a lower animal, a dead man and an unborn person?
[10]

Introduction: The main object of law is to regulate the relationship between individuals
in the society. The validity of the acts and omissions of persons is determined on the
basis of their reasonableness. All those acts, which do not adversely affect the interests of
others, are held to be lawful whereas the acts, which interfere with the rights of others,
are called unlawful. Law imposes certain duties on individuals for the protection of
interests of mankind. Therefore, rights and duties form the basis of judging the legality of
man's acts. The law imposes liability for unreasonable and unlawful acts, the enforcement
of which is ensured through legal sanctions. The law being concerned with regulating the
human conduct, the concept of legal personality constitutes an important subject matter
of jurisprudence because there cannot be rights and duties without a person.

Origin of the concept of Legal Personality

The word 'person' is derived from the Latin word ‘parsona’, which meant a mask worn
by actors playing different roles in a drama. Until sixth century the word was used to
denote the part played by a man in life. Thereafter, it began to be used in the sense of a
living being capable of having rights and duties.

Many writers have restricted the use of the term ‘personality’ to human beings alone
because it is only they who can be subject matter of rights and duties and, therefore, of
legal or juristic personality. But it must be stated that the term has a far wider connotation
in law and includes Gods, angels, idols, corporations etc. although they are not human
beings. Conversely, there may be living persons such as slaves, who were not treated as
‘person’ in law because they were not capable of having rights and duties. Likewise, in
Hindu Law an ascetic (sanyasi) who has renounced the world ceases to have any
proprietary rights and his entire estate is passed on to his heirs and successors and his
legal personality is completely lost.

Definition of 'Legal Person'

Salmond defines a ‘person’ as, “any being to whom the law regards as capable of rights
or duties. Any being that is so capable, is a person whether human being or not and
nothing that is not so capable is a person even though he be a man.”

Gray defines a ‘person’ as “entity to which rights and duties may be attributed”. Any
being that is capable of holding a right or duty, whether it be a human being or not, is
‘person’ in law. There may be a person who has duties but no rights such as ‘slaves’
when slavery was prevalent.

PALLAVI BHOGLE
LEGAL THEORY

Thus ‘persons’ in juristic terms are of two kinds, namely, natural and legal. The former
are human beings capable of rights and duties while the latter i.e. the legal persons are
beings who may be real (natural) or imaginary (artificial), in whom law vests rights and
imposes duties and thus attributes personality by way of fiction. .

A juristic person is not a human being. It may be any other subject matter; either a thing
or a mass of property or group of human beings to which law attributes personality. In
other words, juristic persons maybe defined as things, mass of property or an institution
upon whom the law confers a legal status and who in the eyes of law possess rights and
duties as a natural person.

Legal Status of Unborn Person

The law recognizes legal personality to unborn children. A child in mother’s womb is by
fiction treated as already born and regarded as person for many purposes. Thus a gift may
be made to a child who is still in the mother's womb. The Hindu law of partition requires
a share to be allotted to a child in mother's womb along with the other living heirs.
However, if the child does not take birth alive, his share may be equally partitioned
between the surviving heirs. Thus proprietary rights of an unborn child are fully
recognized by Indian law. Under the Indian Penal Code, injury to a child in womb is a
punishable offence. Doing something, which prevents or obstructs the safe delivery of a
child taking birth alive has also been considered as an offence under criminal law. Thus a
child in mother's womb is entitled for legal protection under the criminal law.

The rights conferred on unborn children are, however, contingent depending upon his
taking birth alive, when they are transformed into vested rights. The rule against
perpetuity under the Transfer of Property Act, 1882 also seeks to protect the proprietary
rights in favour of unborn persons. Its object is to protect the property for too long a
period from the possibility of alienation by their owners being unborn persons.

The recognition of legal personality of unborn persons is further confirmed by the

provision in English law that a pregnant woman sentenced to death shall be respited as of
right, until she delivers the child later, such expectant mother were sentenced to life
imprisonment instead of death under the Sentence of Death (Expectant Mothers) Act,
1931.

Significantly, Paton does not recognize a child in the mother's womb as a legal person
because he is without rights. In this view, legal personality is conferred on a child only
after he is born alive and completely separated from his mother's womb. It is, however,
submitted that this view is not tenable as most legal systems of the world have
incorporated provisions in their laws extending legal protection and safeguarding the
contingent rights of an unborn child.

PALLAVI BHOGLE
LEGAL THEORY

Legal status of Dead Man

Salmond observes that generally speaking, the personality of a human being may be said
to commence with his birth and ceases with his death. Therefore, dead men are no longer
persons in the eyes of the law. They cease to have rights since they cease to have any
interests nor do they have any duties. A dead man's corpse is not ‘property’ in the eyes of
law. It cannot be disposed of by an instrument. Earlier, it was held that a person cannot,
during his life-time, make a will disposing of any part or organ of his body but there has
been a change in trend in modern time and today it is perfectly legal to donate eyes or any
part of one's body for the progress of medical science and in the interest of humanity.
Salmond points out three things in respect of which anxieties of living men extend
beyond the period of their deaths, of which law will take notice. They are
• Men's body
• His reputation
• His estate.
Although the dead man's corpse is the property of no one but the law seeks to ensure its
decent burial or cremation. The criminal law provides that any imputation against a
deceased person, if it harms the reputation of that person if living and is intended to hurt
the feelings of his family or other near relatives, shall be an offence of defamation under
Section 499 of the Indian Penal Code.
The reputation of dead men is to some extent protected by the law: The defamation
against a dead person is no doubt punishable under the criminal law but only when it
affects the interests of his relatives and near-ones who are living. The right so protected is
in reality not that of the dead man but that of his living descendants.

It is true that dead persons are not recognized as legal persons but the testamentary
dispositions of the dead are carried out by law. A person can, by his will make a valid
trust for repairs and maintenance of the graveyard because it accounts to a charitable or
public trust but he cannot, by a direction in his will provide that certain part of his estate
shall be permanently used for the maintenance of his own grave or tomb. Such a direction
would be void and unenforceable being against the rule of perpetuity. The law of
succession permits the desires of the dead man to regulate the action of his successors.
Whatever gifted by the deceased for a charitable purpose shall be enforceable by law and
the testament (i.e., will) to that extent shall be valid.

Legal Status of Animals

Law does not recognize beasts or lower animals as persons because they are merely
things and have no natural or legal rights. Salmond regards them as mere objects of legal
rights and duties, but never the subjects of them.

Beasts being incapable of legal rights and duties, their interests are not recognized by
law. Though, legal history reveals that archaic codes contained provisions regarding

PALLAVI BHOGLE
LEGAL THEORY

punishment to animals if they were found guilty of homicide. Even under the modern law
the trespassing beast may be distrained damage feasant, and detained until its owner or
someone else interested in the beast pays compensation to the person wronged.

Sutherland, in his Principles of Criminology, has referred to an interesting trial of some

rats in 1519. They were charged and tried for ravaging the fields of a farmer. The counsel
for the defendant rats pleaded that no doubt their clients had caused severe damage to the
plaintiff but at the same time numerous holes made by their clients made the soil of the
plaintiff more fertile. The Court rejected the defence and awarded the sentence of
punishment. The Court, however, ordered that while executing the sentence, care should
be taken that the rats are duly protected from dogs, cats, owls etc. so much so that taking
a lenient view towards pregnant female rats, the Court ordered to stay the execution of
their sentence until they delivered the off-springs.

The modern law, however, holds the master liable for the wrong caused by their pets,
beasts and animals. The liability so imposed on the master does not arise out of the
principle of vicarious liability but because of his implied negligence in not keeping the
animal well within control. Likewise, a wrong done to a beast may be a wrong to its
owner or to the society of mankind, but not to the beast. The law, however, seeks to
extend protection to animals in two ways, namely,
• Cruelty to animals is an offence
• A trust for the benefit of a particular class of animals as opposed to one for
individual animal is valid and enforceable as public and charitable trust. For
example, a trust for the maintenance of a home for stray-dogs and broken-down
horses was held to be a valid and enforceable trust being charitable in nature.

It is thus clear that animals and beasts neither have rights nor duties and are, therefore,
incapable of sustaining a legal personality, As Salmond rightly suggests, the duties
towards animals are in fact duties towards the society itself. The society does have an
interest in the protection and well-being of the animals.

Conclusion: Law imposes certain duties on individuals for the protection of interests of
mankind. Therefore, rights and duties form the basis of judging the legality of man's acts.
Many writers have restricted the use of the term ‘personality’ to human beings alone
because it is only they who can be subject matter of rights and duties and, therefore, of
legal or juristic personality. But it must be stated that the term has a far wider connotation
in law and includes Gods, angels, idols, corporations etc. although they are not human
beings.

Double capacity and Double personality [10]

Introduction: The main object of law is to regulate the relationship between individuals
in the society. The validity of the acts and omissions of persons is determined on the
basis of their reasonableness. All those acts, which do not adversely affect the interests of
others, are held to be lawful whereas the acts, which interfere with the rights of others,

PALLAVI BHOGLE
LEGAL THEORY

are called unlawful. Law imposes certain duties on individuals for the protection of
interests of mankind. Therefore, rights and duties form the basis of judging the legality of
man's acts. The law imposes liability for unreasonable and unlawful acts, the enforcement
of which is ensured through legal sanctions. The law being concerned with regulating the
human conduct, the concept of legal personality constitutes an important subject matter
of jurisprudence because there cannot be rights and duties without a person.

Origin of the concept of Legal Personality

The word 'person' is derived from the Latin word ‘parsona’, which meant a mask worn
by actors playing different roles in a drama. Until sixth century the word was used to
denote the part played by a man in life. Thereafter, it began to be used in the sense of a
living being capable of having rights and duties.

Many writers have restricted the use of the term ‘personality’ to human beings alone
because it is only they who can be subject matter of rights and duties and, therefore, of
legal or juristic personality. But it must be stated that the term has a far wider connotation
in law and includes Gods, angels, idols, corporations etc. although they are not human
beings. Conversely, there may be living persons such as slaves, who were not treated as
‘person’ in law because they were not capable of having rights and duties. Likewise, in
Hindu Law an ascetic (sanyasi) who has renounced the world ceases to have any
proprietary rights and his entire estate is passed on to his heirs and successors and his
legal personality is completely lost.

Definition of 'Legal Person'

Salmond defines a ‘person’ as, “any being to whom the law regards as capable of rights
or duties. Any being that is so capable, is a person whether human being or not and
nothing that is not so capable is a person even though he be a man.”

Gray defines a ‘person’ as “entity to which rights and duties may be attributed”. Any
being that is capable of holding a right or duty, whether it be a human being or not, is
‘person’ in law. There may be a person who has duties but no rights such as ‘slaves’
when slavery was prevalent.

Thus ‘persons’ in juristic terms are of two kinds, namely, natural and legal. The former
are human beings capable of rights and duties while the latter i.e. the legal persons are
beings who may be real (natural) or imaginary (artificial), in whom law vests rights and
imposes duties and thus attributes personality by way of fiction. .

A juristic person is not a human being. It may be any other subject matter; either a thing
or a mass of property or group of human beings to which law attributes personality. In
other words, juristic persons maybe defined as things, mass of property or an institution
upon whom the law confers a legal status and who in the eyes of law possess rights and
duties as a natural person.

PALLAVI BHOGLE
LEGAL THEORY

Double Capacity distinguished from Double Personality

According to Salmond, English law recognizes many different capacities in which a
person may act. At times he has power to do an act in an official or representative
capacity, which he has no power to do in his private or individual capacity. Thus a man
may have two or more capacities but he has no power to enter into a legal transaction
with himself. Therefore, double capacity does not mean double personality. For example,
a director of a company may also be a trustee of a trust, thus he may have two distinct
capacities nevertheless his personality remains single. The English law did not recognize
double personality and, therefore, a person could not sue himself, or contract with himself
or convey property to himself in the guise of double capacity. Salmond contemplates
certain hardship on account of non-recognition of double personality in English law but
the exceptions being far and few, the rule that no one can enter into a legal transaction
with himself still subsists.

Conclusion: Law imposes certain duties on individuals for the protection of interests of
mankind. Therefore, rights and duties form the basis of judging the legality of man's acts.
According to Salmond, English law recognizes many different capacities in which a
person may act. However, double capacity does not mean double personality.

What is meant by ‘person’? Explain different kinds of legal persons. [10]

Introduction: The main object of law is to regulate the relationship between individuals
in the society. The validity of the acts and omissions of persons is determined on the
basis of their reasonableness. All those acts, which do not adversely affect the interests of
others, are held to be lawful whereas the acts, which interfere with the rights of others,
are called unlawful. Law imposes certain duties on individuals for the protection of
interests of mankind. Therefore, rights and duties form the basis of judging the legality of
man's acts. The law imposes liability for unreasonable and unlawful acts, the enforcement
of which is ensured through legal sanctions. The law being concerned with regulating the
human conduct, the concept of legal personality constitutes an important subject matter
of jurisprudence because there cannot be rights and duties without a person.

Origin of the concept of Legal Personality

The word 'person' is derived from the Latin word ‘parsona’, which meant a mask worn
by actors playing different roles in a drama. Until sixth century the word was used to
denote the part played by a man in life. Thereafter, it began to be used in the sense of a
living being capable of having rights and duties.

Many writers have restricted the use of the term ‘personality’ to human beings alone
because it is only they who can be subject matter of rights and duties and, therefore, of
legal or juristic personality. But it must be stated that the term has a far wider connotation
in law and includes Gods, angels, idols, corporations etc. although they are not human
beings. Conversely, there may be living persons such as slaves, who were not treated as

PALLAVI BHOGLE
LEGAL THEORY

‘person’ in law because they were not capable of having rights and duties. Likewise, in
Hindu Law an ascetic (sanyasi) who has renounced the world ceases to have any
proprietary rights and his entire estate is passed on to his heirs and successors and his
legal personality is completely lost.

Definition of 'Legal Person'

Salmond defines a ‘person’ as, “any being to whom the law regards as capable of rights
or duties. Any being that is so capable, is a person whether human being or not and
nothing that is not so capable is a person even though he be a man.”

Gray defines a ‘person’ as “entity to which rights and duties may be attributed”. Any
being that is capable of holding a right or duty, whether it be a human being or not, is
‘person’ in law. There may be a person who has duties but no rights such as ‘slaves’
when slavery was prevalent.

Thus ‘persons’ in juristic terms are of two kinds, namely, natural and legal. The former
are human beings capable of rights and duties while the latter i.e. the legal persons are
beings who may be real (natural) or imaginary (artificial), in whom law vests rights and
imposes duties and thus attributes personality by way of fiction. .

A juristic person is not a human being. It may be any other subject matter; either a thing
or a mass of property or group of human beings to which law attributes personality. In
other words, juristic persons maybe defined as things, mass of property or an institution
upon whom the law confers a legal status and who in the eyes of law possess rights and
duties as a natural person.

Kinds of Legal Persons

Law recognizes only two kinds of persons, namely,
• Natural persons
• Legal persons who are artificial creations of law.
A natural person is a living human being. But all living human beings need not
necessarily be recognized as persons in law, For example, before the abolition of slavery;
the slaves were considered as res and were devoid of any legal personality for they could
have no rights and duties. Again, lunatics and infants, have only a restricted legal
personality. They do not have many civil rights such as right to vote etc.

Legal person, on the other hand, is any subject matter to which the law attributes legal
personality. Legal personality being the creation of law can be conferred on entities other
than human beings. As Salmond rightly observed, “the law in creating legal persons,
always does so by personifying some real thing.” He further pointed out that although all
legal personality involves personification, the Converse is not true. For illustration, the
estate of a dead man, the jury, a Bench of Judges are all personifications but law does not
confer any legal personality on them.

PALLAVI BHOGLE
LEGAL THEORY

. .
Legal persons are artificial or imaginary beings to which law attributes personality by
way of fiction where it does not exist in fact. They are capable of rights and duties like
natural persons. Hibbert prefers to classify legal persons into three different categories:
1. Certain non-living things can be conferred legal personality by personification.
The existence of such a legal person is real but its personification is fictitious.
2. A collection of rights and duties may be vested in some real or imaginary beings
to whom personality is attributed by law.
3. Fitzgerald the learned editor of Salmond's jurisprudence writes that legal persons,
being the arbitrary creations of the law, may be of several kinds. The English law,
however, recognizes only a few kinds of legal persons which include
corporations, institutions such as trade unions and societies and associations, and
the estate or funds.

Conclusion: Law imposes certain duties on individuals for the protection of interests of
mankind. Therefore, rights and duties form the basis of judging the legality of man's acts.
Law recognizes only two kinds of persons, namely, natural persons and legal persons
who are artificial creations of law.

Explain the fiction theory of corporate personality. [10]

Introduction: The main object of law is to regulate the relationship between individuals
in the society. The validity of the acts and omissions of persons is determined on the
basis of their reasonableness. All those acts, which do not adversely affect the interests of
others, are held to be lawful whereas the acts, which interfere with the rights of others,
are called unlawful. Law imposes certain duties on individuals for the protection of
interests of mankind. Therefore, rights and duties form the basis of judging the legality of
man's acts. The law imposes liability for unreasonable and unlawful acts, the enforcement
of which is ensured through legal sanctions. The law being concerned with regulating the
human conduct, the concept of legal personality constitutes an important subject matter
of jurisprudence because there cannot be rights and duties without a person.

Origin of the concept of Legal Personality

The word 'person' is derived from the Latin word ‘parsona’, which meant a mask worn
by actors playing different roles in a drama. Until sixth century the word was used to
denote the part played by a man in life. Thereafter, it began to be used in the sense of a
living being capable of having rights and duties.

Many writers have restricted the use of the term ‘personality’ to human beings alone
because it is only they who can be subject matter of rights and duties and, therefore, of
legal or juristic personality. But it must be stated that the term has a far wider connotation
in law and includes Gods, angels, idols, corporations etc. although they are not human
beings. Conversely, there may be living persons such as slaves, who were not treated as

PALLAVI BHOGLE
LEGAL THEORY

‘person’ in law because they were not capable of having rights and duties. Likewise, in
Hindu Law an ascetic (sanyasi) who has renounced the world ceases to have any
proprietary rights and his entire estate is passed on to his heirs and successors and his
legal personality is completely lost.

Definition of 'Legal Person'

Salmond defines a ‘person’ as, “any being to whom the law regards as capable of rights
or duties. Any being that is so capable, is a person whether human being or not and
nothing that is not so capable is a person even though he be a man.”

Gray defines a ‘person’ as “entity to which rights and duties may be attributed”. Any
being that is capable of holding a right or duty, whether it be a human being or not, is
‘person’ in law. There may be a person who has duties but no rights such as ‘slaves’
when slavery was prevalent.

Thus ‘persons’ in juristic terms are of two kinds, namely, natural and legal. The former
are human beings capable of rights and duties while the latter i.e. the legal persons are
beings who may be real (natural) or imaginary (artificial), in whom law vests rights and
imposes duties and thus attributes personality by way of fiction. .

A juristic person is not a human being. It may be any other subject matter; either a thing
or a mass of property or group of human beings to which law attributes personality. In
other words, juristic persons maybe defined as things, mass of property or an institution
upon whom the law confers a legal status and who in the eyes of law possess rights and
duties as a natural person.

Corporate Personality

Corporate personality is a creation of law. Legal personality of corporation is recognized

both in English and Indian law. A corporation is an artificial person enjoying in law
capacity to have rights and duties and holding property. A corporation is distinguished by
reference to different kinds of things, which the law selects for personification. The
individuals forming the corpus of the corporation are called its members.

Juristic personality of corporations pre-supposes the existence of three conditions. Firstly,

there must be a group or body of human beings associated for a certain purpose.
Secondly, there must be organs through which the corporation functions and thirdly, the
corporation is attributed will (animus) by legal fiction. It is significant to note that a
corporation is distinct from its individual members. It has the legal personality of its own
and it can sue and be sued in its own name. It does not come to an end with the death of
its individual members and, therefore, has a perpetual existence. However, unlike natural
persons, a corporation can act only through its agents. Law provides special procedure for
the winding up of a corporate body.

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LEGAL THEORY

Besides, corporations the banks, railways, universities, colleges, church, temple, hospitals
etc. are also conferred legal personality. The Union of India and the States are also
recognized as legal or juristic persons.

In certain cases, the corpus of the legal person is some fund or estate, which is reserved
for certain special uses. For example, a trust-estate or the estate of an insolvent, a
charitable fund etc., are included within the term 'legal personality'. However, English
law requires that these estates or funds, to be recognized as legal persons, must be duly
incorporated under the existing law. The law does not believe in personification of these
estates or funds, instead, it personifies those corporate bodies, which administer the estate
or fund.

Conclusion: Corporate personality is a creation of law. . A corporation is an artificial

person enjoying in law capacity to have rights and duties and holding property. A
corporation is distinguished by reference to different kinds of things, which the law
selects for personification. The individuals forming the corpus of the corporation are
called its members.

Explain uses and purpose of Incorporation of a company. [10]

Distinguish between Corporate Sole and Corporate Aggregate. [6]

Examine legal status of un-incorporated associations. [6]

Is a company liable for a crime? [6]

Introduction: The main object of law is to regulate the relationship between individuals
in the society. The validity of the acts and omissions of persons is determined on the
basis of their reasonableness. All those acts, which do not adversely affect the interests of
others, are held to be lawful whereas the acts, which interfere with the rights of others,
are called unlawful. Law imposes certain duties on individuals for the protection of
interests of mankind. Therefore, rights and duties form the basis of judging the legality of
man's acts. The law imposes liability for unreasonable and unlawful acts, the enforcement
of which is ensured through legal sanctions. The law being concerned with regulating the
human conduct, the concept of legal personality constitutes an important subject matter
of jurisprudence because there cannot be rights and duties without a person.

Origin of the concept of Legal Personality

The word 'person' is derived from the Latin word ‘parsona’, which meant a mask worn
by actors playing different roles in a drama. Until sixth century the word was used to
denote the part played by a man in life. Thereafter, it began to be used in the sense of a
living being capable of having rights and duties.

PALLAVI BHOGLE
LEGAL THEORY

Many writers have restricted the use of the term ‘personality’ to human beings alone
because it is only they who can be subject matter of rights and duties and, therefore, of
legal or juristic personality. But it must be stated that the term has a far wider connotation
in law and includes Gods, angels, idols, corporations etc. although they are not human
beings. Conversely, there may be living persons such as slaves, who were not treated as
‘person’ in law because they were not capable of having rights and duties. Likewise, in
Hindu Law an ascetic (sanyasi) who has renounced the world ceases to have any
proprietary rights and his entire estate is passed on to his heirs and successors and his
legal personality is completely lost.

Definition of 'Legal Person'

Salmond defines a ‘person’ as, “any being to whom the law regards as capable of rights
or duties. Any being that is so capable, is a person whether human being or not and
nothing that is not so capable is a person even though he be a man.”

Gray defines a ‘person’ as “entity to which rights and duties may be attributed”. Any
being that is capable of holding a right or duty, whether it be a human being or not, is
‘person’ in law. There may be a person who has duties but no rights such as ‘slaves’
when slavery was prevalent.

Thus ‘persons’ in juristic terms are of two kinds, namely, natural and legal. The former
are human beings capable of rights and duties while the latter i.e. the legal persons are
beings who may be real (natural) or imaginary (artificial), in whom law vests rights and
imposes duties and thus attributes personality by way of fiction. .

A juristic person is not a human being. It may be any other subject matter; either a thing
or a mass of property or group of human beings to which law attributes personality. In
other words, juristic persons maybe defined as things, mass of property or an institution
upon whom the law confers a legal status and who in the eyes of law possess rights and
duties as a natural person.

Corporation
A corporation is a group or series of persons which, by a legal fiction, is regarded and
treated as a person.

Kinds of Corporation

Corporations are of two kinds: Corporations aggregate and Corporations sole.

Corporation Aggregate

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LEGAL THEORY

It is a group of co-existing persons. Corporations aggregate have several members at a

time. Examples are a registered company, consisting of all the shares and a municipal.
corporation, consisting of the inhabitants of a borough. Such a corporation, e.g., a
company, is in law something different from its members. The property of the company
is not the property of the shareholders. The debts and liabilities of the company are not
attributed in law to its members. A shareholder may enter into a contract with the
Company, for the two persons are entirely distinct from each other.

Corporation sole

A corporation sole consists of an incorporated series of successive persons. Corporation

sole has only one member at a time. Examples are the Sovereign, the Postmaster General,
the Solicitor to the Treasury, the Secretary of State for War, the Attorney-General of
India and so on.

In the case of a Corporation sole, the element of legal fiction involved is that the law
assumes that, in addition to the natural person administering for the time being the duties
and affairs of the office there is a mythical being who is, in law, the real occupant of the
office and who never dies or retires. The living official is merely an agent or
representative through whom this legal person performs, his functions. The human
official comes and goes, but this offspring of the law remains forever.

The Uses Advantages of Incorporation

By incorporation is meant a group or series of persons to be treated as a person by legal

fiction, as for instance, a company. This has the following advantages:
1. When a large number of individuals have a common interest vested in them, and
therefore, have to act in common in the management and protection of such
interest, incorporation serves a useful purpose. It would be impossible for the
large multitude of individuals probably scattered over vast distances, to act in a
concerted manner in the management of their common interest. In such,
circumstances; incorporation, by attributing a personality by legal fiction to the
multitude, enables the fictitious personality of the corporation to act promptly and
decisively in the best interests of the management and protection of the common
interest. A modern commercial venture, with the aid of the capital of large
number of people would be impossible but for the device of incorporation.
2. Independent corporate existence is one of the most important advantages of
incorporation. Unlike a partnership, which has no existence apart from its
partners, a company is a distinct legal person in the eyes of law. By incorporation,
a company is vested with, a distinct corporate personality, which is distinct from
the members who compose it.
3. Similarly, if a series of persons, not all existing at the same time, but having
successive existence one after the other, have a common interest, and if there need
be the continuity of management and protection of interest, incorporation
becomes a useful device. Perpetual succession is thus another advantage of

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incorporation. Members may come and members may go, but the Company goes
on forever.
4. Another advantage of incorporation is that this device is used to enable traders to
trade with limited liability; but for incorporation those who participate in a
commercial adventure would be personally liable to an unlimited extent. In
modern times, where people invest their money, without me being able to exercise
effective control and management over the commercial adventures, the risk they
would be assuming would be enormous. The device of incorporation enables them
to invest their money in commercial adventure without taking any risk greater
than the investment they have made.

Yet another advantage is that a company, being a legal person, is capable of owning,
enjoying and disposing at property in its own name. The shareholders are not the private
and joint owners of the company's property. Thus, incorporation helps the property of the
company to be clearly distinguished from the property of its members (shareholders). In a
partnership, on the other hand, the distinction between the joint property of the firm and
the private property of its partners is often not so clear and distinct.

The freely transferable nature of the shares of a company is yet another advantage of
incorporation. A shareholder (except a shareholder in a private company) can freely sell
his shares in the market and get back his investment without going to the company to
withdraw his money.

Lastly, a body corporate can sue, and be sued, in its own name.

Acts and liabilities of a Corporation

A legal person is incapable of conferring authority upon an agent to act on its behalf. The
authority of the agents and representatives of a corporation is therefore conferred, limited
and determined, not by the consent of the principal, but by the law itself. It is the law that
determines who shall act for a corporation and within what limits his activity must be
confined.

A corporation cannot be sued, unless

• The act done was within the scope of the agent employed by it;. and
• The act done was within the purpose of the incorporation.
The same principles, which govern the vicarious liability of a principal for the torts of his
agents, or of a master for torts of his servants, govern the liability of a corporation for the
torts of its agents and officials. But a corporation can sue and be sued, for (i)
defamation, (ii) deceit, and (iii) malicious prosecution. When the suit is against the
corporation for any of these torts, the plaintiff, in addition to the necessary ingredients,
must prove that the servant or agent was acting in the course of the employment and the
act complained of was done by him in the course of the employment, and for the benefit

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of the corporation and within the scope of his authority. If the act is ultra vires, the
corporation is not liable.

A corporation cannot maintain an action for personal wrongs, for by their very nature,
such injuries cannot be inflicted on a corporation.

A corporation may sue for a libel or any other wrong affecting property or business. It
cannot maintain an action for a personal wrong, e.g., libel charging the corporation with
corruption, for it is only individuals and not the corporation in its corporate capacity, who
can be guilty of such an offence.
A corporation is liable for torts committed by its agents or servants to the same extent as
a principal is liable for the torts of his agent or an employer for the torts of his servant,
provided the tort is committed in the course of doing an act which is within the scope of
the powers of the corporation. It may thus be liable for assault, false imprisonment,
trespass, conversion, libel or negligence.

It was thought at one time that a corporation could not be held liable for wrongs
involving malice or fraud, on the ground that to support an action for such a wrong, it
must be shown that the wrongdoer was actuated by a motive in his mind and that a
corporation has no mind. But it is now settled that a corporation is liable for wrongs even
of malice and fraud. A corporation, therefore, may be sued for malicious prosecution or
for deceit.

A corporation, however, will not be liable if the act of its servants is not authorized by the
articles of its incorporation.

Unincorporated associations

An unincorporated association of persons has no legal entity and cannot sue or

be sued as such. Thus no action will lie against a trade union, whether of workmen or
masters, or against any members or officials thereof on behalf of any trade union or its
members as a body, in respect of any tortious act alleged to have been committed by or
on behalf of the trade union in any Court. The provision confers immunity on Trade
Unions in respect of any tort, whether connected with trade dispute or not, but the
individual tortfeasors remain personally liable. It is to be noted, however, that immunity
does not extend to any act done in contemplation or furtherance of any illegal strike or
lockout.
Conclusion: A corporation is a group or series of persons which, by a legal fiction, is
regarded and treated as a person.

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TITLES

Title [10]

Vestitive Facts [10]

State the various types of vestitive facts. [10]

Introduction: Every right in its widest sense includes privileges, powers and immunities
and involves a 'title' or source from which it is derived. As Salmond rightly pointed out,
‘title’ is the de facto antecedent, of which the right is the de jure consequent. The law
confers a right upon a person because of certain facts which are true of him but not as
regards other persons. These facts are the title of that right. There are certain rights,
which a person acquires by birth, namely, right to life, liberty, reputation etc. whereas
there are others, which the man acquires for himself e.g., by contract, judgment of the
court or other transaction. Thus a right may either be vested in a person or he might
derive it from some other source. In either case, there must be some basis of fact from
which it emanates or takes its roots.

Definition and Nature of Title

The term 'title' has originated from the Roman word titulus, which was called 'Titre' in
the French law. Salmond holds that title is the fifth element of a legal right. He says 'title'
is a source the product of which is a 'legal right'. However, Holland does not accept title
as an element of right. He opines that title is that source from which a right originates. To
quote him, "A fact giving rise to a right has long been described as title, but no such well
worn equivalent can be found for a fact through which a right is transferred or for one by
which a right is extinguished."

Austin contends that title is not the right itself but it is merely an element of right.
According to him, title connotes the existence of an investitive fact while right indicates
power or capacity conferred on a person and is founded in title.

From the above, it may be inferred that a title means a set of facts or events by reason of
which a right has become the subject-matter of ownership.

Classification of Titles

As already seen, titles are also called investitive facts as a consequence of which a right
becomes vested in the owner. It is, therefore, necessary to define a fact. The term 'fact'
means and includes:
1. Anything, state of things or relation of things capable of being perceived by
senses;

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2. Any mental condition of which a person is conscious

Thus it would be seen that a fact means a completed change in the order of things. It may
be physical or it may be psychological. For example, sale of a house or purchase of a
book is a physical fact. The psychological fact refers to a mental condition e. g. intention
to commit a theft or intention of the debtor not to pay the debt of the creditor are
psychological facts.

Facts may further be sub-divided into acts and events. The former being the movements
of the will and the latter involuntary happenings of the world. For instance, when a
person demolishes a building, it is an act, but when the building falls due to an
earthquake, it is an event. Thus events may be said to be modifications in the material
order of things without human intervention or alternatively, acts of individuals other than
that of the person whose rights are involved.

Facts establishing title may be of three kinds:

• Vestitive
• Investitive
• Divestitive.

Vestitive Facts

Vestitive facts of titles are those, which have relation to right. They relate to the creation,
extinction and transfer of right. For example, if I give my book to you, my right in the
book is divested to you, that is, my right is destroyed and yours is created. These two are,
therefore, vestitive facts.

Investitive Facts

Investitive facts are otherwise called as titles as a result of which a right comes to be
vested in its owner. These may either be original or derivative titles.

'Original' titles create new rights, whereas ‘derivative’ titles transfer an already existing
right from one owner to a new owner. The catching of a fish is an original title of the
right of ownership in the fish, for that did not so far exist in anyone. But, the purchase of
fish is a derivative title, because it is the transfer of an old right and not the creation of a
new right.

Divestitive Facts

Divestitive facts may either be extinctive or alienative facts, that is, they may either
destroy rights or alienate them by transfer.

'Extinctive facts' are those, which divest a right by extinguishing or destroying the right
itself e.g. the repayment of a debt. It divests the creditor of his right to the debt by

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extinguishing the debt itself. Similarly divorce is a divestitive fact, which destroys the
conjugal rights.

'Alienative facts', on the other hand, divest a right by alienating or transferring it to some
other person e.g. sale, gift etc. An assignment of a debt divests the creditor of his right
thereto by transferring it form creditor to his assignee.

According to Salmond, divestitive titles and alienative facts denote the same thing
viewed from two different standpoints. The transfer of a right involves the investiture of a
right in the transferee and a divestiture of the right from the transferor. Hence what is a
derivative title in the transferee is an alienative fact with the transferor. Purchase is a
derivative title, and sale is an alienative fact.

It is thus evident that vestitive facts create, extinguish and transfer a right while
investitive titles (facts) create rights and divestitive facts destroy them.

A right which had no previous existence and has been created de novo confers an original
title e.g. writing a new book or invention of a new design or machine confers original title
to copyright or patent right as the case may be.

It must be stated that in case of a transfer of a right the same facts are derivative,
investitive as also alienative. The essence of vestitive facts or titles is that they either
create or extinguish or transfer a right from one person to another.

Conclusion: The law confers a right upon a person because of certain facts which are
true of him but not as regards other persons. These facts are the title of that right.
Vestitive facts create, extinguish and transfer a right while investitive titles (facts) create
rights and divestitive facts destroy them.

Distinguish between ‘acts in law’ and ‘acts of the law’. [6]

Introduction: Every right in its widest sense includes privileges, powers and immunities
and involves a 'title' or source from which it is derived. As Salmond rightly pointed out,
‘title’ is the de facto antecedent, of which the right is the de jure consequent. The law
confers a right upon a person because of certain facts which are true of him but not as
regards other persons. These facts are the title of that right. There are certain rights,
which a person acquires by birth, namely, right to life, liberty, reputation etc. whereas
there are others, which the man acquires for himself e.g., by contract, judgment of the
court or other transaction. Thus a right may either be vested in a person or he might
derive it from some other source. In either case, there must be some basis of fact from
which it emanates or takes its roots.

Definition and Nature of Title

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LEGAL THEORY

The term 'title' has originated from the Roman word titulus, which was called 'Titre' in
the French law. Salmond holds that title is the fifth element of a legal right. He says 'title'
is a source the product of which is a 'legal right'. However, Holland does not accept title
as an element of right. He opines that title is that source from which a right originates. To
quote him, "A fact giving rise to a right has long been described as title, but no such well
worn equivalent can be found for a fact through which a right is transferred or for one by
which a right is extinguished."

Austin contends that title is not the right itself but it is merely an element of right.
According to him, title connotes the existence of an investitive fact while right indicates
power or capacity conferred on a person and is founded in title.

From the above, it may be inferred that a title means a set of facts or events by reason of
which a right has become the subject-matter of ownership.

Acts in the Law

Acts in the law are voluntary facts of the parties, which create, transfer or extinguish
rights. They are motivated by express will of the parties.

Acts in the law are of two kinds, which may be distinguished, as unilateral and bilateral.

The unilateral act of the law is one in which there is only one party whose will is
effective e.g. a testamentary disposition, the exercise of a power of appointment, the
avoidance of a voidable contract, breach of convenant, forfeiture of a lease etc. A
bilateral act, on the other hand, involves the consenting will of two or more distinct
persons, as for example, a contract, a mortgage, a lease. The acts in the law are referred to
as juristic acts by some writers.

It must, however, be pointed out that at times the same act in law may be unilateral with
regard to some parties and bilateral with, regard to others. For instance, where A entrusts
property to B in trust for C, the conveyance is bilateral so far as A and B are concerned
but it is unilateral as regards C. It is quite possible that C may even not have the
knowledge of the conveyance and the creation of the trust.

Acts of the Law

Acts in the law may, however, be distinguished from acts of the law. An act of the law is
the creation, extinction or transfer of a right by the operation of law itself, independent of
any consent thereto on the part of the person concerned. For example, by devolution of
the property of a person dying intestate or a decree of insolvency by a competent court
against a person. Thus it would be seen that all voluntary acts of parties are 'acts in the
law' and involuntary acts are 'acts of the law'.

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Conclusion: The law confers a right upon a person because of certain facts which are
true of him but not as regards other persons. These facts are the title of that right. All
voluntary acts of parties are 'acts in the law' and involuntary acts are 'acts of the law'.

What are the causes invalidating the agreements? [10]

Introduction: Bilateral acts in the law are called agreements in the wide and generic
sense of that term. They create rights in personam by way of consent. Agreements are
synonymous with contracts in a specific legal sense. In other words, an agreement is a
much wider term than a contract. Therefore, all contracts are agreements but all
agreements are not contracts. An agreement becomes a contract when there are
competent parties consideration, free consent and legal object. According to Anson, a
contract is that form of agreement, which directly contemplates and creates an obligation.
In every civilized society great importance is attached to agreements which are bilateral
vestitive acts in the law, because they are evidence of right and Justice and parties adjust
their rights and liabilities by their mutual consent. Salmond attributes three main reasons
for the importance of agreements in law:
1. A great majority of rights and duties have their origin in agreements made by
mutual consent of the parties.
2. An agreement is the evidence of right and is also constitutive of it. When persons
have agreed to a deal by mutual consent, law may safely presume that justice has
been done and that the interests of the parties concerned are satisfied.
3. Agreements being constitutive of rights in most cases, they guarantee to men the
fulfillment of their reasonable expectations.

Void Agreement

A void agreement is one, which is totally devoid of any legal effect. It has no legal
existence whatsoever and, therefore, ceases to be enforceable by law. For example, a loan
given to married woman to procure a divorce and marry the plaintiff cannot be recovered
and enforced by law because of the immorality of the object in the agreement.
The following agreements are held to be void agreements:
1. Agreements made by incompetent persons such as minors, lunatics etc.
2. Agreements made under a mutual mistake as to the existence of a fact relevant to
the agreement.
3. Agreements of which object or consideration is unlawful.
4. Agreements without consideration.
5. Agreements in restraint of marriage.
6. Agreements in restraint of trade.
7. Agreements in restraint of legal proceedings.
8. Wagering agreements.
9. Agreements contingent on impossible events.
10. Agreements to do impossible acts.
11. Agreements against public policy, morality, etc.

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Voidable Contracts

A voidable contracts is 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. It is valid as long
as it is not rescinded by the party entitled to do so. When consent to an agreement is
caused by coercion, fraud, misrepresentation, the agreement is voidable at the option of
those whose consent was so caused.

Invalidity of Agreements

Void and voidable agreements may be classed together as invalid agreements. The most
important causes of invalidity of agreements are:
• Incapacity
• Informality
• Illegality
• Error or Mistake
• Coercion
• Want of consideration

Incapacity

Law requires that only persons who are competent to enter into a contract can create
enforceable obligations. This means that under the law certain persons are not competent
to enter into contracts such as minors, lunatics etc. Therefore, the agreements by them are
void and invalid.

Informality

There are certain transactions and agreements which require certain formalities to be
fulfilled to give them validity under the law. For instance, a sale of immovable property
of the value of Rs. 100/- or more must be in writing. Many transactions are not treated as
valid unless they are registered and duly attested by the witnesses. Non-compliance of
these formalities shall render the agreement invalid.

The object of prescribing certain formalities for certain types of agreements is to ensure
permanence, certainty and publicity to important specified transactions and at the same
time to procure sufficient evidence as to the intention of the parties.

Illegality

Although the law permits considerable freedom to persons to enter into voluntary
agreements, still certain restrictions are imposed on parties to safeguard their own
interests and also the interests of public in general. Thus, parties have no freedom to enter
into agreements, which are prohibited or declared unlawful by the State law. For
example, an agreement to commit an offence shall be invalid and liable to be punished as

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conspiracy. Agreements which are against public policy are also prohibited by law. This
is expressed by the maxim privatorum conventio juri publico non derogat which means
that no one can enter into an agreement which is against public policy.

Error or Mistake

Agreements entered into under an error or mistake of fact are void. Mistake for this
purpose may be of two kinds, namely, (i) essential mistake, and (ii) unessential mistake.
Essential error is that which is of such a nature as to prevent the existence of any real
consent, and, therefore, of any real agreement. Such an error would render the agreement
completely void because there is no existence of an agreement in reality. For example, if
A agrees to sell land to B, but A is thinking of one piece of land, and B is thinking of
another, there is an essential error in this agreement, hence it is wholly void. In this case,
in reality there is no agreement at all, but it only has an external semblance of an
agreement.

There is, however, an exception to this rule when the error is due to negligence of one of
the partie & and is unknown to the other. In such a case the party who is at fault shall be
estopped by its own carelessness from raising the defence of essential error and shall be
bound by the agreement in the sense in which the other party understood it.

As regards unessential error, it does not vitally affect the nature and contents of the
agreement but only some external circumstances serve to induce a person to give his
consent. Unessential error does not make an agreement invalid. For example, if A agrees
to buy B 's horse because he believes it to be sound, whereas in fact it is unsound, there is
no essential error (error in substantia) and hence the agreement is not invalid.

The general rule, therefore, is that an unessential error has no effect on the validity of an
agreement. The rule is, however, subject to an exception when unessential error would
make the agreement voidable at the option of the mistaken party, if it has been caused by
the misrepresentation of the other party.

Coercion

For the validity of an agreement, the consent of the parties should be free and voluntary.
An agreement becomes invalid if the consent of any of the parties is obtained by means
of compulsion, undue influence or coercion. Where the consent is the product of any
form of coercion or undue influence, the agreement will be voidable at the option of the
party whose consent was so obtained.

Want of Consideration

Consideration is an essential element of a valid contract. It is the cause of a promise. A

contract without consideration is void. There are, however, three exceptions to this
general rule, namely,
1. A past-consideration is a good consideration in the Indian law

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2. Where a contract made in writing and signed relates to a time-barred debt

3. Where the contract is made on account of love or affection between parties
standing in the near relation to each other.

A consideration, in its widest sense, is the reason, motive or inducement by which a man
is moved to bind himself by an agreement.

It is, however, not necessary that consideration should be adequate to the promise. It is
enough if it has some value in law.

Conclusion: A void agreement is one, which is totally devoid of any legal effect. A
voidable contracts is 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. The reasons for
invalidity of agreements have been discussed.

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LEGAL THEORY

LIABILITY
Explain what is meant by an intentional wrong. [10]

What are the two classes of wrongful acts? [6]

Introduction: An act is not capable of being defined in exact terms. It denotes only such
physical facts, which follow immediately upon the determination of will to effect them.
Salmond defines act as “any event which is subject to the control of human will”. From
legal point of view, an act does not necessarily mean a bodily movement or a muscular
contraction alone, but it must be accompanied by the consequences to the attainment of
which the original act is directed or aimed at. For example, a man will not be held liable
for gales, thunderstorms and other natural calamities, which are beyond human control.
Nor shall a man be liable for his thoughts and intentions alone unless they are actually
transformed into an act.

Austin suggests that an act is a bodily movement caused by the determination of will
which produces an effect and result in certain consequences. He considers antecedent
wishes are human volitions and the bodily movements are acts.

It is true that both Salmond and Austin agree that an act follows a determination of the
human will but Salmond does not limit the term to the muscular movement alone. In his
view, bodily movement is only one constituent of an act, the other two being the
circumstances accompanying the bodily movement and the consequences following it.
Thus, act consists of three distinct elements, namely
• Its origin in some bodily or mental activity
• Its circumstances
• Its consequences.

For example, the act of shooting involves all these three elements i.e., there is physical
act, secondly the revolver being loaded and person shot being within its range constitute
the circumstances.

Wrongful Acts

Every wrong, is an act which is mischievous in the eyes of law, that is, an act to which
the law attributes harmful consequences. These consequences may be of two kinds,
namely, (1) actual, or (2) anticipated. Thus, there are acts which actually result in harmful
consequences while there are others which may not lead to harmful consequences but
which are nevertheless regarded as mischievous under the law. In other words, wrongful
acts from the point of view of their consequences, can be classified under the following
two categories:
1. Those acts which are actionable without the proof of actual damages, e.g.,
trespass, libel etc., which are actionable per se.

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2. Those acts, which are not actionable without the proof of actual damages e.g.
malicious prosecution, deceit, breach of contract etc. The loss, if any, incurred in
these cases may, however, be relevant to decide the quantum of damages.

Criminal liability usually arises on proving the act was dangerous or mischievous even
though it did not cause any harm. This is the reason why an unsuccessful attempt is also a
ground for criminal liability like a completed offence. Thus dangerous and rash driving or
riding is an offence punishable under the law though no harm is caused.

As to the civil liability, no corresponding general principles like that of penal liability,
can be laid down. In some civil cases proof of actual damages is insisted upon while in
others there is no such necessity. As stated earlier, in case of or aimed at. Fosibility,
persons are judged by their acts and by their mischievous tendencies but so far civil
liability is concerned they are often judged by the actual event.

The essence of civil liability is contained in two latin maxims, namely, (1) Damnum sine
injuria and (2) Injuria sine damno.

Damnum Sine Injuria

All wrongs are mischievous in the eyes of law but the converse is not true. There may be
cases in which damage is caused knowingly and willfully but the law will not hold the
wrongdoer accountable for it. The law ignores the harm of this nature because no legal
injury is caused. Such cases are covered under the maxim damnum sine injuria. The word
'injury' signifies an act contrary to law or violation of a legal right.

According to Salmond, the cases covered under the maxim damnum sine injuria can be
grouped in two categories, as under:
1. Cases in which there is an injury to an individual but the society as a whole is
benefited, therefore, such acts are not actionable. For example, competition in
trade might result into harm to some traders but the society in general is benefited
by it. Therefore, harm caused thereby is not 'injury' and hence it does not incur
civil liability.
2. The second category of cases falling under the maxim damnum sine injuria
includes all those cases in which the harm caused is so insignificant or trivial in
nature or so difficult to prove that any attempt to prevent them shall make the
remedy worse than the disease.

Injuria sine damno

The maxim is just the converse of the earlier maxim damnum sine injuria. There are
certain acts, which though not harmful, are actionable. In other words, an injury without
damages incurs civil liability. The case of Ashby v. White, is an illustration on the point.
In this case, the plaintiff was wrongfully prevented from exercising his right to vote by

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the defendant returning officers in a Parliamentary election. The candidate for whom the
plaintiff wanted to cast his vote come out successful in the election, still the plaintiff
could recover damages against the defendants for maliciously preventing him from
exercising his statutory right of voting in the elections. Lord Hott, C.J. observed that there
was the infringement of a legal right vested in the plaintiff hence the defendants were
liable. Since no actual damages were caused, the Court awarded £ 1 by way of
recognition of plaintiff's legal right.

Conclusion: Every wrong, is an act which is mischievous in the eyes of law, that is, an
act to which the law attributes harmful consequences. In other words, wrongful acts from
the point of view of their consequences, can be classified under the following two
categories:
1. Those acts which are actionable without the proof of actual damages, e.g.,
trespass, libel etc., which are actionable per se.
2. Those acts, which are not actionable without the proof of actual damages e.g.
malicious prosecution, deceit, breach of contract etc. The loss, if any, incurred in
these cases may, however, be relevant to decide the quantum of damages.

Critically examine ‘Causation’. [10]

Introduction: An act is not capable of being defined in exact terms. It denotes only such
physical facts, which follow immediately upon the determination of will to effect them.
Salmond defines act as “any event which is subject to the control of human will”. From
legal point of view, an act does not necessarily mean a bodily movement or a muscular
contraction alone, but it must be accompanied by the consequences to the attainment of
which the original act is directed or aimed at. For example, a man will not be held liable
for gales, thunderstorms and other natural calamities, which are beyond human control.
Nor shall a man be liable for his thoughts and intentions alone unless they are actually
transformed into an act.

Austin suggests that an act is a bodily movement caused by the determination of will
which produces an effect and result in certain consequences. He considers antecedent
wishes are human volitions and the bodily movements are acts.

It is true that both Salmond and Austin agree that an act follows a determination of the
human will but Salmond does not limit the term to the muscular movement alone. In his
view, bodily movement is only one constituent of an act, the other two being the
circumstances accompanying the bodily movement and the consequences following it.
Thus, act consists of three distinct elements, namely
• Its origin in some bodily or mental activity
• Its circumstances
• Its consequences.

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For example, the act of shooting involves all these three elements i.e., there is physical
act, secondly the revolver being loaded and person shot being within its range constitute
the circumstances.

Causation

In law, a man is held liable either for doing acts, which are mischievous, or for causing
actual injury to the plaintiff. Causation, therefore, is an important concept for determining
liability in law. In fact, before deciding the question of liability the question of causation
should be decided first. Thus, if A is to be held responsible for burning B’s house, he
must first be shown to have caused it. Causation, therefore, is an important factor to
determine liability whether it is of a criminal or civil nature. The causation broadly
involves two types of occurrences, namely, (i) abnormal factors; and (ii) human acts.
Thus in the above illustration where a house has been burnt down, presence of
inflammable gas, ignition, an electric short-circuit etc. may be abnormal circumstances
causing fire or it may have been deliberately caused by some person. Once either of these
factors is found present, it is easy to know the causation and attribute responsibility.

An act may have been caused due to a chain of causation involving several factors. It is
the established principle of law that a man is, not held liable for his act if the chain of
causation is broken or interfered with. This is contained in the maxim novus actus
interveniens. Salmond explains the maxim through an illustration. He says, "if A stabs B
and B is taken to hospital where, despite the fact that he is shown to be allergic to
terramycin, is injected with a large dose of it, then his treatment and not the stab wound
would be treated as a cause of B's death because the treatment which was abnormal,
broke the causal connection between the wound by the accused and the victim's death."

Conclusion: In law, a man is held liable either for doing acts, which are mischievous, or
for causing actual injury to the plaintiff. Causation, therefore, is an important concept for
determining liability in law. The causation broadly involves two types of occurrences,
namely, (i) abnormal factors; and (ii) human acts.

What is Malice? [10]

Introduction: The word ‘malice’ is used in two different senses:

1. In its ordinary sense, it means ill will, spite, hatred or evil motive. Such malice is
called express malice or actual malice or malice in act.
2. Legal malice or malice in law means a wrongful act done intentionally without
just cause or excuse.

Malice in Fact (Express malice)

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Except in cases of torts of

• Malicious prosecution,
• Defamation on a privileged occasion,
• Injurious falsehood,
• Conspiracy
Malice in fact is irrelevant. A lawful act does not become unlawful merely because it is
done with a bad motive or malice; nor is a good motive justification for an act, which is
otherwise illegal. Where a man has a right to do an act, if is not possible to make his
exercise of such right actionable, by alleging or proving that his motive in the exercise
was spite or malice in the popular sense.

It is only in the four cases mentioned above that the Court will accept proof of actual
malice. These cases apart, malice, as the term used in common parlance, is irrelevant in
the Law of Torts.

In Mayor of Bradford v. Pickels, the defendant sank a well on his land, and thereby cut
off the underground water from his neighbour, the plaintiff. The plaintiff's well, in
consequence, was dried up. In a suit by the plaintiff, it was held that the defendant was
not liable, however, improper and malicious his motive might be. It is not unlawful for
landowner to dig a well on his own ground, thus drying up his neighbour's, even though
his motive in so doing was not to benefit himself but to injure his neighbour. A malicious
motive per se does not amount to an injuria or legal wrong.

Malice in Law (Implied malice)

As stated above, malice in law (also called implied malice) means a wrongful act done
intentionally without just cause or excuse. Such malice is implied in every case where a
person has inflicted injury upon another in contravention of the law without just cause or
excuse. A man may therefore be guilty of malice in law, even though he acts ignorantly
or even with a good motive.

In Quina v. Leathem, ‘A’ without a just cause or excuse induced B’s workmen to
discontinue their work in breach of their contract with B. A did this prompted by a good
motive to do both good to both B and B’s workmen. It was held that nonetheless A was
liable, inasmuch as the procurement of a breach of contract without just cause was a tort
and, as such, actionable.

Conclusion: Legal malice or malice in law means a wrongful act done intentionally
without just cause or excuse. Malice in law must be differentiated from malice in fact.

Jus Necessitatis [10]

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Introduction: Neceessitatis non habet legem i.e. necessity knows no law. The meaning
of this maxim is that if an act is done under dire necessity, in circumstances where no fear
of punishment would deter the person from so acting, he should not be punished severely.
On the contrary where circumstances so warrant, he ought not to be punished at all. In
such cases, the law might take into consideration not the immediate intent, but the ulterior
intent, i.e. the motive with which such act was committed.

Another argument in favour of recognizing this defence to crime is that punishment has a
deterrent effect when the wrongdoer has a choice. If the wrong doer has been under the
compelling influence of a motive, which is of such exceeding strength that it overcomes
any fear that can be inspired by deterrent punishment, then punishment might be futile.
Where threats are necessarily ineffective, they should not be made. If such threats are
given effect to, it would be infliction of fruitless and uncompensated evil. Hobbes
observed that, “If a man, by the terror of the person's death, be compelled to act against
the law, he is totally excused because no law can oblige a man to abandon his own
preservation”.

For example, where two shipwrecked persons are clinging to a plank, which cannot bear
the weight of both of them, if one of them pushes the other off the plank, to save himself
from drowning, the question would be whether the person who pushed the other would be
justified in doing so; though he intentionally put the other man away, would the motive of
self-preservation absolve the wrong doer from penal liability? Following a strict
application of the doctrine of Jus Necessitatis, the person would not be liable.

Limitations of the Doctrine

However, in its practical application, this doctrine may not minimize difficulties if the
motive of temptation, compelling or otherwise, could be a defence to a crime. It is almost
a common fact that all crimes have tempting motives behind them. The fear of
punishment is necessary precisely to counteract the motive of temptation. Does one argue
that when the temptation is greatest, and when the fear of law has to be equally great,
then the laws should withdraw and yield to temptation? Therefore, English criminal law,
as well as the Indian Penal Code, does not accept this doctrine as well as the doctrine of
self-preservation, which could absolve a person of a serious crime like murder.

For example, in Dudley and Stephens, it was held that if a man kills another person with
the object of surviving by eating his flesh when the alternative was certain death by
starvation, he could not be absolved of the guilt of murder on the basis of Jus
Necessitatis. Probably English Law would consider it only as a mitigating circumstance
in assessing the measures of liability. For that matter, in the above case, though the Court
convicted the accused of murder and sentenced him to death, pardon was recommended
and granted. But, in principle, in English criminal jurisprudence, Jus Necessitatis, though
relevant for assessing the measure of liability, would not be a ground for for releasing a
person from all penal liability.

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In the leading English case on the subject, Dudley & Stephens, three shipwrecked sailors
in a boat were without food for seven days, and two of them killed the third, a boy, and
fed on his flesh, under such circumstances that there appeared to the accused every
probability that unless they fed upon the boy or themselves, they would die of starvation.
In the circumstances, the Court held that they were guilty of murder.

But take a case like this, A and B swimming in the sea after a shipwreck got hold of a
plank not large enough to support both; A pushes off B, who is drowned. This, in the
opinion of Sir James Stephens, is not a crime, as A thereby does B no direct bodily harm,
but leaves him to his chance of finding another plank.

Conclusion: It is generally said that an act, which is intentionally done might not be
wrongful if it is done under compulsion of dire necessity. The proverb ‘necessity knows
no law’ fully justifies this contention.

Explain the concept of negligence. [10]

Analyze theories of negligence. [6]

Distinguish between Negligence and Accident [6]

Explain the concept of ‘Standard of care’ in negligence. [6]

Introduction: Negligence essentially consists in the mental attitude of undue indifference

with respect to one's conduct and its consequences.

The term ‘negligence’ has been defined by Baron Alderson as the omission to do
something, which a reasonable man, guided upon those considerations, which ordinarily
regulate the conduct of human affairs, would do, or doing something, which a prudent
and reasonable man would not do. In other words negligence may exist in nonfeasance or
misfeasance.

In all cases of negligence, one can trace a duty to take care, and a breach of such a duty.
Such a duty may exist as a general duty under the law, or as, a special duty under a
contract between two or more persons. Thus, the concepts of negligence and duty are co-
relative. Negligence arises only when there exists a corresponding duty to take care.

Austin defines negligence thus, “In cases of negligence, the party performs not an act to
which he obliged, he breaks a positive duty”. Actionable negligence consists in the
neglect of the use of the ordinary care or skill towards a person to whom the defendant
owes the duty of observing ordinary care and skill, by which neglect the plaintiff has
suffered injury to his person or property.

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It is the duty of a man not to do that, which will injure the house of another to which he is
near. If a man is driving on Salisbury plain, and no other person is near him, he is at
liberty to drive as fast and as he pleases. But if he sees another carriage coming near to
him, immediately a duty arises not to drive in such a way as is likely to cause an injury to
that other carriage.

Standard or Degree of Care

The standard by which one has to determine whether a person has been guilty of
negligence is, the conduct of a prudent man in the particular situation. The prudent man is
the man who has acquired the skill to do the act under which he undertakes. If a man has
not acquired the skill to do a particular act he undertakes, then he is imprudent, however
careful he may be and however great his skill may be in other things.

The degree of care, which a man is required to use in a particular situation, varies with
the obviousness of the risk. If the danger of doing injury to the property of another by the
pursuance of a certain line of conduct is great, more care is necessary. If the danger is
slight, only a slight amount of care is required. Thus, a person who professes to have
special skill or who has voluntarily undertaken a higher degree of duty is bound to
exercise more care than a prudent man.

Theories of Negligence

Two theories of negligence are advocated by jurists:

• The Subjective theory
• The Objective theory

Subjective theory

According to Salmond, “Negligence essentially consists in the mental attitude of undue

indifference with respect to one’s conduct and its consequences.” This is called
subjective theory of negligence and according to this theory; negligence is a state of
mind.

Objective Theory

According to the other theory, which has been advocated by Pollock, "Negligence is the
contrary of diligence, and no one describes it as the state of mind". According to this
theory, negligence is not a particular state of mind or a form of mens rea at all, but a
particular standard of conduct. It is a breach of duty of not taking care, and to take care
means to take precautions against the harmful results of one's action and to refrain from
unreasonably dangerous kinds of act. To drive at night without lights is negligence,
because having lights is the conduct of precaution adopted by all prudent men. He who
drives without lights in the night has failed in that conduct. Likewise, an inefficient
surgeon, however careful he may be subjectively, is negligent, if he does not attain a

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reasonable standard of conduct required in his profession. To ascertain whether he is

negligent or not, one does not go to the state of his mind, but to the standard of his
conduct. Similarly, when a railway employee sleeps, and thereby becomes responsible for
an accident, he has failed to perform a particular standard of conduct. When he is
sleeping, he has no state of mind that can be associated with the accident.

Thus, according to this school of thought, negligence is objective. It is to be found in the

standard of the conduct, and not in the state of the mind.

Reconciliation of the two theories

Glanville Williams, the former Editor of Salmond's work, thinks that these two theories
are not irreconcilable; rather, they are two aspects of the same problem. According to
Glanville Williams, negligence might be subjective when a particular consequence is to
be distinguished from the intended consequence or the negligent consequence. In this
case, the relevant question is whether the wrongdoer intended the consequence, or he was
just indifferent to the consequence. On the other hand, when it is to be ascertained
whether the consequence is accidental or negligent, then the relevant question is whether
the wrongdoer exhibited the standard conduct or whether he failed to do so. If he
exhibited standard diligence, then the consequence is accidental; otherwise it is negligent.
Thus, according to him, negligence can be both subjective and objective.

Conclusion: The term ‘negligence’ has been defined by Baron Alderson as the omission
to do something, which a reasonable man, guided upon those considerations, which
ordinarily regulate the conduct of human affairs, would do, or doing something, which a
prudent and reasonable man would not do. In all cases of negligence, one can trace a duty
to take care, and a breach of such a duty.

Discuss the theory of strict liability. [10]

Introduction: Generally a man is held liable for his negligence, which results into harm
or violation of rights of others. But there are certain exceptions to this general principle of
liability. Such cases are those where a person is held liable for his act even though he did
not do it intentionally or negligently. In other words, he is held liable irrespective of
negligence or carefulness. These cases are covered under the rule of 'Strict liability',
which is also known as absolute liability.

In cases covered under strict liability, the wrong arises from the breach of an absolute
duty. An ‘absolute duty’ may be defined as a “duty which renders a man liable without
any fault of his and irrespective of any consideration of intention or negligence on his
part.” The word 'strict' or 'absolute' denotes that it is not necessary for the injured party to
prove any intention or negligence on the part of the wrongdoer, and no amount of care or
caution proved by the latter would absolve him from liability. The principle of absolute

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liability has been enunciated by Blackburn, J. of the Exchequer Court and affirmed by the
House of Lords in Rylands v. Fletcher thus: "the person who, for his own purposes,
brings on his land; and collects and keeps there anything likely to do mischief; if it
escapes, must keep it in at his peril and if he does not do so, is prima facie answerable for
all the damage which is natural consequence of its escape."

The doctrine of strict liability is applicable in cases involving wild animals, dangerous
premises or substances, electricity, water, fire explosives etc., which are capable of
escape. The object of absolute liability is not to prevent persons from undertaking
hazardous and adventurous activities. The law only expects a person to do such acts at his
own peril, and keep himself ready to compensate the person wronged if any injury is
caused to him by the wrongful act.

Salmond has grouped cases of strict liability under the following three heads:
1. Mistake of law;
2. Mistake of fact; and
3. Inevitable Accident.

Mistake of Law

An act done under the mistake of law is not said to be an intentional act because the doer
of it does not know that what he is doing is prohibited by law. If a person has committed
a wrong under mistake of law, the law will not hear him say that he had no guilty mind
and that but for his ignorance of law, he would have not done it. Ignorance of law is no
excuse in almost all the legal systems. This is expressed in the maxim, ignorantia juris
meminem excusat. Therefore, it is obvious that in such cases the principle of absolute or
strict liability applies because of the presumption that every one must know the law
relating to his act or conduct. This principle, however, does not apply in case of
ignorance of a foreign law.

Mistake of Fact

It is generally said that mistake of fact is a good defence in law of crimes. However, in
English and Indian law mistake of fact is not a defence in law of torts, i.e., civil wrongs.
He who interferes with the right of another shall not be allowed to say that he believed in
good faith and on reasonable grounds in the existence of some circumstances which
justified his act.

In R. v. Prince, a person who abducted a girl under the legal age of consent was held
criminally liable and the plea of inevitable mistake as to her age failed as a defence. This
is so because the act of taking the girl away was itself wrongful.
However, if the intention is lawful, mistake of fact is a valid defence in criminal law. For
instance, if A intending to kill B, kills C mistaking him to be B. A has no defence, but if
A, who is out-hunting in a forest shoots at a bush thinking that a tiger was lurking inside
and the bullet hits and kills B, he will be exempted from criminal liability due to mistake

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of fact. This mistake, in order to qualify for exemption from criminal liability should
fulfill two conditions, namely
• It should be reasonable;
• It should be mistake of fact and not of law.
A few more illustrative cases may be cited to explain the absolute liability involved in
acts done under mistake of fact. If a person trespasses upon another man's land. It is no
defence for him to say that he believed in good faith and on reasonable grounds to be his
own. Likewise, if a person meddles with another person's goods in absolute innocence
and under an inevitable mistake of fact, he shall nonetheless be liable for all the loss
incurred by the true owner.

Inevitable Accident
Inevitable accident is commonly recognized as a ground of exemption from liability both
in civil and criminal law.
Accident may either be culpable or inevitable. It is culpable when caused due to
negligence but inevitable when the avoidance of it would have required a degree of care
exceeding the standard demanded by law. In other words, an inevitable accident is that
which could not possibly be prevented by the exercise of ordinary care, caution and skill.
That is, it must be a physically unavoidable nature. The case of Stanley v. Power, is a
leading decision on inevitable accident as a defence. In this case, the defendant while
firing at a pheasant accidentally and without negligence shot the plaintiff with a pellet
from his gun, it was held that he had a good defence. In a subsequent case of Ryan v.
Youngs the sudden death of the driver of a motor vehicle due to heart-failure as a result of
which an accident was caused, was held to be a mere inevitable accident and defendants
were held not liable.
Although inevitable accident serves as a good defence both in civil and the criminal law,
but in civil law, there are some exceptions when inevitable accident cannot be availed of
as a ground of defence. The cases involving strict liability are one such exception where
the defence of inevitable accident would fail. So also, a man is strictly liable for the
trespass of' his cattle or escape of flames, fumes, vapours, refuge, dust, smoke etc. from
his premises if they cause damage to others.

Conclusion: In cases covered under strict liability, the wrong arises from the breach of an
absolute duty. An ‘absolute duty’ may be defined as a “duty which renders a man liable
without any fault of his and irrespective of any consideration of intention or negligence
on his part.” The word 'strict' or 'absolute' denotes that it is not necessary for the injured
party to prove any intention or negligence on the part of the wrongdoer, and no amount of
care or caution proved by the latter would absolve him from liability.

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What are the instances when one person is held responsible for the acts of
another? [6]

Explain vicarious liability [6]

Introduction: Normally, it is the wrongdoer himself who is held liable for his act. But
there may be certain circumstances when the liability of the wrongdoer is imposed on
some other person than the wrongdoer himself. That is, some other person is made liable
for the wrongful acts of the wrongdoer. For example, a master is liable for the wrongful
acts of his servant done in the scope of employment. Likewise, a principal is liable for the
wrongful acts of his agent done in the ordinary course of business or a guardian is liable
for the wrongful acts of his wards. The doctrine of vicarious liability is based on the
principle of respondent superior. According to Salmond, the rational basis of the rule of
vicarious liability, of which the master-servant liability serves as the best illustration, is
mainly evidential. To quote his own words: "there are such immense difficulties in the
way of proving actual authority, that unless some such conclusive presumption is drawn,
masters would make tools of their servants to commit great wrongs. A word, a gesture or
a tone from the master will be sufficient to induce a servant to commit greatest wrongs,
yet who could prove such a measure of complexity."

The principle of vicarious liability has no application in criminal law for it would be
against the public policy to punish a person for the offence committed by someone else.
However, there are three exceptions to this general rule:

1. In many cases the law imposes upon the owner of a property the obligation of
managing it so that it does not injure anyone else or the public in general. In such
cases if a breach of obligation is committed, the owner cannot escape criminal
liability by delegating the management to someone else. For example, the
proprietor of a newspaper would be liable and punished for a libel (defamation)
published in it though he was living at a distance and knew nothing about the libel
until he read the newspaper.
2. In case of public nuisance under Section 268, IPC, also a master is held
vicariously liable for the act of public nuisance committed by his servant.
3. Under the licensing Acts the professionals holding licences would be vicariously
punished for the acts of violations committed by their servants. The same rule
shall be applicable in respect of various price controlling laws. A master of a
business firm could be held liable if his servant who committed an act in violation
of any provision of the statutory law.

The principle of vicarious liability is commonly applicable to civil wrongs. Thus a master
is liable for his servant's wrongful acts or omissions and likewise, a principal is held
liable if his agent's wrongful acts for the following reasons:

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• All acts done by a servant in and about his master's business are done by
his master's express or implied authority and are, therefore, in reality the
acts of the master for which he may be held liable.
• The master is capable of bearing the financial burden of civil liability as
compared with his servant. Moreover, since master reaps the benefit of the
servant's services, he should also bear the losses occasioned by the servant
in course of his employment.
• The master is held liable for the wrongful acts of his servant on the
principle of implied negligence. The law presumes that master failed to
exercise due diligence in choosing a proper servant, therefore, he should
be liable for the consequences ensuing from the wrongs of his servant.
• The principle of vicarious liability also extends to living representatives
for the acts of the dead in certain cases. This is enshrined in the Latin
maxim action personalis moritur cum persona. Generally speaking, an
action dies with the death of the person. Therefore, all personal actions
such as assault, defamation, trespass etc come to an end with the death of
the person. But in case of unjust enrichment, the heirs of the successors of
the deceased shall be vicariously liable for the wrong acts of the dead man.

Conclusion: Normally, it is the wrongdoer himself who is held liable for his act. But
there may be certain circumstances when the liability of the wrongdoer is imposed on
some other person than the wrongdoer himself. That is, some other person is made liable
for the wrongful acts of the wrongdoer. This is known as the principle of Vicarious
Liability.

OTHER QUESTIONS

Distinguish between Intention and Motive [6]

Dec 04, Dec 01, 99

Discuss the relevance and irrelevance of motives in law. [6]

Dec 04(II), Oct 97

State the situations in which motive is a necessary ingredient of liability. [10]

Dec 01, 99, Oct 2K, Oct 95

What are the instances when one person is held responsible for the acts of another? [6]
01, 2K

What are the different kinds of lien? [6] – Oct 2K

State and explain the different classes into which injuries are divisible [10] - Oct 98

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THE LAW OF PROPERTY

Kinds of Property [10]

Real and Personal Property [10]

Write a note on Movable and Immovable property. [6]

Introduction: The concept of property occupies an important place in human life,

because it is virtually impossible to live without the use of material objects, which
constitute the subject matter of property. In its widest sense, all animate or inanimate
things belonging to a person are included in the term property; for instance, a person's
life, liberty and estate may also be considered as his property. However, it has now
become obsolete to interpret the term 'property' in this comprehensive sense.

Meaning of Property

In a limited sense, property convers only a person's proprietary rights as opposed to his
personal rights. Thus land, chattels, shares and debts due to him constitute his property.
This is the most usual sense in which the term is used in modern time.

In yet another sense, property includes only those rights, which are proprietary rights in
rem, e.g., patent, copyright. But a debt or benefit of a contract is or are not included
within the term 'property' in this sense.

According to Salmond, the substantive civil law, as opposed to the law of procedure, is
divisible into three major parts, namely, the law of property, the law of obligations, and
the law of status. The first deals with the proprietary rights in rem, the second with
proprietary rights in personam and the third deals with personal or non-proprietary rights,
whether in rem or in personam. In other words, the subject matter of the law of property
is proprietary rights in rem while the subject matter of law of obligations is proprietary
rights in personam. The subject matter of the law of status is all personal or non-
proprietary rights, whether in rem or in personam.

Kinds of Property

Property is mainly of two kinds

• Corporeal
• Incorporeal

Corporeal property is the right of ownership in material things whereas incorporeal

property is any proprietary right in rem e.g. patent right, right of way. Corporeal property
is always visible and tangible while incorporeal property is not. Both are, however,

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valuable rights inasmuch as they are legal rights recognized and enforced by law.
Corporeal property is of two kinds Moveable and immoveable.

Incorporeal property is further divisible into two kinds

• Jura in re aliena or encumbrances e.g lease, mortgage and servitudes
• Jura in re propria or immaterial things e.g. patents, trademarks, copyright.

Corporeal Property

As stated earlier, corporeal property is also called tangible property because it has a
tangible existence in the world. It relates to material things e.g. land, house, money,
ornaments, gold, silver etc. are corporeal property the existence of which be felt by the
sense organs. Incorporeal property is also called intangible property because its existence
is neither visible nor tangible e.g. right of easement, copyright, patent, trademark etc. In
Roman law, corporeal property is termed res corporalis and incorporeal property is
called as res incorporaJis. Buckland, however, suggests that corporeal property under
Roman law referred only to the ownership of the right of general user and all those things
which could be valued in currency fell under the category of incorporeal property.

Movable and Immovable Property

All corporeal property is either movable or immovable. In English law these are termed
as chattels and land respectively. According to Salmond immovable property (i.e. land)
has the following elements:
1. A determinate portion of the earth's surface;
2. The ground beneath the surface down to the centre of the earth;
3. The column of space above the surface ad infinitum;
4. All objects, which are on or under the surface in its natural state e.g. minerals,
natural vegetation, or stones lying loose upon the surface;
5. All objects placed by human agency on or under the surface of the land with the
intention of permanent annexation. e.g. houses, walls, fences, doors, etc. These
become part of the land and lose their identity as separate movable chattels. It
must, however, be noted that physical attachment without the intent of permanent
annexation does not make change in the nature of movable property. For example,
carpets or ornaments nailed to the floor or wall of a house or money buried in the
ground are as much a chattel (movable property) as money in the owner's pockets.

The following are judicially recognized as immovable property

• right of way,
• right to collect rent of immovable property,
• a right of ferry,
• a mortgagor's right to redeem the mortgage,
• interest of a mortgagee in immovable property,
• right of fishery,
• right to collect lac from trees.

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The following are not judicially recognized as immovable property

• standing timber,
• growing crops,
• grass,
• a right to recover maintenance allowance even though it is charged through
immovable property,
• right of purchaser to have the land registered in his name,
• royalty,
• a decree of sale or sale of immovable property on a mortgage.

Movable property, on the other hand, may be defined as any corporeal property which is
not immovable property.

Real and Personal Property

The distinction between real and personal property is closely connected with but not
identical with the distinction between movable and immovable property. The distinction,
however, has no scientific basis. It is mostly the product of the history of the law of
action in England. Real property means all rights over land recognized by law. Personal
property, on the other hand, means all other proprietary rights whether they are rights in
rem or rights in personam. Commenting on this distinction, Salmond observed, "the law
of real property is almost equivalent to the law of land while the law of personal property
is almost identical with the law of movables." This distinction between real and personal
property has been drawn from the Roman law. The real property and immovable property
from intersecting circles which are very nearly though not quite coincident.

Movable property is commonly termed as chattel, which has three different meanings:
1. Any movable physical object such as, table, money, dog etc.
2. Incorporeal proprietary rights such as debts, shares, and other rights in rem which
are not rights over land.
3. Personal property, whether movable or immovable, as opposed to real property.

Incorporeal Property

Rights in re propria in Immaterial Things

Proprietary rights are both in relation to material and immaterial things. Material things
are physical objects and all other things, which may be subject matter of a right, are
immaterial things. They are various immaterial products of human skill and labour. These
immaterial forms of property are as follows:
1. Patents- The subject matter of a patent right is an invention such as the idea of a
new process, instrument or manufacture. The person by whose skill or labour the
invention or a new process or manufacture is 'introduced' has the exclusive right
of patent in it. This is granted to the inventor by the State.

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2. Copyright - The subject matter of the right is the literary expression of facts or
thought. This right may be available to writers, painters, engravers, sculptures,
photographers, musical and dramatic personnel for their outstanding work. When
such a person does some creative work by utilizing his intellect, skill and labour,
he is entitled to exclusive copyright, which is an immaterial form of property. In
short, copyright may be literary copyright or artistic copyright or musical and
dramatic copyright.
3. Commercial Goodwill - Yet another form of immaterial property is commercial
goodwill, trademarks and trade names. The goodwill of commercial business is a
valuable right acquired by the owner by his labour and skill. He has exclusive
right of used and profit from the business and anyone who seeks to make use of it
by falsely representing to the public that he is himself carrying on the business in
question, shall be violating this rights.

Rights in re aliena (Encumbrances)

Rights in re aliena are also known as encumbrances. Encumbrances are the rights of
specific or particular user as distinguished from ownership, which is right of general user.
Encumbrances prevent the owner from exercising some definite rights with regard to his
property. The main categories of rights in re aliena or encumbrances are
1. Lease - A lease is that form of encumbrance of property vested in one person by a
right to the possession and use of it vested in another. Thus, it is transfer of right
to the possession and use of property owned by some other person. It is an
outcome of the rightful separation of ownership from possession. A lease may
either be for a certain specified period or in perpetutity.
2. Servitude – A servitude is that form of form of encumbrance which consists in a
right to the limited use of the place of land without the possession of it. Servitudes
are of two kinds – public and private servitude.
3. Security – A Security is an encumbrance vested in the creditor over the property
of his debtor for the purpose of securing the recovery of the debt. Securities are of
two kinds mortgage and lien.
4. Trust – A trust is an encumbrance in which the ownership of property is limited to
deal with it for the benefit of some third person.

Conclusion: In a limited sense, property convers only a person's proprietary rights as

opposed to his personal rights. Thus land, chattels, shares and debts due to him constitute
his property. This is the most usual sense in which the term is used in modern time.

Modes of Acquisition of Property [10]

Prescription [10]

Introduction: The concept of property occupies an important place in human life,

because it is virtually impossible to live without the use of material objects, which
constitute the subject matter of property. In its widest sense, all animate or inanimate

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LEGAL THEORY

things belonging to a person are included in the term property; for instance, a person's
life, liberty and estate may also be considered as his property. However, it has now
become obsolete to interpret the term 'property' in this comprehensive sense.

Meaning of Property

In a limited sense, property convers only a person's proprietary rights as opposed to his
personal rights. Thus land, chattels, shares and debts due to him constitute his property.
This is the most usual sense in which the term is used in modern time.

In yet another sense, property includes only those rights, which are proprietary rights in
rem, e.g., patent, copyright. But a debt or benefit of a contract is or are not included
within the term 'property' in this sense.

According to Salmond, the substantive civil law, as opposed to the law of procedure, is
divisible into three major parts, namely, the law of property, the law of obligations, and
the law of status. The first deals with the proprietary rights in rem, the second with
proprietary rights in personam and the third deals with personal or non-proprietary rights,
whether in rem or in personam. In other words, the subject matter of the law of property
is proprietary rights in rem while the subject matter of law of obligations is proprietary
rights in personam. The subject matter of the law of status is all personal or non-
proprietary rights, whether in rem or in personam.

Modes of Acquisition of Property

There are four important modes of acquisition of property.

• Possession
• Prescription
• Agreement
• Inheritance

Possession

Possession is the objective realization of ownership. It is prima facie evidence of

ownership. A property, which is already in possession of some one else, when acquired
by possession, gives a good title to the possessor against all third persons except the true
owner. Even as against the true owner, the possessor is entitled to maintain his possession
until evicted in due Course by law. In such a case of adverse possession there are in fact
two owners, the ownership of one is absolute and perfect, while that of the other is
relative and imperfect and often called as possessory ownership by reason of its origin in
possession.

Prescription

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Prescription may be defined as the effect of lapse of time in the creation and extinction of
a legal right. It is the operation of time as a vestitive fact. It has two aspects, namely,
positive or acquisitive and negative or extinctive. The creation of a right by the lapse of
time is called the positive or acquisitive prescription whereas the extinction of a right by
the lapse of time is called extinctive or negative prescription. The person, who is in
continuous possession adverse to its owner for an uninterrupted period of twelve years,
acquires ownership of the land and the owner loses his ownership after the lapse of this
period. Again, extinction of a right to sue for a debt after three years from the time at
which it first became payable is an example of negative prescription.
The basis of prescription is to be found in the presumption of coincidence of possession
and ownership. The fact that a thing is possessed de facto evidence that it is owned de
jure and the fact that it is not possessed raises a presumption that it is not owned. Thus
want of possession is evidence of title. Want of possession for a long time is evidence of
want of title, and as the time passes the evidence in favour to title also fades away and
presumption against it grows stronger.
Negative prescription is common to law of property and obligations. According to
Salmond, negative or extinctive prescription is of two kinds, namely, (1) Perfect, and (2)
Imperfect. Perfect negative prescription results into destruction of principal right itself
whereas imperfect prescription destroys only an accessory right of action. The destruction
of ownership of land by adversary possession for uninterrupted period of twelve years is
an illustration of perfect negative prescription. The extinction of the right of recovery of
debt after the expiry of three years from the date it first became due, is an example of
imperfect negative prescription because it destroys the creditor's right to sue for recovery
of the debt but not the debt itself. .
It is significant to note that the law of prescription is based on the general principle that
law helps the vigilant and not the dormant.

Agreement

Property may also be acquired by agreement, which is enforceable, by law. Paton defines
agreement as an expression by two or more persons communicated to each other, of a
common intention to affect the legal relations between them. An agreement has four
essential elements
1. It should have two or more parties
2. Mutual consent of the parties
3. It should be communicated
4. there should be common intention to affect the legal relationship.

Inheritance

In respect of the death of an owner all rights are divisible into two classes – inheritable
and uninheritable

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A right is inheritable if it survives its owner and it is inheritable if it dies with him.
Proprietary rights are inheritable and most personal rights are not. The power of a person
to dispose of his property is subject to
1. Limitation of time
2. Limitation of Quantum amount
3. Limitation of Purpose.

Conclusion: There are four important modes of acquisition of property.

• Possession
• Prescription
• Agreement
• Inheritance

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THE LAW OF OBLIGATIONS

Solidary Obligations. [10]

Introduction: Obligation in its popular sense is merely a synonym for duty. In the legal
sense, it is merely one class of duties, namely those which are correlatives of right in
personam. Salmond defines obligations as the vinculum juris, or bond of legal necessity,
which binds together two or more individuals. Thus in the juristic sense, obligations
include the following
1. A duty in personam, such as a duty to pay a debt or to perform a contract, but
not the duties in rem, such as a duty to refrain from interference with the
person, property or reputation of others.

2. Obligation also denotes the bond of legal necessity, that is to say it is not only
a duty but also a correlative right of the other person in the same transaction.
Thus, in a contract for sale of property the purchaser has a right to receive the
property which is sold on payment of price and the seller is under an
obligation to part with the property and hand it over to the purchaser on
receipt of price.

3. Obligation is considered as a proprietary right in personam of a person, which

means a duty that corresponds to such a right.

Definition:

Kant has characterized obligation as “the possession or the will of another as a means of
determining it through my own, in accordance with the law of freedom, to a definite act.”

Paton contents that an obligation is that part of the law, which creates rights in personam.

Solidary Obligation

The normal type of obligation is that in which there is one creditor and one debtor. But in
certain transactions there may be two or more creditors or two and more debtors. In the
case of two or more creditors the principle of joint tenancy or tenancy in common
operates. However in the case wherein there are two or more debtors owing the same debt
to a common creditor, their obligation is called a solidary obligation. The liability of
independent wrongdoers whose acts cause the same damage also gives rise to a solidary
obligation.

In English law, solidary obligations are of three kinds.

Several

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LEGAL THEORY

In case of several solidary obligations, there are as many distinct obligations as there are
debtors. Thus, there is a distinct legal tie, vinculum legis, in case of each of the debtors
and each debtor is liable for the full amount of the debt.

Joint

When there is one single legal bond or vinculum juris binding all the debtors, the
obligation is called as joint solidary obligation. In such a case there is only one cause of
action against all. Whereas in case of several solidary obligation there are as many causes
of action as there are debtors. The chief effect of the joint solidary obligation is that all
the debtors are discharged by anything that discharges any one of them. The debt of
partners of a partnership firm is of the nature of joint solidary obligation.

Joint and Several

Certain solidary obligations stand midway between several and joint solidary obligations.
In a joint and several solidary obligation it is open to the creditor to treat the liability as
either joint or several.

For certain purposes the law treats some obligations as joint while treating others as
several. For instance, under Sec 43 of the Indian Contract Act the liability of the debtor is
joint and several unless there is an agreement to the contrary. The liability of joint tort-
feasors is joint and several.

The pertinent question that often arises is to determine whether a solidary obligation is on
the nature several, joint or joint and several. The distinction is made as under
• Solidary Obligation is Several when although they have the same subject
matter, their sources are different.
• Solidary Obligation is Joint when they have the same subject matter and the
same source.
• Solidary Obligation is Joint and Several also have the same source and subject
matter, but the law does not consider them to have the same vinculum juris.

Conclusion: Obligation is that part of the law, which creates rights in personam. The
normal type of obligation is that in which there is one creditor and one debtor. However
in the case wherein there are two or more debtors owing the same debt to a common
creditor, their obligation is called a solidary obligation. Solidary obligations may be
either Several, Joint or Joint and Several in nature.

Source of Obligations. [10]

Classify obligations according to their sources. [6]

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LEGAL THEORY

Introduction: Obligation in its popular sense is merely a synonym for duty. In the legal
sense, it is merely one class of duties, namely those which are correlatives of right in
personam. Salmond defines obligations as the vinculum juris, or bond of legal necessity,
which binds together two or more individuals. Thus in the juristic sense, obligations
include the following
4. A duty in personam, such as a duty to pay a debt or to perform a contract, but
not the duties in rem, such as a duty to refrain from interference with the
person, property or reputation of others.

5. Obligation also denotes the bond of legal necessity, that is to say it is not only
a duty but also a correlative right of the other person in the same transaction.
Thus, in a contract for sale of property the purchaser has a right to receive the
property which is sold on payment of price and the seller is under an
obligation to part with the property and hand it over to the purchaser on
receipt of price.

6. Obligation is considered as a proprietary right in personam of a person, which

means a duty that corresponds to such a right.

Definition:

Kant has characterized obligation as “the possession or the will of another as a means of
determining it through my own, in accordance with the law of freedom, to a definite act.”

Paton contents that an obligation is that part of the law, which creates rights in personam.

Kinds of Obligations

Considered from the point of view of their sources, obligations are divisible into 4 classes
• Contractual (Obligationes ex contractu)
• Delictal (Obligations ex delicto)
• Quasi – contractual (Obligationes quasi-ex-contractu)
• Innominate

Contractual Obligations

A contract is a kind of agreement, which creates a right in personam between the parties
to it. For example, a contract of sale and purchase. The rights so created are proprietary in
nature, but sometimes they may not be in persoonam such as a promise of marriage,
which falls within the law of status.

Delictal Obligations

These are obligations arising out of torts. It means a duty of making pecuniary
satisfaction for the wrong, i.e., tort committed by the defendant.

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Thus a tortious obligation is a liability to pay pecuniary damages for civil wrong which in
English and Indian law is confined to those, specific torts for which remedy is an action
for damages and does not include a mere breach of contract or of a trust or other merely
equitable obligations. A tort may be defined as a civil injury the remedy for which is an
action for damages. All civil injuries are torts, but only those civil remedies are torts
where the appropriate remedy for them is an action for damages. Thus civil injury
resulting out of a breach of a contract or a trust is not a tort.

Quasi-contractual obligations

Quasi-contractual obligations also include those obligations, which are in fact delictal or
tortious and not contractual, but if the person wronged so desires, he may treat them as
contractual and sue the wrongdoer for a breach of contract. Thus if A obtains money from
B by fradulent misrepresentation, B can sue A either in tort for deceit and recover
damages or on fictitious contract for the return of money.

Innominate Obligations

Salmond calls it residuary class of obligations. These obligations which are not covered
under any of the aforementioned three categories are called innominate obligations. For
instance, obligations of trustees towards their beneficiaries.

Conclusion: From the above it is evident that though the conception of obligations
differs from that of liability, the two are closely inter-related. The liability of a person
arises out of obligations. Therefore, obligations have the same importance in law as the
concept of liability.

OTHER QUESTIONS

Explain the nature of obligations. [10]

Explain what you understand by obligation. [10]

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THE LAW OF PROCEDURE

Distinguish between Substantive law and Procedural Law. [10], [6]

Introduction: Law has to play an important role in the administration of justice. It has a
dual role to play
• Firstly, it determines those rights, the breach of which can be remedied by legal
procedure.
• Secondly, it lays down the procedure for enforcement of legal rights.

From this point of view, law may be either substantive or procedural. The substantive law
is that which defines the ‘rights’, while procedural law determines the remedies.

Procedural law is also called the ‘law of action’. It is that branch which governs the
process of litigation. On the other hand substantive law is concerned with the ends, which
the administration of justice seeks to achieve. Procedural law deals with the means and
procedure by which those ends can be achieved. In other words, it regulates the conduct
and relations of courts and litigants in respect of judicial proceedings. The substantive
law, on the other hand, determines their conduct and relation in respect of the matters
litigated.

Difference between Substantive and Procedural Law

According to Salmond, procedural law can be distinguished from substantive law on the
following grounds.

1. Substantive law determines the conduct and relations of the parties inter se in
respect of the matter litigated, whereas the procedural law regulates the conduct
and relations of courts and litigants in respect of litigation.

2. Substantive law deals with the ends which the administrative of justice
contemplates, while procedural law deals with the means and instruments by
which the ends of administrations of justice are to be attained.

3. The question as to what facts constitute a wrong is determined by the

substantive law, while what facts constitute proof of a wrong is a question of
procedure.

4. Substantive law defines the remedy and the right, whereas the law of procedure
defines the modes and conditions of the application of one to the other.

5. Substantive law relates to matters outside the courts, whereas the procedural law
regulates affairs inside the courts.

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LEGAL THEORY

Despite the above distinction, it is not wholly correct to say that substantive law defines
the rights while the procedural law determines the remedies. There are many rights,
which pertain to the sphere of procedure. For example, a right to appeal, a right to
interrogate the opposite party etc.

Conversely, there may be certain rules determining remedy, which may be a part of
substantive law. For instances, the rules determining classes of agreements which shall be
specifically enforced are clearly substantive in nature.

Salmond specifically refers to three instances where the rules of procedure which, in their
operation, are wholly or substantially equivalent to rules of substantive law. It is for this
reason he says that the difference between substantive law and procedural law is one of
form rather than of substance. A rule falling in one category may, by a change in form,
pass over into another without materially affecting the practical issue. These instances are

1. There is a rule of evidence that in order to prove a contract, it must be writing.

This corresponds to the rule of substantive law that a contract is void unless it is
reduced in writing. Thus in the former, the writing is the exclusive evidence of
title while in the latter, writing is a part of evidence itself. Therefore, it is
evident that the distinction is one of form rather than of substance.

2. All conclusive presumptions pertain in form to procedure, but in effect they

constitute the substantive part of law. For example, the rule of evidence that a
child below the age of seven is doli incapex i.e. incapable of criminal intention,
is a part of law of procedure, but it differs only in form from the substantive rule
that no child under that age is punishable for an offence.

3. It has been said that limitation of actions is procedural equivalent of the right of
prescription, which is the subject matter of substantive law. The law of
limitation, which pertains to procedural law, destroys the bond between right
and remedy whereas the right of prescription, which is its substantive
equivalent, destroys the right itself. Thus in their practical application the effect
of both is same although they differ in their forms.

It is significant to note that where procedural law differs from the substantive law, the
latter shall prevail over the former, because the procedural law deals with the form and
not with the substance or the spirit of law. The law courts always look to the spirit of the
law and may even go beyond the procedural law for the purpose if so required.

Conclusion: Statute law is either substantive or procedural; the former confers right and
the latter deals mainly with procedure. A distinction can be made between the two,
however the distinction is a narrow one.

Explain kinds of Evidence. [10], [6]

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LEGAL THEORY

OR
Write a note on primary and secondary evidence.

Introduction: In the context of the Indian Evidence Act, 1872, the word ‘evidence’
means and includes all statements, which the Court permits or requires to be made before
it by witnesses in relation to matters of fact under enquiry and all documents produced
for the inspection of the Court.

Definitions:

Section 3 of the Indian Evidence Act, 1872 says, “evidence means and includes (1) all
statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; and (2) all documents produced for the
inspection of the Court.”

Taylor defines evidence as “all the legal means, exclusive of mere argument, which tend
to prove or disprove any fact, the truth of which is submitted to judicial investigation.”

Oral, Documentary and Real Evidence

The statements made by a witness before a Court of law are called oral evidence. The
documents placed before the Court for inspection are called documentary evidence.
Besides the documentary evidence, the material objects, which are produced before a
Court in course of a judicial proceeding, are called the real evidence. For example, in
case of a murder trial, the statements made by eyewitnesses before the judge is oral
evidence, the letters containing the correspondence made by the accused persons
regarding the plan of murder is documentary evidence, while the instrument used for
committing the murder is real evidence.

Kinds of Evidence

Evidence may be of many kinds, and is briefly classified as follows

Judicial and Extra-judicial Evidence

Judicial evidence consists of all those evidential facts, which are actually brought to the
personal knowledge and observation of the Court. Extra-judicial evidence, on the other
hand, is that which does not come directly under judicial cognizance, but nevertheless
constitutes an intermediate link between evidence and the fact requiring proof. The
examples of judicial evidence are statements of witnesses in the Court, all relevant
documents produced in the Court and other material things examined by the Court in the
course of judicial proceedings. Any other evidence made somewhere else, but proved in
the Court by some other evidence is extra judicial evidence.

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LEGAL THEORY

In every judicial proceeding some proof in the form of judicial evidence is essentially
needed, but extra judicial evidence may or may not exist. Extra judicial evidence serves
merely as an intermediate link in the chain of proof.

Personal and Real Evidence

Personal evidence is otherwise termed as ‘testimony’. It includes all statements, verbal,

written, judicial or extra-judicial so far as they are possessed with probative force. Real
evidence, on the other hand, is that which is directly addressed to the senses of the Court.
It is evidence supplied by material object, other than documents, produced for the
inspection of the Court. Thus, the production of a weapon by which the murder has been
committed is real evidence, while the statement of an eyewitness is personal evidence.

Primary and Secondary Evidence

Primary evidence is the testimony of a witness who perceived a fact with his own senses
or the original document or thing when produced in Court. It is also called original
evidence. Primary evidence is considered as the best evidence and so long as primary
evidence is available, no other evidence shall be admissible. The original copy of a
document to prove its content is an illustration of primary evidence.

Secondary evidence is inferiour to primary evidence. The Court may admit secondary
evidence in exceptional cases when it is proved that primary evidence is not available for
some sound valid reason. A copy of a document or oral testimony of its contents is an
example of secondary evidence.

Direct and Circumstantial Evidence

Direct evidence is testimony relating to the principal act. All other evidence is
circumstantial. It is evidence of a fact actually in issue or evidence of a fact perceived by
a witness with his own senses.

Circumstantial evidence relates to a series of other facts other than the fact in issue but
which are closely connected with the fact in such a way that it leads to some definite and
irresistible conclusion. For example, if A is caught with a blood stained dagger and
clothes while coming out of B’s room, this is conclusive circumstantial evidence though
no one actually saw him murdering B.

Direct and circumstantial evidence are also respectively known as positive evidence and
presumptive evidence. Circumstantial evidence is always indirect evidence. Law requires
that circumstantial evidence must always be used with caution.

Original and Hearsay Evidence

Original evidence is that which possesses an independent probative force of its own. It is
that evidence which a witness states himself to have seen or heard by his own senses.

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LEGAL THEORY

Hearsay evidence, on the other hand, is not actually perceived by a witness with his own
senses, but proved by him to have been stated by another person. In simple words,
hearsay evidence is merely reporting by a person not what he actually heard or saw
himself, but what he was told by some third person. Ordinarily, hearsay evidence is not
admissible and the Courts reject it subject to certain exceptional cases. Hearsay evidence
is also called derivative evidence or transmitted evidence.

Conclusion: Evidence means and includes all statements, which the Court permits or
requires to be made before it by witnesses in relation to matters of fact under enquiry and
all documents produced for the inspection of the Court. Evidence can be classified into
many different types, as mentioned above.

Discuss the rules of valuation of evidence. [10]

Introduction: In the context of the Indian Evidence Act, 1872, the word ‘evidence’
means and includes all statements, which the Court permits or requires to be made before
it by witnesses in relation to matters of fact under enquiry and all documents produced
for the inspection of the Court.

Definitions:

Section 3 of the Indian Evidence Act, 1872 says, “evidence means and includes (1) all
statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; and (2) all documents produced for the
inspection of the Court.”

Taylor defines evidence as “all the legal means, exclusive of mere argument, which tend
to prove or disprove any fact, the truth of which is submitted to judicial investigation.”

The law of evidence is concerned mainly with two major issues

• Production of evidence
• Its probative force

Production of Evidence

Many rules have been laid down for the production of evidence and the examination of
witnesses. This part of evidence deals with the process of adducing evidence and not with
the effects of it. It is concerned with the manner in which the witnesses are to be
examined and cross-examined and not with the weight attributed to their testimony.
There are certain categories of witnesses who cannot be forced to disclose facts, which
are otherwise material to the point of issue in the interest of public policy. These
excluded categories are

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1. Judges and Magistrates – No Judge or Magistrate shall, except upon the special
order of some court to which he is subordinate, be compelled to answer any
questions as to his own conduct in court or anything which came to his
knowledge in court as a magistrate in his official capacity.

2. Communications during marriage – No married person shall be compelled to

disclose any communications made to him during marriage by any person to
whom he or she has been married except in suits between married people in
which the married person is prosecuted for having committed an offence against
the other.

3. Affairs if the State – No person shall be permitted to give any evidence derived
from unpublished official records relating to any affairs of State, except with the
permission of the officer at the head of the department concerned.

4. Official Communications – No public officer shall be compelled to disclose

communications made to him in official confidence when he considers that the
public interest would be adversely affected by such a disclosure.

5. Information as to a crime – No magistrate or police officer shall be compelled to

say wherefrom he got any information as to the commission of any offence and
no revenue officer shall be compelled to say wherefrom he got any information
as to the commission of any offence against public revenue.

6. Professional Communication – No advocate or pleader shall at any time be

permitted, unless with the client’s express consent, to disclose any
communication made to him in the course and for the purpose of his employment
in such capacity or disclose the contents or conditions of any documents with
which he has become acquainted in the course of his professional employment.

Probative Force of Evidence

When all the evidence is produced, its probative force is to be evaluated. The law does
not permit personal discretion of the Court to estimate the probative force of evidence.
For this purpose inflexible rules have been incorporated in the Indian Evidence Act.
Some of these rules, which determine what evidence can be received and what weight
should be given to such evidence when adduced, are stated below

Conclusive Proof

Conclusive proof consists of such facts which have such probative force that they cannot
be contradicted. When one fact is declared by law to be conclusive proof of another, the
Court shall, on proof of one fact, regard the other as proved, and no evidence to
disapprove it shall be admissible. Thus, conclusive presumptions are inferences which
must be drawn and cannot be allowed to be overruled by any evidence howsoever strong
it may be. For example, Sec 82 of the IPC provides that a child below the age of 7 is doli

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incapex, that is, incapable of having guilty intention. It is a conclusive presumption of

law, which cannot be endowed with any discretion.

Presumptive Proof

Presumptive proof is also called rebuttable proof of conditional proof. The rule of
presumptive proof is contained in Sec 4 of the Evidence Act, which says that the Court
may presume a fact as proved unless and until it is disapproved. It is a rebuttable
presumption, which may be disapproved by contrary evidence. For instance, a man not
heard of for 7 years by those who would naturally have heard of him if he had been alive,
is presumed to be dead. This presumption is however rebuttable by contrary proof. In
other words, unlike conclusive proof, the Court will permit contrary evidence to disprove
a fact.

Exclusive Evidence

The rules as to exclusive evidence lay down the manner in which certain evidence in
respect of certain facts should be given, any other kind of evidence tendered being
inadmissible. Thus, the execution of a will can be proved only by the testimony of atleast
one attesting witness. But it the attesting witnesses are dead, or their testimony is not
available for some valid reason, then the stringency of this rule is not insisted upon and
the testimony of the will is accepted or rejected on its own merits.

Insufficient Evidence

Where the law prescribes a certain amount of evidence, but the evidence adduced in not
upto the requisite standard, the evidence is considered insufficient and the Courts are not
called upon to act on such evidence. For instance, a probate requires attestation by two
witnesses. Therefore, if a probate is attested by only one witness it shall be insufficient
evidence to be taken cognizance of by the Court.

Facts that are not Evidence

There are certain facts which do not possess any probative force at all. The courts do not
take any cognizance of such fact. For example, hearsay evidence is no evidence and is
ordinarily excluded by the Courts.

Conclusion: The law of evidence is concerned mainly with the production of evidence
and its probative force. Many rules have been laid down, by the Indian Evidence Act, for
the production of evidence and what evidence can be considered to have probative force.

PALLAVI BHOGLE