ROSCOE article

A code is there which is invisible and controls conduct. The state can impose restriction on
individuals through legislations by listing them exhaustively and makes it rigid(-EG: civil law
texts) or the law can realize that change will also be there and there will be differences will be
there between individuals and make laws accordingly
Society needs a bit of order and when we say a system is in place there is stability which
provides security. But individual life and needs are different also and these considerations
have to be considered while making some laws.
EG: Ripoffs of ADIDAS, duplicates- abhibas. ABHIBAS is styled like Adidas. Abhibaas
sold by thelawala
So should there be a universal postulate which puts thelawala behind bars?
No because the thelawala will sell for a much lesser prices and does not affect the sales of
adidas and there is no injury so should not be imprisoned. To brand it unfair would create an
unfair system and a requirement for injury to add materiality to the case is fair. A system of
common law has dynamism and protects fairness.

Postulate of roscoe pounds

2nd article – maxx ratin ( speculative enquiry into the nature of torts.)

The definition that tort is not a contract is useless and ambiguous.

A general principle of torts takes a lot of time whereas a specific law can save time and
having more compartments can provide clarity which leads to most countries having such
compartmentalization.
Can a system of damage or compensation act as a perfect remedy for all tortious?
If you walked on a road you expect that no one comes and slaps you. This you expect
because you have a bodily interest and that is a right you have against everybody. Tortious
conduct means twisted conduct. Twisted against established norm. Established norm is to
protect some right which correlate to some duties and when those duties are breached it leads
to remedy and liability.
Whenever we read interpretation of torts we come across the term of unliquidated
damage(not fixed). Example: Act or omissions happen which harm us and in return some
may say sorry. It is for you to take that sorry and leave but if you were to think how the
damage can be restituted. For ex: you ride a bike and crackers burst, you lose focus and fall
on the road and injure yourself. The person bursting crackers comes and sorry, if you deny
that sorry and want it to be restituted then how would you do it? You would probably ask for
money to pay damage of the bike, the medical bill but what about the anger and distress that
has been caused. It cannot be taken care of by money then what is the alternative?
The thing that can be done is only paying you and therefore unliquidated damages are the
best way to compensate you notionally. But in some cases an injunction can also solve the
need and monetary compensation is not required. So it is not that there are no alternative
remedies but it is that primarily unliquidated damages are talked about.
Example: X is father of 10 yr old child and consults Y a doctor who he consults for a disease
the child has. Y advises him and contracts to conduct the required surgery and later on he is
negligent. So how can they sue them?

Example: Supermarket in Mandore and people are loving it and the proprietor X is earning
good as well. Person Y sees an opportunity for himself and constructs a new shop. Here X’s
interest has been affected but no right has been affected. Where is this right coming from.
This right comes from the presence of a social interest related to the presence of such a right.
Not all interests are protected and not all translate into a right and an act has to be wrongful to
invite a tort and this would be possible only if it breaches legal rights. Social interest may
conflict with private interest and at such a point social interest will take precedence.
Damnum Sine Injuria-claim not raised, Injuria Sine Damnum.-raises claim
1. In order to be a tort the act must be wrongful

2. An act may be an omission and may not affect you overtly. Such omission can affect
your legal right.

3. UBI jus ibi remedium- a right has remedy however ,A right may not have an absolute
remedy and there will be several aggravating and mitigating factors. For eg: you have
a right to bodily integrity but if you were attacking someone and the other acted in
self defence. It will be very subjective and it could be that the social interest could
collide with the private interest and there would be no remedy.

4. The total opposite can be however true , meaning where the state says that there is
absolute liability meaning that there is an absolute remedy and that would lead to an
absolute right. But this is true only in certain cases.

Three maxims discussed: damnum sine injuria, injuria sine damnum, ubi jus ibi remedium

Example ; A person is in a capsized boat and he is drowning and all this happens in front of
you, You think “I am not able to swim and may drown myself saving him”. So saving him is
moral duty but it is not enforced by the state. This happens because relation plays an
important role and you do not have any reason to save him. Now consider that the person
drowning was your child then would there be an imposed duty upon you? Is there a
difference in a duty between you and a stranger and you and a relative?
When we consider relation we give rise to some expectation. This expectation becomes a
duty in certain circumstances and in this case you owe a duty to your child because you are a
legal guardian and that leads to a tort if you walk away.
Alter ego doctrine: Another person takes decision on behalf of a corporation but the company
is an entity on an own as well and is vicariously liable as an entity for wrongful act on the
part of such person.

Legal rights which are within the ambit of tort are also enjoyed by legal
personalities(corporations) as well just like an individual and the interest which an individual
can have are same as the nature of interest that a legal entity can have.
Malfeasance- Breach of a recognized duty, you have commited wrongful act
Misfeasance- Did an act but improperly
Non-feasance – Omission from doing an act.
Let’s say a person involuntarily violates bodily integrity, then should such a person be held
liable for the act.
Now also consider a question that the person does it willingly but says that he did not do so
unintentionally.
In the first case the person is not able to think about the consequences of the action and
therefore a person should not be held liable.For example: Madmen.
Every act will have to be a voluntary act with some mental intent.
Intention is the immediate objective. Ulterior objective is motive. For liability a wrongful act
and intent is necessary but there are some other subjective things to consider while
ascertaining liability but it definitely strengthens your case.