Law of Torts Paper 1

Q No. 1 (a) Define Tort and distinguish it from Breach of Contract.     10 marks

Introduction

The word ‘Tort’ is derived from the Latin term ‘tortum’ which means ‘to twist’ or a deviation from
straight or right conduct and includes conduct that is not lawful. 

Law of torts is the branch of law controlling the behavior of people in the society, and its main object
is to define individual rights and duties in the light of prevalent standards of reasonable conduct and
public convenience. It provides pecuniary remedy for violation against the right of individuals.

Definitions

‘Tort’ is defined by various jurists as under:

1. Salmond - “A tort is a civil wrong for which the remedy is a common law action for
unliquidated damages and which is not exclusively the breach of a contract, or the breach of a
trust, or the breach of other merely equitable obligation.”
2. Fraser - “A tort is an infringement of a right in rem of a private individual, giving a right of
compensation at the suit of the injured party.”
3. Winfield - “Tortious liability arises from the breach of duty primarily fixed by law; this duty
is towards persons generally and its breach is redressible by an action for unliquidated
damages.”

Distinction between Tort and Breach of Contract

Tort differs both in principle and procedure from a breach of contract and there are basic differences
between a tort and a breach of contract on the following basis:

1. In contract, the law is codified whereas in tort, the law is uncodified.

2. In contract, the duty is fixed by the parties themselves. In tort, the duty is fixed by the law
itself.
3. In contract, the duty is towards a specific person or group of persons. In tort, the duty is
towards every person of the community or society.
4. A breach of contract is an infringement of a right in personam. A tort is a violation of a right
in rem.
5. A contract is based on consent of the parties. A tort is committed against or without consent.
6. In breach of contract, privity between the parties must be proved. In an action for tort, no
privity is required to be proved.
7. In breach of contract, motive is not relevant. In tort, motive is often taken into account.
8. In breach of contract, damages are awarded in the form of compensation for pecuniary loss
suffered. In tort, measure of damages is different in different circumstances, which may be
nominal or exemplary.
9. A third party to a contract cannot sue for breach of contract except in some exceptional cases.
A third party can sue for tort even though there was no contract between the person causing
injury and the person injured.

Q No. 1 (b) Write a note on “Ubi jus ibi remedium.”. 6 marks

Literal Meaning

“Ubi Jus ibi Remedium” literally means “Where there is a right there is a remedy.” 
Explanation

This maxim means that there is no wrong without a remedy. Whenever the common law gives a right
or prohibits an injury, it also gives a remedy. This maxim is an elementary maxim of equity
jurisprudence that there is no wrong without a remedy.

Illustration

If a man has a right, he must, it has been observed, have a means to vindicate and maintain it and a
remedy if he is injured in the exercise and enjoyment of it, and, indeed, it is a vain thing to imagine a
right without a remedy, for want of right and want of remedy are reciprocal.

Case References

1. Sardar Amarjit Singh Kalra v. Pramod Gupta, 2003 - In the judgment of this case, the court
mentioned about the maxim Ubi jus ibi remedium est, that the court should aim to preserve
and protect the rights of the parties and extend help to enforce them.
2. Hill v. C.A. Parsons and Co. Ltd.,1972 - In this case Lord Justice Denning has held that the
learned trial Judge refused injunction as he felt that he was constrained by law to refuse such
injunction, but according to Lord Justice Denning, such a view is too narrow and not the
correct reading of the principle of law. Lord Denning said that the learned Judge has
overlooked the fundamental principle that whenever a man has a right, the law should give
remedy. 
3. State of Nagaland v. Chosayi, 2001 - In this case, the court held that Mandamus must first
satisfy that he possessed a legally enforceable right that has been infringed by the executive
authority. If he fails to establish that he has a legally enforceable right, no writ of Mandamus
can be issued. It must be grasped that a writ of Mandamus is always issued to remove
injustice and to do justice to the aggrieved party. The Writ of Mandamus enforces the right; it
cannot create a right. Illegality cannot be legalized by issuing a writ of Mandamus. This
would amount to allowing perpetuation of illegality.

Q No. 2 (a) Discuss legal damage as an essential element of tort. 6 marks

Introduction

Legal damage is an important ingredient constituting a tort. In order to prove an action for tort, the
plaintiff has to prove that there was a wrongful act, an act or omission which caused breach of a legal
duty or the violation of a legal right vested in the plaintiff.

Damnum Sine Injuria

Damnum Sine Injuria is a legal maxim, which refers to injury which is being suffered by the plaintiff
but there is no violation of any legal right of a person.

Injuria Sine Damno 

Injuria Sine Damno is a legal maxim, which means that injury or loss or damage so caused to the
plaintiff without suffering any physical injury or damage.

Legal Damage

Legal damage means an invasion or infringement of a private legal right. It is for the plaintiff to prove
that there has been legal damage caused to him due to wrongful act of the defendant. Even if the
plaintiff has not suffered and has not suffered any loss, still he can succeed if his private legal right is
violated. 
According to Ihering, legal rights are protected interests. If a person has a legal right, then in law,
others have a legal duty not to violate his legal right.

Examples: Right to Reputation, Right to Bodily Safety and Freedom, etc.

Conclusion

Thus, legal damage, injuria, or infringement of private legal right resulting from a breach of legal duty
is an essential element of tort. Without injuria, no action in tort can be maintained.

Q No. 2 (b) A walks across B’s garden without B’s permission, doing no damage to the garden.
Has he committed any wrongful act? Decide. 6 marks

Q No. 3 (a) To what extent is consent a defense in action for tort. 10 marks

Free Consent

For the application of Volenti Non Fit Injuria, consent must be freely given. The consent is not free if
it has been obtained by undue influence, coercion, fraud, misrepresentation, mistake, or similar
elements which adversely affect a free consent.

Consent cannot be given to an illegal act

No consent can legalize an unlawful act or an act which is prohibited by the law. For example,
fighting with naked fists, dueling with sharp swords are unlawful, and even though the parties may
have consented, the law will permit an action at the instance of the plaintiff.

Knowledge of risk is not the same thing as consent to run the risk

The maxim is Volenti Non fit injuria and not Scienti Non fit injuria. Knowledge of danger does not
necessarily imply a consent to bear that danger. 

This doctrine was enunciated for the first time in Smith v. Baker. In this case, the plaintiff was
working in a cutting on top of which a crane was carrying heavy stone over his head while he was
drilling the rock in the cutting. Both he and the employers know that there was a risk of stones falling,
but no warning was given to him. A stone from the crane fell upon him and he was injured. The House
of Lords held that defendants were liable.

Exceptions

There are three exceptions to the rule of Volenti Non fit injuria.

1. Employment Relations: An employee of unsafe practice, but nevertheless continued to work

could not truly be said to have voluntarily agreed to waive their legal rights.
2. Rescue Cases: A rescuer would not be considered volens if -
a. He was acting to rescue persons or property endangered by the defendant’s
negligence.
b. He was acting under a compelling legal, social, or moral duty; and
c. His conduct in all circumstances was reasonable and a natural consequence of the
defendant’s negligence.
3. Drunk Drivers: A person accepting a lift from a drunk driver was not to be treated as volens
unless the drunkenness was so extreme and so glaring that accepting a lift would be
equivalent to walking on the edge of an unfenced cliff.

Q No. 3 (b) Write a short note on statutory authority. 6 marks

Introduction

When a statute authorizes the doing of an act which would otherwise be a tort, the party injured has no
remedy except the one (if any) provided by the statute itself. The immunity under statutory authority is
not only for that harm which is obvious, but also for that harm which is incidental to the exercise of
such authority. The underlying philosophy behind the statutory immunity is that lesser private rights
must yield to greater public interest.

Case References

In Hammer Smith Rail Co. v. Brand, (1869), the value of the plaintiff’s property considerably
depreciated due to the noise, vibration, and smoke caused by the running of trains on a railway track
constructed under statutory powers. The damage being necessarily incidental to the running of trains
by statute, it was held that no action lies for the same.

An important point to note in this regard is that the act authorized by the legislature must be done with
reasonable care, and therefore, an action lies for doing that which the legislature had authorized, if it
be done negligently. 

In Smith v. London and South Western Railway Co., The employees of a railway company
negligently left trimmings of grass near a railway line. Sparks from an engine set the material on fire.
The fire was spread to the plaintiff’s cottage nearby. The Railway Company was held liable for
negligence.

Q No. 4 (a) Explain the liability of the master for the wrongs of his servants.
10 marks

Introduction

A servant may be defined as any person employed by another to do work for him on the condition that
he is to work under the control and direction of the employer in respect of the manner in which the
work is to be done. A master is a person who has authority to give orders and get the work done by his
servants. Once the power of control is established, the payment of wages is necessary to be proved. A
person may do an act for his master gratuitously i.e., without wages.

Liability of Master for the Wrong of his Servant

The liability of the master for the tort committed by his servant is based on the maxim of respondeat
superior which means the superior is responsible.

1. Lending A Servant
a. Mersey Docks and Harbor Board v. Coggins and Griffiths 
b. In this case, appellants hired out a crane to respondents for the purpose of unloading a
ship. The appellants also provided a driver for this crane upon the terms that he
should be the servant of the hirers for the period of contract. During unloading, the
driver injured a person by negligent working of the crane.
c. The Court held that the appellants as general employer of the driver were liable to the
injured person.
2. Course of Employment (Negligence, Mistake, or Fraud)
a. The fact that one man is in a legal sense a servant of another does not in itself render
the master liable for any and every tort committed by the servant. The master will
only be held liable for such torts committed by the servant in the course of
employment. An act is deemed to be done in the course of employment when the
servant executes the orders of the master.
b. Century Insurance Co. v. Northern Ireland R.T. Board
 c. In this case, the respondents were insured by the appellants against damage arising
from the use by the respondents of their petrol tankers. One of the respondents’
drivers while delivering the petrol at a garage lit a cigarette and threw the match upon
the floor of the garage which caused an explosion and property was damaged.
d. The Court by observing that though the driver lit the cigarette for his own purpose, it
was negligent conduct on his part and the appellants were held liable as the negligent
act was within the course of his employment. 
3. Outside Course of Employment
a. Where the wrongful act of the servant is not done in the course of employment, the
act is outside the course of employment.
b. State Bank of India v. Shyama Devi
c. In this case, the plaintiff’s husband gave some amounts and cheques to his friend who
was an employee of SBI to deposit the same in the plaintiff’s account and the
employee misappropriated the amount
d. The Court held that the defendant bank could not be made liable because the
plaintiff’s husband’s friend was not acting either as an agent or an employee of the
bank but in his private capacity as the depositor’s friend.
4. Express Prohibition by Master
a. Sometimes, the master prohibits his servant from doing certain acts. In such a case, if
the servant acts in defiance of the prohibition, the Act of the servant is considered
outside the course of employment and the master may not be liable.
b. Premwati v. State of Rajasthan
c. In this case, the driver of a vehicle took the jeep from a workshop and thereafter
instead of taking the jeep to the garage, he went on a spree and on the way, he gave a
joyride to some unauthorized persons. The driver’s negligence caused an accident
resulting in serious injuries to all the unauthorized persons.
d. The High Court of Rajasthan by observing that bringing the jeep from the workshop
to the garage is within the course of employment but the act of going on a spree and
giving lift to unauthorized persons is outside the course of employment, held the
master not liable.

Q No. 4 (b) Plaintiff’s dog chased the defendant. On the defendant turning around, and raising
the gun, the dog ran away. The defendant shot the dog. Is he justified in doing so?
6 marks

Introduction

Disputes are inevitable in a society consisting of persons with different needs, wants, values, 

Q No. 5 (a) Explain the rule in Rylands v. Fletcher with exceptions.   10 marks

Rylands v. Fletcher

In the case of Rylands v. Fletcher, the defendant got a reservoir constructed through an independent
contractor. There were old unused shafts under the site of the reservoir, which the contractor failed to
observe and so did not block them. When the water was filled in the reservoir, it burst through the
shafts and flooded the plaintiff’s coal mines on the adjoining land. The defendant did not know about
the shaft and had not been negligent, but he was held liable. This liability was recognized as ‘Strict
Liability’ i.e. even if the defendant was not negligent or did not cause any intentional harm, he could
still be held liable under the rule.

Essentials of Strict Liability

For the application of the rule, the following three essentials should be there:

1. Dangerous Things: According to this rule, the liability for the escape of the thing from one’s
land arises only when the thing collected was a dangerous thing. In Rylands v. Fletcher, the
thing was a large water body (reservoir). The rule also applies to gas, electricity, vibration,
sewage, explosive, etc.
2. Escape: For the rule in Rylands v. Fletcher to apply, it is also essential that the thing causing
the damage must escape to the area outside the occupation and control of the defendant.
3. Non-natural Use of Land: There should be non-natural usage of land to make the defendant
liable. Like in Rylands v. Fletcher, collecting a large body of water is considered to be a non-
natural use of land.

Exceptions to the Rule of Strict Liability

1. Plaintiff’s Own Default: If the plaintiff suffers damage by his own intrusion into the
defendant’s property, he cannot complain about the damage so caused.
2. Act of God: Act of God (Vis Major) is also considered to be a defense against the action of
strict liability. If the escape has been unforeseen and takes place because of supernatural
forces without human intervention, the defense of Vis Major can be pleaded.
3. Consent of the Plaintiff: When the plaintiff has consented to the accumulation of the
dangerous thing on the defendant’s land, the liability under the rule does not arise. Such
consent is implied where the source of danger is for the ‘common benefit’ of both the plaintiff
and the defendant.
4. Act of Third Party: If the harm has been caused due to the act of a stranger, who is neither the
defendant’s servant nor the defendant has any control over him, the defendant will not be held
liable under this rule.
5. Statutory Authority: An act done under the authority of State is a defense to an action for tort.
However, it cannot be pleaded as a defense where there is negligence.

Q No. 5 (b) Write a short note on “Reasonable Care”. 6 marks

The level of care that a reasonable person would exercise in such circumstances. Failure to exercise
reasonable care may lead to liability, if such a failure caused an injury; while exercise of reasonable
care can establish that a party acted reasonably and is not liable. 

For example, in the famous 1856 English case of Blyth v. Birmingham Waterworks Co., The court
found that pipelayers exercised reasonable care and were not liable when their pipes burst from an
abnormally cold winter, since they installed the water pipes to withstand freezing conditions ordinarily
to be expected in that city.

Q No. 6 (a) Distinction between Private and Public Nuisance. 10 marks

Introduction

The word nuisance has been derived from the French word ‘nuire’ which means to hurt or to annoy.
Ordinarily, nuisance means disturbances.

Public Nuisance

A public nuisance is an unreasonable, unwarranted, or unlawful interference with a right common to

the general public. Simply speaking, a public nuisance is an act affecting the public at large or some
considerable portion of it; and it must interfere with rights which members of the community might
otherwise enjoy. Examples include obstructing a public way by digging a trench or carrying on trade
which causes an offensive smell.
Private Nuisance

A nuisance interferes with the right of a specific person or entity, it is considered a private nuisance.
Unlike public nuisance, a private nuisance is an act affecting some particular individual or individuals
as distinguished from the public at large. 

Private Nuisances are of two kinds: Damage to property and Physical Discomfort. 

The remedy in an action for private nuisance is a civil action for damages or an injunction or both and
not an indictment. Here, the plaintiff must prove interference.

Q No. 6 (b) X is residing on the first floor of a building. Y intends to start a flour mill on the
ground floor of the same building. This would cause nuisance to X. Advise what action he can
take. 6 marks

Introduction

Both Tort and Contract are branches of Civil Law. 

Q No. 7 (a) Explain the Tort of Malicious Prosecution.   10 marks

Introduction

Every person has the freedom to bring criminals to justice, but this does not mean that any innocent
person should be brought to justice unnecessarily. 

Malicious Prosecution is an abuse to the Judicial System as the judicial system aims to provide justice
to innocent people, but under Malicious Prosecution, innocent people are convicted. 

Essentials of Malicious Prosecution 

The essentials of malicious prosecution are as follows:

1. Prosecution of Plaintiff by the Defendant

a. The first condition is that the plaintiff was prosecuted by the defendant. This essential
condition requires the plaintiff to prove that he was prosecuted and the defendant
prosecuted him. 
2. Termination of Proceedings in Plaintiff’s Favor
3. Without Reasonable or Probable Cause 

Q No. 4 (a) What are the defenses available in an action for defamation? 10 marks

Introduction

In simple words, judicial precedent refers to previously passed judgments of the superior courts, such
as the high courts and the Supreme Court, which judges of subordinate courts are bound to follow.
This binding character of the judgments of previous cases is important, considering the hierarchy of
the courts established by the legal system of a particular country. In the case of India, this hierarchy
has been established by the Constitution of India. In most of the developed legal systems, judiciary is
considered to be an important organ of the state.

Conclusion

Precedent has played a significant role in India for development of laws and also bringing legal
reform. However, it is important to know the different factors that may increase or undermine the
validity of a precedent.
Q No. 4 (b) Write a note on assault. 6 marks

Introduction

The word ‘interpretation’ has been derived from the Latin term ‘interpretari’, which means to explain
or understand. Interpretation involves an act of discovering the true meaning of the language which
has been used in the statute or legislation.

Q No. 4 (b) X borrowed a wrist watch from Y for his use for a few days and later sold it. Has X
committed any tort? Decide. 6 marks

Introduction

The word ‘interpretation’ has been derived from the Latin term ‘interpretari’, which means to explain
or understand. Interpretation involves an act of discovering the true meaning of the language which
has been used in the statute or legislation.

Q No. 5 (a) State the procedure to be followed by the district forum commission on receipt of a
complaint.   10 marks

Introduction

Assignment is a task or a piece of work allocated to someone as a part of a course of study. From the
beginning of the learning process, students are given certain assignments to develop their critical and
analytical skills. 

Conclusion

Assignment writing is not just a task to be completed to fulfill the academic requirements. It develops
the student a lot and makes him or her better skilled to face the real world. Hence, whether an
assignment carries marks or not, students should try to give the best in attaining a great outcome.

Q No. 5 (a) State the salient features of Motor Vehicles Act. 10 marks

Below mentioned are a few points that students can follow to be able to do well in exams –

Conclusion

Answer writing is an important skill that students develop with experience. However, keeping these
basic guiding points in mind will help them reduce the chances of mistakes and secure better marks in
any exam.

Q No. 5 (b) Write a note on defective goods. 6 marks

Introduction

Legal research is that branch of knowledge which deals with principles of law and legal institutions.
It’s the study of the relationship between the world of law and the world of law

.
Q No. 5 (b) The parent of a child who was ill, admitted the child to a hospital. Dus to
administration of wrong medicine in the hospital, the child became permanently disabled.
Advise the parent. 6 marks

Introduction

Research or a study on anything involves literature review. Here, a researcher mainly tries to read the
existing documents or materials on the topic of study and get some idea on how to go 

Law of Torts Paper 2

Q No. 1 (a) Define tort. Explain Damnum Sine Injuria with appropriate cases.  10 marks

Introduction

The word ‘Tort’ is derived from the Latin term ‘tortum’ which means to ‘to twist’ or a deviation from
straight or right conduct and includes that conduct which is not straight or lawful.

Definitions

Conclusion

Legal theories propounded by different philosophers help us get an insight into their perspective on
what law is and how it functions.

Q No. 1 (a) Explain the importance of mental elements in torts.  10 marks

Introduction

The concept of legal process has also been defined differently by different jurists. They also have
different opinions regarding the functions of that legal processes play in a society

Conclusion

Legal theories propou

Q No. 1 (b) The defendant, a Returning Officer refused to register the vote of the plaintiff, who
was a qualified voter. Though the candidate whom the plaintiff wanted to vote for wins, the
plaintiff sues the defendant for compensation. Decide. 6 marks

Introduction

The concept of legal process has also been defined differently by different jurists. They also have
different opinions regarding the functions of that legal processes play in a society

Conclusion

Legal theories propou

Q No. 1 (b) The plaintiff builds 16 shops on the old foundations of a building without obtaining
necessary permission from the municipality. Municipality officials demolished the said building.
The plaintiff claims compensation. Decide. 6 marks

Introduction

The concept of legal process has also been defined differently by different jurists. They also have
different opinions regarding the functions of that legal processes play in a society
Conclusion

Legal theories propou

Q No. 2 (a) Explain inevitable accident and self defense with appropriate cases.  10 marks

Introduction

The concept of legal process has also been defined differently by different jurists. They also have
different opinions regarding the functions of that legal processes play in a society

Conclusion

Legal theories propou

Q No. 2 (a) Explain violenti non-fit injuria as a defence for tortious liability with exceptions. 
10 marks

Introduction

The concept of legal process has also been defined differently by different jurists. They also have
different opinions regarding the functions of that legal processes play in a society

Conclusion

Legal theories propou

Q No. 3 (a) Explain the different parts of a statute.   10 marks

Introduction

Interpretation of stat cute plays an important role in delivery of justice. There are various internal and
external aids used by judges in the process of interpretation. Aids of interpretation are devices that
help or assist in the process. 

Internal aids are those materials which are available in the statute itself. These internal aids include - 

1. Long Title - it gives the description of the object of that Act.

2. Short Title - Usually, the short title is used for the purpose of referring to and identification of
any Act. It ends with the year of the passing of the Act.
3. Preamble - The main aim and objective of the Act is found in the preamble of the statute. All
the Acts start with the preamble, defining the reasons behind the enactment of the act and its
main objective.
4. Heading and Title of a Chapter - Helps to know the intent of the provision.
5. Definitions - Used to define all important terms. 
6. Illustrations - Examples given in the statutes for a better understanding of the section.
7. Proviso - Provides examples of specific cases where general words require special meaning
for them.
8. Explanations - They clarify and elaborate the meaning of words in the section.
9. Schedules - It contains minute details which add information to the provisions of the
enactment.
10. Punctuation - Punctuation is one of the minor elements of the statute. It should be given
importance only when there is no doubt about its meaning.

Conclusion
Knowledge on the different parts of a Statute or legislation is vital for a law student or researcher.
When we know the differences between all these parts, understanding of the legislation becomes very
easy and meaningful.

Q No. 3 (b) Write a short note on “Constituent Assembly Debates”.   6 marks

Introduction

The Constitution is the Supreme Law of land in India. It provides fundamental political code,
fundamental rights, directive principles, and the duties of citizens.

Constitution of India

The Constitution of India is one of the lengthiest written constitutions of the world. It was framed by a
Constituent Assembly set up under the Cabinet Mission Plan of 1946. The Constituent Assembly set
up 22 committees for framing of the constitution. On the basis of the reports of these committees, a
draft of the constitution was prepared by a seven-member Drafting committee under the Chairmanship
of Dr. B R Ambedkar.

Constituent Assembly Debate

Draft of the constitution was published in January 1948 and eight months of time was given to
welcome suggestions and possible amendments. During these eight months they received a lot of
suggestions. The total number of suggestions or amendments was 7635. However, the constituent
assembly had debates on 2473 amendments for 114 days. These debates are known as the constituent
assembly debates and are published in different volumes.

Significance of Constituent Assembly Debates

1. They help us understand the intention or motive of the framers of the constitution behind
adding specific provisions.
2. Constituent assembly debates may also help in interpretation of specific provisions of the
Constitution.

Conclusion

Constituent Assembly debates are of great value even today. To better understand constitutional law,
students and legal researchers can heavily rely on the different volumes of these debates.

Q No. 3 (b) Hierarchy of courts in England.   6 marks

Introduction

Courts are a primary part of the legal process in any country. However different countries have
different courts with different jurisdiction and powers. Based on that, there are different hierarchies of
courts.

Hierarchy of Courts in England

1. Supreme Court (formerly known as the House of Lords) - The Supreme Court is the Highest
court in England. It hears appeals from the Court of Appeal and the High Court (only in
exceptional circumstances). Appeals are normally heard by 5 justices, but there can be as
many as 9 justices as well.
2. Court of Appeal - In terms of hierarchy, it is the second category of court in England. The
Court of Appeal consists of two divisions - criminal and civil. Parties aggrieved by the
decisions of the court of appeal may appeal to the Supreme Court.
 3. High Court - This is the third category of courts in England.
4. County Court and Crown Court - The County Court deals with Civil matters and its decisions
may be appealed to the civil division of the High Court. The Crown Court deals with criminal
matters and its decisions may be appealed to the criminal division of the High Court.
5. Magistrates’ Courts and Tribunals - The Magistrates’ Court deals with criminal cases and
simple civil cases. The decisions of the Magistrates’ Court may be appealed to the Crown
Court and the County Court respectively. The tribunals make decisions on matters including
social security, education, employment, child support, tax, pensions, etc. and its decisions
may be appealed to the appropriate division of the High Court.

Conclusion

Division of courts in different hierarchies helps to ensure that courts are not overburdened with work.
It also ensures aggrieved parties have enough legal recourse in case they are not satisfied with
decisions of the lower courts.

Q No. 4 (a) What is a precedent? Explain different kinds of precedents.   10 marks

Introduction

A decision of the higher courts like the Supreme Court and the High Courts generally sets a precedent
for the Courts that are directly below them in terms of jurisdiction. 

Kinds of Precedents

1. Authoritative Precedents - These are those precedents which are binding on all the courts.
These precedents are binding on judges who interpret the law and whether they approve it or
not, these are regarded as a source of law. For example, a decision of the Supreme court.
2. Persuasive Precedents - They do not have any legal force or effect in themselves. They are not
bound to be followed if judges want they can use these as a reference and take them into
consideration while giving decisions. These precedents are of guiding character and only a
historical source of law. Persuasive precedents can help to establish laws.
3. Original Precedents - These precedents establish or create new law. It is evidence for the law
of the future. An original precedent is made when there is no previous judicial decision on a
point of law. When the court has to form an original precedent, a judge will come to their
decision by analogy.
4. Declaratory Precedents - These precedents apply already existing rules. It is considered a
good source of law.

Q No. 4 (b) Write a note on “Ratio-Decidendi”.   6 marks

In an ordinary sense, we refer to Ratio-Decidendi as the reason behind the decision but actually, it is
much more than that.

1. The reason in this regard is not merely applying the law to the facts and coming up with an
order.
2. Ratio Decidendi instead refers to the steps that are involved to resolve a dispute, this
resolution must be directly related to the issues that are at the core of the dispute at hand.
3. It must come from disputes of law, not disputes of fact.
4. Ratio Decidendi must be argued in court and the facts of the precedent case shape the level of
generality to which the later courts decide the level of generality.
5. Ironically when a precedent has multiple reasons, all reasons are binding.
6. Ratio becomes a very powerful tool in the hands of a lawyer and that is why it becomes
essential for him to comprehend it well.
 7. To find the ratio in a judgement one looks at the abstract principles of law that have been
applied to the facts of that particular case.

Q No. 5 (a) Explain Types of Research.   10 marks

Introduction

Research is “creative and systematic work undertaken to increase the stock of knowledge.” It involves
the collection, organization, and analysis of information to increase understanding of a topic or issue.
Research is the process of discovering new knowledge.

Types of Research

There are different ways that may be adopted by a researcher in doing research. Mentioned below are
some of most common types of research -

1. Descriptive vs. Analytical - Descriptive research is a fact-finding investigation. The

researcher has no control over the variables and has to report actual conditions. Analytical
research is critical evaluation of available information and is primarily concerned with testing
of a hypothesis.
2. Conceptual vs. Empirical - Conceptual research is related to abstract ideas and theories. It is
generally used by philosophers and thinkers to develop new concepts or to interpret existing
ones. Empirical research is aimed at coming up with conclusions without due regard for
system or theory. For example, how conditions in prison reform a criminal.
3. Action vs. Fundamental - Action research is carried out to find solutions to problems faced by
society. For example, how crime rates can be brought down in a society. However,
fundamental research mainly gathers knowledge without any intention to apply it in practice.
Before starting practice, a law student may want to do fundamental research on hierarchy of
courts in India only for the purpose of its knowledge.

Conclusion

Different types of research may be adopted by researchers depending on the purpose of study. 

Q No. 5 (b) Write a note on “methods of citation”.   6 marks

Introduction

Research involves literature review. A researcher mainly tries to use existing documents or materials
on the topic of study to get some ideas. However, copying someone else’s work or taking references
without giving the due credit is considered to be unethical. It is called plagiarism.

Citation

Citation is a process of giving credit to the original author of a study. There are three common
methods of referring to a source document in the text of an essay, thesis, or assignment theory.

1. Quoting - quotations play an important part in research whenever the researcher wants to
directly quote something from a source. The same applies for legal research as well.
Quotation as a method of citation may be very helpful when a researcher wants to quote the
principles laid down by a jurist in his theory.
 2. Paraphrasing and Summarizing - Paraphrasing and summarizing are also very important and
commonly used methods of citation. Here, the researcher tries to paraphrase the wordings
without changing the true meaning of the original words.
3. Citing the Whole Document - Sometimes it may be necessary to give general reference to the
whole of a source document. This method of referencing is used least often. For example,
while referring to a judicial decision in a research work, the researcher may cite the original
judgment copy.

Conclusion

Research involves a lot of effort from the part of the researcher. Hence, due credit should be given
whenever any reference or help is taken from an existing work. Thus, having knowledge on the ethics
of research is vital for any researcher.

Legal Methods Paper 3

Q No. 3 (b) Hierarchy of Courts in India.   6 marks

Introduction

Courts are a primary part of the legal process in any country. However different countries have
different courts with different jurisdiction and powers. Based on that, there are different hierarchies of
courts.

1. Supreme Court - The Supreme Court of India is the supreme judicial body of and the highest
court of India under the constitution. The decisions given by the Supreme Court are binding
on all other courts in India. It is located in New Delhi.
2. High Courts - High Courts are the second category of courts in India. We have 25 High
Courts in India as of now. Generally each state should have one high court. However, in some
cases, one high court is shared by more than one state. E.g. High Court of Punjab and
Haryana.
3. Metropolitan and Other Areas - The hierarchy of courts and their names slightly vary
considering whether it is a metropolitan area or another area. The division of lower courts is
mainly based on civil and criminal matters. All these lower courts come under the specific
high court of that State.

Conclusion

Division of courts in different hierarchies helps to ensure that courts are not overburdened with work.
It also ensures aggrieved parties have enough legal recourse in case they are not satisfied with
decisions of the lower courts.

Q No. 3 (b) Kinds of Civil Wrongs.   6 marks

Introduction

Civil wrongs are wrongs committed by one or more individuals or groups against the other. These are
mainly disputes between two parties in which compensation is awarded to the victim. The main aim of
law is not to punish the wrongdoer, but to minimize the loss or harm suffered by the victim.

Kinds of Civil Wrongs

1. Tort - The term ‘Tort’ is derived from the Latin word ‘Tortum’ which means ‘what is not
straight.’ Tort is a civil wrong. In tort, there is a breach of duty which is fixed by law. In tort,
 damages are generally unliquidated (not pre-fixed) and are determined by the Court based on
facts and circumstances of the case. E.g. trespass, negligence, nuisance.
2. Contract - Contract is a legally enforceable promise made between two parties. In a contract,
there is a breach of duty which is fixed by the contracting parties. The damages are pre-fixed
according to the terms and conditions of the contract. 
3. Family Disputes - Matrimonial disputes are also a type of civil dispute. If two married persons
get divorced, the matter will be filed as a civil suit. Custody of a child, after the divorce, is
also a civil dispute between the parties.
4. Property Matters - Matters regarding possession of property, division of property, inheritance
of property, etc. are also covered as types of civil wrongs.

Conclusion

Though the concept of civil wrongs takes up  a broader area of law, there are different divisions in
civil wrongs as well. These are civil cases and are handled by the court of law.

Q No. 4 (b) Obiter-Dictum.     6 marks

Obiter Dictum is the term used for remarks made by the judge which are not binding on the parties to
the case.

Statements that are not crucial and refer to hypothetical facts or issues of law not related to the case
also form a part of Obiter Dicta in a judgement.

Unlike Ratio Decidendi, obiter dictum is not the subject of the judicial decision even if the statements
made in this part are correct according to law.

Thus, it can be well concluded by mentioning that obiter dictum is an opinion not necessary to a
judgment and is an observation as to the law made by a Judge in the course of a case, but not
necessary to its decision and therefore of no binding effect; it is a ‘remark by the way’.

Q No. 4 (b) Internal aid to Construction.     6 marks

Introduction

Internal aids to construction are used by the judiciary while drawing conclusions from provisions of
statutes. Construction refers to drawing conclusions from written texts which are beyond the outright
expression of the legal text. The purpose of construction is to determine the legal effect of words and
the written text of the statute.

Aids to Construction

An ‘Aid’ is a device that helps or assists in performing some work. While performing the function of
construction, the court can take help from within the statute which is called internal aid to
construction. For example, title, heading, preamble etc.

However, if the court takes help from outside the statute, it is called as external aids of construction.
For example, Government circulars, publications, etc.

Internal Aid to Construction

Internal aids are those materials which are available in the statute itself. These internal aids include - 

11. Long Title - it gives the description of the object of that Act.
12. Short Title - Usually, the short title is used for the purpose of referring to and identification of
any Act. It ends with the year of the passing of the Act.
 13. Preamble - The main aim and objective of the Act is found in the preamble of the statute. All
the Acts start with the preamble, defining the reasons behind the enactment of the act and its
main objective.
14. Heading and Title of a Chapter - Helps to know the intent of the provision.
15. Definitions - Used to define all important terms. 
16. Illustrations - Examples given in the statutes for a better understanding of the section.
17. Proviso - Provides examples of specific cases where general words require special meaning
for them.
18. Explanations - They clarify and elaborate the meaning of words in the section.
19. Schedules - It contains minute details which add information to the provisions of the
enactment.
20. Punctuation - Punctuation is one of the minor elements of the statute. It should be given
importance only when there is no doubt about its meaning.

Conclusion

Knowledge on the different parts of a Statute or legislation is vital for a law student or researcher.
When we know the differences between all these parts, understanding of the legislation becomes very
easy and meaningful.

Q No. 5 (a) Explain the major steps involved in doing Legal research.     10 marks

Introduction

Research is “creative and systematic work undertaken to increase the stock of knowledge.” It involves
the collection, organization, and analysis of information to increase understanding of a topic or issue.
Research is the process of discovering new knowledge.

Steps in Research

Research is a systematic study wherein the researcher proceeds step by step to be able to get the best
outcome. Below-mentioned are the main steps involved in a research - 

1. Step 1 - Statement of Facts - The first step in research is to write a statement of facts. This
helps in gaining a complete understanding of everything that has happened, or is happening,
in the concerned topic of research.
2. Step 2 - Research Problem - The second step is to get an idea of the research problem that the
researcher wants to address. Acknowledgment of the research problem will make it very clear
why research is needed in that specific area.
3. Step 3 - Collecting Information - Step three is data collection and reading all the relevant
information available. In this step, the researcher may rely on primary or secondary sources
available, interview concerned persons, get questionnaires filled, or visit concerned
institutions or departments.
4. Step 4 - Analysis of the information collected - Once the necessary information is collected,
the researcher will need to analyze it. In this step, the research will also readdress the research
problem and arrange the work in a systematic way.
5. Step 5 - Conclusion and Suggestion - Last step is the outcome. After analyzing the problem
and doing the entire research, the researcher may put forward some possible suggestions to
overcome the problem. The last step concludes the research work and also identifies any
scope for further research on that area.

Conclusion

Research plays a vital role in every field of study. It may be helpful for a student to learn some new
concepts. Similarly, a teacher may take help of research to expand his/her understanding. A working
professional may also take help of research. However, to get the maximum benefits out of a research,
proper planning plays a major role. Hence, it is important for everyone to know the major steps
involved in doing research.

Q No. 5 (b) Working out problems in the examination.     6 marks

Introduction

Examination is a vital part of any course. Based on the answer writing skills of the student, he or she
is evaluated. Examinations may be of different types based on the course or maturity of the student.
OMR sheet questions, objective type questions, short questions, essay type questions, problem solving
questions are some of the common patterns that we see in examinations.

Working out Problems

One of the methods of evaluation is working out problems in the examination. A student may be asked
to solve a given problem and based on that his/her understanding may be judged. In legal studies, the
working out problems method works really well as the student needs to develop critical thinking.

Examples of Working Out Problems

A student may be given a real life situation and asked to arrive at a conclusion by applying a given
law. For example, two people made a contract with each other for the supply of some books.
However, after the formation of the contract, one of the parties violated the contract. In such cases
what solutions are available to the victim?

In answering such a question, the student will have to understand the problem, know the applicable
laws, and be skilled enough to apply them in a given situation.

How working out problems help

The method of evaluation of students by the working out problems method is especially helpful for
law students as they are going to be future lawyers, judges, or even lawmakers. 

Being lawyers, they will have to easily figure out the applicable law in a given situation.

For a judge, it is very much needed that he/she has logical thinking and the ability to see the good and
bad of a given situation. Judges quite  often have to evaluate the possible impacts of their judgements.

For a lawmaker, it is very important to critically evaluate rules before passing them.

Conclusion

Working out problems as a mode of evaluation in college or university life will make the students
skilled enough to face the real world. Hence it is always better to start developing such skills from an
early age to be able to master them in the future.

Q No. 5 (b) Interview method in Research.        6 marks

Introduction

An interview is a conversation for gathering information. A research interview involves an

interviewer, who coordinates the process of the conversation and asks questions, and an interviewee,
who responds to those questions.

An interview is generally a research technique which involves asking open-ended questions to

converse with respondents and collect elicit data about a subject. The interviewer in most cases is the
subject matter expert who intends to understand the respondent’s opinions in a well-planned and
executed series of questions and answers.

Types of Interviews

1. Structured Interviews - In a structured interview, the interviewer asks a set of standard,

predetermined questions about particular topics, in a specific order. The respondents need to
select their answers from a list of options.
2. Semi-structured Interviews - In a semi-structured interview, the interviewer uses a set of
predetermined questions and the respondents answer in their own words. Semi-structured
interviews are useful when there is a need to collect in-depth information in a systematic
manner from a number of respondents or interviewees.
3. Unstructured Interviews - In an unstructured interview, the interviewer has no specific
guidelines, restrictions, predetermined questions, or list of options. The interviewer asks a few
broad questions to engage the respondent in an open, informal, and spontaneous discussion.
Unstructured interviews are particularly useful for getting the stories behind the respondents’
experiences or when there is little information about a topic.

Methods of Research Interviews

There are three methods to conduct research interviews, each of which is peculiar in its application
and can be used according to the research study requirement.

 Personal Interviews 
 Telephonic Interview
 Online interviews

To summarize the discussion, an effective interview will be one that provides researchers with the
necessary data. This information is applicable to the decisions researchers make.