Royal college of law, Ghaziabad Jurisprudence-II

Notes on some Important Topics

Topic-1
Concept of Legal Personality in Jurisprudence

The decision of House of Lords in Salomon v A Salomon & Co. Ltd had a lasting
influence in corporation law. It is often credited with the principle of separate legal
entity of the corporation distinct from the members.

Though there is no doubt that the Salomon case had play a significant role in
company law, the decision in this case was hardly the origin of the separate legal
entity principle. The legal entity of beings other than the human has long been
recognized prior to 1897, in which the Salomon case was decided.

The jurisprudence theories on juristic person had been established since the early
Roman law to justify the existence of legal person other than the human. The State,
religious bodies and education institutions had long been recognized as having legal
entity distinct from the members.

The acceptance of the corporate personality of a company basically means that

another non-human entity is recognized to assume a legal entity. This can be seen
from the many theories of jurisprudence on corporate personality. Majority of the
principal jurisprudence theories on corporate personality contended that the legal
entity of the corporation is artificial. The fiction, concession, symbolist and purpose
theories supported the contention that existence of corporation as a legal person is
not real. It only exists because the law of the state recognized it as legal person and
it is recognized either for certain purpose or objectives. The fiction theory, for
example, clearly stated that the existence of corporation as a legal person is purely
fiction and that the rights attached to it totally depend on how much the law imputes
upon it by fiction.

Meaning and concept of a Legal Person

The word ‘person’ as might be noted originally means mask. Mask indicates a
character in a play, a representative of it. Its origin can be traced back to the word
‘parson’; the representative of a Church. But now if talk about a person, it does not
merely represent the identity of a man of flesh and blood but also represents several
jural relations. The identity of ‘person’ has been allocated in many cases from time
to time.

Generally, there are two types of person which the law recognized, namely the
natural and artificial person. The former is confined merely for human beings while
the latter is generally referred to any being other than human being which the law
recognized as having duties and rights . One of the most recognized artificial persons
is the corporation.

Legal scholars, particularly the jurists, have always explored the issue on the
recognition of corporation as a legal person. In the study of jurisprudence, the
separate legal personality of corporation is based upon theories, which are
concentrated upon the philosophical explanation of the existence of personality in
beings other than human individuals.

W. Friedman stated that: “All law exists for the sake of liberty inherent in each
individual; therefore the original concept of personality must coincide with the idea
of man.”

Even though there are many theories which attempted to explain the nature of
corporate personality, none of them is said to be dominant. It is claimed that while
each theory contains elements of truth, none can by itself sufficiently interpret the
phenomenon of juristic person. Nonetheless, there are five principal theories, which
are used to explain corporate personality, namely, the fiction theory, realist theory,
the purpose theory, the bracket theory and the concession theory.

Persons as an entity, or a legal entity can be broadly classified and discussed as

human beings, corporations sole, corporations aggregate and public corporations.

Human Beings

1. NATURAL PERSONS
According to Holland, “a natural person is such a human being as is regarded by the
law as capable of being given rights and duties or having a status.” [3] According to
another writer, “natural persons are living human beings recognized as such by the
state”. The first precondition of an ordinary man is that he must be recognized as
qualified for his rights and duties. In the case of English law, if a person becomes an
outlaw, he loses his personality and therefore has no rights and obligations.

2. LEGAL PERSONS :
A legal person is a real image entity whose personality is attributed according to an
agenda that does not actually exist. They are beings treated as human beings for the
purposes of the law. A legal entity is also known as an artificial, legal or fictitious
person.
There are two essentials of a legal person, i.e., corpus and animus. A corpus is a body
in which the law infuses the animus, will, or intentions of a fictional personality.
Animus is the character or will of a person. An institution, a jury, a
corporation, an organization, a foundation, an estate are all legal entities. A legal
personality is decided upon few factors. They are: -
i. Do they have rights and duties? ii.
Can they withhold property?
iii. Can it sue or be sued? iv. Can
it enter into any contract?

LEGAL STATUS OF DEAD PERSON :

The personality of a human being seizes to exist at death and hence, dead men are
not regarded as persons in the eyes of law. They have laid down their legal
personality with their lives and they are destitute of rights and liabilities.
However, there are three things in respect of which the wishes of the dead man
continue even after death. They are: -
a. His Body – A living man is interested in the treatment to be given to his own
dead body. Criminal law guarantees a proper burial for all who have died, and a
serious violation is a criminal offense.
b. His Reputation – The reputation of a deceased person is protected to some extent
by criminal law. The libel of a deceased person is punished as an offense when its
publication is an attack on the interests of the living. In practice, however, this right
actually belongs to the legitimate descendants of the deceased. Here, the legal
maxim, ‘de mortuis nil nisi bonum dicendum est’ is used. This maxim means
“nothing must be said about the dead except the good”.
c. His will – A person can buy his will make a valid disposition of his property
according to his wishes and choice. After his death, the property can be disposed of
only in the manner as provided in the will. A deceased person continues to determine
the enjoyment of the property he owned throughout his life. Inheritance law allows
the wishes of the dead to govern the actions of the living. Above all, whatever he
leaves for distribution as a gift will be respected and enforced by law according to
his wishes, here is a proper document i.e., Act.

LEGAL STATUS OF UNBORN CHILD :

Unborn persons have been legal status by law. "There is nothing in the law to prevent
a man from owning property before he is born.". His owner

ship is real and present but contingent because he may never be born at all. A child
in the womb of his mother is for many purposes regarded a legal fiction. The
contingency on an unborn person is to be born alive. If the child is born dead then,
the legal personality falls away by ab initio.
In the law of property, there is legal friction that a child who is in the mother’s womb
for the purpose of the following will be treated as a person – a. The acquisition of
the property by the child itself or,
b. Being a life chosen to be part of the period in the rule against permanence. The
Hindu Law of partition requires a share to be allotted to his child in the mother’s
womb along with the other living heirs. But, if the child is not born alive, his share
will also be divided among the surviving heirs. Thus, the act of causing injury to the
child in the womb has become a criminal act that is handled by criminal law. Causing
the death of a child in the womb has been considered a punishable crime by the
Indian Penal Code. Thus, children in the womb have their rights guaranteed by law
and have legal identities.

LEGAL STATUS OF ANIMALS :

Pet owners have rights and obligations. If you hurt an animal, you violate its rights,
and if the animal injures you, it can be held responsible.
Even wild animals are protected, but that doesn't mean they have rights. They are
protected to protect the interests of society as a whole. The lower animals or beasts
are not regarded as persons at all whether natural or legal. They are merely things,
often the objects of legal rights and duties but never the subject of them. Although
beasts are incapable of legal rights and duties and their interests are not recognized
by law, legal history reveals that archaic codes contain provisions regarding
punishment to animals if they were found guilty of homicide.
Today, however, an animal cannot be punished but if it is extremely dangerous then,
only certain laws allow shooting down. In modern law, a trespassing beast may be
under distress-damaged pheasant kept distrained until his owner or someone else
interested in the beast pays compensation. Similarly, in India, cattle trespass has been
passed for trespassing animals.
A beast is incapable of legal rights and legal duties for its interests receives no
recognition from the law. However, there are two cases in which beasts may possess
legal rights –
a. Cruelty to animals is a criminal offense.
b. A trust for the benefit of a particular class of animals as opposed to one for
individual animals is valid and enforceable as a public and charitable trust.

LEGAL STATUS OF IDOLS :

Generally, an idol is an image or representation of a God who is used as an object of

worship. Idol is a juristic person and as such can hold the property but it is treated as
a minor and the pujari or someone else acts on its behalf as its guardian. For example,
Guru Granth Sahib can hold property in its name and was considered a person in
Gurudawara Prabandak Committee V. Somnath Das, 2000.[9] In the case of a
Mosque, a suit cannot be brought by or against the mosque as it is not considered a
juristic person for that matter in eyes of law but the question of whether a mosque is
a juristic person for any other person was left open.
In the case of, Yogendranath Nashkar V. Commission of Income Tax (AIR,
1969)[10], The Supreme Court of India held that the Hindu Idol is a juristic person
capable of holding property and of being tax through its sevayat. A Hindu deity falls
within the meaning of individual under the Income Tax Act.

Individuals are the social units and pre-existed both laws and society. Since laws are
made by them and for them , and since jural relations are relations between
individuals, it is no wonder that the jural relations of each individual came to be one
of the first and most important unities for legal purposes. The legal concept of a
human being as a person is simply a multitude of claims, duties, liberties, etc treated
as a unit; as such there is no distinction in law between ‘natural’ and ‘legal’ persons.

Corporations Sole

From an early time it was found necessary to continue the official capacity of an
individual beyond his lifetime or tenure of office . The common lawyers accordingly
created a second ‘person’ who , though passing under the same name as the flesh
and blood individual, enjoys legal existence in perpetuity . This is the corporation
sole, which is a personification of official capacity. Unity of jural relations is thus
assured a continuity which it would not otherwise have. ‘The living official comes
and goes’, said Salmond in passage which has become classic, ‘but this offspring of
the law remains same for ever’. The idea originated, according to Maitland, with a
piece of land , known as the parson’s glebe, which was vested in a parson in his
official capacity. Difficulties arose over the conveyance of the seisin to a parson for
the benefit of the Church. The corporation sole was invented so that the seisin could
be vested in it. Maitland went on to show that lawyers nevertheless did not avail
themselves of the services of this child of their imagination for certain old rules stood
in the way.

The main purpose of the corporation sole is to ensure continuity of an office.

Moreover, the occupant may acquire property for the benefit of his successors, he
may contract to bind or benefit them, and he can sue for injuries to the property while
it was in the hands of his predecessor. Today there are many corporations sole such
as Ministers, President, Bishop, Judges etc.

Corporation Aggregate

As long as there have been companies, there has been debate on how companies
should be run and who should be in control of them. For many years the business
landscape consisted mainly of individual traders who both owned their business and
exercised control over it. This all changed with the dawn of the Industrial
Revolution, an unprecedented period of social upheaval and economic change, most
notably the emergence of the modern capitalist economy. During this era there was
a huge increase in the wealth of the middle classes as well as many technological
improvements, such as rail travel, that required mass amounts of investment to
function. This was mostly done through unincorporated associations, though it was
possible for a joint stock company to become incorporated (i.e. obtain a separate
legal personality from its owners) this was rarely extended to many corporations as
the protections and privileges they granted were well protected by the state. The
result of this was that these companies had many shareholders, often spread over
most of the country, which would have made any attempts at litigation extremely
difficult, so the Joint Stock Companies Act 1844 introduced incorporation for joint
stock companies, though shareholders could still be liable for the debts of the
corporation until the Limited Liability Act 1855 which gave the option of limited
liability for corporations. This encouraged further investment and increased both the
number and the geographical distance between shareholders and their companies. It
was at the time of the stock market crash of 1929 in the USA and the subsequent
Great Depression that academic commentators started to discuss the separation of
ownership, which was vested in the shareholders, and control, which lay in the hands
of the managers.

Aggregate theory stipulates that corporations are formed when groups of people with
a common interest come together for a common purpose, and these private
individuals are the basis for all of the acts committed by the corporation, it has no
independent existence separate from its owners. This way it can justify placing the
interests of its shareholders as the most imperative objective for the company to
obtain, known as shareholder primacy, namely profit maximisation with no regard
for societal needs. This theory waned when shares became more freely transferrable,
as shareholders became uninterested in exercising control over the company and
instead behaved more like spectators.

Corporate realism, on the other hand, considered the company to have a separate
existence from its shareholders with its objectives being defined instead by the
managers, though this theory failed when faced with the issue of managerial
accountability, as it assumed a neutral management. It was not until Adolf Berle and
Gardiner Means published The Modern Corporation and Private Property [1] in 1932
that these deficiencies were challenged.

Different theories of Legal Personality in Jurisprudence The

Fiction Theory:

The fiction theory of corporation is said to be promulgated by Pope Innocent IV

(1243–1254). This theory is supported by many famous jurists, particularly, Savigny
and Salmond. According to this theory, the legal personality of entities other than
human beings is the result of a fiction. Hence, not being a human being, corporation
cannot be a real person and cannot have any personality on its own. Originally, the
outward form that corporate bodies are fictitious personality was directed at
ecclesiastic bodies. The doctrine was used to explain0000000000000000 that the
ecclesiastic colleges or universities could not be excommunicated or be guilty of a
delict as they have neither a body nor a will. The famous case of Salomon v A
Salomon Co Ltd is a proof of the English court adoption of the fiction theory. In this
case, Lord Halsbury stated that the important question to decide was whether in truth
an artificial creation of the legislature had been validly constituted. It was held that
as the company had fulfilled requirements of the Companies Act, the company
becomes a person at law, independent and distinct from its members.

Salmond, made it clear that a human being is the only natural person while legal
persons govern any subject matter other than a human being to which the law
attributes personality. States, corporations and institutions cannot have rights of a
person but they are treated as if they are persons. Under this theory, rights and duties
attached to corporation as artificial person totally depend on how much the law
imputes to it by fiction.

The personality the corporation enjoys is not inherent in it but as conceded by the
state. Due to the close connection made in this theory as regards to relation of legal
personality and the power of the state, fiction theory was claimed to be similar to the
theory of sovereignty of state which is also known as the concession theory.

The Concession Theory:

The concession theory is basically linked with the philosophy of the sovereign
national state. It is said to be essentially a product of the rise of the national state at
a time when there were rivals between religious congregations and organizations of
feudal origin for the claim of 000.000national state to complete sovereignty. Under
the concession theory, the state is considered to be in the same level as the human
being and as such, it can confer on or withdraw legal personality from other groups
and associations within its jurisdictions as an attribute of its sovereignty. Hence, a
juristic person is merely a concession or creation of the state.

Concession theory is often regarded as the offspring of the fiction theory as it has
similar claim that the corporations within the state have no legal personality except
as it is conceded by the state. Exponents of the fiction theory, for example, Savigny,
Dicey and Salmond are found to support this theory. Nonetheless, it is that while the
fiction theory is ultimately a philosophical theory that a corporation is merely a name
and a thing of the intellect, the concession theory is indifferent as regards to the
question of the reality of a corporation in that it focuses on the sources of which the
legal power is derived. Dicey took the view that sovereignty is merely a legal
conception which indicates the law-making power unrestricted by any legal limits.

The Purpose Theory:

This theory is also known as the theory of Zweckvermogen. Similar to the fiction
and concession theories, it declares that only human beings can be a person and have
rights. Entities other human is regarded as an artificial person and merely function
as a legal device for protecting or giving effect to some real purpose. As corporations
are not human, they can merely be regarded as juristic or artificial person. Under this
theory, juristic person is no person at all but merely as a “subject less” property
destined for a particular purpose and that there is ownership but no owner. The
juristic person is not constructed round a group of person but based on the object and
purpose. The property of the juristic person does not belong to anybody but it may
be dedicated and legally bound by certain objects. This theory rationalized the
existence of many charitable corporations or organizations, such as trade unions,
which have been recognized as legal persons for certain purposes and have
continuing fund. It is also closely linked with the legal system which regard the
institution of public law (Anstalt) and the endowment of private law (Stiftung) as
legal personalities.

The Bracket Or Symbolist Theory:

This theory is also known as the “bracket” theory. It was set up by Ihering and later
developed particularly by Marquis de Vareilles-Sommiéres. Basically, this theory is
similar to the fiction theory in that it recognizes that only human beings have
interests and rights of a legal person. According to Ihering, the conception of
corporate personality is essential and merely an economic device by which simplify
the task of coordinating legal relations. Hence, when it is necessary, it is emphasized
that the law should look behind the entity to discover the real state of affairs. This is
clearly in line with the principle of lifting of the corporate veil. Under this theory,
rights are not inherent attributes of the human will and that an individual is not a
subject of right by reason that he possesses a will. On the contrary, the will is at the
service of law and it is the interest of man which the law protects.

The symbolist theory is often acknowledged for its availability to justify corporate
personality from non-legal facts but it has been repeatedly rejected by the courts in
common law jurisdictions because it denies the law by deducing that the only legal
relation which is fixed and certain can be discovered by removing the ‘brackets’ of
the corporation and analysing the relations of the human beings involved.

The Realist Theory:

The founder of this theory was a German jurist, Johannes Althusius while its most
prominent advocate is Otto von Gierke, who not only responsible for the scholarly
wisdom of his writings but also as the challenger to the entire basis of Roman
jurisprudence.

According to this theory, a legal person is a real personality in an extra juridical and
pre-juridical sense of the word. It also assumes that the subjects of rights need not
belong merely to human beings but to every being which possesses a will and life of
its own. As such, being a juristic person and as ‘alive’ as the human being, a
corporation is also subjected to rights.

Under the realist theory, a corporation exists as an objectively real entity and the law
merely recognizes and gives effect to its existence. The realist jurist also contended
that the law has no power to create an entity but merely having the right to recognize
or not to recognize an entity.

A corporation from the realist perspective is a social organism while a human is

regarded as a physical organism. The realists contended that action of the corporation
is deem to be carried out on its own, similar to the way of the normal person and not
by its agents or representatives like those of the incapable, such as the infant and
insane. While human uses his bodily organ to do an act, the corporation uses men
for that purpose. Some of the realist theory followers even claimed that similar to
the human being, juristic person also has organs.

This theory is found to be favoured more by sociologists rather than by lawyers.

While discussing the realism of the corporate personality, most of the realist jurist
claimed that the fiction theory failed to identify the relation of law with the society
in general. The main defect of the fiction theory according to the realist jurist is the
ignorance of sociological facts that evolved around law making process. Hence, by
ignoring the ‘real capacity and functions’ of corporation in the real world, the fiction
jurists had failed to see the ‘live’ possessed by a corporation. The realist contended
that by rejecting the fiction theory, one would succeed to reject an abstract
conception and untrue account of the reality with which the practical lawyer has to
deal.

According to the realist jurist, lawyers have to acquire the habit to depart from the
plain meaning of law and go behind the scenes of the legal platform for the
realization and justice which law is supposed to introduce to life.
Interpretation of the term “Legal Person” by the Indian Judiciary
From time to time, the concept of “legal person” has been interpreted by various
jurists in various contexts. The US and UK Courts have interpreted the term in
matters related to corporate, international, domestic and social importance on
numerous occasions. The Indian Judiciary too faced a similar challenge in the case
of Mohd. Salim v. State of Uttarakhand & Ors.

Mohd. Salim v. State of Uttarakhand & Others[32]

Bench: Hon’ble Mr. Justice Rajiv Sharma , Hon’ble Mr. Justice Alok Singh.

Facts: The petitioner, a resident, challenges the failure of the Governments of Uttar
Pradesh and Uttarakhand in constituting the Ganga Management Board as stated in
the Section 80 of the Uttar Pradesh Reorganisation Act, 2000. The Court specifies
that Ganga and Yamuna. have a particular significance for Hindus.

Issue Raised: The extraordinary situation has arisen since Rivers Ganga and Yamuna
are losing their very existence. This situation requires extraordinary measures to be
taken to preserve and conserve Rivers Ganga and Yamuna.

Reasoning: “The consecrated idol in a Hindu temple is a juridical person has been
expressly laid down in Manohar Ganesh’s case, I.L.R. 12 Bom. 247 which Mr.
Prannath Saraswati, the author of the ‘Tagore Lectures on Endowments’ rightly
enough speaks of as one ranking as the leading case on the subject, and in which
West J., discusses the whole matter with much erudition.” The court also recognises
the fact that the rivers are of utmost significance to the Hindus by stating, “Rivers
Ganges and Yamuna are worshipped by Hindus. These rivers are very sacred and
revered. The Hindus have a deep spiritual connection with Rivers Ganges &
Yamuna. According to Hindu beliefs, a dip in River Ganga can wash away all the
sins. The Ganga is also called ‘Ganga Maa’. It finds mentioned in ancient Hindu
scriptures including ‘Rigveda’. The river Ganga originates from Gaumukh Glacier
and River Yamuna originates from Yamnotri Glacier.” The bench further stated “
All the Hindus have deep ‘Astha’ in rivers Ganga and Yamuna and they collectively
connect with these rivers. Rivers Ganga and Yamuna are central to the existence of
half of Indian population and their health and well-being. The rivers have provided
both physical and spiritual sustenance to all of us from time immemorial. Rivers
Ganga and Yamuna have spiritual and physical sustenance. They support and assist
both the life and natural resources and health and well-being of the entire
community. Rivers Ganga and Yamuna are breathing, living and sustaining the
communities from mountains to sea.”

Judgement: Finally the rivers Ganga and Yamuna were given status of a legal person
by the Court. The order set out was “…while exercising the parens patrie
jurisdiction, the Rivers Ganga and Yamuna, all their tributaries, streams, every
natural water flowing with flow continuously or intermittently of these rivers, are
declared as juristic/legal persons/living entities having the status of a legal person
with all corresponding rights, duties and liabilities of a living person in order to
preserve and conserve river Ganga and Yamuna.” A further judgement directed “The
Director NAMAMI Gange, the Chief Secretary of the State of Uttarakhand and the
Advocate General of the State of Uttarakhand are hereby declared persons in loco
parentis as the human face to protect, conserve and preserve Rivers Ganga and
Yamuna and their tributaries. These Officers are bound to uphold the status of Rivers
Ganges and Yamuna and also to promote the health and well-being of these rivers.”

Concluding Remarks…..
From the discussion on jurisprudence theories of corporate personality, it is observed
that main arguments lie between the fiction and realist theories. The fiction theory
claimed that the entity of corporation as a legal person is merely fictitious and only
exist with the intendment of the law. On the other hand, from the realist point of
view, the entity of the corporation as a legal person is not artificial or fictitious but
real and natural. The realist also contended that the law merely has the power to
recognize a legal entity or refuse to recognize it but the law has no power to create
an entity.

Referring to the English company law case law, it can be seen that in most cases, the
court adopted the fiction theory. Salomon v A Salomon Co Ltd is the most obvious
example. It is also observed that fiction theory provide the most acceptable reasoning
in justifying the circumstances whereby court lifted the corporate veil of corporation.
If the entity of the corporation is real, then the court would not have the right to
decide the Circumstances where there is separate legal entity of the corporation
should be set aside. No human being has the right to decide circumstances whereby
the entity of another human being should be set aside. Only law has such privilege.

Nonetheless, the realist contention that the corporation obtain its entity as a legal
person not because the law granted it to them but because it is generated through its
day to day transaction which are later accepted and recognized by law also seem
acceptable.
Topic-2

Concept of Rights and Duties Under Jurisprudence

Introduction
The law protects the legal right of every citizen. By being a citizen of the country,
the people are given the legal right. It is the duty of every individual to protect the
rights of each individual.

Meaning
In general word, it means that the action which is permitted by the law is called legal
right or the act which is recognized or protected by the state is called legal right. The
definition is given by the number of jurists like Holland, Austin, Pollock. According
to Salmond:

A legal right is an “interest which is protected and recognized by the rule of law. It
is an interest which has its duty and disregard of which is wrong”.
According to Gray:
A legal right is “that power which the man has, to make a person or persons to do or
restrains from doing a certain act or acts so far as the power arises from society
imposing a legal duty upon the person or persons. He states that the “right is not the
interest itself, it is the means to enjoy the interest secured”.
In the case of State of Rajasthan vs Union of India[1], the Supreme Court stated that
“Legal rights in the strict sense are correlatives of legal duties and legal rights are
defined as the interests which the law protects by imposing duties on other persons.
But the legal right in the strict sense means right is the immunity from the legal
power of another. Immunity is no subjection at all”.

Essential conditions of legal right

According to Salmond, there are five essential conditions that need to be fulfilled:

• The person of inheritance/ Subject of right:

He shall be the person who is the owner of the right. He is the subject of the legal
right. Such a person is called a person of inheritance. Example:-Y purchase a van for
Rs 20,000. Here Y is the subject of the right.
Even in the case when the property is bequest to the unborn child, the unborn child
is the owner of the property even though he is uncertain.

• The subject of duty/ the person of incidence:

It is the duty of another person or persons to respect and recognize the right of the
person. Such a person who has a legal duty is called a person of incidence. Example-
If A has a legal right against B, then it is the duty of B to respect the right of A.

• Contents or Subject Matter of legal right:

The subject matter of legal right is an essential element. It deals with the subject
matter of the legal right. It is related to do something or to refrain from doing certain
acts or forbearance. It obligates the person to forbear or act in favour of the person
possessing a legal right. Example-Y purchase a van for Rs 20,000. Here Y is the
subject of the right. The subject matter ( Y) has a legal right and he can exclude
others.

• The object of the legal right:

The object of the legal rights is a thing or object over which the legal right is
exercised. Example- A purchases the car for Rs 1,00,000. Here the car is the object.

• Title of the legal right:

The title is the process by which the right is vested or conferred on the person. It is
certain events by which right is acquired from its previous owner. Example- By
purchase or gift or will etc.

Theories Related To The Legal Right

• Interest Theory
Developed by: Rudolf Von Jhering
Rudolf Von Jhering stated that Legal right is the legally protected interest. He gave
importance to the interest of the people rather than the will of the people. The main
objective is to protect the interests of the people and to avoid the conflict between
the individual interest.
Their interest exists in the life of the community itself. They are not created by any
statute.
Salmond positive view:
He supported this theory but he stated that its enforceability is an essential condition.
Salmond criticism:
He criticized the interest theory on the ground that the interest is not protected by the
state. In order to confer a legal right, it is essential that interest should be protected
and recognized by the state.
Gray view:
He said that this theory is partially correct because a legal right is not an interest in
itself but it is only meant to protect the interests of an individual. He also stated that
legal rights confer the right on the person to do a certain act / to forbear by imposing
a legal duty on them through the agency of law “state”.
Dr Allen view:
It can be said that both the theories are not contradictory to each other but it is the
combination of both the theories. He tried to combine these two theories by pointing
out that the essence of legal right seems to be, not legally guaranteed power by itself
nor legally protected by itself, but the legally guaranteed power to realise an interest.
It can be concluded that both theories are the essential ingredients of the legal right.

Will theory
Supported by: Kant, Hegel, Hume
According to his theory “rights is an inherent attribute of the human will”. The
purpose of the law is to permit the expression of free will. The subject matter is
derived from the human will.
Rights are defined in the terms of will by Austin, Pollock and Holland. According to
John Locke, “the basis of the right is the will of the individual”. According to Puchta
the legal rights gives power to the person over the object which by means of right
can be subjected to the will of the person who is enjoying the right.
Criticized by: Duguit
According to him the basis of the law is not a subjective will but it is an objective
will. The purpose of the law is to protect only those acts which further support social
solidarity. He further stated that the theory of subjective right is a metaphysical
abstraction.

Classification of Legal Right

Right in rem and Right in Persona

The right in rem is the right available against society at large. For Example:- a crime
committed under I.P.C because it is a crime committed against the state.
Right in Persona means right that is available against an individual. Example breach
of Contract. When there is a breach of contract, the party who has performed the act
files the suit against the breaching party. Right in Persona is temporary in nature,
which can be converted into right in rem. Right in rem is a permanent in nature.
Positive Rights and Negative Rights
A positive right is a right when some action needs to be done by the person who has
the corresponding duty. The person on whom the duty lies must perform some
positive acts.
The negative rights are the rights which omit the person from performing certain
acts. Negative rights correspond to negative duty. The person on whom such duty is
imposed is restrained from performing certain acts.

Personal and Proprietary Rights

Personal rights are the right to respect the owner of the right. The personal right has
no economic value and this right is related to personal status or well being. Example
the right to live with dignity, the right to freedom of speech and expression.
The proprietary right is given in respect of the owner of the property. These rights
are rights which has some monetary value or economic value and constitute the
estate of the person. Example-patent rights, right to land, debt etc.

Perfect and Imperfect right

Perfect rights are protected and recognized by law and the suit can be instituted in
the court against the wrongdoer for the breach of it. Example: A has taken the loan
from B. B has the duty to pay the loan and A has the perfect right to claim the loan
amount. If B fails to pay then A has the right to file the suit in the court.
Imperfect rights are those rights which are neither recognized nor protected by law.
Example: if the loan becomes time-barred, then he can claim his money back but it
cannot be enforced by law.

Principal and Accessory Rights

The principal right is the most important rights. They are the basic right that is vested
on an individual.
The accessory right is the consequential or incidental right. They are not important
but they are ostensible to basic right.

Right in Re-aliens and Right in Re-propria

Right in Re-aliena is the right available against the property of another person.
Example- The right of easement. It is the result of jurisprudence concept of dominant
heritage and servient heritage.
Right in Re-Propria is the right available in respect of one’s own property. It results
in absolute ownership. This is the result of jurisprudence concept of ownership.
Corporeal and Incorporeal right
Both the rights are protected by law. The corporeal right is the rights over tangible
objects or material objects. Corporeal rights are having the rights over the objects
which can be seen, touch or perceived. Example: I purchase the watch. The watch
has physical existence so I have a corporeal right over it.
The incorporeal right is the right over the object which cannot be seen or touched.
Example right to reputation.

Legal and Equitable Right

Legal rights are protected by the common law i.e Court of England. Common law
depends upon the usage and custom.
Equitable rights are protected by the equity court or the court of chancellor. The basic
principle is natural justice, equity, justice and good conscience.

Primary and Sanctioning Rights

The primary right is important and is a very basic right. These rights are ipso facto.
These rights are independent in nature. It has a binding force. They are right in rem.
Example: the right to reputation. If these rights are infringed in such case a person
can approach the Courts of Law. A legal remedy is available against such right in
the form of compensation or imposing a penalty or imprisonment.
Sanctioning rights are resultant rights. They are supporting rights to primary rights.
They are right in persona, which results from some wrongdoing. Example: it arises
when there is an infringement of primary rights.

Public and Private Rights

The public right is the right that is exercised by the State. Example- right to vote,
right to use road etc. The private right is exercised by an individual for his personal
benefit. Example:- right to sleep, right to clean water.

Vested and Contingent Rights

A vested right is a right which is vested on the person from the very beginning. No
events are required to take place for conferring the rights of an individual. It depends
on the present situation.
Contingent rights are rights which are conferred on the happening or non-happening
of certain acts. This right depends upon future acts. If the act which is prescribed
take place then only the right will be conferred on the person.

How Legal Right is Enforced

Ubi jus ibi remedium which means where there is a right there is a remedy. If the
person’s right is violated that can be approached to the court. They can get relief in
the form of compensation. When the compensation does not satisfy the claim of the
plaintiff then the court may order for the specific performance of the Contract. It is
governed by the Specific Relief Act.

Duties
When the right is given to the person then it is assumed that certain duties are also
imposed on the person. The right has its correlative duties. There are two kinds of
duties when it is the obligation of the person to perform his duty when he has a legal
duty but in case of moral duty he has no obligation. It is on the discretion of an
individual. The duties are classified into absolute and relative duty, positive and
negative duty and primary and secondary duty. Let us study the concept of duty
through the ppt.

Conclusion
We can conclude that rights and duties are co-existent. In the words of Salmond, it
can be said that no right exists without the corresponding duty. Every duty of the
person must be the duty towards some person, in whom the right is vested and
conversely every right must be against some persons upon whom a duty is impose.
Topic-3
Possession

Jurists have defined possession based on their personal beliefs. It is the most
fundamental interaction between man and things, according to Salmond. However,
Henry Maine defined it as “interaction with an object that includes the exclusion of
other people from enjoying it.” A man is considered to own a thing over which he
has seeming control or over which he has apparent authority to exclude others,
according to Federick Pollock.
In B. Gangadhar v. Ramalingam (1995) 5 SCC 238, the Indian Supreme Court
elaborated on the notion of possession. The objective realization of ownership is
possession. It is both the de facto statement of a claim to a specific piece of property
and the de facto counterpart of ownership. Possession of a right, in contrast to the de
jure connection of ownership, is the de facto relationship of ongoing exercise and
enjoyment. The actual exercise of a claim to a specific piece of property is known as
possession. It is the most typical form in which claims are made. It is the outward
form in which claims are most commonly manifested.

Elements of possession
Legal possession, according to Holland, comprises two fundamental elements:

1. Corpus
2. Animus

Corpus Possessionis
Corpus denotes two things:

1. a) the possessor’s physical relationship to the res or object; and 2.

b) the possessor’s relationship to the rest of the world.
The first point highlights that a person must have some physical touch with whatever
he owns to have a reasonable expectation that others will not interfere with it, i.e.
that others will not interfere with the possessor’s right to use or enjoy that object.
This guarantee of non-interference can be obtained in a variety of ways:

The physical power of the possessor

The possessor’s physical power over the object in his possession works as an
assurance that the thing will be used. It’s also a guarantee that others won’t interfere
with his rights. To prevent others from interfering with his lawful ownership, the
person in possession typically utilizes walls, gates, doors, and locks.

Personal presence of the possessor

In many cases, the possessor’s sheer physical presence is enough to keep ownership,
even if he lacks the physical power to fight intervention. For example, a penny in a
child’s hand suffices to indicate his ownership of the currency, although that he lacks
the physical capability to do so.

Secrecy
It is an efficient method of avoiding external influence and keeping an object in one’s
possession secure if a person maintains it in a hidden area.
Wrongful ownership is rarely seen favourably in modern cultures, thus respect for a
legitimate claim prevents others from interfering with the possessor’s lawful
possession.

The protection afforded by the possession of other things

Possession of one object can sometimes lead to possession of additional items that
are related to or complementary to it. As a result, owning land entitles you to own
everything is on or under it. However, as in the case of South Staffordshire
Waterworks Co. v. Sharman (1896) 2 QB 44, the situation in this regard is not
entirely clear.
The appearance of the Animus Domini is another indicator of possession security.
The claim’s visibility is another factor in the factual security of its enjoyment. As a
result, publicly utilizing something implies a prima facie rightmindedness in its
ownership.

Animus Possidendi
Possession does not imply mere juxtaposition. It must imply the possibility of bodily
control, as well as a desire to exert such power. Animism is the mental component
of possession.
The Classical Roman jurists acknowledged two levels of authority over a possessed
thing, the lesser of which were referred to as detention and the highest as possession,
properly so-called.
In the context of the factor of animus in legal possession, the following points should
be taken into account:
1. R v. Hudson (1943) The urge to acquire does not have to be righteous, and it might
even be deliberately wicked. The ownership of stolen goods by a criminal is no
less genuine than the possession of stolen goods by the rightful owner.
2. The possessor must have sole ownership of the object in his possession. That is,
he must intend to keep others from using and enjoying the item. However, the
exclusion does not have to be complete.
3. The animus does not have to be accompanied by a claim or an intention to utilize
the items as owner. In the event of a promise, the pledgee has ownership of the
pledged items, even if he simply wants to keep them in custody as a security to
guarantee that his obligation is paid.
4. The possessor’s animus does not have to be his or her own. A servant, agent,
trustee, or bailee, for example, does not maintain goods in his possession for his
personal use, but rather for the benefit of another person.
5. The animus could not be particular; instead, it could be broad. For example, a guy
who has caught fish in his net has ownership of all of them, even though he has
no idea how many there are. Similarly, a person is assumed to own all of the books
in his library, even if he is unaware of the existence of any of them.
6. The animus may not be specific instead it may be merely general. For instance, a
person who has caught fish in his net has possession of all of them although he
does not know their exact numbers. Likewise, a person is deemed to have owned
all the books in his library although he may not even know about the existence of
some of them.
It is important to note that when a person owns a receptacle, such as a box, cabinet,
or envelope, he also owns the contents of that receptacle.
Savigny theory
Savigny based his idea of possession on the Roman Jurist Paul’s text, emphasizing
that possession consists of two essential elements:

1. Corpus Possession
2. Animus Domini

• By corpus, he meant effective physical control over the object, i.e., immediate
physical power to prevent the owner from being harmed by any outside agent.
• Animus Domini (mental element of possession)-Domini is derived from the word
dominium. It is the result of Roman jurisprudence that leads to the concept of
ownership.
• According to Savigny, Animus Domini is a mental aspect of possession, which
means that the court will think that the item has a right of full ownership.
• We utilize Animus Domini with the deliberate goal of holding the thing as if we
are the owners, which includes excluding others’ influence.
• There can be no possession without the mental aspect of animus. With animus
Domini, Savigny has strengthened the right of possession.
• Animus Domini, which means “you are the complete owner of the item” according
to Savigny, should be held with this belief.
• In terms of possession, Animus Domini is more powerful than Animus Possidendi.
For example, a courier boy is in possession, even though he does not intend to
keep it; nonetheless, he is in possession for the time being.
• According to him, possession protection is a subset of personal protection, and
just as any act of violence against a person is illegal, so is any act that disrupts
possession through deception.

Criticism

1. Savigny was incorrect in his assumption that possession cannot be obtained

without corpus and animus, and that possession is lost when one or both of these
parts are gone.
2. In practice, we find that possession persists even if one of the parts is gone, and in
some cases even when both elements are missing.
3. Savigny has overlooked the fact that, even if both conditions are present, the law
does not safeguard a possession obtained illegally. As a result, a thief of a stolen
item is not protected by the law.

Salmond
Salmond defines animus possidendi as the act of excluding others’ rights. He was
primarily concerned with two issues:

1. The desire to assert one’s legal rights

2. Ignore other people’s power.

• According to Salmond, Animus Possidendi must be employed to hold the item as

owner, and the right must be powerful such that we may exclude the authority of
others.
• In modern jurisprudence, Salmond’s Animus Possidendi is a little weaker than
Savigny’s and more logical.
• The Savigny right is far stronger than the only right of possession.
• Animus possidendi is a modified form of Savigny’s thesis, but in this instance, he
just wants to enjoy his (owner’s) property, which is why he is excluding others.
• According to Salmond, there are two forms of possession:
1. Possession-in-fact: This refers to physical possession in which you are unsure
whether or not you are lawfully in possession.
2. Possession-in-law: If you have possession in fact-in-law, corpus possession, and
animus possidendi, which are Salmond’s aspects of possession, the people who
are claiming have the most.
According to Salmond, a corpus possessionist has two sorts of relationships:
1) The relationship with the object on which possession is claimed, and
2) Relationship with other people who are not included
Salmond defines possession as the continual exercise of a claim to exclusive use of
it. The act of asserting a claim entails two steps:

1. a) Corpus possessionis
2. b) Animus possidendi
Here he emphasized on intention to exclude others and use the property. In the case
of Bridges v. Hawkesworth (1851) 21 LJ QB 75, He referred it by saying that the
court had correctly decided that the shopkeeper had no intention of excluding other
people from the bundle of notes because he was unaware of its existence at his
shop and thus had no amicus, and thus the finder of the bundle had possession of
it.
Ihering’s theory

• He is a scholar of sociological school.

• Ihering’s theory of possession looks to be more practical and realistic.
• He claims that the mental aspect he described isn’t as dominant as Savigny’s and
isn’t as well-established as Salmond’s.
• The most width mental element is of Ihering. He says that the purpose of the
mental element is only to support physical possession- he represents amicus as a
supporting element.
• According to Ihering, in the vast majority of situations, the person who possesses
the property is the owner, and possession is assigned to them as an event of
ownership; there are relatively few cases where the owner’s purpose is
demonstrated.
• He employs intelligent awareness-amicus simply means “knowledge of the
circumstance”–and possession is the ingredient that demonstrates nine points of
ownership.
• He used a sociological method to describe the notion of possession in his theory,
taking an objective perspective.
• Ihering used a more pragmatic view, not requiring the presence of amicus as a
condition of possession. He didn’t think of amicus as anything more than a
complement to possession.
• Ihering contended that possession is ownership on the defensive. A person who is,
in reality exercising ownership must be protected and not have to prove title
against someone who is in unlawful possession.

Criticism

Although Ihering’s theory of possession is more acceptable than Savigny’s, it is not

without flaws.

1. Because Ihering examined the idea of possession solely in the context of Roman
possessory interdicts, he is unable to explain why the law refused to provide
‘possessory rights’ to those who were ineffective bodily control of the possessed
object.
2. The Ihering hypothesis fails to explain possession in cases where the possessor’s
right to possess an item is recognized and protected by law notwithstanding the
absence of both corpus and animus.
Ownership
Ownership has been defined in a variety of ways by jurists. They all agree, however,
that ownership is the most comprehensive or highest right that can be exercised
over something. According to Hibbert, ownership encompasses four different
types of rights: –

1. The right to utilize something

2. The right to prevent others from utilizing the item
3. The authority to destroy it
Ownership is described as a “set of rights to use and enjoy the property, including
the right to transmit it to others,” according to Black’s Law Dictionary.
As a result, ownership is the legal acknowledgement of a claim to a specific piece of
property. As a result, Hibbert proposes that no one can have absolute ownership
of land since it cannot be destroyed. It is only possible to have an estate in it. An
estate is a person’s legal interest in property that is measured in time and entitles
the party to utilize the land indefinitely.
Austin’s definition of ownership

• According to Austin, ownership is a more powerful right than possession, and it

is an absolute right.
• Ownership consists of the following elements:
– If we possess a piece of property, we can certainly make use of it.
– We have complete freedom to dispose of the property.
– That property’s right is for an indefinite period.
– Available in rem against the right.

• According to Austin, ownership is “a right that exists against everyone subject to

the law granting the ability to put things to indefinite users.”
• He goes on to argue that ownership is a right that is limitless in terms of duration,
unfettered in terms of use, and unrestricted in terms of disposal.
• Being the owner also – you cannot dispose of the property in any way, it should
be disposed of properly.
• Unlimited duration: Privy Purse Case (1970)
When British India gained independence, we were given India in two parts: India
and Pakistan, with 562 Siyasats belonging to the state. Indira Gandhi in 1970 gave
all the properties-purse (Royal Wajeefa). Slowly, the entire zamindari idea
vanished. As a result, it’s impossible to say how long the property will belong to
the true owner. As per acquisition law, the property is taken in control of law and
they give the compensation to the owners which end the ownership and this is
always done in the public interest (sociological theory can be applied as collective
social interest overrides an individual interest).

• Indefinite User: This implies that the owner of a thing is free to use or even misuse
it in any manner he likes. The use of the word ‘indefinite’ has a special
significance because the use of land by the owner can be restricted by agreements
or the operation of law.

Criticism
Austin’s definition of ownership has been criticized by many writers. They argue
that it is fallacious to think that ownership is a single right, but it is a bundle of rights
including the right of use and enjoyment. Even if an owner relinquishes some of the
rights that come with ownership, he retains ownership of the remainder.
For example, in the event of a mortgage, the landowner retains ownership of the
mortgaged property even though he has surrendered a right.

Modern definition
All of the preceding, i.e. indefinite use, unrestricted disposal, and limitless duration,
shall be carried out in line with the law.
Case laws

Merry v. Green (1847) 7 M & W 623

Facts
In this case, the plaintiff purchased a table in an auction and found the purse in one
of its drawers. Subsequently, he discovered that there was some money in the secret
drawer belonging to the vendor but he appropriated the same.

Issue
Whose purse was it? Whether the plaintiff will take it or has the right to keep it?
It was believed that it was not of the plaintiff but the seller because during the process
of transfer the element of intention for that purse was missing. The intention to sell
that purse was not of the seller and the buying of that purse was not of the purchaser.

Held
The court held him guilty of larceny (theft) because the purchaser was ignorant about
the existence of money and the secret drawer hence he cannot be said to have
possession concerning that money and could not intend to possess the contents of
the secret drawer until he found it.

South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44 [GOLD RING

CASE]

Facts
In this case, the plaintiff company owned a pond upon their land. The company
employed the defendant to clean the pond. During the cleaning operation, the
defendant found gold rings at the bottom of the pond.

Held
The court held that the company had the first possession of the rings by their being
the owner of the pond and hence the defendant acquired no title.

Bridges v. Hawkesworth (1851) 21 LJ QB 75 [BANK NOTE CASE] The

doctrine of finder and keeper was brought in this case.

Facts
A person found a bundle of notes from the stairs of a shop and gave it to the
shopkeeper and says to give it to the person to whom it belongs (all administrations
were used but couldn’t found the real owner) and the shopkeeper keeps it and the
person who found it filed a case on the shopkeeper.
Issue
To whom the bundle of notes belongs?
The doctrine of res nullis was applied- The doctrine of finder keeper the person who
first found it will keep it.
The County court applied this doctrine in South Stafford Shiri Water Case. This case
was appealed on the divisional bench and Rod Ressel reserved the judgment and said
if you appoint a carpenter to open the cupboard or box, the matter in the box will not
be of the carpenter and states that it will be of the plaintiff. Here the doctrine of finder
keeper will not apply.

Hannah v. Peel (1945) 1 KB 509

In this case, the plaintiff was a soldier and he was asked to stay in a house and he
found a brooch from there. Defendant filed a suit against the soldier but the brooch
was not given to the owner as he did not take the house in physical possession and
the brooch was found on the floor.
In this case, two things were considered:

1. Corpus element was never in favor of the owner of the house.

2. And the way the brooch was found the doctrine of res nullis was applicable.
Difference between possession and ownership

According to Ihering
Possession is a de-facto exercise of the claim and ownership is the de-jure
recognition of the claim.

According to Salmond
A person is the owner of a thing when his claim receives protection and recognition
from the law but possession may be exercised and realized without such recognition
or protection from the law.
The owner is the only one whose claim(right) is protected and recognized by law.
Sometimes there is illegal possession like mesne profit (the person has to pay it back
with interest). Possession may not be protected and recognized by law.

According to Dr. Asthana

Ownership is the soul and possession are the body and the existence of the body is
necessary for the realization of the soul.
Conclusion
Most people conflate the phrases “ownership” and “possession” and use them
interchangeably. However, in the legal world, both of these words have unique legal
meanings. De jure acknowledgement of a claim to a particular property is known as
ownership. The objective realization of ownership is possession. It is the actual
exercise of a claim to a specific piece of property. In contrast to the de jure
relationship of ownership, possession of a right is the de facto relationship of
continued exercise and enjoyment.

Topic-4
Precedents as a source of law

Introduction
Every developed legal system possesses a judicial organ. The main function of the
judicial organ is to adjudicate the rights and obligations of the citizens. In the
beginning, in this adjudication, the courts are guided by customs and their own sense
of justice. As society progresses, legislation becomes the main source of law and the
judges decide cases according to it. Even at this stage, the judges perform some
creative function. In the cases of the first impression, in the matters of interpretation,
or in filling up any lacuna in the law made by legislation the judges, to some extent,
depend on their sense of right and wrong and in doing so, they adopt the law to the
changed conditions.
Inductive And Deductive Methods
In the inductive method, there is a great reliance placed upon the decisions of the
judges. Before deciding a case, the judges look into previously decided cases of a
similar nature by their own court or by the superior court. From particular cases, they
deduce general rules, and apply them on the cases before them and decide
accordingly. This is known as Inductive method.
In the deductive method, there is a great reliance placed legislatures and enacted
statues. In such a system, the cases are decided on the basis the enacted legislature
and statue that are codified and the judges decide cases on the basis of these codes
and not on the basis of previously decided cases. This method is called the Deductive
method.
Authority Of Previously Decided Cases
In almost all legal systems, the judges take guidance from the previous decisions on
the point, and rely upon them. But the authority of such decisions is not the same in
all the legal systems. In most of the countries including India, acquire their
knowledge of the law through decisions of higher tribunals than from anything else.
Such decisions are compiled and published in reports. These reports are considered
to be very valuable from the legal literature perspective. These decisions are very
efficient in deciding cases of subsequent cases of similar nature. They are called
judicial precedents or precedents.
Definition Of Precedent
In general English, the term precedent means, ‘a previous instance or case which is,
or may be taken as an example of rule for subsequent cases, or by which some similar
act or circumstances may be supported or justified.’

According to Gray, ‘ precedent covers everything said or done, which furnishes a

rule for subsequent practice.’[1]

According to Keeton, ‘a judicial precedent is judicial to which authority has in some

measure been attached.’[2]

According to Salmond, ‘in a loose sense, it includes merely reported case law which
may be cited & followed by courts.’
In a strict sense, that case law which not only has a great binding authority but must
also be followed.
According to Bentham precedents are ‘Judge made Law.’
According to Austin precedents are ‘Judiciary’s Law.’
In general, in the judicial field, it means the guidance or authority of past decisions
for future cases. Only such decisions as lay down some new rule or principle are
called judicial precedents. The application of such judicial decisions is governed by
different principles in different legal systems. These principles are called ‘Doctrine
of Precedent’. For this case to be held, first such precedents must be reported, maybe
cited and may probably be followed by courts. Secondly, the precedent under certain
circumstances must be followed.
Thus it can be inferred that precedents are:
• Guidance or authority of past decisions for future cases.
• Precedents must be reported, maybe cited and may probably be
followed by courts.
• Precedents must have opinio-juris.
• These must be followed widely for a long time and must not violate any
existing statue law.
Nature Of Precedents
They must be ppurely constitutive and not abrogative at all. This means that a judicial
decision can make a law but cannot alter it.
Where there is a settled rule of law, It is the duty of the judges to follow the same.
They cannot substitute their opinions for the established rule of law.
The function is limited to supplying the vacancies of the legal systems, filling up
with new law the gaps that exist. Importance Of Precedents In the Ancient Legal
System:
The importance of the decisions as a source of law was recognized even in very early
times. In the past, there have been numerous instances of this. Sir Edward Coke, in
the preface of the sixth part of his report, has been written that Moses was the first
law reporter. ‘In the case of the daughters of Zelophehad, narrated at the beginning
of the twenty- seventh chapter of the book of numbers, the facts are stated with the
great clearness and expressly as a precedent which ought to be followed.
Even in the Mahabharata, it has been stated that ‘The path is the right one which has
been followed by virtuous men.’ This may be interpreted as giving a theory of
precedent. In ancient legal systems of Babylonia and China, the judicial decisions
were considered to be a great authority, and later on, they were embodied in code
law.
In the Modern Legal System:
Among the modern legal systems, the Anglo – American law is judge made law. It
is called ‘Common Law’. It developed mainly through judicial decisions. Most of
the branches of law, such as torts, have been created exclusively by judges. The
Constitutional Law of England, especially the freedom of the citizens, developed
through judicial decisions.
According to Tennyson, “where freedom slowly broadness down, from precedent to
precedent.”
Not only in the municipal law but in international law also, the precedents have their
importance. The decisions of the International Court of Justice are an important
source of International law. These precedents have been recognized by the
International Court of Justice by Article 38(2)(d) of the Statue of the International
Court of Justice. Further, Article 59 of the same holds that the decisions of the court
only have persuasive value for future cases and hence the International Court of
Justice is not bound by its own decisions in deciding similar cases in future. It holds
that the decision is only binding the parties to the case.
The above brief discussion indicates the role and importance of decisions on
precedents in the development of law and their importance as a source of law at the
municipal as well as the international level.
Types Of Precedents
Persuasive precedents
Persuasive precedent (also persuasive authority) is precedent or other legal writing
that is related to the case at hand but is not a binding precedent on the court under
common law legal systems such as English law. However, a persuasive authority
may guide the judge in making the decision in the instant case. Persuasive precedent
may come from a number of sources such as lower courts, “horizontal” courts,
foreign courts, statements made in dicta, treatises or law reviews. In Civil law and
pluralist systems, as under Scots law, precedent is not binding but case law is taken
into account by the court
Lower Courts
A lower court’s opinion may be considered as persuasive authority if the judge
believes they have applied the correct legal principle and reasoning.
Higher Courts in other Circuits
A court may consider the ruling of a higher court that is not binding. For example, a
district court in the United States First Circuit could consider a ruling made by the
United States Court of Appeals for the Ninth Circuit as persuasive authority.
Horizontal Courts
Courts may consider rulings made in other courts that are of equivalent authority in
the legal system. For example, an appellate court for one district could consider a
ruling issued by an appeals court in another district.
Statements made in obiter dicta - Courts may consider obiter dicta in opinions of
higher courts. Dicta of a higher court, though not binding, will often be persuasive
to lower courts.
The obiter dicta is usually, as its translation “other things said”, but due to the high
number of judges and several personal decisions, it is often hard to distinguish from
the ratio decidendi (reason for the decision).
For this reason, the obiter dicta may usually be taken into consideration.
A Dissenting judgment
A judgment heard by a tribunal, and one judge dissented from the decision. The
judge in the next case can decide to follow the dissenting judge’s obiter and rationale.
The judge can only opt to overturn the holding of a court lower or equivalent in the
hierarchy, however. A district court, for example, could not rely on a Supreme Court
dissent as a rationale for ruling on the case at hand.
Treatises, Restatements, Law Review Articles
Courts may consider the writings of eminent legal scholars in treatises, restatements
of the law, and law reviews. The extent to which judges find these types of writings
will vary widely with elements such as the reputation of the author and the relevance
of the argument
Courts in other countries
An English court might cite judgments from countries that share the English
common law tradition. These include other commonwealth states (for example
Canada, Australia, or New Zealand) and, to some extent, the United States. It is
controversial whether it is appropriate for a U.S. court to consider foreign law or
precedents. The Supreme Court splits on this issue. In Atkins v. Virginia, for
example, the majority cited the fact that the European Union forbid death penalty as
part of their reasoning, while Chief Justice Rehnquist denounced the “Court’s
decision to place weight on foreign laws.” The House of Representatives passed a
nonbinding resolution criticizing the citing of foreign law and “reaffirming
American independence.”

Binding precedents
In law, a binding precedent (also mandatory precedent or binding authority) is a
precedent which must be followed by all lower courts under common law legal
systems. In English law, it is usually created by the decision of a higher court, such
as the Supreme Court of the United Kingdom, which took over the judicial functions
of the House of Lords in 2009. In Civil law and pluralist systems, as under Scots
law, precedent is not binding but case law is taken into account by the courts.
Binding precedent relies on the legal principle of stare decisis. A stare decisis means
to stand by things decided. It ensures certainty and consistency in the application of
the law. Existing binding precedents from past cases are applied in principle to new
situations by analogy.
There are three elements needed for a precedent to work. Firstly, the hierarchy of the
courts needs to be accepted, and an efficient system of law reporting. ‘A balance
must be struck between the need on one side for the legal certainty resulting from
the binding effect of previous decisions, and on the other side the avoidance of undue
restriction on the proper development of the law
Binding Precedent in England
Judges are bound by the law of binding precedents in England and Wales and other
common law jurisdictions. This is a distinctive feature of the English legal system.
In Scotland and many countries throughout the world, particularly in mainland
Europe, civil law means that judges take case law into account in a similar way, but
are not obliged to do so and are required to consider the precedent in terms of
principle. Their fellow judges’ decisions may be persuasive but are not binding.
Under the English legal system, judges are not necessarily entitled to make their own
decisions about the development or interpretations of the law. They may be bound
by a decision reached in a previous case. Two facts are crucial to determining
whether a precedent is binding:
The position in the court hierarchy of the court which decided the precedent, relative
to the position in the court trying the current case.
Whether the facts of the current case come within in the scope the principle of law
in previous decisions.
Stare Decisis

͡
Stare decisis (Latin: [ˈstaːre deːˈts1iːsiːs], Anglicisation: [ˈsteɹɪ dɪˈsaɪsɪs]) is the legal
principle by which judges are obliged to respect the precedents established by prior
decisions. The words originate from the phrasing of the principle in the Latin maxim
Stare decisis et non quieta movere: “to stand by decisions and not disturb the
undisturbed.” In a legal context, this is understood to mean that courts should
generally abide by precedents and not disturb settled matters.

This doctrine is basically a requirement that a Court must follow the rules established
by a Court above it.
The doctrine that holdings have binding precedence value is not valid within most
civil law jurisdictions as it is generally understood that this principle interferes with
the right of judges to interpret law and the right of the legislature to make law. Most
such systems, however, recognize the concept of jurisprudence constante, which
argues that even though judges are independent, they should judge in a predictable
and non-chaotic manner. Therefore, judges’ right to interpret law does not preclude
the adoption of a small number of selected binding case laws.

DOCTRINE OF STARE DECISIS

“Stare Decisis is a legal principle that directs judges to conform with and follow the
precedents set by identical previous decisions. The basis of this moral philosophy is
the Latin maxim, Stare decisis et non quieta movere, which means "to stand by
decisions and not to disturb the undisturbed." Judges believe it to be in the legal
sense that it should not conflict with previously settled matters in order to allow
continuity. If several judges in various courts give their views on different topics,
providing the same facts would lead to frustration and certain parties would conclude
that their interests have been violated and would feel helpless and that they have not
been provided with justice. Verdicts which can be viewed as possessing a binding
precedent are not applicable in most civil courts, as the mere reading of the text is
deemed to be in dispute with the rights of judges to interpret the law and the privilege
of the legislature to set down the law.”

The majority of such systems, however, accept the concept of constant

jurisprudence, which argues that, although judges are independent, they should judge
them in a predictable and non-chaotic manner. As a concept, discretionary control is
one that allows the decision-maker to apply his or her own reasonable judgment to
the option of a number of acceptable alternatives. As there are no constitutionally
correct choices in this decision, the discretionary authority, by its own nature, is
expansive and opens up a wide variety of choices. Discretionary power, in particular
whether it is capable of having far-reaching consequences, should not be given to a
single individual. Consequently, the right of judges to read the code would not
preclude the adoption of a small set of selected binding case laws.
Authority Of Precedents
The authority of a decision as a precedent lies in its Ratio Decidendi.
Ratio Decidendi and Obiter Dictum (RATIO DECIDENDI AND OBITER DICTA)

There are cases involving problems which concede to being resolved on the basis of
values. These rules are deduced from the analysis of the material details of the
situation, removing the immaterial components. The theory which emerges as a
consequence of such a case is not only applicable to that case, but also to cases which,
in their fundamental features, are identical to the case decided. This theory is known
as Ratio Decidendi. Issues which do not need to be decided on a general basis are
answered in the circumstances of the individual situation and do not set down rules
of general application. They're called the Obiter Dictum. It is the Ratio Decidendi of
the case which is binding and not the Obiter Dictum which has the binding influence
of the Precedent. It is for the judge, though, to determine the Ratio Decidendi of the
ruling and to apply it to the event that he will rule. This gives him the ability to mold
the legislation on the basis of the modified circumstances, with the focus on one or
the other point.

“An argument from precedent seems at first to look backward. The traditional
perspective on precedent . . . has therefore focused on the use of yesterday's
precedents in today's decisions. But in an equally if not more important way, an
argument from precedent looks forward as well, asking us to view today's decision
as a precedent for tomorrow's decision makers. Today is not only yesterday's
tomorrow; it is also tomorrow’s yesterday.”

The abovementioned paragraph talks about how a person becomes cautious while
making decisions when the person knows that whatever he/ she decides, is going to
be followed in every subsequent decision, thereby setting a precedent. This way
helps the judge in making sound and justifiable decisions because someone,
somewhere, is going to depend on the judge’s reasoning to deliver a judgement.
Some jurists also oppose the concept of stare decisis owing to the effect of bad
decisions on subsequent judgements. A person might have won a particular case if
the judge hadn’t followed an xyz judgement, not following the xyz judgement
could’ve been fairer for both parties and would have served the purpose of law
successfully for the society as a whole. The court could have improved on the xyz
judgement instead of just following it, but this would have required a lot of work
from their counsels and would have had to prove as to why the xyz judgement could
be overridden in this particular case, certain precedents have to be dug in. All this
attention may have been best spent on evaluating the merits of an equitable or
effective resolution of the conflict between parties in the present case. So: explaining
stare decisis is not just a matter of telling just several things in it in your after-dinner
address. It is a matter of explaining why the expenses, including those just listed, are
worth bearing. Our jurisprudence is interspersed with a Hazardous collection of
factors adduced to justify stare decisis. They include the importance of continuity,
respect for expectations, decision-making, organized development of law, Burkean
submission to indigenous tradition, formal or comparative justice, honesty,
community, dignity, the legal significance of equal consideration of our courts, and
the political desirability of limiting our judges and mitigating the capacity for judicial
intervention. The justification for stare decisis is a field to which many contributions
have been made, but to which no approach has been used.

Often people suggest that we should follow precedent, because we are no wiser than
our predecessors. It's a matter of epistemological modesty, "bank and capital of
ages," and so on. This might or might not be a legitimate justification, but even if it
is, it has nothing to do with the rule of law. The same can be said for theories relating
to issues such as the limitation of the agenda, the effectiveness of decision-making
and the credibility of the mechanism. These reasons do not, however, offer any basis
for the enforcement of precedent in the rule of law.

WHEN DOES A PRECEDENT LOSE ITS AUTHORITY?

1. If it was established in ignorance of a law or rule having the force of a statute,

that is, delegated legislation, a precedent is not binding. A court might recognize
the essence of a statute or a regulation, but the facts of the case may not be known.
Such a mistake also vitiates the verdict. On this ground, even the lower court will
refuse to follow a precedent.
2. A ruling shall cease to be valid if a statute or statutory law that is inconsistent
with it is actually enforced or if it is reversed or reversed by a higher court. The
higher court annulled the same decision on appeal. The 24th amendment to the
Indian Constitution was adopted to annul the SC's ruling, as in Golaknath's case.
3. A precedent lacks power when a higher court's contradictory opinion is ignored
by the court that made a ruling on it. The decision of the Supreme Court cannot
be disregarded by the high courts in India.
4. The Court of law is not forced to follow its own prior rulings, which are in
disagreement with each other. The appellant court and various courts are entitled
to choose from opposing rulings, even though this may amount to choosing an
earlier decision to a later one.
There are cases which involve questions which admit of being answered on
principles. Such principles are deduced by way of abstraction of the material facts
of the case eliminating the immaterial elements. The principle that comes out as a
result of such case is not applicable only to that case, but to cases also which are
similar to the decided case in their essential features. This principle is called Ratio
Decidendi. The issues which need the determination of no general principles are
answered on the circumstances of the particular case and lay down no principles of
general application. These are called Obiter Dictum.
It is the Ratio Decidendi of a case that is binding and not the Obiter Dictum that has
a binding effect of a Precedent. But it is for the judge to determine the Ratio
Decidendi of the decision and to apply it on the case which he is going to decide.
This gives an opportunity to him to mould the law according to the changed
conditions by laying emphasis on one or the other point.
Merits Of The Doctrine Of Precedents
It shows respect to one ancestors’ opinion. Eminent jurists like Coke and Blackstone
have supported the doctrine on this ground. The say that there are always some
reasons behind these opinions, we may or may not understand them.
Precedents are based on customs, and therefore, they should be followed. Courts
follow them because these judicial decisions are the principal and most authoritative
evidence that can be given of the existence of such a custom as shall form a part of
the common law.
As a matter of great convenience, it is necessary that a question once decided should
be settled and should not be subject to re-argument in every case in which it arises.
It will save the labor of the judges and the lawyers.
Precedents bring certainty in the law. If the courts do not follow precedents and the
judges start deciding and determining issues every time afresh without having regard
to the previous decisions on the point, the law would become the most uncertain.
Precedents bring flexibility to law. Judges in giving their decisions are influenced
by social, economic and many other values of their age. They mold and shape the
law according to the changed conditions and thus bring flexibility to law.
Precedents are Judge made law. Therefore, they are more practical. They are based
on cases. It is not like statue law which is based on a priori theory. The law develops
through precedents according to actual cases.
Precedents bring scientific development to law. In a case, Baron Parke observed ‘It
appears to me to be great importance to keep the principle of decision steadily in
view, not merely for the determination of the particular case, but for the interest of
law as a science.’
Precedents guide judges and consequently, they are prevented from committing
errors which they would have committed in the absence of precedents. Following
precedents, judges are prevented from any prejudice and partially because
precedents are binding on them. By deciding cases on established principles, the
confidence of the people on the judiciary is strengthened.
As a matter of policy, decisions, once made on principal should not be departed from
in ordinary course.

Demerits Of The Doctrine Of Precedents

Factors Undermining The Authority Of A Precedent
1. Abrogated decisions – A decision ceases to be binding if a statute or statutory
rule inconsistent with it is subsequently enacted, or if it is reversed or overruled
by a higher court.
2. Same decision on appeal is reversed by the appellate court. – 24th amendment of
Indian Constitution was passed to nullify the decision of the SC in the case of
Golaknath.
3. Affirmation and Reversal on a Different Ground – A decision is affirmed or
reversed on appeal on a different point.
4. Ignorance of Statute – A precedent is not binding if it was rendered in ignorance
of a statute or a rule having the force of statute i.e. delegated legislation. A court
may know of existence of the statute or rule and yet not appreciate in the matter
in hand. Such a mistake also vitiates the decision. Even a lower court can refuse
to follow a precedent on this ground.
5. Inconsistency with Earlier Decision of Higher Court – A precedent is not binding
if the court that decided it overlooked an inconsistent decision of a high court.
High courts cannot ignore decision of Supreme Court of India.
6. Inconsistency with Earlier Decision of Same Rank – A court is not bound by its
own previous decisions that are in conflict with one another. The court of appeal
and other courts are free to choose between conflicting decisions, even though
this might amount to preferring an earlier decision to a later decision.
7. Precedent sub silentio or not fully argued – When a point is not involved in a
decision is not taken notice of and is not argued by a counsel, the court may
decide in favour of one party, whereas if all the points had been put forth, the
decision in favour of one party. Hence, such a rule is not an authority on the
point which had not been argued and this point is said to pass sub silentio.
Binding force of a precedent does not depend on whether a particular argument
was considered therein or not, provided the point with reference to which an
argument was subsequently advanced was actually decided by the SC
Circumstances Which Increase The Authority Of A Precedent
1. The number of judges constituting the bench and their eminence is a very
important factor in increasing the authority of precedent.
2. A unanimous decision carries more weight.
3. Affirmation, approval or following by other courts, especially by a higher
tribunal, adds to the strength of a precedent.
4. If an Act is passed embodying the law in a precedent, the gains an added
authority.
Theories Of Precedents
Declaratory theory This
theory provides that,
Judges only discover law.
They discover and declare.
Coke C.J.: judicial decisions are not a source of law but the best proof of law is.
Wiilis v. Baddeley: there is no such thing as judge-made law.
Rajeshwar Prasad v. State of West Bengal, AIR 1965 SC 1887, the same theory was
upheld by the Supreme Court of India.
This theory was criticised on a number of grounds
Bentham and Austin : legislative power is not with Courts and they can not even
claim it.
Salmond : both at law and in equity, however the declaratory theory must be totally
rejected .
Precedents make law as well as declare it.
Judges have altered the law.
Judges make Law
Lord Bacon: the points which the judges decide in cases of first impression is a
“distinct contribution to the existing law”.
Prof. Gray: Judges alone are the makers of Law.
Pollock: Courts themselves, in the course of the reasons given for those decisions
constantly and freely use language admitting that they do. This theory was criticised
on a number of grounds Judges cannot overrule a statute.
Where a statute clearly laid down the law, the judge has to enforce it.
The judge is confined to the facts of the case while enunciating legal principles.
Within those limits alone it can be said that judges make law.
After this brief discussion about the nature, definitions and authority of precedents
let us move on to look at the value of precedents in different countries in the world.
Comparison Between Different Legal Systems
U.S. legal system
In the United States, which uses a common law system in its state courts and to a
lesser extent in its federal courts, the Ninth Circuit Court of Appeals has stated: Stare
decisis is the policy of the court to stand by precedent; the term is but an abbreviation
of stare decisis et quieta non movere — “to stand by and adhere to decisions and not
disturb what is settled.” Consider the word “decisis.” The word means, literally and
legally, the decision. Nor is the doctrine stare dictis; it is not “to stand by or keep to
what was said.” Nor is the doctrine stare rationibus decidendi — “to keep to the
rationes decidendi of past cases.” Rather, under the doctrine of stare decisis a case is
important only for what it decides — for the “what,” not for the “why,” and not for
the “how.” Insofar as precedent is concerned, stare decisis is important only for the
decision, for the detailed legal consequence following a detailed set of facts.
In other words, stare decisis applies to the holding of a case, rather than to obiter
dicta (“things said by the way”). As the United States Supreme Court has put it:
“dicta may be followed if sufficiently persuasive but are not binding.”
In the United States Supreme Court, the principle of stare decisis is most flexible in
constitutional cases:
Stare decisis is usually the wise policy, because in most matters it is more important
that the applicable rule of law be settled than that it be settled right. … But in cases
involving the Federal Constitution, where correction through legislative action is
practically impossible, this Court has often overruled its earlier decisions. … This is
strikingly true of cases under the due process clause.
For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in
about 130 cases. The U.S. Supreme Court has further explained as follows: When
convinced of former error, this Court has never felt constrained to follow precedent.
In constitutional questions, where correction depends upon amendment, and not
upon legislative action, this Court throughout its history has freely exercised its
power to re-examine the basis of its constitutional decisions.
English legal system
The doctrine of binding precedent or stare decisis is basic to the English legal system,
and to the legal systems that derived from it such as those of Australia, Canada, Hong
Kong, New Zealand,
Pakistan, Singapore, Malaysia and South Africa. A precedent is a statement made of
the law by a Judge in deciding a case. The doctrine states that within the hierarchy
of the English courts a decision by a superior court will be binding on inferior courts.
This means that when judges try cases they must check to see if similar cases have
been tried by a court previously. If there was a precedent set by an equal or superior
court, then a judge should obey that precedent. If there is a precedent set by an
inferior court, a judge does not have to follow it, but may consider it. The House of
Lords (now the Supreme Court) however does not have to obey its own precedents.
Only the statements of law are binding. This is known as the reason for the decision
or ratio decidendi. All other reasons are “by the way” or obiter dictum. See Rondel
v. Worsley[5]. A precedent does not bind a court if it finds there was a lack of care
in the original “Per Incuriam”. For example, if a statutory provision or precedent had
not been brought to the previous court’s attention before its decision, the precedent
would not be binding. Also, if a court finds a material difference between cases then
it can choose not to be bound by the precedent. Persuasive precedents are those that
have been set by courts lower in the hierarchy. They may be persuasive, but are not
binding. Most importantly, precedents can be overruled by a subsequent decision by
a superior court or by an Act of Parliament.

Civil Law System

Stare decisis is not usually a doctrine used in civil law court system, because it
violates the principle that only the legislature may make law. In theory therefore,
lower courts are generally not bound to precedents established by higher courts. In
practice, the need to have predictability means that lower courts generally defer to
precedents by higher courts and in a sense, the highest courts in civil law
jurisdictions, such as the Cour de cassation and the Conseil d’État in France are
recognized as being bodies of a quasi-legislative nature.
The doctrine of stare decisis also influences how court decisions are structured. In
general, court decisions in common law jurisdictions are extremely wordy and go
into great detail as to the how the decision was reached. This occurs to justify a court
decision on the basis of previous case law as well as to make it easier to use the
decision as a precedent in future cases.
By contrast, court decisions in some civil law jurisdictions (most prominently
France) tend to be extremely brief, mentioning only the relevant legislation and not
going into great detail about how a decision was reached. This is the result of the
theoretical view that the court is only interpreting the view of the legislature and that
detailed exposition is unnecessary. Because of this, much more of the exposition of
the law is done by academic jurists which provide the explanations that in common
law nations would be provided by the judges themselves.
In other civil law jurisdictions, such as the German-speaking countries, court
opinions tend to be much longer than in France, and courts will frequently cite
previous cases and academic writing. However, e.g. German courts put less
emphasis of the particular facts of the case than common law courts, but on the
discussion of various doctrinal arguments and on finding what the correct
interpretation of the law is.
Indian Legal System
Indian Law is largely based on English common law because of the long period of
British colonial influence during the period of the British Raj.
After the failed rebellion against the British in 1857, the British Parliament took over
the reign of India from the British East India Company, and British India came under
the direct rule of the Crown. The British Parliament passed the Government of India
Act of 1858 to this effect, which set up the structure of British government in India.
It established in England the office of the Secretary of State for India through whom
the Parliament would exercise its rule, along with a Council of India to aid him. It
also established the office of the Governor-General of India along with an Executive
Council in India, which consisted of high officials of the British Government.
Much of contemporary Indian law shows substantial European and American
influence. Various legislations first introduced by the British are still in effect in their
modified forms today. During the drafting of the Indian Constitution, laws from
Ireland, the United States, Britain, and France were all synthesized to get a refined
set of Indian laws, as it currently stands. Indian laws also adhere to the United
Nations guidelines on human rights law and the environmental law. Certain
international trade laws, such as those on intellectual property, are also enforced in
India.
Indian family law is complex, with each religion adhering to its own specific laws.
In most states, registering marriages and divorces is not compulsory. There are
separate laws governing Hindus, Muslims, Christians, Sikhs and followers of other
religions. The exception to this rule is in the state of Goa, where a Portuguese
uniform civil code is in place, in which all religions have a common law regarding
marriages, divorces and adoption.
Ancient India represented a distinct tradition of law, and had an historically
independent school of legal theory and practice. The Arthashastra, dating from 400
BC and the Manusmriti, from 100 AD, were influential treatises in India, texts that
were considered authoritative legal guidance. Manu’s central philosophy was
tolerance and pluralism, and was cited across Southeast Asia. Early in this period,
which finally culminated in the creation of the Gupta Empire, relations with ancient
Greece and Rome were not infrequent. The appearance of similar fundamental
institutions of international law in various parts of the world show that they are
inherent in international society, irrespective of culture and tradition. Inter-State
relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high
humanitarian standard, in rules of neutrality, of treaty law, of customary law
embodied in religious charters, in exchange of embassies of a temporary or
semipermanent character. When India became part of the British Empire, there was
a break in tradition, and Hindu and Islamic law were supplanted by the common law.
As a result, the present judicial system of the country derives largely from the British
system and has little correlation to the institutions of the pre-British era. There are
1160 laws as on September 2007
In India, stare decisis is strictly followed and these are the general principles of stare
decisis followed in India.
Each court is absolutely bound by the decisions of the higher courts above it.
Decision of one of the high courts is not binding on any other high court. They have
only persuasive value.
In India, Supreme Court is not bound by its own decision.
A single bench is bound by the decision of a division bench of the same high court
but a division bench is not to follow a decision of a single bench of the same high
court.
Conclusion
From the brief discussion above about the legal value of precedents we can clearly
infer that these play a very important role in filling up the lacunas in law and the
various statues. These also help in the upholding of customs that influence the region
thereby making decisions morally acceptable for the people. This thereby increases
their faith in the judiciary which helps in legal development.
These moreover being a sort of respect for the earlier views of various renowned
jurists, helps in upholding the principle of stare decisis. It is a matter of great
convenience it is necessary that a question once decided should be settled and should
not be subject to re-argument in every case in which it arises. It will save labour of
the judges and the lawyers. This way it saves lots of time for the judiciary which is
a real challenge in the present day legal system with so many cases still pending for
many years now. Precedents bring certainty in law.
If the courts do not follow precedents and the judges start deciding and determining
issues every time afresh without having regard to the previous decisions on the point,
the law would become the most uncertain. Precedents bring flexibility to law. Judges
in giving their decisions are influenced by social, economic and many other values
of their age. They mould and shape the law according to the changed conditions and
thus bring flexibility to law..
Topic-5
Ownership -Definition, Concept and kinds

INTRODUCTION
Ownership is an important right in relation to property. It is one of the basic concept
of jurisprudence law. As a concept of jurisprudence ,there are various definitions
given by different jurists. The ownership has an important place both legal and social
interest of society. Ownership appears in our legal system when we glance at the
claims, privileges, powers and immunities with regard to the things we own. For
example– A who owns a car has the power to claims and privileges over it. It will
be shown In this example that ownership is not such a conceptual concept that only
found in our books But it’s seen in our day to day activities . The concept of
ownership appears when Society changed from nomadic to agriculture.
Definition – The term ‘OWN’ literally means to have or hold a thing or to have
something which belonging to you. A person who holds an object as his own is said
to be the owner of the thing and has the right of ownership over it.
Basically, the Ownership is refers to the relationship between a person and an object.
It consists of a bundle of rights and duties over a thing. These rights are in rem, that
is, they can be enforced against the whole world and not just any specific persons.
For Example – If you have a car, you have the right to drive it, (provided you have
a driving license) . The right to prevent others from using it, the right to sell it or to
give it. Moreover the owner is also liable to execution for any debt or insolvency
that you might have and so on.
Concept of ownership-
The ownership is widely demonstrated through the near approach of many modern
definition and also the approach of ancient times. Before discussing the modern
definition of ownership , we should also consider the definition given by the Ancient
jurists.
There are two types of concept –

• Indian concept of ownership

• Western concept of ownership
1. Indian concept of ownership- Ancient Indian jurists analyzed ownership and
gave their theories about it.
Roman law :
• Ownership is a complex jurists concept that originated in ancient Roman law. In
Roman law, ownership and possession were called ‘dominium‘ and ‘possessio’
respectively.
• dominium refers to the complete right over thing, while it has only physical
control. He gave more importance to ownership because in his opinion it is more
important to have absolute authority over something then to have physical control
over it. While possessio implied only physical control over it.
English law
• According to Maitland , quoting Dr. Murrary the word owner was made in 1340
and of ownership in 1583. The concept of ownership in English law developed much
later than possession. The earlier law valued possession over that misconception,
which included possession as well as ownership.
• Holdsworth observed that English law accepted the concept of ownership as an
complete and ultimate right through the gradual the development of authority. The
concept of ownership involves many claims such as freedom, power and immunity
in relation to the thing owned.
Hindu law –
• Manu and yajnavalka who knew ancient law,said that the possession of
immovable for 20 years and movable for 10years gives the title prescription.
• Katyayana in vivadratnakara said about sale without ownership that – Example–
If a person has lost his chattel and then found in possession of someone else, he must
first go through the testimony of that chattel and with other evidence have to prove
ownership of that chattel.
• Brahma purana gives seven ways to acquire the title of any property. There is
also said that the property obtained by partition or by inheritance or by royal grant
is recognised as real property of someone.
2. Modern Western jurists – Ownership has been defined in different ways according
to different western jurists which is as follows-
• According to Hibbert – ownership can be defined as the right of exclusive control
and disposal of thing at will.
It mainly consists four kinds of rights which are following-

• Right to use a thing.

• Right to exclude others from using thing.
• Disposing of the thing Right to destroy it.
• According to Austin’s definition– ownership means a right which avails against
everyone who is subject to the law conferring the right to put thing to user of
indefinite nature.
According to Austin ownership has focused on three main characteristics of
ownership namely –

1. Indefinite user 2.
Unrestricted disposition
3. Unlimited Duration.
Austin’s definition has been followed by Holland
• According to Holland – ownership is plenary control or complete control over a
thing. He defines that the ownership has main three rights over a property which he
owns- 1. Possession
2. Enjoyment
3. Disposition

Planetary control over an object defines absolute control or unrestricted by any law
or fact . Thus, the criticism made against Austin’s definition would apply to that
given by Holland as far as the I’m implication of the word absolute control is goes.
Critism of Austin’s definition –Austin’s view of ownership has been criticized on
various grounds – • It’s Pointed out that ownership is not a right but a bundle of right
.It’s the aggregate or sum total of the right’s of user and enjoyment. • Ownership is
not merely a but also a relationship between the right owned and the person owning
it.
• The idea of right of indefinite user is also attacked .Many limitation can be put
upon the user .The owner must use his property in such a way as not to interferes the
right of others.
According to salmond –
• The ownership in it’s most comprehensive significance, denotes the relation
between a person and right that is vested in him. Salmond is definition is considered
one of the most comprehensive because he has used the term Right instead of Things.
• Things are limited to objects whereas the right is much then that .It can go beyond
those, which doesn’t have physical existence like copyright, trademark etc.

Criticism of Salmond’s definition – Salmond’s view of ownership has been

criticized by many authors-
• According to Diguit – ownership is a relationship between a person and thing
over which is permitted, on account of his relationship, complete disposal, use and
enjoyment. It’s thing not a right. Thus , A person may own the copyright or right to
way . In this sense he owns a right not merely the material object.
• According to cook –There are many rights which a person has posses and to use
the term owner to Express relationships between a person and a right is to introduce
necessary confusion.
• According to Kocourek – ownership is relation between owner and right to a
thing which can be economically enjoyed. It’s Matter of legal protection.
Essentials of ownership– An analysing of the concept of ownership. It would show
that it has the following essentials of ownership-

1) Indefinite point of user – this implies that the owner of object is free to use or even
misuses the object in the manner he likes. The use of the term indefinite holds a
special significance because the land may be restricted by agreement or by the
operation of the law .
These restrictions may includes–
• The owner of a thing can’t be allowed to use the thing in a manner that is injurous
to others . It’s expressed by Maxim -sic utere tuo ,at alie -num non which means –
so use your property as not to injure your neighbours.

• The ownership may be subject to encumbrance in favour of others in which case

the power of the user of owner is curtailed by the right of the encumbrance

• The State officials have the right to enter their premises in pursuance of a court-
issued warrant for any lawful purpose
Case law – Crowhurst v. Amersham Burial board (1878 LR 4 Ex D 5)
Facts – The defendant planted a small tree on his property, although these trees were
planted very close to the claimant’s own property. Over time , the trees grew and
eventually the branches grew to such an extent that they reached the fence separating
the two properties . During this the leaves of the tree were able to fall on the
claimant’s property where his horse was able to eat them and eventually died.
Judgment– The court held that the defendant burial board is responsible for damages
to the extent of price of horse which died on account of eating a portion of a tree
planted by the burial board on it’s own land. The owner has no right to use his
property in a way which is harmful to others.)
2 .Unrestricted point of disposition – The right of disposition defines the right to
alteration, destruction or alienation of property. The owner has right to dispose of
the property as per his choice.
3.Right to possess – The owner has the right to possess of his property. Hence, this
property is hired, pawned ,leased etc. The owner has interest and his right in the
property continues, even though he may or may not physically in possession. 4 Right
to use – The owner has the right to use and enjoy his property. In the word use refers
to the owner’s personal use and enjoyment of the thing which his owned.
5. Residual character– The owner can participate with many rights regarding his
ownership. It doesn’t take away ownership from it.
6 . Right to destroy or alienate – An owner has the right to destroy or alienate his
property which he owns .
7 .Duration– There is no duration for ownership. In cases of lease , bailment, pledge
and mortgage etc . Of property. The duration is for a fixed period. But in ownership
has no such condition. By death of owner the property goes to his heirs.
Characteristic of ownership-
• Ownership has the right to exclude others.

• Ownership provides the power to alienate a thing or property intervivos or a

charged security. There is limited power of different laws specially by family laws
to ensure complete power over such property,

• Ownership gives the right to a person to leave such property etc.

• The right of ownership can be exercised under certain conditions inflict by various
laws.
Example– The insane minor cannot use his right of ownership.

• A owner can destroy their property and can expulsion as he likes such power is
subject to
1-The law of Nuisance
2-State control

3 Agreement between owner and other

• The ownership can be divided in 2 parts on the basic of classification –
1 Absolute
2 Restricte
d
• The ownership can be divided in 2 parts on the basic of limitation –
1 Voluntarily
2 Compulsor
y
• The right of ownership may be cut or restricted during a war or emergency, if any
land or property is required for the use of the military during the war, it may be
acquired by the government.
• The right of ownership is protected by the state, it can be exercised in such a way
that the right of the other person cannot be disturbed or violate your right over the
property
• . The subject of ownership can be everything except natural air, light and heat.

Types of ownership-

Different types of ownership can be classified under the following heads.

1.Corporeal and Incorporeal ownership–
• Corporeal ownership refers to the absolute ownership of physical or material goods
whereas Incorporeal ownership refers to the ownership of a right .
For example– corporeal ownership includes ownership of house, table, car
,machinery etc. Whereas Incorporeal ownership includes ownership of trademarks,
copyright ,patents, goodwill and right to way etc.

• The corporeal ownership is the ownership of actual things but Incorporeal

ownership is not ownership of a thing, but ownership in a right related to thing. For
example- If A own piece of land ,that is corporeal ownership, But if A own a right
of way on that piece of land ,that is Incorporeal ownership.
• The difference between corporeal and Incorporeal ownership is connected with the
difference between corporeal and Incorporeal thing. corporeal ownership is
described as ownership over tangible things . Tangible things refers to the thing
which we can see ,touch and also felt by the senses. Incorporeal ownership includes
the ownership over the intellectual object and encumbrances.

2. Sole and co- ownership –

• When ownership is vested in a single person it’s knows as sole ownership and
whereas the right is jointly vested in more than one person at a same time .it’s
known as co-ownership .
For example-
A person owns a house. In this instance the ownership is in hands of only one person.
So, it’s sole ownership.

2 . Business Partnership between three partners. Partner A , partner B and partner

C . In this example the ownership lies between
3 partners . These three members of partnership firm are co- owners of the
partnership property.
Under Indian law , the co – owner is has three essentials rights ,namely –
I. Right to possession II. Right to enjoy the property
III. Right to dispose.
• Co-ownership can be classified in two parts – I. ownership in common.
II. Joint ownership.
In ownership in common – ownership usually consists of two or more persons who
hold the land in such a way that they have an undivided possession, each of which
has the right to occupy the whole in common with others.
Joint ownership– in case of joint ownership, on the death of any joint owner , the
ownership dies with him and co-owner survives by virtue of survivorship.
3.Trust and beneficial ownership-
• Trust ownership is an example of duplicate ownership. Trust property is one that
is owned by two individuals at the same time .The relationship between the two
owners is such that one of them is under an obligation to use their ownership for the
benefits of the others. The former is called a trustee and is owned by the trust. The
latter is called the beneficiary and its ownership called beneficial ownership.
• A trustee is actually nominal and not genuine ,although in the eyes of law he
represents his beneficiary . He is only someone to whom someone else’s property is
granted by law. Between the trustee and the beneficiary, the property belongs to the
beneficiary, not the trustee.
• Illustration– If property is given to A on trust for B . A ,would be the trustee and
B would be beneficiary. A would be legal owner of the property and Y would be the
beneficiary owner. A is under an obligation to use the property only for the benefit
of
Legal and equitable ownership-
• Legal ownership refers to ownership as recognized by the rules of a legal system,
whereas equitable ownership refers to ownership recognized by the rules of equity.
• It is a legal claim or title to property . Therefore, a person having legal ownership
over the property can transfer the ownership to another party.
Example:1 A lender who has lent money for a property is the legal owner of that
property.
• Legal ownership is a right in rem while equitable ownership is the right in
personam ,the Individual as it acts in equity. One person can be the legal owner of
something and the other can be the equal owner of the some thing at the same time.
Example:2 when a debt is verbally assigned by X to Y ,X remain the legal owner of
it .but Y becomes its equitable owner. There is only one debt as before Though it has
now two owners at the same time.

5. Absolutely and limited ownership–

• Absolutely ownership is one in which the owner is vested with all rights with
regards to the property which he owns. Such rights are absolute .It should be noted
that the absolute use of the property implies general use of property that means
property can only be used in a lawful manner and for lawful purposes only. Absolute
ownership is an independent transferable and inheritable property that a person can
hold as his actual right .
Example– Mortgage of some property by its owner.
• When there are limitations imposed upon the ownership right with regards to his
property, the property is known as limited ownership. Limited ownership is the
ownership that is not absolute or perfect. Where the owner enjoys the right to use
and enjoy the property for a limited period of time as long as some other person is
alive.
Example– The concept of the principle of life under English law is classic example
of limited ownership. Hindu law also recognizes limited ownership. When Hindu
widow is made the owner of her husband’s property , as long aa the survives, after
which the property will go to the legal heirs. The widow’s ownership is a limited
ownership.
6 . Vested and contingent ownership–

• Vested ownership defines that when the title of owner is already perfect. It is
occurrence of an event , which is certain. According to law it’s complete and absolute
ownership over the property.
• The term contingency means the happening or non- happening of an uncertain
future event. The contingent ownership is solely dependent upon the fulfilment of
future conditions. The ownership is not acquired unless the condition is fulfilled. In
this the person doesn’t have full claim over the property , But can make claim upon
the fulfilment of certain conditions.
• These conditions are of two types namely- condition precedent and condition
subsequent. Condition precedent is where on the fulfillment of it the title is
completed .condition subsequent is whenever on the fulfilment of it the title already
completed is extinguished.
Example –

1. If A sells his house to B for the price fixed after completing all the formalities,
which is prescribed by law like reregistration etc. Then B becomes a vested owner
of house. Vested ownership doesn’t depend on fulfilment of any conditions.
2. Two people sharing ownership of a property, if one dies then the other gets the
benefit of vested ownership of the property
3. There is a promissory note in favour of x , x transfer the same to Y on the
condition that he marries the daughter of z .when Y marries the daughter of Z
 .The right becomes the vested right and his ownership vested ownership,
however, before marriage the right is contingent.
Case laws – Sashi kantha V. Promode Chandra Roy and Ors .
(AIR 1932 Cal 600)

• The Calcutta high court has pointed out the difference between vested and
contingent interest over the property.

• In this case , it was held that In the vested ownership there is the immediate right
of present enjoyment or present presented future enjoyment but if the right of
enjoyment is made to depend upon some event or conditions, which may or may not
happen, then it’s contingent ownership between its depend on any conditions.
Conclusion: In a conclusion we can say that –

• Ownership is a legal concept which defines the relationship between a person

who is called owner ,and a thing that the owner owns and can exercise c It can
be the absolute and supreme right that can be exercised over anything.
• It contains a right of the owner to exclude others.
• It is a right which includes rights, claims and privileges etc. over the property.
• It does not mean a absolute right or unlimited right over the property. It’s
restricted or limited by law.
• It is relation to something which can corporate or incorporated.
• The Indian and western concept of ownership have also distinguished on certain
points. The essential features of ownership have also emphasized. This
ownership is recognised in most legal system .The various type of ownership
have also stated and defined for better appreciation of the concept of ownership.