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Principle: Mere silence as to the facts likely to affect the willingness of a person to enter into a contract
is not a fraud, unless the circumstances of the case are such that, on close examination it is found to be
the duty of the person keeping silent to speak, or unless his silence is, in itself, equivalent to speech.
Facts: X sells by auction to Y, a horse which X knows to be of unsound state of mind. X says nothing to
Y about the horse’s unsound state of mind. Give the correct answer.

(a) X can be held liable for fraud.

(b) X can be held liable for misrepresentation.
(c) X cannot be held liable, because he did not say anything positive about the mental state of the
horse.
(d) X cannot be held liable because it is the buyer who must be aware of the things.
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INJURIA SINE DAMNUM

• Injury without damage.

• It means that even though there is no damage, there is a legal injury caused.
• Eg., Not allowed to vote.
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DAMNUM SINE INJURIA

• Damage without Injury.

• It means that there is harm caused to us due to the act of the other party, however, there
is no legal injury here.

• Eg., Opening a similar shop.

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CASES
Ashby v. White (1703):

• Mr. Matthew Ashby, a cobbler, turned up to cast his vote for the British Parliament in December 1701. Ashby was
turned away by William White, a constable, on the grounds that “he was no settled inhabitant of the borough,
and had never contributed either to church or poor. In spite of this, his candidate won the election and no harm
was caused to him. But Ashby refused to take this lying down and sued for substantial damages. The defendant
contended that since Ashby had suffered no loss as his candidate had won the election, he was not liable. The
plaintiff’s suit was successful. Lord Holt C.J. upheld Ashby’s, submissions arguing that what was at issue was “a
most transcendent thing, and of a high nature”. Finally it was held that the defendant (White) by preventing
Plaintiff (Ashby) from voting violated Ashby’s legal right and was entitled to damages.
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General Defences
• When a plaintiff brings an action against the defendant for a
particular tort or violation of legal right, resulting in legal damages,
and successfully proves the essentials of a tort, the defendant is
held liable.
• General defences are a set of defences or ‘excuses’ that you can
undertake to escape liability in tort.
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Examples of General Defences

• Fire at a neighbour’s house.
• Failed brakes in a car
• Watching cricket match in a stadium
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Defence of ‘Consent’
• Volenti Non Fit Injuria.
• When a person consents to the infliction of some harm upon himself, he has no remedy for that in
tort.
• In case, the plaintiff voluntarily agrees to suffer some harm, he is not allowed to complain of that
and his consent serves as a good defence against him.
• When you invite somebody to your house, you cannot sue him for trespass, nor can you sue the
surgeon after submitting to a surgical operation because you have expressly consented to these
activities.
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Defence of ‘Consent’
• Implied consent is also considered a valid consent.
• Many a time, the consent may be implied or inferred from the conduct of the parties as in the case
of Hall v. Brooklands Auto Racing Club (1932). The plaintiff was a spectator at a motor car
race being held at Brooklands on a track owned by the defendant company. During the race, there
was a collision between two cars, one of which was thrown among the spectators, thereby injuring
the plaintiff. It was held that the plaintiff impliedly took the risk of such injury, the danger is
inherent in the sport which any spectator could foresee, the defendant was not liable.
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Defence of ‘Consent’
The consent must be free
• For the defence to be available, it is necessary to show that the plaintiff’s consent to the act done
by the defendant was free. If the consent of the plaintiff has been obtained by fraud or under
compulsion or under some mistaken impression, such consent does not serve as a good defence.
Moreover, the act done by the defendant must be the same for which the consent is given.
For the maxim volenti non fit injuria to apply, two points have to be proved
1. The plaintiff knew that the risk is there
2. He/She, knowing the same, agreed to suffer the harm
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Defence of ‘Consent’
• Only knowledge of risk will not lead to the defence of consent.
In Smith v. Baker (1891), the plaintiff was a workman employed by the defendants for working on a
drill for the purpose of cutting a rock. With the help of a crane, stones were being conveyed from one
side to the other, and each time when the stones were conveyed, the crane passed from over the
plaintiff’s head. While he was busy with his work, a stone fell from the crane and injured him.
The employees were negligent in not warning him at the moment of a recurring danger, although the
plaintiff had been generally aware of the risk. It was held by the House of Lords that as there was mere
knowledge of risk without the assumption of it, the maxim volenti non fit injuria did not apply and the
defendants were liable.
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Examples
• When you yourself call somebody to your house you
cannot sue your guests for trespass;
• If you have agreed to a surgical operation then you
cannot sue the surgeon for it; and
• If you agree to the publication of something you were
aware of, then you cannot sue him for defamation.
• A player in the games is deemed to be ready to suffer
any harm in the course of the game.
• A spectator in the game of cricket will not be allowed
to claim compensation for any damages suffered.
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Plaintiff the wrongdoer

• This defence arises from the Latin maxim “ex turpi causa non oritur action” which means no action

arises from an immoral cause.

• The law excuses the defendant when the act done by the plaintiff itself was illegal or wrong.

• Under this defence, it has to be seen as to what is the connection between the plaintiff’s wrongful act

and the harm suffered by him. If his own act is the determining cause of the harm suffered by him, he

has no cause of action.

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Example:

• In Pitts v. Hunt, there was a rider who was 18 years of age. He encouraged his friend who was 16 years old

to drive fast under drunken conditions. But their motorcycle met with an accident, the driver died on the

spot. The pillion rider suffered serious injuries and filed a suit for claiming compensation from the

relatives of the deceased person. This plea was rejected as he himself was the wrongdoer in this case.
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Inevitable Accident

• An accident means an unexpected injury and if the same could not have been foreseen and avoided, in

spite of reasonable care on the part of the defender, it is the inevitable accident. It is, therefore, a good

defence if the defended can show that he neither intended to injure the plaintiff nor could he avoid the

injury by taking reasonable care..

• It may be noted that the defence of the inevitable accident is available when the event is unforeseeable and

consequences unavoidable in spite of reasonable precautions. Even if the event is like heavy rain and

flood but if the same can be anticipated and guarded against and the consequences can be avoided by

reasonable precautions, the defence of inevitable accident cannot be pleaded in such case.
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• In the case of Holmes v. Mather, the defendant’s horse was being driven by his servant. Due to the barking of

dogs, the horse became unmanageable and started to bolt. In spite of every effort of the driver, the horse knocked

down the plaintiff. This makes it a case of an inevitable accident and the defendants were held not liable for the

incident.

• In Stanley v. Powell [1891], the plaintiff was employed to carry a cartridge for a shooting party when they had

gone pheasant-shooting. A member of the party fired at a distance but the bullet, after hitting a tree, rebounded

into the plaintiff’s eye. When the plaintiff sued it was held that the defendant was not liable in the light of the

circumstance of an inevitable accident

 Act of God/ Force Majeure
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• Act of God or Vis Major or Force Majeure may be defined as circumstances which no human foresight can

provide against any of which human prudence is not bound to recognize the possibility, and which when they

do occur, therefore are calamities that do not involve the obligation of paying for the consequences that result

from them.

• The act of God is a defence used in cases of torts when an event over which the defendant has no control

occurs and the damage is caused by the forces of nature. In such cases, the defendant will not be liable in tort

law for such inadvertent damage.

• It is a kind of inevitable accident with the difference that in the case of Act of God, the resulting loss arises

out of the working of natural forces like exceptionally heavy rainfall, storms, tempest, tides and volcanic

eruptions.
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Two important essentials are needed for this defense:

• There must be working of natural forces

• The occurrence must be extraordinary and not one which could be anticipated and reasonably guarded

against.

In Nichols v. Marsland, the defendant created an artificial lake on his land by collecting water from natural

streams. Once there was an extraordinary rainfall, heaviest in human memory. The embankments of the lake got

destroyed and washed away all the four bridges belonging to the plaintiff. The court held that the defendants

were not liable as the same was due to the Act of God.
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Ramalinga Nadar v. Narayana Reddiar (1971)

• The plaintiff had booked goods with the defendantfor transportation. The goods were looted by a mob, the

prevention of which was beyond the control of the defendant. It was held that every event beyond the control

of the defendant cannot be said Act of God. It was held that the destructive acts of an unruly mob cannot be

considered an Act of God.

• It was observed that: “Accidents may happen by reason of the play of natural forces or by the intervention of

human agency or by both. It may be that in either of these cases, an accident may be inevitable. But it is only

those acts which can be traced to natural forces and which have nothing to do with the intervention of human

agency that could be an aid to be acts of God.

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• Clause entered in agreements to cover Act of God events.

• Act of events are those events over which humans have no control. Eg. Natural calamities, Fire, Change in

Law etc.

• It is to be made sure that there must be impossibility of performance.

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Quick Question

Rahul, operating from Rajasthan had entered into a contract with Rishika, operating from Maharashtra, to provide 1000

quantities of a commodity by March 31, 2020. However, due to outbreak of the COVID-19 pandemic, the Government

announced a nationwide lockdown from March 22, 2020 for a period of two months. It included a complete ban on inter-state

movement of all road transport. Rahul wants to enforce the force majeure clause now due to his inability to transport the product.

(a) Force Majeure is applicable since the performance has become impossible.

(b) Force Majeure is not applicable even if the performance has become impossible.

(c) Force Majeure is not applicable since the performance has not become impossible.

(d) None of the Above