In modern civil societies, the right and duties of individuals are regulated by the law of the land. A breach of these right and duties is called a wrong. One who commits wrong is said to be liable for it. Thus liability may be for a wrongful act or omission. A man’s liability consists in those things which he must do or suffer because he has failed to do what he ought to have done. Liability is different from obligation. An obligation is a proprietary right in personam or a duty which corresponds to such right whereas in liability the wrongdoer is under a duty to redress the person wrong. It is thus evident that liability arises from a wrong or the breach of a duty in law.
Kinds of liability
liability may either be Civil or Criminal ; it may also be Remedial or Penal ; and Vicarious liability.
Civil and Criminal liability
Civil liability consists in enforcement of the right of the plaintiff against the defendant in civil proceeding where is in the case of penal or criminal liability the purpose of law is to punish the offender or wrongdoer. The distinction between civil and criminal liability is civil liability may either be remedial or penal but criminal liability is necessarily Penal. The liability of the debtor to repay the debt money is remedial while that of a publisher of a libel to pay damages to the person injured is civil but if criminal proceeding are initiated against him under Sections 499/500 IPC then it shall be penal as he may be punished with the sentence of imprisonment.
Besides defamation, the liability may be civil or criminal in case of assault, malicious prosecution, defamation nuisance etc. In case of civil proceedings, the remedy is in the form of damages whereas redress for criminal liability is in the form of punishment.
Liability may be civil or criminal according to the nature of the wrong committed by a person. According to salmond, “the distinction between criminal and civil wrong is based not on any difference in the nature of the right infringed, but on the difference in the nature of remedy applied.”
The main points of distinction between civil and criminal liability are as follows:-
1)Civil liability arise when a wrong is against a private individual but criminal liability arises in a case of an offence which is a wrong against the society.
2) Civil liability entails damages but criminal liability results into punishment.
3) The procedure for determining civil and criminal liability is different. The civil liability in case of a civil wrong is determined by civil proceeding in a civil court but criminal liability is imposed by criminal proceeding instituted by the state against the offender.
4) In case of civil liability, it is an act and not the intention which is taken into consideration but in case of criminal liability its a mens rea which is determining factor.
Penal and Remedial liability
Liability may also be penal or remedial, the former involving the idea of punishment while the latter consisting in the specific enforcement of the plaintiff right without any element of punishment in it. For example, liability to pay a fine is penal, while liability to repay a debt is remedial.
Criminal liability is generally penal while civil liability is mostly remedial, though in some cases it may carry penal consequences.
Theories of Remedial Liability
The basis of remedial liability is to be found in the maxim ubi jus ibi remedium which mean where there is right there must be remedy. When law creates a duty, it ensures its fulfillment also. Where there is breach of duty, there must be some remedy prescribed by law and enforced by law.
Thus the purpose of remedial liability is to ensure the specific enforcement of plaintiff’s right. It aims at protecting the right of the plaintiff rather than punishing the wrongdoer. According to the theory of remedial liability, whenever law creates a duty it should enforce the fulfillment of such duty. The law imposes remedial liability on one who fails to perform such duty. There are, however, three exception to this rule when law might accept the right of the plaintiff and yet it may not enforce it. These exceptions are:-
1)Duties of imperfect obligation- In such case law recognise the right but does not enforce it. For example, the liability of a debtor in case of time barred debt is recognised by law but it is not enforceable by the courts. Therefore, the claim of the creditor to recover the debt lapses on expiry of prescribed period of limitation.
2) Duties which By Nature are incapable of specific performance: In certain cases, the nature of a duty or the corresponding write in such that it cannot be specifically enforced. For example, everyone has a right to reputation and therefore there is a corresponding duty imposed on other not to violate such right. But if libel is committed, the specific enforcement of corresponding duty of the defendant (i.e., person who has committed libel) is not possible. In other words once mistake has been done, it cannot be undone. In such cases, damages are perhaps the only adequate remedy.
3) Where specific performance is inexpedient or inadvisable: There are certain categories of cases in which though specific performance is possible, law may not resort to it, where other remedies would satisfy the requirement of law. For example, law does not enforce the specific performance of a promise of marriage or painting of a picture but normally awards damages in such cases.
As stated earlier, the main purpose of penal liability is either directly or indirectly, to punish the wrongdoer. The basic principle underlying penal liability is contained the maxim actus non facit reum, nisi mens sit rea which means that ‘act alone does not amount to crime, unless it is accompanied by guilty mind’. Therefore, two elements, i.e., act and guilty mind are essential requirement to constitute a crime. No person can be punished merely because his act resulted into some crime unless it is accompanied by mens rea or guilty mind. Conversely, mere presence of mens rea shall not constitute a crime or an offence unless it is accompanied by some act. Thus ‘act’ is a physical element of the crime and mens rea is its mental element.
Generally, a man is held criminally liable only for those wrongful acts which he does either wilfully or negligently. There are, however, some exceptional cases when law a strict liability as in case of offence under the licensing Acts or offences against public health. In such cases, the act itself become punishable even without the presence of guilty mind or negligence. That apart, the criminal law exempt certain categories of cases from penal liability. These are commonly known as defence or general exception. They include mistake of fact, accident, infancy, minority, necessity, self defence, involuntary intoxication etc. If the offender succeeds in establishing any of these defences, he is not punished though his office may satisfy the two condition of actus and mens rea.
Normally, it is the wrongdoer himself who is held liable for his act (que facit puer alium facit per se). But there may be certain circumstances when the liability of the wrongdoer is imposed on some other person than the wrongdoer himself. That is, some other person is made liable for the wrongful act of the wrongdoer. For example, an employer is liable for act which he has ordered to be done, or which has been done by his servant, without orders, but within the scope of servant’s employment. Likewise a principal is liable for the wrongful act of his agent done in the ordinary course of business or a guardian is liable for the wrongful act of his wards. According to Salmond, the rational basis of the rule of vicarious liability, of which the master-servant liability serves as the best illustration, is mainly evidential. To quote his own words:-
” A word, a gesture or tone from the master will be sufficient to induce a servant to commit greatest wrong, yet who could prove such a measure of complexity.”
The principle of vicarious liability has no application in criminal law for it would be against the public policy to punish the person for the offence committed by someone else. However, there are three exception to the general rule:-
1) In many cases the law imposes upon the owner of a property the obligation of managing it so that it does not injure anyone else or the public in general.
2) In case of public nuisance under Section 268, IPC, also a master is held vicariously liable for the act of public nuisance committed by his servant.
3) Under the licensing Acts the professionals holding licence would be vicariously punished for the act of violations committed by their servants. The same rules shall be applicable in respect of various price controlling laws. A master of a business firm could be held liable if his servant who has committed an act in violation of any provision of the statutory law.
The principle of vicarious liability is commonly applicable to civil wrongs. Thus a master is liable for his servant’s wrongful act or omission and likewise, a principal is held liable if his agent’s wrongful act for the following reasons:
1)All acts done by servant in and about his master’s business are done by his master express or implied authority and are therefore, in reality the act of the master for which he may be held liable.
2) The master is capable of bearing the financial burden of civil liability as compared with his servant. Moreover, since master reaps the benefit of the servant’s service, he should also bear the losses occasioned by the servant in the course of his employment.
3) The master is held liable for the wrongful act of his servant on the principle of implied negligence. The law presumes that master failed to exercise due diligence in choosing a proper servant and therefore, he should be liable for the consequences ensuing from the wrongs of his servant.
4) The principle of vicarious liability also extends to living representatives for the acts of the dead in certain cases. This is enshrined in the Latin maxim actio personalis moritur cum persona. Generally speaking, an action dies with the death of a person. Therefore, all personal action such as assault, defamation, trespass etc., come to an end with the death of a person. But in cases of unjust enrichment, the heir or successor of the deceased shall be vicariously liable for the wrongful act of the dead man. For example, where property belonging to the plaintiff has been appropriated by a person who has died and has been added by the deceased to his own estate, the plaintiff can sue the legal representative of the deceased, for the recovery of such property.
Author: vivek khandelwal,
Amity University Rajasthan, 2nd Year/ BBA.LL.B(Hons.)