Law and Morality - Sourav Mandal
Law and morality are too vague to understand. It must be added here that the notions of law and justice can't be captured and presented before us within a few sentences. These notions are too vast that even words are not sufficient to define them. Many jurists from the ancient Greek period to the modern and even the post-modern era have attempted numerously to define these concepts, but have failed. One of the reasons may be that the roots of these concepts lie somewhere within the human psyche, which is extremely random and versatile. Well it is required to describe the tenets of the two main schools of law.
Legal Positivism:-
The start of the nineteenth century may be regarded as the beginning of the positivist movement. The term ?positivism? has many meanings, which are tabulated by Professor H.L.A.Hart as follows :
1. Laws are commands. This meaning is associated with the two founders of British Positivism, Bentham and his disciple John Austin,
2. The analysis of legal concepts is:
* worth pursuing
* distinct from sociological and historical inquiries,
* distinct from critical evaluation,
3. Decisions can be deduced logically from the predetermined rules without recourse to social aims, policy and morality,
4. Moral judgments cannot be established or defended by rational argument, evidence or proof,
5. The law as ?it is? actually laid down, positum, has to be kept separate from the law that ought to be.
The positive law school has its main pillars as, Jermy Bentham, John Austin, Prof. H.L.A. Hart, Kelson. Actually positivism has grown out of the ashes of renascence in Europe. It is hence a liberal thought or a liberal ideology whose main aim is to bring positive reforms in the society through the instrument of state and not through the clergy. What positivism represents is the intellectual reaction against naturalism and a love of order and precision.
After having a brief idea of legal positivism, we should move to the Natural Law school.
Natural Law School:-
The term "natural law". like positivism, has been variously applied by different people at different times.
1. Ideas which guide legal development and administration.
2. A basic moral quality in law which prevents a total separation of the "is" from the "ought".
3. The method of discovering perfect law.
4. The content of perfect law deducible by reason.
5. The conditions sine quibus non for the existence of law.
Natural law school dominated till the nineteenth century, beginning from the ancient Greek period. Natural law school discussed what law is etc., but never discussed law as an empirical formula, and never made strict separation between what law is and what law ought to be. Natural law thinkers while talking of law talk about law made by man's mind consciously, as opposed to law made as a result of morality lacking conscious element. Natural law thinking is one form or other is pervasive and is encountered in various contexts. Values, for instance, as pointed out, play an indispensable part in the development and day to day administration of law. In a different sphere natural law theory has tried to meet the paramount needs of successive ages through history, and an account has been given of the ways in which it supported power or freedom from power according to the social need of the time. Further natural law school offers a indirect help with two contemporary problems, namely, the abuse of power and the abuse of liberty.
Positivism on the other hand, by seeking to insulate legal theory from such considerations refuses to give battle where battle is needed perhaps wisely, perhaps to its own discredit, depending on the point of view. The Natural law thinkers have always considered the principles of morality as higher law and they look at man made law contempt and ridicule. Law and morality have always been at loggerheads with each other. The positivists led by Bentham and Austin deliberately keep justice and morality out of the purview of legal system. Their formalistic attitude is concerned with law as it is and not law as it ought to be. They emphasize law from the point of source and implementation. So, the natural law system depends upon the standards and yardsticks of morality to formulate any law, whereas the positivist system of law depends upon the conscious and deliberate attempt of law making.
Now it is time to go a little further deep in the project. We are constantly talking about law and morality, so let us know the meaning of these two concepts. Law is continuously evolving norm or rather we should say that it is a part of a normative system whose work is to regulate certain norms in society. It is dynamic and is never at any point of time static. Law has to change from time to time as according to the ever changing demands of society. Law doesn't exist for its own
state. It has to achieve certain objectives, which may be short term or long term. Law aims to create an order in society (in all units of society). Law tries to create a working environment which is equally just to all sections of society. On the other hand, there is the vague concept of morality which is a sought of norm or a part of normative system. Morals are actually certain yardstick standards in our society which work as prescriptions to human behavior. The starting of preaching of morals start from the very basic unit of our society i.e. family. As in a Hindu family, young people touch the feet of elders to wish them. There is no logic behind these morals but still these morals do prevail in our society. This is fully ones own private practice in which nowhere law has to intervene. A morality can be one which throws a negative impact on society and the other which can benefit the society. Law or morality both are normative systems of our society as both are normative and institutionalized by nature. The only difference between law and morality is that law is coercive by nature but morality is not. Law is enforced by coercion and its constant application on a society leads to the internalization of law in human soul. Initially, law gives only an external behavior or an overt effect, but with the pace of time the forceful obedience of laws takes the shape of an internalized realization of habitual obedience. For example, the road traffic laws, when are applied on a society get internalized in a citizen's behavior after certain time.
Law has got a coercive backing which works through institutions. So, idea of sanction, that, ?one will be punished by god? as is being propagated by religion and the so called contractors of morality from years, has become very loose. That is the reason, why religion and morality has become loose and ineffective. So, constitutionalism has taken a front foot. I prove this point of mine by the following example of our contemporary society. Today in our present society, morality and religion are facing challenges put forward by technology, fast urban life, secularism, equality before law, democracy, and constitutionalism.
Since today people are educated in a liberal atmosphere, we are able to think on our own, we know the difference between right and wrong, truth and false. So, as in earlier society it was possible to create an easy fear factor in the minds of people on the name of god. This clash is bound to take place as people are now not dominated by anybodies whims and fancies or any religious or moral sanctions, but they are capable of taking their own free decisions. When one tries to analyze the distinction between law and morality, one feels vaguely that somehow law is connected with reason and conscience. Therefore law has the characteristic of binding whereas morality has the characteristic of being bound. The great jurist asserts that force is necessary to control human behaviour because humanity as a whole is not governed by reason. If every one thinks reasonably and acts rationally there is no need of binding one's behaviour. But the experiences in history do not provide clear evidence of such rational behaviour and so the idea of law has developed on the assumption that it is necessary to compel the behaviour of individuals in a particular direction to achieve certain specific ends. Justice and conscience seem to be personal and individualistic. Hence there can not be system attached within any order. Therefore one recognizes, at any point in the history of any social organization, a legal system but one fails to locate such a system of justice or morality.
Most probably, because justice and conscienceless are experiences and intuitions of the mind. We can not think of an external system to regulate the activities of the mind. On the contrary, human behaviour, in its rudimentary nature is physical and superficial. And so a legal system can find a methodology of directing it or guiding it or even governing it. therefore a legal system having rules and regulations with regard to trade, commerce, finance and employment will be greatly successful because the writer thinks, there are the areas in which human behaviour is physically; desirable. In these areas an external force, law is such an external force, a system in more comprehensively physical. Moreover the external element of deciding, adjudication, administration or even policing is possible. On he other hand, the definition of morality or the concept of morality changes from person to person. May be what is morality for me, that is not moral for you. For e.g. the viewing of porn sites in the scenario of the society existing in Indian subcontinent is not considered to be a moral act, but the viewing of the same porn site is considered to be a legible and conveniently acceptable in European and American societies.
If we look at the form and content of law, we find that a legal norm may be common with that of religious and moral norm. For example, all religious and moral norms say not to kill or not to steel, and it is the same here in law. So, we have almost the same content between law and morality. Then the question arises that, if it is so, then what is the difference between law and morality? The answer is that, the legal system is distinct from religion and morality in the ?form? and not in the content.
Law is influenced from both religion and morality and hence their takes place a sought of interaction between the legal system and the moral and religious faculty of our society. In a traditional society laws have never had a very dominating character, but religion and morality had always had a very predominant role.
But in a modern society life changes very fast, hence morality and religion are under a great pressure. Hence, law is the only
alternative to human development. In a multi religious, liberal and multi communitarian society, law can only work in a impartial and efficient manner. The greatest examples are the world's biggest democracies. Being more specific and illustrative, I would like to quote the example of India, U.S.A., England, and France etc. which have successfully established a deliberate and conscious mode of law making process through constitutionalism and this is done out of an age old monarchial and religious morality. In Russia, before the 1917 Bolshevik Revolution, the morality among general masses was that the Czar is having divine powers to rule over them. Laws were used to enforce such moral standards, but after long period of exploitation mass revolution broke up in 1917 and finally the negative effects of morality were overthrown and a constitutional setup was established. The same happened during French revolution. In India, in the ancient Vedic period, the common morality was that society was unequal and hence caste system and untouchability grew. This moral standard was given the institutional shape of law. But, after independence in 1947 we have stopped the legal enforcement of such illegitimate morals.
Now a question arises that, is law responsible for the enforcement of religion and morality?
Pornography, prostitution, homosexuality etc. are areas of ones own consciousness and hence it is an area of conflict which is still continuing. So, does law has got the right to intervene with religious and moral feelings among people? For example, there is a moral notion in our Indian society that love marriages or inter caste marriages are not feasible enough and hence should not take place. Consider the claim that homosexuality is immoral. I strongly disagree. Now what In a contest between a majority of state legislators and me and those who agree with me, what privileges the legislature's judgment of morality. In what way are they experts How does being elected to the legislature qualify them to make these judgments. Do they hold hearings on the morality of homosexuality and offer reasons for their conclusions. Or do they just press a button and register their vote. Most importantly, how can we assess the merits of their claim. If we cannot, then in reality they can prohibit whatever they want (and for whatever reason they want). No matter how objective morality may be, any such doctrine of constitutional law is recipe for tyranny. Take the issue of living relationships, which carries a moral ban on it. I don't understand that if two major individuals with their exercise of free consent decide to live together, where the question of infringement of any rational standards arises. This shows that the moral standards are never rational by effect.
Now I ask the question that, should a law be made to enforce such moral standards. Is such a law not repugnant with the constitutional principles of liberty and freedom.
The legal positivists like, Bentham, Austin, Kelson have always said that law must never be used as an instrument of enforcement of any moral standards. Therefore, as one cannot see the mind and conscience, elements of morality become weak and not determinable. But law is convenient, the present writer asserts again that it is only convenient; it has withstood the test of time. At any particular time, for any situation, law becomes a technique to establish a certain expected social behaviour. Morals may be for enlightenment and would facilitate individual peruses. Therefore it is thought and envisaged by the present writer, as compulsions and aspirations influence life, a legal system should consist of principles of convenience and feasibility whereas morality should be left to individual freedom and practice. Legal enforcement of these moralities which causes negative impact in the growth of our society must never be determined. Recently a pastor informed his congregation that Christians can no longer seek to impose their moral values on a society which does not accept Christianity. The second part of the statement, at least, is quite wrong. While Church membership and attendance has sharply decreased, the Roy Morgan Study of the Values of the Australian People demonstrates that 80% believe in God.
Should Christians seek to impose their moral values on law and society. There are some who are forcibly and aggressively arguing that Christian values must be expelled from law, society and politics. Gareth Evans (now Senator Evans) is reported in The Sydney Morning Herald, May 7th, 1976, as stating at a convention of the South Australian Council for Civil Liberties that children wanted a right to sexual freedom and education and "protection from the influence of Christianity
The same article referred to Mr Richard Neville (of Oz fame) as stating that "promiscuity is one beneficial way of breaking up
the family structure, which has led children to become the property of their parents. Law cannot be an instrument of expression of moral standards, rather law has to be independent of all sought of moral dogmas except certain areas in which law is dominated by morality. e.g. Legal areas like the business laws, cyber laws, tax laws, company laws, trade laws, etc are exclusively a legal treatise and morality has got nothing to do with that of law in such areas. Take the historical example of SITA whose fundamental and moral instinct has now changed it into PITA.
But on the other hand we can never deny that a major content of law derives its content from that of morality. Like that criminal law is a product of moral notions. For example, all religious and moral norms say not to kill or not to steel, and it is the same here in law. So, we have almost the same content between law and morality . The positive thinkers have thought in a narrow interpretation of law because they overlooked religious and moral values.
The actual conclusive situation is that religion, morality or law all have the work of controlling the behaviour of individuals of our society, hence we must not exclude the importance of morality in our society. In the case of International Humanitarian Laws, certain moral standards are also recognized as a part of law. So, the absolute separation of law and morality is not possible in these areas where morality produces a positive effect in society which is prospective in nature.
There seems to be quite a strong connection between law and morality. Although people sometimes say "you shouldn't legislate morality", they presumably don't really mean this - why would we outlaw rape and murder if they weren't wrong? Instead, I suppose they mean that people shouldn't impose their personal moral views (especially regarding sexuality) upon others. I would agree with that sentiment, though my reason is precisely because I think legislation should be morally informed, and the "moral views" in question are entirely misled.
As a quick aside: it is unfortunate that the word "morality" has become associated with conservative values, because the obvious invalidity of those values to many people tarnishes their attitude towards morality as a whole. And that is a damn shame. When conservative groups advocate bigotry masquerading as "family values", we need to recognise the injustice of this, and instead stand up for what is right. But I digress - this isn't intended as a post about how liberals need to reclaim the moral high ground.
So we accept that there is a connection between law and morality, but what sort of connection is it. Their domains are clearly not entirely identical - for example, it may be wrong to lie to your parents, but it certainly is no business of the law. Perhaps the best way to explain this is to acknowledge that the law is an extremely blunt tool, and so will be of no help when dealing with minor or subtle moral issues.
But even if some morality is outside the scope of Law, could Law's domain be a subset of the Moral? That is, should we only ever outlaw immoral acts, and never morally permissible ones?
I would like to say 'yes', as it does seem like a good principle. But I can't, because it contradicts my position on some other issues. That is, I think morality is purely 'other-regarding' in nature, and merely harming yourself (e.g. smoking in private) is not immoral. On the other hand, I previously suggested that state paternalism could be acceptable.
To approach this topic from a slightly different angle now, the intriguing suggestion that we understand law and morality in terms of belief-desire psychological theory. That theory claims that any human action can be explained solely in terms of the beliefs and desires of the agent. For example, if I turn on a heater, this may be because I desire to be warm, and I believe that turning on the heater will achieve this end. To apply this to our current topic, consider how society can influence the actions of its members. According to belief-desire psychology, there are two broad options: change someone's beliefs, or change their desires.
Morality, by this understanding, corresponds to the latter option. That is, morality is a system of socialisation whereby society instills in its members the desire certain ways. (I discuss some of the implications of this view in more detail here.)
The other method of influence is to alter people's beliefs about how best to fulfil their desires. This is where Law comes in. Its role (according to this interpretation) is to serve as a deterrent for those who, for whatever reason, fail to be bound by morality. It achieves this through the threat of punishment, i.e. by instilling in citizens the belief that breaking the law is not in their own best interests - they could get caught and sent to jail, which would surely thwart many of their other desires.
So by this view, law and morality are just two sides of the same coin -
namely, that of socialisation. Morality seeks to influence our behaviour by way of our desires, whereas law is the 'back-up' option, and targets our beliefs.
This is true in the United States as well, and not only in how our legally mandated school systems and our criminal laws contribute to the shaping, including the moral training, of citizens. Yet the typical opinions in a contemporary liberal democracy are likely to be:
(1) that morality cannot be legislated; and
(2) that even if morality could be legislated, it should not be...that to do so is somehow improper, even tyrannical, either because there is no morality objective enough to justify legal enforcement or because one's autonomy and individuality would be violated by attempts to legislate morality or perhaps even because one really has no autonomy that can respond to any external directive.
Such concerns are not evident in the Ethics: law is needed both to help habituate citizens to virtuous actions and to help maintain the salutary habits they acquire. These needs can be recognized even by those who are aware that the virtues generally fostered by law are not the highest. The opinions one may have about the good, the true, and the beautiful are a secondary concern of most laws. Still, it is well to keep in mind Aristotle's counsel that one who is "to listen intelligently to lectures about what is noble and just must have been brought up in good habits." For proper habituation, laws can be most useful, if not indispensable. Although intellectuals of liberal democratic sympathies may not believe that morality depends on law, it is almost impossible for any regime that takes itself, and is to be taken, seriously not to shape its citizens with respect to morality. To deny that legislation of morality can or should take place does not eliminate such legislation; it merely conceals it, perhaps distorts it, and otherwise confuses and misleads rulers and ruled alike. (Here, as in physics, much that Aristotle noticed and relied upon is tacitly relied upon by us as well, but relied upon haphazardly because it is not properly noticed.)
It would be useful, therefore, to indicate how pervasive Aristotle understands the law to be with respect to morality in a community. When we see what law can mean, and how it works, we may better appreciate what the law does in the service of morality, even in such a liberal democracy as ours. To speak of the influence of the law is, we shall see, to speak of the many ways that the community forms the citizen and guides the human being. For us, however, the term law does tend to be limited to what "government" does, to the statutes and decrees that governments issue. We have noticed the most conspicuous way, drawn upon at the end of the Ethics, in which morality is dependent on law. It should be added here that not only is morality somewhat dependent on law, but also that the law itself is to a considerable extent dependent on morality. A properly trained, morally alert citizen-body tends to be appalled by the lawbreaker. But does not this response (which can help keep many would-be lawbreakers in line) rest, in turn, upon the presumption that the law is likely to be, and in fact usually appears to be, itself moral and in the service of the common good. There is a critical reciprocity between law and morality. Reciprocity, we recall from the Ethics, can be vital to justice as a particular virtue. The exercise of most virtues requires a stable community, one in which one's body and life as well as property are fairly secure...and, of course, the law is essential here. To become or to remain a civilized human being usually requires a sound community...that is, one in which the law plays a considerable part. Is there not an intimate relation, at home and abroad, between justice and peace To recognize this is not to deny that friendship also seems to hold communities together nor that legislators may care more for it than for justice. Even so, is not proper habituation needed for reliable friendships, as well as for justice. Who but the legislator, who must always be distinguished from the tyrant, can insure such habituation
If law is not based on morality, on what can it be based - Christian morality, derived from the Ten Commandments, underlies the common law. Criminal law is based on the Ten Commandments, which also underlie the law of contract and the law of civil wrongs. The common law inherited by the British Colonies on the Australian continent and by the Commonwealth established in 1901, was developed over many centuries by British judges, who reacted to particular human situations on the basis of
Christian values. In an essay entitled "morals and the Criminal Law,
Lord Devlin wrote:-
"Society means a community of ideas; without shared ideas on politics morals and ethics, no society can exist. Each one of us has ideas about what is good and what is evil; they cannot be kept private from the society in which we live. If men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if, having based it on common agreement, the agreement goes, the society will disintegrate.
"For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed. The members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price ".
Conclusion:-
There can never a hard jacket or a universal formula which could determine that should law be used to enforce morality. It can only be concluded that the level of enforcement of moral standards depends upon case to case.
In the cases where morality shadows a good and beneficial effect on the society, there if required, law could be used to enforce that positive morality. For example, in the case of International Humanitarian Laws, certain moral standards are also recognized as a part of law or in another illustration that, all religious and moral norms say not to kill or not to steel, and this moral is enforced through law.
On the other hand, that morality which produces any harmful effect in any form in the society, there law should never be used to enforce such morality. For example, the celebration of Valentine's Day in Indian society is considered as amoral. But such morals must never get the institutional shape of law.
Endnotes:-
i. Positivism and separation of law and morals (1957-58) 71 Harvard Law Review at p 601 n 25
ii. The Philosophy of a Law, ed. R.M. Dworkin, Oxford University Press, London, 1977.
Source: http://www.legalserviceindia.com/articles/lmor.htm
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Legal Positivism:-
The start of the nineteenth century may be regarded as the beginning of the positivist movement. The term ?positivism? has many meanings, which are tabulated by Professor H.L.A.Hart as follows :
1. Laws are commands. This meaning is associated with the two founders of British Positivism, Bentham and his disciple John Austin,
2. The analysis of legal concepts is:
* worth pursuing
* distinct from sociological and historical inquiries,
* distinct from critical evaluation,
3. Decisions can be deduced logically from the predetermined rules without recourse to social aims, policy and morality,
4. Moral judgments cannot be established or defended by rational argument, evidence or proof,
5. The law as ?it is? actually laid down, positum, has to be kept separate from the law that ought to be.
The positive law school has its main pillars as, Jermy Bentham, John Austin, Prof. H.L.A. Hart, Kelson. Actually positivism has grown out of the ashes of renascence in Europe. It is hence a liberal thought or a liberal ideology whose main aim is to bring positive reforms in the society through the instrument of state and not through the clergy. What positivism represents is the intellectual reaction against naturalism and a love of order and precision.
After having a brief idea of legal positivism, we should move to the Natural Law school.
Natural Law School:-
The term "natural law". like positivism, has been variously applied by different people at different times.
1. Ideas which guide legal development and administration.
2. A basic moral quality in law which prevents a total separation of the "is" from the "ought".
3. The method of discovering perfect law.
4. The content of perfect law deducible by reason.
5. The conditions sine quibus non for the existence of law.
Natural law school dominated till the nineteenth century, beginning from the ancient Greek period. Natural law school discussed what law is etc., but never discussed law as an empirical formula, and never made strict separation between what law is and what law ought to be. Natural law thinkers while talking of law talk about law made by man's mind consciously, as opposed to law made as a result of morality lacking conscious element. Natural law thinking is one form or other is pervasive and is encountered in various contexts. Values, for instance, as pointed out, play an indispensable part in the development and day to day administration of law. In a different sphere natural law theory has tried to meet the paramount needs of successive ages through history, and an account has been given of the ways in which it supported power or freedom from power according to the social need of the time. Further natural law school offers a indirect help with two contemporary problems, namely, the abuse of power and the abuse of liberty.
Positivism on the other hand, by seeking to insulate legal theory from such considerations refuses to give battle where battle is needed perhaps wisely, perhaps to its own discredit, depending on the point of view. The Natural law thinkers have always considered the principles of morality as higher law and they look at man made law contempt and ridicule. Law and morality have always been at loggerheads with each other. The positivists led by Bentham and Austin deliberately keep justice and morality out of the purview of legal system. Their formalistic attitude is concerned with law as it is and not law as it ought to be. They emphasize law from the point of source and implementation. So, the natural law system depends upon the standards and yardsticks of morality to formulate any law, whereas the positivist system of law depends upon the conscious and deliberate attempt of law making.
Now it is time to go a little further deep in the project. We are constantly talking about law and morality, so let us know the meaning of these two concepts. Law is continuously evolving norm or rather we should say that it is a part of a normative system whose work is to regulate certain norms in society. It is dynamic and is never at any point of time static. Law has to change from time to time as according to the ever changing demands of society. Law doesn't exist for its own
state. It has to achieve certain objectives, which may be short term or long term. Law aims to create an order in society (in all units of society). Law tries to create a working environment which is equally just to all sections of society. On the other hand, there is the vague concept of morality which is a sought of norm or a part of normative system. Morals are actually certain yardstick standards in our society which work as prescriptions to human behavior. The starting of preaching of morals start from the very basic unit of our society i.e. family. As in a Hindu family, young people touch the feet of elders to wish them. There is no logic behind these morals but still these morals do prevail in our society. This is fully ones own private practice in which nowhere law has to intervene. A morality can be one which throws a negative impact on society and the other which can benefit the society. Law or morality both are normative systems of our society as both are normative and institutionalized by nature. The only difference between law and morality is that law is coercive by nature but morality is not. Law is enforced by coercion and its constant application on a society leads to the internalization of law in human soul. Initially, law gives only an external behavior or an overt effect, but with the pace of time the forceful obedience of laws takes the shape of an internalized realization of habitual obedience. For example, the road traffic laws, when are applied on a society get internalized in a citizen's behavior after certain time.
Law has got a coercive backing which works through institutions. So, idea of sanction, that, ?one will be punished by god? as is being propagated by religion and the so called contractors of morality from years, has become very loose. That is the reason, why religion and morality has become loose and ineffective. So, constitutionalism has taken a front foot. I prove this point of mine by the following example of our contemporary society. Today in our present society, morality and religion are facing challenges put forward by technology, fast urban life, secularism, equality before law, democracy, and constitutionalism.
Since today people are educated in a liberal atmosphere, we are able to think on our own, we know the difference between right and wrong, truth and false. So, as in earlier society it was possible to create an easy fear factor in the minds of people on the name of god. This clash is bound to take place as people are now not dominated by anybodies whims and fancies or any religious or moral sanctions, but they are capable of taking their own free decisions. When one tries to analyze the distinction between law and morality, one feels vaguely that somehow law is connected with reason and conscience. Therefore law has the characteristic of binding whereas morality has the characteristic of being bound. The great jurist asserts that force is necessary to control human behaviour because humanity as a whole is not governed by reason. If every one thinks reasonably and acts rationally there is no need of binding one's behaviour. But the experiences in history do not provide clear evidence of such rational behaviour and so the idea of law has developed on the assumption that it is necessary to compel the behaviour of individuals in a particular direction to achieve certain specific ends. Justice and conscience seem to be personal and individualistic. Hence there can not be system attached within any order. Therefore one recognizes, at any point in the history of any social organization, a legal system but one fails to locate such a system of justice or morality.
Most probably, because justice and conscienceless are experiences and intuitions of the mind. We can not think of an external system to regulate the activities of the mind. On the contrary, human behaviour, in its rudimentary nature is physical and superficial. And so a legal system can find a methodology of directing it or guiding it or even governing it. therefore a legal system having rules and regulations with regard to trade, commerce, finance and employment will be greatly successful because the writer thinks, there are the areas in which human behaviour is physically; desirable. In these areas an external force, law is such an external force, a system in more comprehensively physical. Moreover the external element of deciding, adjudication, administration or even policing is possible. On he other hand, the definition of morality or the concept of morality changes from person to person. May be what is morality for me, that is not moral for you. For e.g. the viewing of porn sites in the scenario of the society existing in Indian subcontinent is not considered to be a moral act, but the viewing of the same porn site is considered to be a legible and conveniently acceptable in European and American societies.
If we look at the form and content of law, we find that a legal norm may be common with that of religious and moral norm. For example, all religious and moral norms say not to kill or not to steel, and it is the same here in law. So, we have almost the same content between law and morality. Then the question arises that, if it is so, then what is the difference between law and morality? The answer is that, the legal system is distinct from religion and morality in the ?form? and not in the content.
Law is influenced from both religion and morality and hence their takes place a sought of interaction between the legal system and the moral and religious faculty of our society. In a traditional society laws have never had a very dominating character, but religion and morality had always had a very predominant role.
But in a modern society life changes very fast, hence morality and religion are under a great pressure. Hence, law is the only
alternative to human development. In a multi religious, liberal and multi communitarian society, law can only work in a impartial and efficient manner. The greatest examples are the world's biggest democracies. Being more specific and illustrative, I would like to quote the example of India, U.S.A., England, and France etc. which have successfully established a deliberate and conscious mode of law making process through constitutionalism and this is done out of an age old monarchial and religious morality. In Russia, before the 1917 Bolshevik Revolution, the morality among general masses was that the Czar is having divine powers to rule over them. Laws were used to enforce such moral standards, but after long period of exploitation mass revolution broke up in 1917 and finally the negative effects of morality were overthrown and a constitutional setup was established. The same happened during French revolution. In India, in the ancient Vedic period, the common morality was that society was unequal and hence caste system and untouchability grew. This moral standard was given the institutional shape of law. But, after independence in 1947 we have stopped the legal enforcement of such illegitimate morals.
Now a question arises that, is law responsible for the enforcement of religion and morality?
Pornography, prostitution, homosexuality etc. are areas of ones own consciousness and hence it is an area of conflict which is still continuing. So, does law has got the right to intervene with religious and moral feelings among people? For example, there is a moral notion in our Indian society that love marriages or inter caste marriages are not feasible enough and hence should not take place. Consider the claim that homosexuality is immoral. I strongly disagree. Now what In a contest between a majority of state legislators and me and those who agree with me, what privileges the legislature's judgment of morality. In what way are they experts How does being elected to the legislature qualify them to make these judgments. Do they hold hearings on the morality of homosexuality and offer reasons for their conclusions. Or do they just press a button and register their vote. Most importantly, how can we assess the merits of their claim. If we cannot, then in reality they can prohibit whatever they want (and for whatever reason they want). No matter how objective morality may be, any such doctrine of constitutional law is recipe for tyranny. Take the issue of living relationships, which carries a moral ban on it. I don't understand that if two major individuals with their exercise of free consent decide to live together, where the question of infringement of any rational standards arises. This shows that the moral standards are never rational by effect.
Now I ask the question that, should a law be made to enforce such moral standards. Is such a law not repugnant with the constitutional principles of liberty and freedom.
The legal positivists like, Bentham, Austin, Kelson have always said that law must never be used as an instrument of enforcement of any moral standards. Therefore, as one cannot see the mind and conscience, elements of morality become weak and not determinable. But law is convenient, the present writer asserts again that it is only convenient; it has withstood the test of time. At any particular time, for any situation, law becomes a technique to establish a certain expected social behaviour. Morals may be for enlightenment and would facilitate individual peruses. Therefore it is thought and envisaged by the present writer, as compulsions and aspirations influence life, a legal system should consist of principles of convenience and feasibility whereas morality should be left to individual freedom and practice. Legal enforcement of these moralities which causes negative impact in the growth of our society must never be determined. Recently a pastor informed his congregation that Christians can no longer seek to impose their moral values on a society which does not accept Christianity. The second part of the statement, at least, is quite wrong. While Church membership and attendance has sharply decreased, the Roy Morgan Study of the Values of the Australian People demonstrates that 80% believe in God.
Should Christians seek to impose their moral values on law and society. There are some who are forcibly and aggressively arguing that Christian values must be expelled from law, society and politics. Gareth Evans (now Senator Evans) is reported in The Sydney Morning Herald, May 7th, 1976, as stating at a convention of the South Australian Council for Civil Liberties that children wanted a right to sexual freedom and education and "protection from the influence of Christianity
The same article referred to Mr Richard Neville (of Oz fame) as stating that "promiscuity is one beneficial way of breaking up
the family structure, which has led children to become the property of their parents. Law cannot be an instrument of expression of moral standards, rather law has to be independent of all sought of moral dogmas except certain areas in which law is dominated by morality. e.g. Legal areas like the business laws, cyber laws, tax laws, company laws, trade laws, etc are exclusively a legal treatise and morality has got nothing to do with that of law in such areas. Take the historical example of SITA whose fundamental and moral instinct has now changed it into PITA.
But on the other hand we can never deny that a major content of law derives its content from that of morality. Like that criminal law is a product of moral notions. For example, all religious and moral norms say not to kill or not to steel, and it is the same here in law. So, we have almost the same content between law and morality . The positive thinkers have thought in a narrow interpretation of law because they overlooked religious and moral values.
The actual conclusive situation is that religion, morality or law all have the work of controlling the behaviour of individuals of our society, hence we must not exclude the importance of morality in our society. In the case of International Humanitarian Laws, certain moral standards are also recognized as a part of law. So, the absolute separation of law and morality is not possible in these areas where morality produces a positive effect in society which is prospective in nature.
There seems to be quite a strong connection between law and morality. Although people sometimes say "you shouldn't legislate morality", they presumably don't really mean this - why would we outlaw rape and murder if they weren't wrong? Instead, I suppose they mean that people shouldn't impose their personal moral views (especially regarding sexuality) upon others. I would agree with that sentiment, though my reason is precisely because I think legislation should be morally informed, and the "moral views" in question are entirely misled.
As a quick aside: it is unfortunate that the word "morality" has become associated with conservative values, because the obvious invalidity of those values to many people tarnishes their attitude towards morality as a whole. And that is a damn shame. When conservative groups advocate bigotry masquerading as "family values", we need to recognise the injustice of this, and instead stand up for what is right. But I digress - this isn't intended as a post about how liberals need to reclaim the moral high ground.
So we accept that there is a connection between law and morality, but what sort of connection is it. Their domains are clearly not entirely identical - for example, it may be wrong to lie to your parents, but it certainly is no business of the law. Perhaps the best way to explain this is to acknowledge that the law is an extremely blunt tool, and so will be of no help when dealing with minor or subtle moral issues.
But even if some morality is outside the scope of Law, could Law's domain be a subset of the Moral? That is, should we only ever outlaw immoral acts, and never morally permissible ones?
I would like to say 'yes', as it does seem like a good principle. But I can't, because it contradicts my position on some other issues. That is, I think morality is purely 'other-regarding' in nature, and merely harming yourself (e.g. smoking in private) is not immoral. On the other hand, I previously suggested that state paternalism could be acceptable.
To approach this topic from a slightly different angle now, the intriguing suggestion that we understand law and morality in terms of belief-desire psychological theory. That theory claims that any human action can be explained solely in terms of the beliefs and desires of the agent. For example, if I turn on a heater, this may be because I desire to be warm, and I believe that turning on the heater will achieve this end. To apply this to our current topic, consider how society can influence the actions of its members. According to belief-desire psychology, there are two broad options: change someone's beliefs, or change their desires.
Morality, by this understanding, corresponds to the latter option. That is, morality is a system of socialisation whereby society instills in its members the desire certain ways. (I discuss some of the implications of this view in more detail here.)
The other method of influence is to alter people's beliefs about how best to fulfil their desires. This is where Law comes in. Its role (according to this interpretation) is to serve as a deterrent for those who, for whatever reason, fail to be bound by morality. It achieves this through the threat of punishment, i.e. by instilling in citizens the belief that breaking the law is not in their own best interests - they could get caught and sent to jail, which would surely thwart many of their other desires.
So by this view, law and morality are just two sides of the same coin -
namely, that of socialisation. Morality seeks to influence our behaviour by way of our desires, whereas law is the 'back-up' option, and targets our beliefs.
This is true in the United States as well, and not only in how our legally mandated school systems and our criminal laws contribute to the shaping, including the moral training, of citizens. Yet the typical opinions in a contemporary liberal democracy are likely to be:
(1) that morality cannot be legislated; and
(2) that even if morality could be legislated, it should not be...that to do so is somehow improper, even tyrannical, either because there is no morality objective enough to justify legal enforcement or because one's autonomy and individuality would be violated by attempts to legislate morality or perhaps even because one really has no autonomy that can respond to any external directive.
Such concerns are not evident in the Ethics: law is needed both to help habituate citizens to virtuous actions and to help maintain the salutary habits they acquire. These needs can be recognized even by those who are aware that the virtues generally fostered by law are not the highest. The opinions one may have about the good, the true, and the beautiful are a secondary concern of most laws. Still, it is well to keep in mind Aristotle's counsel that one who is "to listen intelligently to lectures about what is noble and just must have been brought up in good habits." For proper habituation, laws can be most useful, if not indispensable. Although intellectuals of liberal democratic sympathies may not believe that morality depends on law, it is almost impossible for any regime that takes itself, and is to be taken, seriously not to shape its citizens with respect to morality. To deny that legislation of morality can or should take place does not eliminate such legislation; it merely conceals it, perhaps distorts it, and otherwise confuses and misleads rulers and ruled alike. (Here, as in physics, much that Aristotle noticed and relied upon is tacitly relied upon by us as well, but relied upon haphazardly because it is not properly noticed.)
It would be useful, therefore, to indicate how pervasive Aristotle understands the law to be with respect to morality in a community. When we see what law can mean, and how it works, we may better appreciate what the law does in the service of morality, even in such a liberal democracy as ours. To speak of the influence of the law is, we shall see, to speak of the many ways that the community forms the citizen and guides the human being. For us, however, the term law does tend to be limited to what "government" does, to the statutes and decrees that governments issue. We have noticed the most conspicuous way, drawn upon at the end of the Ethics, in which morality is dependent on law. It should be added here that not only is morality somewhat dependent on law, but also that the law itself is to a considerable extent dependent on morality. A properly trained, morally alert citizen-body tends to be appalled by the lawbreaker. But does not this response (which can help keep many would-be lawbreakers in line) rest, in turn, upon the presumption that the law is likely to be, and in fact usually appears to be, itself moral and in the service of the common good. There is a critical reciprocity between law and morality. Reciprocity, we recall from the Ethics, can be vital to justice as a particular virtue. The exercise of most virtues requires a stable community, one in which one's body and life as well as property are fairly secure...and, of course, the law is essential here. To become or to remain a civilized human being usually requires a sound community...that is, one in which the law plays a considerable part. Is there not an intimate relation, at home and abroad, between justice and peace To recognize this is not to deny that friendship also seems to hold communities together nor that legislators may care more for it than for justice. Even so, is not proper habituation needed for reliable friendships, as well as for justice. Who but the legislator, who must always be distinguished from the tyrant, can insure such habituation
If law is not based on morality, on what can it be based - Christian morality, derived from the Ten Commandments, underlies the common law. Criminal law is based on the Ten Commandments, which also underlie the law of contract and the law of civil wrongs. The common law inherited by the British Colonies on the Australian continent and by the Commonwealth established in 1901, was developed over many centuries by British judges, who reacted to particular human situations on the basis of
Christian values. In an essay entitled "morals and the Criminal Law,
Lord Devlin wrote:-
"Society means a community of ideas; without shared ideas on politics morals and ethics, no society can exist. Each one of us has ideas about what is good and what is evil; they cannot be kept private from the society in which we live. If men and women try to create a society in which there is no fundamental agreement about good and evil they will fail; if, having based it on common agreement, the agreement goes, the society will disintegrate.
"For society is not something that is kept together physically; it is held by the invisible bonds of common thought. If the bonds were too far relaxed. The members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price ".
Conclusion:-
There can never a hard jacket or a universal formula which could determine that should law be used to enforce morality. It can only be concluded that the level of enforcement of moral standards depends upon case to case.
In the cases where morality shadows a good and beneficial effect on the society, there if required, law could be used to enforce that positive morality. For example, in the case of International Humanitarian Laws, certain moral standards are also recognized as a part of law or in another illustration that, all religious and moral norms say not to kill or not to steel, and this moral is enforced through law.
On the other hand, that morality which produces any harmful effect in any form in the society, there law should never be used to enforce such morality. For example, the celebration of Valentine's Day in Indian society is considered as amoral. But such morals must never get the institutional shape of law.
Endnotes:-
i. Positivism and separation of law and morals (1957-58) 71 Harvard Law Review at p 601 n 25
ii. The Philosophy of a Law, ed. R.M. Dworkin, Oxford University Press, London, 1977.
Source: http://www.legalserviceindia.com/articles/lmor.htm
Nature And Scope Of Law Of Torts - Author - Lakshmi Somanathan
Introduction
Law is any rule of human conduct accepted by the society and enforced by the state for the betterment of human life. In a wider sense it includes any rule of human action for example, religious, social, political and moral rules of conduct. However only those rules of conduct of persons which are protected and enforced by the state do really constitute the law of the land in its strict sense. According to Salmond the law consists of rules recognized and acted on by courts of justice. The entire body of law in a state (corpus juris) may be divided into two, viz, civil and criminal.
Civil law: The term may be used in two senses. In one sense it indicates the law of a particular state as distinct from its external law such as international law. On the other side, in a restricted sense civil law indicates the proceedings before civil courts where civil liability of individuals for wrongs committed by them and other disputes of a civil nature among them are adjudicated upon and decided. Civil wrong is the one which gives rise to civil proceedings, i.e., proceedings which have for their purpose the enforcement of some right claimed by the plaintiff as against the defendant. For example, an action for the recovery of debt, restitution of property, specific performance of a contract etc. he who proceeds civilly is a claimant or plaintiff demanding the enforcement of some right vested in him and the remedy he seeks is compensatory or preventive in nature.
Criminal Law: Criminal laws indicate the proceedings before the criminal courts where the criminal liability of persons who have committed wrongs against the state and other prohibited acts are determined. Criminal proceedings on the other hand are those which have for their object the punishment of the wrong doer for some act of which he is accused. He who proceeds criminally is an accuser or prosecutor demanding nothing for him but merely the punishment of the accused for the offence committed by him.
Definition Of Tort
The term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term ‘delict’. The word tort is derived from the Latin word tortum which means twisted or crooked or wrong and is in contrast to the word rectum which means straight. Everyone is expected to behave in a straightforward manner and when one deviates from this straight path into crooked ways he has committed a tort. Hence tort is a conduct which is twisted or crooked and not straight. As a technical term of English law, tort has acquired a special meaning as a species of civil injury or wrong. It was introduced into the English law by the Norman jurists.
Tort now means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable. In spite of various attempts an entirely satisfactory definition of tort still awaits its master. In general terms, a tort may be defined as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated damages. Some other definitions for tort are given below:
Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere equitable obligation.
Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related in one of the following ways to harm (including reference with an absolute right, whether there be measurable actual damage or not), suffered by a determinate person:-
a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or property), and treated as wrongful without regard to the actor’s intention or knowledge. This, as we have seen is an artificial extension of the general conceptions which are common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting or omitting to act did not intend to cause, but might and should with due diligence have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound absolutely or within limits, to avoid or prevent.
The Law Of Torts In India
Under the Hindu law and the Muslim law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India is mainly the English law of torts which itself is based on the principles of the common law of England. This was made suitable to the Indian conditions appeasing to the principles of justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with the establishment of British courts in India.
The expression justice, equity and good conscience was interpreted by the Privy Council to mean the rules of English Law if found applicable to Indian society and circumstances. The Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances. The application of the English law in India has therefore been a selective application. On this the Privy Council has observed that the ability of the common law to adapt itself to the differing circumstances of the countries where it has taken roots is not a weakness but one of its strengths. Further, in applying the English law on a particular point, the Indian courts are not restricted to common law. If the new rules of English statute law replacing or modifying the common law are more in consonance with justice, equity and good conscience, it is open o the courts in India to reject the outmoded rules of common law and to apply the new rules. For example, the principles of English statute, the Law Reform (Contributory Negligence) Act, 1945, have been applied in India although there is still no corresponding Act enacted by Parliament in India.
The development in Indian law need not be on the same lines as in England. In M.C. Mehta v. Union of India , Justice Bhagwati said, we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.
It has also been held that section 9 of The Code of Civil Procedure, which enables the civil court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as principles of justice, equity and good conscience. Thus the court can draw upon its inherent powers under section 9 for developing this field of liability.
In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat , Sahai, J., observed: truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortious liability by court would be conducive.
Nature Of Torts
A. Tort and crime
Historically tort had its roots in criminal procedure. Even today there is a punitive element in some aspects of the rules on damages. However tort is a species if civil injury or wrong. The distinction between civil and criminal wrongs depends on the nature of the remedy provided by law. A civil wrong is one which gives rise to civil proceedings. A civil proceeding concerns with the enforcement of some right claimed by the plaintiff as against the defendant whereas criminal proceedings have for their object the punishment of the defendant for some act of which he is accused. Sometimes the same wrong is capable of being made the subject of proceedings of both kinds. For example assault, libel, theft, malicious injury to property etc. in such cases the wrong doer may be punished criminally and also compelled in a civil action to make compensation or restitution.
Not every civil wrong is a tort. A civil wrong may be labeled as a tort only where the appropriate remedy for it is an action for unliquidated damages. Thus for example, public nuisance is not a tort merely because the civil remedy of injunction may be available at the suit of the attorney general, but only in those exceptional cases in which a private person may recover damages for loss sustained by him in consequence thereof. However it has to be born in mind that a person is liable in tort irrespective of whether or not an action for damages has been given against him. The party is liable from the moment he commits the tort. Although an action fro damages is an essential mark of tort and its characteristic remedy, there may be and often other remedies also.
A.1. Difference between crime and tort
Being a civil injury, tort differs from crime in all respects in which a civil remedy differs from a criminal one. There are certain essential marks of difference between crime and tort they are:
# Tort is an infringement or privation of private or civil rights belongigng to individuals, whereas crime is a breach of public rights and duties which affect the whole community.
# In tort the wrong doer has to compensate the injured party whereas in crime, he is punished by the state in the interest of the society.
# In tort the action is brought about by the injured party whereas in crime the proceedings are conducted in the name of the state.
# In tort damages are paid for compensating the injured and in crime it is paid out of the fine which is paid as a part of punishment. Thus the primary purpose of awrding compensation in a criminal prosecution is punitive rather than compensatory.
# The damages in tort are unliquidated and in crime they are liquidated.
A.2. Resemblance between crime and tort
There is however a similarity between tort and crime at a primary level. In criminal law the primary duty, not to commit an offence, for example murder, like any primary duty in tort is in rem and is imposed by law. The same set of circumstances will in fact, from one point of view, constitute a crime and, from another point of view, a tort. For example every man has the right that his bodily safety shall be respected. Hence in an assault, the sufferer is entitled to get damages. Also, the act of assault is a menace to the society and hence will be punished by the state. However where the same wrong is both a crime and a tort its two aspects are not identical. Firstly, its definition as a crime and a tort may differ and secondly, the defences available for both crime and tort may differ.
The wrong doer may be ordered in a civil action to pay compensation and be also punished criminally by imprisonment or fine. If a person publishes a defamatory article about another in a newspaper, both a criminal prosecution for libel as well as a civil action claiming damages for the defamatory publication may be taken against him. In P.Rathinam. v. Union of India, the Supreme Court observed, In a way there is no distinction between crime and a tort, inasmuch as a tort harms an individual whereas a crime is supposed to harm a society. But then, a society is made of individuals. Harm to an individual is ultimately the harm to the society.
There was a common law rule that when the tort was also a felony, the offender would not be sued in tort unless he has been prosecuted in felony, or else a reasonable excuse had to be shown for his non prosecution. This rule has not been followed in India and has been abolished in England.
B.Tort and contract
The definition given by P.H. Winfield clearly brings about the distinction between tort and contract. It says, Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. A contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, content and consequence of which are determined and defined by the agreement between the parties. According to Salmond, a contract arises out of the exercise of the autonomous legislative authority entrusted by the law to private persons to declare and define the nature of mutual rights and obligations.
At the present day, tort and contract are distinguished from one another in that, the duties in the former are primarily fixed by law while in the latter they are fixed by the parties themselves. Agreement is the basis for all contractual obligations. “People cannot create tortious liability by agreement. Thus I am under a duty not to assault you, not to slander you, not to trespass upon your land because the law says that I am under such duty and not because I have agreed with you to undertake such duty.
Some of the distinctions between tort and contract are given below:
# A tort is inflicted against or without consent; a contract is founded upon consent.
# In tort no privity is needed, but it is necessarily implied in a contract.
# A tort is a violation in rem (right vested in some person and available against the world at large.); a breach of contract is an infringement of a right in personam( right available against some determinate person or body).
# Motive is often taken into consideration in tort, but it is immaterial in a breach of contract.
# In tort the measure of damages is not strictly limited nor is it capable of being indicated with precision; in a breach of contract the measure of damages is generally more or less nearly determined by the stipulations of the parties.
In certain cases the same incident may give rise to liability both in contract and in tort. For example, when a passenger whilst traveling with a ticket is injured owing to the negligence of the railway company, the company is liable for a wrong which is both a tort and a breach of a contract.
The contractual duty may be owed to one person and the duty independent of that contract to another. The surgeon who is called by a father to operate his daughter owes a contractual duty to the father to take care. If he fails in that duty he is also liable for a tort against the daughter. In Austin v. G.W. Railway, a woman and her child were traveling in the defendant’s train and the child was injured by defendant’s negligence. The child was held entitled to recover damages, for it had been accepted as passenger.
There is a well established doctrine of Privity of Contract under which no one except the parties to it can sue for a breach of it. Formerly it was thought that this principle of law of contract also prevented any action being brought under tortuous liability. But this fallacy was exploded by the House of Lords in the celebrated case of Donoghue v. Stevenson. In that case a manufacturer of ginger beer had sold to a retailer, ginger beer in a bottle of dark glass. The bottle, unknown to anyone, contained the decomposed remains of a snail which had found its way to the bottle at the factory. X purchased the bottle from the retailer and treated the plaintiff, a lady friend (the ultimate consumer), to its contents. In consequence partly of what she saw and partly of what she had drunk, she became very ill. She sued the manufacturer for negligence. This was, of course, no contractual duty on the part of the manufacturer towards her, but a majority of the House of Lords held that he owed a duty to take care that the bottle did not contain noxious matter and that he was liable if that duty was broken.
The judicial committee of the Privy Council affirmed the principle of Donoghue’s case in Grant v. Australian Knitting Mills Ltd. Thus contractual liability is completely irrelevant to the existence of liability in tort. The same facts may give rise to both.
Another discrepancy between contracts and torts is seen in the nature of damages under each. In contracts the plaintiff will be claiming liquidated damages whereas in torts he will be claiming unliquidated damages. When a person has filed a suit or put a claim for the recovery of a predetermined and fixed sum of money he is said to have claimed liquidated damages. On the other hand when he has filed a suit for the realization of such amount as the court in its discretion may award, he is deemed to have claimed unliquidated damages.
C. Tort and Quasi-Contract
Quasi contract cover those situations where a person is held liable to another without any agreement, for money or benefit received by him to which the other person is better entitled. According to the Orthodox view the judicial basis for the obligation under a quasi contract is the existence of a hypothetical contract which is implied by law. But the Radical view is that the obligation in a quasi contract is sui generis and its basis is prevention of unjust enrichment.
Quasi contract differs from tort in that:
# There is no duty owed to persons for the duty to repay money or benefit received unlike tort, where there is a duty imposed.
# In quasi contract the damages recoverable are liquidated damages, and not unliquidated damages as in tort.
Quasi contracts resembles tort and differs from contracts in one aspect. The obligation in quasi contract and in tort is imposed by law and not under any agreement. In yet another dimension quasi contract differs from both tort and contract. If, for example, A pays a sum of money by mistake to B. in Quasi contract, B is under no duty not to accept the money and there is only a secondary duty to return it. While in both tort and contract, there is a primary duty the breach of which gives rise to remedial duty to pay compensation.
Constituents Of Tort.
The law of torts is fashioned as an instrument for making people adhere to the standards of reasonable behaviour and respect the rights and interests of one another. This it does by protecting interests and by providing for situations when a person whose protected interest is violated can recover compensation for the loss suffered by him from the person who has violated the same. By interest here is meant a claim, want or desire of a human being or group of human beings seeks to satisfy, and of which, therefore the ordering of human relations in civilized society must take account. It is however, obvious that every want or desire of a person cannot be protected nor can a person claim that whenever he suffers loss he should be compensated by the person who is the author of the loss. The law, therefore, determines what interests need protection and it also holds the balance when there is a conflict of protected interests.
Every wrongful act is not a tort. To constitute a tort,
# There must be a wrongful act committed by a person;
# The wrongful act must be of such a nature as to give rise to a legal remedy and
# Such legal remedy must be in the form of an action for unliquidated damages.
I. Wrongful Act
An act which prima facie looks innocent may becomes tortious, if it invades the legal right of another person. In Rogers v. Ranjendro Dutt , the court held that, the act complained of should, under the circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially affect him in some legal right; merely that it will however directly, do him harm in his interest is not enough.
A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are very numerous. They may be divided again into public rights and private rights. To every right, corresponds a legal duty or obligation. This obligation consists in performing some act or refraining from performing an act.
Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.
II. Damage
In general, a tort consists of some act done by a person who causes injury to another, for which damages are claimed by the latter against the former. In this connection we must have a clear notion with regard to the words damage and damages. The word damage is used in the ordinary sense of injury or loss or deprivation of some kind, whereas damages mean the compensation claimed by the injured party and awarded by the court. Damages are claimed and awarded by the court to the parties. The word injury is strictly limited to an actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or not.
The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine Injuria and Injuria Sine Damno.
(i) Damnum Sine Injuria (Damage Without Injury)
There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or damage without injury. Damage without breach of a legal right will not constitute a tort. They are instances of damage suffered from justifiable acts. An act or omission committed with lawful justification or excuse will not be a cause of action though it results in harm to another as a combination in furtherance of trade interest or lawful user of one’s own premises. In Gloucester Grammar School Master Case , it had been held that the plaintiff school master had no right to complain of the opening of a new school. The damage suffered was mere damnum absque injuria or damage without injury. Acton v. Blundell , in which a mill owner drained off underground water running into the plaintiff’s well, fully illustrate that no action lies fro mere damage, however substantial, caused without the violation of some right.
There are moral wrongs for which the law gives no remedy, though they cause great loss or detriment. Los or detriment is not a good ground of action unless it is the result of a species of wrong of which the law takes no cognizance.
(ii) Injuria Sine Damno ( injury without damage)
This means an infringement of a legal private right without any actual loss or damage. In such a case the person whose right has been infringed has a good cause of action. It is not necessary for him to prove any special damage because every injury imports a damage when a man in hindered of his right. Every person has an absolute right to property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible damage is not, therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof of special damage. The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. This principle was firmly established by the election case of Ashby v. White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary election. The candidate fro whom the plaintiff wanted to give his vote had come out successful in the election. Still the plaintiff brought an action claiming damages against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff.
III. Remedy
The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no wrong without a remedy’. If a man has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without remedy; want of right and want of remedy are reciprocal.
Where there is no legal remedy there is no wrong. But even so the absence of a remedy is evidence but is not conclusive that no right exists.
Some General Conditions In Torts
1. Act And Omission- To constitute a tort there must be a wrongful act, whether of omission or commission, but not such acts as are beyond human control and as are entertained only in thoughts. An omission is generally not actionable but it is so exceptionally. Where there is a duty to act an omission may create liability. A failure to rescue a drowning child is not actionable, but it is so where the child is one’s own. A person who voluntarily commences rescue cannot leave it half the way. A person may be under duty to control natural happenings to his own land so as to prevent them from encroaching others’ land.
2. Voluntary and Involuntary Acts- a voluntary act has to be distinguished from an involuntary act because the former may involve liability and the latter may not. A self willed act like an encroachment fro business, is voluntary, but an encroachment for survival may be involuntary. The wrongfulness of the act and the liability for it depends upon legal appreciation of the surrounding circumstances.
3. Malice- malice is not essential to the maintenance of an action for tort. It is of two kinds, ‘express malice’ (or malice in fact or actual malice) and ‘malice in law’ (or implied malice). The first is what is called malice in common acceptance and means ill will against a person; the second means a wrongful act done intentionally without just cause or excuse. Where a man has a right to do an act, it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense. An act, not otherwise unlawful, cannot generally be made actionable by an averment that it was done with evil motive. A malicious motive per se does not amount to injuria or legal wrong.
Wrongful acts of which malice is an essential element are:
# Defamation,
# Malicious prosecution,
# Willful and malicious damage to property,
# Maintenance, and
# Slander of title.
4. Intention, motive, negligence and recklessness- The obligation to make reparation for damage caused by a wrongful act arises from the fault and not from the intention. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair it necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad or indifferent. A thing which is not a legal injury or wrong is not made actionable by being done with a bad intent. It is no defence to an action in tort for the wrong doer to plead that he did not intend to cause damage, if damage has resulted owing to an act or omission on his part which is actively or passively the effect of his volition. A want of knowledge of the illegality of his act or omission affords no excuse, except where fraud or malice is the essence of that act or omission. For every man is presumed to intend and to know the natural and ordinary consequences of his acts. This presumption is not rebutted merely by proof that he did not think of the consequences or hoped or expected that they would not follow. The defendant will be liable for the natural and necessary consequences of his act, whether he in fact contemplated them or not.
5. Malfeasance, misfeasance and nonfeasance- the term ‘malfeasance’ applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of negligence or malice. The term ‘misfeasance’ is applicable to improper performance of some lawful act. The term ‘non-feasance’ applies to the failure or omission to perform some act which there is an obligation to perform.
6. Fault- liability for tort generally depends upon something done by a man which can be regarded as a fault fro the reason that it violates another man’s right. But liability may also arise without fault. Such liability is known as absolute or strict liability. An important example is the rule in Rylands v. Fletcher thus the two extremes of the law of tort are of non liability even where there is fault or liability without fault. Between these two extremes is the variety of intentional and negligent wrongs to the question whether there is any consistent theory of liability, all that can be said is that it wholly depends upon flexible public policy, which in turn is a reflection of the compelling social needs of the time.
General Principles Of Liability
There are two theories with regard to the basic principle of liability in the law of torts or tort. They are:
# Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law.
# Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.
The first theory was propounded by Professor Winfield. According to this, if I injure my neighbour, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying, my duty is to hurt nobody by word or deed. This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD. Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher.
The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the bible. According to this theory, I can injure my neighbour as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort. The law of tort consists of a neat set of pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort.
The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon holes in untenable. However salmond argues in favour of his theory that just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted fro an alleged offence or sued fro an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort.
There is, however, no recognition of either theory. It would seem more realistic fro the student to approach the tortious liability from a middle ground. In an Indian decision, Lala Punnalal v. Kasthurichand Ramaji , it was pointed out that there is nothing like an exhaustive classification of torts beyond which courts should not proceed, that new invasion of rights devised by human ingenuity might give rise to new classes of torts. On the whole if we are asked to express our preference between the two theories, in the light of recent decisions of competent courts we will have to choose the first theory of liability that the subsequent one. Thus it is a matter of interpretation of courts so as to select between the two theories. The law of torts has in the main been developed by courts proceeding from the simple problems of primitive society to those of our present complex civilization.
Conclusion
Thus to conclude, law of torts is a branch of law which resembles most of the other branches in certain aspects, but is essentially different from them in other respects. Although there are differences in opinion among the different jurists regarding the liability in torts, the law has been developed and has made firm roots in the legal showground. There are well defined elements and conditions of liability in tort law.
This bough of law enables the citizens of a state to claim redressal for the minor or major damage caused to them. Thus the law has gained much confidence among the laymen.
Source:http://www.legalserviceindia.com/articles/torts_s.htm
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Law is any rule of human conduct accepted by the society and enforced by the state for the betterment of human life. In a wider sense it includes any rule of human action for example, religious, social, political and moral rules of conduct. However only those rules of conduct of persons which are protected and enforced by the state do really constitute the law of the land in its strict sense. According to Salmond the law consists of rules recognized and acted on by courts of justice. The entire body of law in a state (corpus juris) may be divided into two, viz, civil and criminal.
Civil law: The term may be used in two senses. In one sense it indicates the law of a particular state as distinct from its external law such as international law. On the other side, in a restricted sense civil law indicates the proceedings before civil courts where civil liability of individuals for wrongs committed by them and other disputes of a civil nature among them are adjudicated upon and decided. Civil wrong is the one which gives rise to civil proceedings, i.e., proceedings which have for their purpose the enforcement of some right claimed by the plaintiff as against the defendant. For example, an action for the recovery of debt, restitution of property, specific performance of a contract etc. he who proceeds civilly is a claimant or plaintiff demanding the enforcement of some right vested in him and the remedy he seeks is compensatory or preventive in nature.
Criminal Law: Criminal laws indicate the proceedings before the criminal courts where the criminal liability of persons who have committed wrongs against the state and other prohibited acts are determined. Criminal proceedings on the other hand are those which have for their object the punishment of the wrong doer for some act of which he is accused. He who proceeds criminally is an accuser or prosecutor demanding nothing for him but merely the punishment of the accused for the offence committed by him.
Definition Of Tort
The term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term ‘delict’. The word tort is derived from the Latin word tortum which means twisted or crooked or wrong and is in contrast to the word rectum which means straight. Everyone is expected to behave in a straightforward manner and when one deviates from this straight path into crooked ways he has committed a tort. Hence tort is a conduct which is twisted or crooked and not straight. As a technical term of English law, tort has acquired a special meaning as a species of civil injury or wrong. It was introduced into the English law by the Norman jurists.
Tort now means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable. In spite of various attempts an entirely satisfactory definition of tort still awaits its master. In general terms, a tort may be defined as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated damages. Some other definitions for tort are given below:
Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere equitable obligation.
Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related in one of the following ways to harm (including reference with an absolute right, whether there be measurable actual damage or not), suffered by a determinate person:-
a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or property), and treated as wrongful without regard to the actor’s intention or knowledge. This, as we have seen is an artificial extension of the general conceptions which are common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting or omitting to act did not intend to cause, but might and should with due diligence have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound absolutely or within limits, to avoid or prevent.
The Law Of Torts In India
Under the Hindu law and the Muslim law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India is mainly the English law of torts which itself is based on the principles of the common law of England. This was made suitable to the Indian conditions appeasing to the principles of justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with the establishment of British courts in India.
The expression justice, equity and good conscience was interpreted by the Privy Council to mean the rules of English Law if found applicable to Indian society and circumstances. The Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances. The application of the English law in India has therefore been a selective application. On this the Privy Council has observed that the ability of the common law to adapt itself to the differing circumstances of the countries where it has taken roots is not a weakness but one of its strengths. Further, in applying the English law on a particular point, the Indian courts are not restricted to common law. If the new rules of English statute law replacing or modifying the common law are more in consonance with justice, equity and good conscience, it is open o the courts in India to reject the outmoded rules of common law and to apply the new rules. For example, the principles of English statute, the Law Reform (Contributory Negligence) Act, 1945, have been applied in India although there is still no corresponding Act enacted by Parliament in India.
The development in Indian law need not be on the same lines as in England. In M.C. Mehta v. Union of India , Justice Bhagwati said, we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.
It has also been held that section 9 of The Code of Civil Procedure, which enables the civil court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as principles of justice, equity and good conscience. Thus the court can draw upon its inherent powers under section 9 for developing this field of liability.
In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat , Sahai, J., observed: truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortious liability by court would be conducive.
Nature Of Torts
A. Tort and crime
Historically tort had its roots in criminal procedure. Even today there is a punitive element in some aspects of the rules on damages. However tort is a species if civil injury or wrong. The distinction between civil and criminal wrongs depends on the nature of the remedy provided by law. A civil wrong is one which gives rise to civil proceedings. A civil proceeding concerns with the enforcement of some right claimed by the plaintiff as against the defendant whereas criminal proceedings have for their object the punishment of the defendant for some act of which he is accused. Sometimes the same wrong is capable of being made the subject of proceedings of both kinds. For example assault, libel, theft, malicious injury to property etc. in such cases the wrong doer may be punished criminally and also compelled in a civil action to make compensation or restitution.
Not every civil wrong is a tort. A civil wrong may be labeled as a tort only where the appropriate remedy for it is an action for unliquidated damages. Thus for example, public nuisance is not a tort merely because the civil remedy of injunction may be available at the suit of the attorney general, but only in those exceptional cases in which a private person may recover damages for loss sustained by him in consequence thereof. However it has to be born in mind that a person is liable in tort irrespective of whether or not an action for damages has been given against him. The party is liable from the moment he commits the tort. Although an action fro damages is an essential mark of tort and its characteristic remedy, there may be and often other remedies also.
A.1. Difference between crime and tort
Being a civil injury, tort differs from crime in all respects in which a civil remedy differs from a criminal one. There are certain essential marks of difference between crime and tort they are:
# Tort is an infringement or privation of private or civil rights belongigng to individuals, whereas crime is a breach of public rights and duties which affect the whole community.
# In tort the wrong doer has to compensate the injured party whereas in crime, he is punished by the state in the interest of the society.
# In tort the action is brought about by the injured party whereas in crime the proceedings are conducted in the name of the state.
# In tort damages are paid for compensating the injured and in crime it is paid out of the fine which is paid as a part of punishment. Thus the primary purpose of awrding compensation in a criminal prosecution is punitive rather than compensatory.
# The damages in tort are unliquidated and in crime they are liquidated.
A.2. Resemblance between crime and tort
There is however a similarity between tort and crime at a primary level. In criminal law the primary duty, not to commit an offence, for example murder, like any primary duty in tort is in rem and is imposed by law. The same set of circumstances will in fact, from one point of view, constitute a crime and, from another point of view, a tort. For example every man has the right that his bodily safety shall be respected. Hence in an assault, the sufferer is entitled to get damages. Also, the act of assault is a menace to the society and hence will be punished by the state. However where the same wrong is both a crime and a tort its two aspects are not identical. Firstly, its definition as a crime and a tort may differ and secondly, the defences available for both crime and tort may differ.
The wrong doer may be ordered in a civil action to pay compensation and be also punished criminally by imprisonment or fine. If a person publishes a defamatory article about another in a newspaper, both a criminal prosecution for libel as well as a civil action claiming damages for the defamatory publication may be taken against him. In P.Rathinam. v. Union of India, the Supreme Court observed, In a way there is no distinction between crime and a tort, inasmuch as a tort harms an individual whereas a crime is supposed to harm a society. But then, a society is made of individuals. Harm to an individual is ultimately the harm to the society.
There was a common law rule that when the tort was also a felony, the offender would not be sued in tort unless he has been prosecuted in felony, or else a reasonable excuse had to be shown for his non prosecution. This rule has not been followed in India and has been abolished in England.
B.Tort and contract
The definition given by P.H. Winfield clearly brings about the distinction between tort and contract. It says, Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. A contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, content and consequence of which are determined and defined by the agreement between the parties. According to Salmond, a contract arises out of the exercise of the autonomous legislative authority entrusted by the law to private persons to declare and define the nature of mutual rights and obligations.
At the present day, tort and contract are distinguished from one another in that, the duties in the former are primarily fixed by law while in the latter they are fixed by the parties themselves. Agreement is the basis for all contractual obligations. “People cannot create tortious liability by agreement. Thus I am under a duty not to assault you, not to slander you, not to trespass upon your land because the law says that I am under such duty and not because I have agreed with you to undertake such duty.
Some of the distinctions between tort and contract are given below:
# A tort is inflicted against or without consent; a contract is founded upon consent.
# In tort no privity is needed, but it is necessarily implied in a contract.
# A tort is a violation in rem (right vested in some person and available against the world at large.); a breach of contract is an infringement of a right in personam( right available against some determinate person or body).
# Motive is often taken into consideration in tort, but it is immaterial in a breach of contract.
# In tort the measure of damages is not strictly limited nor is it capable of being indicated with precision; in a breach of contract the measure of damages is generally more or less nearly determined by the stipulations of the parties.
In certain cases the same incident may give rise to liability both in contract and in tort. For example, when a passenger whilst traveling with a ticket is injured owing to the negligence of the railway company, the company is liable for a wrong which is both a tort and a breach of a contract.
The contractual duty may be owed to one person and the duty independent of that contract to another. The surgeon who is called by a father to operate his daughter owes a contractual duty to the father to take care. If he fails in that duty he is also liable for a tort against the daughter. In Austin v. G.W. Railway, a woman and her child were traveling in the defendant’s train and the child was injured by defendant’s negligence. The child was held entitled to recover damages, for it had been accepted as passenger.
There is a well established doctrine of Privity of Contract under which no one except the parties to it can sue for a breach of it. Formerly it was thought that this principle of law of contract also prevented any action being brought under tortuous liability. But this fallacy was exploded by the House of Lords in the celebrated case of Donoghue v. Stevenson. In that case a manufacturer of ginger beer had sold to a retailer, ginger beer in a bottle of dark glass. The bottle, unknown to anyone, contained the decomposed remains of a snail which had found its way to the bottle at the factory. X purchased the bottle from the retailer and treated the plaintiff, a lady friend (the ultimate consumer), to its contents. In consequence partly of what she saw and partly of what she had drunk, she became very ill. She sued the manufacturer for negligence. This was, of course, no contractual duty on the part of the manufacturer towards her, but a majority of the House of Lords held that he owed a duty to take care that the bottle did not contain noxious matter and that he was liable if that duty was broken.
The judicial committee of the Privy Council affirmed the principle of Donoghue’s case in Grant v. Australian Knitting Mills Ltd. Thus contractual liability is completely irrelevant to the existence of liability in tort. The same facts may give rise to both.
Another discrepancy between contracts and torts is seen in the nature of damages under each. In contracts the plaintiff will be claiming liquidated damages whereas in torts he will be claiming unliquidated damages. When a person has filed a suit or put a claim for the recovery of a predetermined and fixed sum of money he is said to have claimed liquidated damages. On the other hand when he has filed a suit for the realization of such amount as the court in its discretion may award, he is deemed to have claimed unliquidated damages.
C. Tort and Quasi-Contract
Quasi contract cover those situations where a person is held liable to another without any agreement, for money or benefit received by him to which the other person is better entitled. According to the Orthodox view the judicial basis for the obligation under a quasi contract is the existence of a hypothetical contract which is implied by law. But the Radical view is that the obligation in a quasi contract is sui generis and its basis is prevention of unjust enrichment.
Quasi contract differs from tort in that:
# There is no duty owed to persons for the duty to repay money or benefit received unlike tort, where there is a duty imposed.
# In quasi contract the damages recoverable are liquidated damages, and not unliquidated damages as in tort.
Quasi contracts resembles tort and differs from contracts in one aspect. The obligation in quasi contract and in tort is imposed by law and not under any agreement. In yet another dimension quasi contract differs from both tort and contract. If, for example, A pays a sum of money by mistake to B. in Quasi contract, B is under no duty not to accept the money and there is only a secondary duty to return it. While in both tort and contract, there is a primary duty the breach of which gives rise to remedial duty to pay compensation.
Constituents Of Tort.
The law of torts is fashioned as an instrument for making people adhere to the standards of reasonable behaviour and respect the rights and interests of one another. This it does by protecting interests and by providing for situations when a person whose protected interest is violated can recover compensation for the loss suffered by him from the person who has violated the same. By interest here is meant a claim, want or desire of a human being or group of human beings seeks to satisfy, and of which, therefore the ordering of human relations in civilized society must take account. It is however, obvious that every want or desire of a person cannot be protected nor can a person claim that whenever he suffers loss he should be compensated by the person who is the author of the loss. The law, therefore, determines what interests need protection and it also holds the balance when there is a conflict of protected interests.
Every wrongful act is not a tort. To constitute a tort,
# There must be a wrongful act committed by a person;
# The wrongful act must be of such a nature as to give rise to a legal remedy and
# Such legal remedy must be in the form of an action for unliquidated damages.
I. Wrongful Act
An act which prima facie looks innocent may becomes tortious, if it invades the legal right of another person. In Rogers v. Ranjendro Dutt , the court held that, the act complained of should, under the circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially affect him in some legal right; merely that it will however directly, do him harm in his interest is not enough.
A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are very numerous. They may be divided again into public rights and private rights. To every right, corresponds a legal duty or obligation. This obligation consists in performing some act or refraining from performing an act.
Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.
II. Damage
In general, a tort consists of some act done by a person who causes injury to another, for which damages are claimed by the latter against the former. In this connection we must have a clear notion with regard to the words damage and damages. The word damage is used in the ordinary sense of injury or loss or deprivation of some kind, whereas damages mean the compensation claimed by the injured party and awarded by the court. Damages are claimed and awarded by the court to the parties. The word injury is strictly limited to an actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or not.
The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine Injuria and Injuria Sine Damno.
(i) Damnum Sine Injuria (Damage Without Injury)
There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or damage without injury. Damage without breach of a legal right will not constitute a tort. They are instances of damage suffered from justifiable acts. An act or omission committed with lawful justification or excuse will not be a cause of action though it results in harm to another as a combination in furtherance of trade interest or lawful user of one’s own premises. In Gloucester Grammar School Master Case , it had been held that the plaintiff school master had no right to complain of the opening of a new school. The damage suffered was mere damnum absque injuria or damage without injury. Acton v. Blundell , in which a mill owner drained off underground water running into the plaintiff’s well, fully illustrate that no action lies fro mere damage, however substantial, caused without the violation of some right.
There are moral wrongs for which the law gives no remedy, though they cause great loss or detriment. Los or detriment is not a good ground of action unless it is the result of a species of wrong of which the law takes no cognizance.
(ii) Injuria Sine Damno ( injury without damage)
This means an infringement of a legal private right without any actual loss or damage. In such a case the person whose right has been infringed has a good cause of action. It is not necessary for him to prove any special damage because every injury imports a damage when a man in hindered of his right. Every person has an absolute right to property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible damage is not, therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof of special damage. The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. This principle was firmly established by the election case of Ashby v. White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary election. The candidate fro whom the plaintiff wanted to give his vote had come out successful in the election. Still the plaintiff brought an action claiming damages against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff.
III. Remedy
The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no wrong without a remedy’. If a man has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without remedy; want of right and want of remedy are reciprocal.
Where there is no legal remedy there is no wrong. But even so the absence of a remedy is evidence but is not conclusive that no right exists.
Some General Conditions In Torts
1. Act And Omission- To constitute a tort there must be a wrongful act, whether of omission or commission, but not such acts as are beyond human control and as are entertained only in thoughts. An omission is generally not actionable but it is so exceptionally. Where there is a duty to act an omission may create liability. A failure to rescue a drowning child is not actionable, but it is so where the child is one’s own. A person who voluntarily commences rescue cannot leave it half the way. A person may be under duty to control natural happenings to his own land so as to prevent them from encroaching others’ land.
2. Voluntary and Involuntary Acts- a voluntary act has to be distinguished from an involuntary act because the former may involve liability and the latter may not. A self willed act like an encroachment fro business, is voluntary, but an encroachment for survival may be involuntary. The wrongfulness of the act and the liability for it depends upon legal appreciation of the surrounding circumstances.
3. Malice- malice is not essential to the maintenance of an action for tort. It is of two kinds, ‘express malice’ (or malice in fact or actual malice) and ‘malice in law’ (or implied malice). The first is what is called malice in common acceptance and means ill will against a person; the second means a wrongful act done intentionally without just cause or excuse. Where a man has a right to do an act, it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense. An act, not otherwise unlawful, cannot generally be made actionable by an averment that it was done with evil motive. A malicious motive per se does not amount to injuria or legal wrong.
Wrongful acts of which malice is an essential element are:
# Defamation,
# Malicious prosecution,
# Willful and malicious damage to property,
# Maintenance, and
# Slander of title.
4. Intention, motive, negligence and recklessness- The obligation to make reparation for damage caused by a wrongful act arises from the fault and not from the intention. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair it necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad or indifferent. A thing which is not a legal injury or wrong is not made actionable by being done with a bad intent. It is no defence to an action in tort for the wrong doer to plead that he did not intend to cause damage, if damage has resulted owing to an act or omission on his part which is actively or passively the effect of his volition. A want of knowledge of the illegality of his act or omission affords no excuse, except where fraud or malice is the essence of that act or omission. For every man is presumed to intend and to know the natural and ordinary consequences of his acts. This presumption is not rebutted merely by proof that he did not think of the consequences or hoped or expected that they would not follow. The defendant will be liable for the natural and necessary consequences of his act, whether he in fact contemplated them or not.
5. Malfeasance, misfeasance and nonfeasance- the term ‘malfeasance’ applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of negligence or malice. The term ‘misfeasance’ is applicable to improper performance of some lawful act. The term ‘non-feasance’ applies to the failure or omission to perform some act which there is an obligation to perform.
6. Fault- liability for tort generally depends upon something done by a man which can be regarded as a fault fro the reason that it violates another man’s right. But liability may also arise without fault. Such liability is known as absolute or strict liability. An important example is the rule in Rylands v. Fletcher thus the two extremes of the law of tort are of non liability even where there is fault or liability without fault. Between these two extremes is the variety of intentional and negligent wrongs to the question whether there is any consistent theory of liability, all that can be said is that it wholly depends upon flexible public policy, which in turn is a reflection of the compelling social needs of the time.
General Principles Of Liability
There are two theories with regard to the basic principle of liability in the law of torts or tort. They are:
# Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law.
# Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.
The first theory was propounded by Professor Winfield. According to this, if I injure my neighbour, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying, my duty is to hurt nobody by word or deed. This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD. Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher.
The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the bible. According to this theory, I can injure my neighbour as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort. The law of tort consists of a neat set of pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort.
The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon holes in untenable. However salmond argues in favour of his theory that just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted fro an alleged offence or sued fro an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort.
There is, however, no recognition of either theory. It would seem more realistic fro the student to approach the tortious liability from a middle ground. In an Indian decision, Lala Punnalal v. Kasthurichand Ramaji , it was pointed out that there is nothing like an exhaustive classification of torts beyond which courts should not proceed, that new invasion of rights devised by human ingenuity might give rise to new classes of torts. On the whole if we are asked to express our preference between the two theories, in the light of recent decisions of competent courts we will have to choose the first theory of liability that the subsequent one. Thus it is a matter of interpretation of courts so as to select between the two theories. The law of torts has in the main been developed by courts proceeding from the simple problems of primitive society to those of our present complex civilization.
Conclusion
Thus to conclude, law of torts is a branch of law which resembles most of the other branches in certain aspects, but is essentially different from them in other respects. Although there are differences in opinion among the different jurists regarding the liability in torts, the law has been developed and has made firm roots in the legal showground. There are well defined elements and conditions of liability in tort law.
This bough of law enables the citizens of a state to claim redressal for the minor or major damage caused to them. Thus the law has gained much confidence among the laymen.
Source:http://www.legalserviceindia.com/articles/torts_s.htm
What is the of Hindu women rights on father's property?
n 1985 my father's property was distributed between my 3 brothers and they have not given any share to me. They have not taken my acceptance in the agreement they have made after my father's death. Now I am seeking the legal openion whether I can fight for my rights in the court of law. What is my rights and whether if I fight in the court shall I win the case. Please give me your answers with reference to the Indian Penel code and rights act.
Answers:
First the inaccuracies in the question:(grammar excepted)
(1) Question relates to share of a woman whereas the questioner's name denotes a male. Confusion arises by the use of "my" in the question. (2) Between is an inappropriate word while involving more than two persons ; it should be replaced by "among". (3) Reason for remaining silent for 22 years is not explained. There ia a law of limitation and this long delay has somehow to be explainable within the ambit of that law, to even gain an entry pass ("admission" of the case, in legal parlance).(4) Indian Penal Code is not applicable in civil matters. There is no Rights Act by that name but other relevant laws are there.
Presumption:(1) The questioner is a female and has asked the question through this questioner, who assists the former.
Thus the answer is given basing that it relates to the share of property in her father's estate (2) Her father died intestate that is leaving no will (3) She and her father are Hindus.(4) There are no other ClassI legal heirs
Answer:
(1)Since the property distribution, now sought to be assailed, took place in 1985, the Hindu Succession Act, as it stood then, did not provide any coparcenary rights to Class I female legal heirs.
(2)So, any property devolved from her grandfather to her father, being coparcenary property would not get subjected to any share for her.
(3) Any property self-acquired by her father, would be his separate property and she can claim equal share in that that is 1/4 share. If her mother and/or her grandmother was alive at the time of the death of her father, they too being class I heirs, would get equal share that is the ratio would get reduced as the denominator in the fraction increases to the actual number of Class I heirs at the time of death of her father.
(4) What was the profession of the deceased ? If he was an agriculturist only, then the real source of funds for acquiring the "separate property" described above, may be called in question by the brothers in their self-interest and ascribed to be the earnings from out of the coparcenary property. such claim may mire and elongate the legal proceedings.
(5) The "distribution" is not defined. If it was by a partition deed, registered, then the issue of explaining inaction all these years would be rendered very difficult to save limitation.
(6) If it was by "private partition" /Parikat/Palupatti/panchnama/ oral arbitration by community leaders leading to a memorandum of understanding signed by the persons partitioning, then entry of such partition, would not be there in Sub-Registrar's office and if an Encumbrance Certificate is applied for say 30 years, it will be "nil", if no other transaction has taken place with respect to the property in dispute. Then the claimant can plead that she never knew of this fact of partition excluding her and not bothering for her consent.
Steps:
(1) Approach a lawyer with full details of the property in dispute, with documentary evidence as to the property, like Certified Copes and ECs obtained from Sub0Registrar's office, latest copy of the record of rights/RTCpahani/khatihan/patt... etc and geneological tree and legal heir certificate from Tahsildar/Anchal Adhikari/Circle Officer, AND death certificate of the deceased person
(2) Get a notice issued by the lawyer, addressed to the brothers of the claimant, demanding partition of the property, and claiming her share. (go by the lawyer's advice as to the advisability or otherwise of the mention of knowledge of the partition that has already taken place, examining it under limitation angle)
(3) Depending upon the response, which would be mostly negative, prepare for filing a Partition suit. Adhere to lawyer's advice and get yourself ready on dates fixed for evidence.
Cost: Differs from State to State. Court fee will be assessed by the lawyer.
Fees: Negotiate and settle lump sum fee for the case and stagger the payment to the lawyer in stages as per progress of the case, in your interest.
Time: About 2 to 4 years. Appeal preferred by anyone may take another 2-3 years.
Advice: Have a cost benefit assessment and decide. If intervention of community elders is of any use, try that to save time,money and energy as well as maintaining filial relationship
A Hindu woman has right not only on the self acquired property of her father even on the ancestral property under the Hindu Succession Act, 1955. Section 6 of the said Act clearly provides: Devolution of interest of coparcenary property. - When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.
Provided that, if the deceased had left him surviving a female relative specified in class 1 of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2. - Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
In this case (Mitakshara)such a female is the legal heir specified in class 1 of the Schedule as a daughter & hence the provision of the Hindu Succession Act will apply in the distribution of such an ancestral property as given in the above mentioned proviso. Recent Supreme Court Judgment with regards to this, you can go through is Civil Appeal no 4171 of 2006 Anar Devi and Ors V/s Parmeshwari Devi and Ors dated 18/09/2006. With the amendment of section 6 of the above mentioned Act, in 2005 the daughter of a coparcener shall,-(a) by birth become a coparcener in her own right in the same manner as the son;(b) have the same rights in the coparcenary property as she would have had if she had been a son;(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. The benefit of bringing this change is to ,-(a) the daughter is allotted the same share as is allotted to a son;(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Under section 8 , 9 & 10 of the Said Act the Hindu daughter is heir of class one category & she has equal right & share in the property of her father self acquired property as her brothers.
Source:http://www.freelawanswer.com/law/2258-law-4.html
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Answers:
First the inaccuracies in the question:(grammar excepted)
(1) Question relates to share of a woman whereas the questioner's name denotes a male. Confusion arises by the use of "my" in the question. (2) Between is an inappropriate word while involving more than two persons ; it should be replaced by "among". (3) Reason for remaining silent for 22 years is not explained. There ia a law of limitation and this long delay has somehow to be explainable within the ambit of that law, to even gain an entry pass ("admission" of the case, in legal parlance).(4) Indian Penal Code is not applicable in civil matters. There is no Rights Act by that name but other relevant laws are there.
Presumption:(1) The questioner is a female and has asked the question through this questioner, who assists the former.
Thus the answer is given basing that it relates to the share of property in her father's estate (2) Her father died intestate that is leaving no will (3) She and her father are Hindus.(4) There are no other ClassI legal heirs
Answer:
(1)Since the property distribution, now sought to be assailed, took place in 1985, the Hindu Succession Act, as it stood then, did not provide any coparcenary rights to Class I female legal heirs.
(2)So, any property devolved from her grandfather to her father, being coparcenary property would not get subjected to any share for her.
(3) Any property self-acquired by her father, would be his separate property and she can claim equal share in that that is 1/4 share. If her mother and/or her grandmother was alive at the time of the death of her father, they too being class I heirs, would get equal share that is the ratio would get reduced as the denominator in the fraction increases to the actual number of Class I heirs at the time of death of her father.
(4) What was the profession of the deceased ? If he was an agriculturist only, then the real source of funds for acquiring the "separate property" described above, may be called in question by the brothers in their self-interest and ascribed to be the earnings from out of the coparcenary property. such claim may mire and elongate the legal proceedings.
(5) The "distribution" is not defined. If it was by a partition deed, registered, then the issue of explaining inaction all these years would be rendered very difficult to save limitation.
(6) If it was by "private partition" /Parikat/Palupatti/panchnama/ oral arbitration by community leaders leading to a memorandum of understanding signed by the persons partitioning, then entry of such partition, would not be there in Sub-Registrar's office and if an Encumbrance Certificate is applied for say 30 years, it will be "nil", if no other transaction has taken place with respect to the property in dispute. Then the claimant can plead that she never knew of this fact of partition excluding her and not bothering for her consent.
Steps:
(1) Approach a lawyer with full details of the property in dispute, with documentary evidence as to the property, like Certified Copes and ECs obtained from Sub0Registrar's office, latest copy of the record of rights/RTCpahani/khatihan/patt... etc and geneological tree and legal heir certificate from Tahsildar/Anchal Adhikari/Circle Officer, AND death certificate of the deceased person
(2) Get a notice issued by the lawyer, addressed to the brothers of the claimant, demanding partition of the property, and claiming her share. (go by the lawyer's advice as to the advisability or otherwise of the mention of knowledge of the partition that has already taken place, examining it under limitation angle)
(3) Depending upon the response, which would be mostly negative, prepare for filing a Partition suit. Adhere to lawyer's advice and get yourself ready on dates fixed for evidence.
Cost: Differs from State to State. Court fee will be assessed by the lawyer.
Fees: Negotiate and settle lump sum fee for the case and stagger the payment to the lawyer in stages as per progress of the case, in your interest.
Time: About 2 to 4 years. Appeal preferred by anyone may take another 2-3 years.
Advice: Have a cost benefit assessment and decide. If intervention of community elders is of any use, try that to save time,money and energy as well as maintaining filial relationship
A Hindu woman has right not only on the self acquired property of her father even on the ancestral property under the Hindu Succession Act, 1955. Section 6 of the said Act clearly provides: Devolution of interest of coparcenary property. - When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.
Provided that, if the deceased had left him surviving a female relative specified in class 1 of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2. - Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
In this case (Mitakshara)such a female is the legal heir specified in class 1 of the Schedule as a daughter & hence the provision of the Hindu Succession Act will apply in the distribution of such an ancestral property as given in the above mentioned proviso. Recent Supreme Court Judgment with regards to this, you can go through is Civil Appeal no 4171 of 2006 Anar Devi and Ors V/s Parmeshwari Devi and Ors dated 18/09/2006. With the amendment of section 6 of the above mentioned Act, in 2005 the daughter of a coparcener shall,-(a) by birth become a coparcener in her own right in the same manner as the son;(b) have the same rights in the coparcenary property as she would have had if she had been a son;(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. The benefit of bringing this change is to ,-(a) the daughter is allotted the same share as is allotted to a son;(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Under section 8 , 9 & 10 of the Said Act the Hindu daughter is heir of class one category & she has equal right & share in the property of her father self acquired property as her brothers.
Source:http://www.freelawanswer.com/law/2258-law-4.html
Sale of Goods and Related Legislation in other Jurisdictions
Links to Sale of Goods and Related Legislation in other Jurisdictions
1. Ireland
• Restatement of Sale of Goods Act 1893 and Part II of Sale of Goods and Supply of Services Act 1980
• Sale of Goods and Supply of Services Act 1980
2. United Kingdom
• Sale of Goods Act 1979
• Supply of Goods and Services Act 1982
• Sale of Goods (Amendment) Act 1994
• Sale and Supply of Goods Act 1994
• Sale of Goods (Amendment) Act 1995
• Factors Act 1889
3. Australia
Commonwealth
• Trade Practices Act 1974 (Divisions 2 and 2A Part V: Conditions and Warranties in Consumer Transactions, and Actions Against Manufacturers and Importers of Goods; Part VA: Liability of Manufacturers and Importers for Defective Goods.
Australian Capital Territory
• Sale of Goods Act 1954
• Sale of Goods (Vienna Convention) Act 1987
New South Wales
• Sale of Goods Act 1923
• Minors (Property and Contracts) Act 1970
• Sale of Goods (Vienna Convention) Act 1986
• Fair Trading Act 1987 – Part 4, Division 4: Conditions and Warranties in Consumer Transactions; Division 5: Actions against Importers and Manufacturers.
• Uncollected Goods Act 1995
• Consumer Claims Act 1998
Northern Territory
• Sale of Goods Act 1972
• Sale of Goods (Vienna Convention) Act 1987
• Consumer Affairs and Fair Trading Act
Queensland
• Sale of Goods Act 1896
• Sale of Goods (Vienna Convention) Act 1986
• Fair Trading Act 1989 – Part 3, Division 5: express warranties concerning defective goods or services
South Australia
• Sale of Goods Act 1895
• Mercantile Law Act 1936
• Consumer Transactions Act 1972
• Goods Securities Act 1986
• Frustrated Contracts Act 1988
Tasmania
• Sale of Goods Act 1896
• Sale of Goods (Vienna Convention) Act 1987
• Fair Trading Act 1990
Western Australia
• Sale of Goods Act 1895
• Sale of Goods (Vienna Convention) Act 1986
• Fair Trading Act 1987 – Part III Conditions and Warranties in Consumer Transactions
Victoria
• Goods Act 1958
• Sale of Goods (Vienna Convention) Act 1987
• Fair Trading Act 1999 – 2A: implied conditions and warranties in contracts of supply; 2B: unfair terms in consumer contracts; 2C: frustrated contracts
4. Canada
Uniform Law Conference of Canada
• Draft Sale of Goods Act (never enacted)
Federal
• International Sale of Goods Contracts Convention Act 1991
Alberta
• Sale of Goods Act 2000
British Columbia
• Business Practices and Consumer Protection Act 2004
• International Sale of Goods Act 1990
• Sale of Goods Act 1996
Ontario
• Sale of Goods Act 1990
• International Sale of Goods Act 1990
Manitoba
• Sale of Goods Act 1987
• International Sale of Goods Act 1989
• Consumer Protection Act 1987
New Brunswick
• Sale of Goods Act 1973
• International Sale of Goods Act 1989
Newfoundland
• Sale of Goods Act 1990
• International Sale of Goods Act 1990
Nova Scotia
• International Sale of Goods Act 1988
• Sale of Goods Act 1989
Saskatchewan
• Sale of Goods Act 1978
• International Sale of Goods Act 1990
• Consumer Protection Act 1996
Quebec
• An Act Respecting the United Nations Convention on Contracts for the International Sale of Goods 1991
5. Hong Kong
• Sale of Goods Ordinance 1997
6. Singapore
• Sale of Goods Act 1893 (as amended by Sale of Goods (Amendment) Act 1996)
7. New Zealand
• Sale of Goods Act 1908
• Contractual Mistakes Act 1977
• Contractual Remedies Act 1979
• Fair Trading Act 1986
• Consumer Guarantees Act 1993
• Sale of Goods (United Nations Convention) Act 1994
8. United Nations Convention on Contracts for the International Sale of Goods (1980)
• CISG
9. United States Uniform Commercial Code
• Article 2 - Sales
10. Study Group on a European Civil Code & Research Group on EC Private Law
• Outline Edition of Draft Common Frame of Reference 2009
11. Proposed EU Directive on Consumer Rights
• Text and Background Material
Links to Reviews of Sale of Goods and Related Legislation in other Jurisdictions
1. IRELAND
Law Reform Commission Reports
• Privity of Contract and Third Party Rights (2008)
• Vulnerable Adults and the Law (2006)
• United Nations (Vienna) Convention on Contracts for the International Sale of Goods (1992)
• Debt Collection: Retention of Title (1989)
• Minors' Contracts (1985)
2. ENGLAND AND WALES
Law Commission of England and Wales Reports (* indicates joint paper with Scottish Law Commission)
• Consumer Remedies for Faulty Goods: Report (2009)*
• Consumer Remedies for Faulty Goods: Summary of Responses to Discussion Paper (2009)*
• Consumer Remedies for Faulty Goods: Discussion Paper (2008)*
• Company Security Interests (2005)
• Unfair Terms in Contracts: Final Report (2002)*
• Electronic Commerce: Formal Requirements in Commercial Transactions (2001)
• Privity of Contract: Contracts for the Benefit of Third Parties (1996)
3. SCOTLAND
Scottish Law Commission Reports
• Remedies for Breach of Contract: Report (1999)
• Remedies for Breach of Contract: Discussion Paper (1999)
• Report on Three Bad Rules in Contract Law (1996)
• Formation of Contract: Scottish Law and the United Nations Convention on Contracts for the International Sale of Goods (1993)
4. AUSTRALIA
(a) Law Reform Commission of New South Wales
Issues Paper: Sale of Goods (1988)
Sale of Goods (1987)
First Report on the Sale of Goods (1972)
Innocent Misrepresentation: Report (1973)
Innocent Misrepresentation: Working Paper (1972)
(b) Queensland Law Reform Commission
• Minors' Civil Law Capacity (1996)
• Statute of Frauds: Working Paper (1970)
(c) Law Reform Commission of Western Australia
• The Sale of Goods Act 1895: Discussion Paper (1995)
• Equitable Rules in Contracts for the Sale of Goods: Discussion Paper (1995)
• The Sale of Goods Act 1985: Final Report (1998)
(d) Other Australian Sites of Interest
• Australian Contract and Consumer Law Developments
5. CANADA
(a) Uniform Law Conference of Canada
• Electronic Commerce
• Sale of Goods and Other Commercial Law Projects
• Proceedings of Annual Meeting 1981 (Appendix S, pp. 185-321, deals with the proposed Draft Uniform Sale of Goods Act).
(b) Alberta Law Reform Institute
• Discussion Paper on Liens (1992)
• Statute of Frauds (1985)
• The Uniform Sale of Goods Act (1982)
• Research Paper on Statute of Frauds (1979)
• Minors' Contracts (1975)
(c) British Columbia Law Reform Group
• Unfair Contract Terms: Interim Report (2005)
• Unfair Contract Terms: Consultation Paper (2004)
• Report on the Uniform Liens Act (2003)
(d) New Brunswick Law Reform Commission
• Reports on Consumer Guarantees and Sale of Goods (1974-1976)
(e) Law Reform Commission of Nova Scotia
• Privity of Contract: Final Report (2004)
• Privity of Contract: Discussion Paper (2004)
(f) Ontario Law Reform Commission of Ontario
• Research Paper No. II(8): Mistakes in Contracts for the Sale of Goods (1975)
• Research Paper No.II(7): The Doctrine of Frustration in the Law of Sales (1974)
6. HONG KONG
Law Reform Commission of Hong Kong
• Privity of Contract: Report (2005)
• Privity of Contract: Consultation Paper (2004)
• Contracts for the Supply of Goods: Report (2002)
• Contracts for the Supply of Goods: Consultation Paper (2000)
• Sale of Goods and Supply of Services: Report (1990)
• The Control of Exemption Clauses: Report (1986)
7. INDIA
Law Commission of India
• Unfair Terms (Procedural and Substantive) in Contracts (2006)
• Sale of Goods Act 1930 (1958)
8. New Zealand Law Reform Commission
• Electronic Commerce Report Part Three (2000)
• Electronic Commerce Report Part Two (1999)
• Electronic Commerce Report Part One (1998)
• Electronic Commerce Project: Study Paper On International Trade Conventions (2000)
• Repeal of the Contracts Enforcement Act 1956: Discussion Paper (1997)
• The United Nations Convention on Contracts for the International Sale of Goods (1992)
9. Singapore
(a) Law Reform and Revision Division of Attorney General’s Chambers
• Report on Contracts (Right of Third Parties) Bill 2001
(b) Law Reform Committee of the Singapore Academy of Law
• Review of the Parol Evidence Rule (2006)
• The Impact of the Regulatory Framework on E-Commerce (2002)
• Reform of the Bills of Sale Act 1886 (1996)
• United Nations Convention on Contracts for the International Sale of Goods: Should Singapore Ratify? (1994)
Source: http://www.deti.ie/commerce/consumer/slrgwebpagelinks.htm
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1. Ireland
• Restatement of Sale of Goods Act 1893 and Part II of Sale of Goods and Supply of Services Act 1980
• Sale of Goods and Supply of Services Act 1980
2. United Kingdom
• Sale of Goods Act 1979
• Supply of Goods and Services Act 1982
• Sale of Goods (Amendment) Act 1994
• Sale and Supply of Goods Act 1994
• Sale of Goods (Amendment) Act 1995
• Factors Act 1889
3. Australia
Commonwealth
• Trade Practices Act 1974 (Divisions 2 and 2A Part V: Conditions and Warranties in Consumer Transactions, and Actions Against Manufacturers and Importers of Goods; Part VA: Liability of Manufacturers and Importers for Defective Goods.
Australian Capital Territory
• Sale of Goods Act 1954
• Sale of Goods (Vienna Convention) Act 1987
New South Wales
• Sale of Goods Act 1923
• Minors (Property and Contracts) Act 1970
• Sale of Goods (Vienna Convention) Act 1986
• Fair Trading Act 1987 – Part 4, Division 4: Conditions and Warranties in Consumer Transactions; Division 5: Actions against Importers and Manufacturers.
• Uncollected Goods Act 1995
• Consumer Claims Act 1998
Northern Territory
• Sale of Goods Act 1972
• Sale of Goods (Vienna Convention) Act 1987
• Consumer Affairs and Fair Trading Act
Queensland
• Sale of Goods Act 1896
• Sale of Goods (Vienna Convention) Act 1986
• Fair Trading Act 1989 – Part 3, Division 5: express warranties concerning defective goods or services
South Australia
• Sale of Goods Act 1895
• Mercantile Law Act 1936
• Consumer Transactions Act 1972
• Goods Securities Act 1986
• Frustrated Contracts Act 1988
Tasmania
• Sale of Goods Act 1896
• Sale of Goods (Vienna Convention) Act 1987
• Fair Trading Act 1990
Western Australia
• Sale of Goods Act 1895
• Sale of Goods (Vienna Convention) Act 1986
• Fair Trading Act 1987 – Part III Conditions and Warranties in Consumer Transactions
Victoria
• Goods Act 1958
• Sale of Goods (Vienna Convention) Act 1987
• Fair Trading Act 1999 – 2A: implied conditions and warranties in contracts of supply; 2B: unfair terms in consumer contracts; 2C: frustrated contracts
4. Canada
Uniform Law Conference of Canada
• Draft Sale of Goods Act (never enacted)
Federal
• International Sale of Goods Contracts Convention Act 1991
Alberta
• Sale of Goods Act 2000
British Columbia
• Business Practices and Consumer Protection Act 2004
• International Sale of Goods Act 1990
• Sale of Goods Act 1996
Ontario
• Sale of Goods Act 1990
• International Sale of Goods Act 1990
Manitoba
• Sale of Goods Act 1987
• International Sale of Goods Act 1989
• Consumer Protection Act 1987
New Brunswick
• Sale of Goods Act 1973
• International Sale of Goods Act 1989
Newfoundland
• Sale of Goods Act 1990
• International Sale of Goods Act 1990
Nova Scotia
• International Sale of Goods Act 1988
• Sale of Goods Act 1989
Saskatchewan
• Sale of Goods Act 1978
• International Sale of Goods Act 1990
• Consumer Protection Act 1996
Quebec
• An Act Respecting the United Nations Convention on Contracts for the International Sale of Goods 1991
5. Hong Kong
• Sale of Goods Ordinance 1997
6. Singapore
• Sale of Goods Act 1893 (as amended by Sale of Goods (Amendment) Act 1996)
7. New Zealand
• Sale of Goods Act 1908
• Contractual Mistakes Act 1977
• Contractual Remedies Act 1979
• Fair Trading Act 1986
• Consumer Guarantees Act 1993
• Sale of Goods (United Nations Convention) Act 1994
8. United Nations Convention on Contracts for the International Sale of Goods (1980)
• CISG
9. United States Uniform Commercial Code
• Article 2 - Sales
10. Study Group on a European Civil Code & Research Group on EC Private Law
• Outline Edition of Draft Common Frame of Reference 2009
11. Proposed EU Directive on Consumer Rights
• Text and Background Material
Links to Reviews of Sale of Goods and Related Legislation in other Jurisdictions
1. IRELAND
Law Reform Commission Reports
• Privity of Contract and Third Party Rights (2008)
• Vulnerable Adults and the Law (2006)
• United Nations (Vienna) Convention on Contracts for the International Sale of Goods (1992)
• Debt Collection: Retention of Title (1989)
• Minors' Contracts (1985)
2. ENGLAND AND WALES
Law Commission of England and Wales Reports (* indicates joint paper with Scottish Law Commission)
• Consumer Remedies for Faulty Goods: Report (2009)*
• Consumer Remedies for Faulty Goods: Summary of Responses to Discussion Paper (2009)*
• Consumer Remedies for Faulty Goods: Discussion Paper (2008)*
• Company Security Interests (2005)
• Unfair Terms in Contracts: Final Report (2002)*
• Electronic Commerce: Formal Requirements in Commercial Transactions (2001)
• Privity of Contract: Contracts for the Benefit of Third Parties (1996)
3. SCOTLAND
Scottish Law Commission Reports
• Remedies for Breach of Contract: Report (1999)
• Remedies for Breach of Contract: Discussion Paper (1999)
• Report on Three Bad Rules in Contract Law (1996)
• Formation of Contract: Scottish Law and the United Nations Convention on Contracts for the International Sale of Goods (1993)
4. AUSTRALIA
(a) Law Reform Commission of New South Wales
Issues Paper: Sale of Goods (1988)
Sale of Goods (1987)
First Report on the Sale of Goods (1972)
Innocent Misrepresentation: Report (1973)
Innocent Misrepresentation: Working Paper (1972)
(b) Queensland Law Reform Commission
• Minors' Civil Law Capacity (1996)
• Statute of Frauds: Working Paper (1970)
(c) Law Reform Commission of Western Australia
• The Sale of Goods Act 1895: Discussion Paper (1995)
• Equitable Rules in Contracts for the Sale of Goods: Discussion Paper (1995)
• The Sale of Goods Act 1985: Final Report (1998)
(d) Other Australian Sites of Interest
• Australian Contract and Consumer Law Developments
5. CANADA
(a) Uniform Law Conference of Canada
• Electronic Commerce
• Sale of Goods and Other Commercial Law Projects
• Proceedings of Annual Meeting 1981 (Appendix S, pp. 185-321, deals with the proposed Draft Uniform Sale of Goods Act).
(b) Alberta Law Reform Institute
• Discussion Paper on Liens (1992)
• Statute of Frauds (1985)
• The Uniform Sale of Goods Act (1982)
• Research Paper on Statute of Frauds (1979)
• Minors' Contracts (1975)
(c) British Columbia Law Reform Group
• Unfair Contract Terms: Interim Report (2005)
• Unfair Contract Terms: Consultation Paper (2004)
• Report on the Uniform Liens Act (2003)
(d) New Brunswick Law Reform Commission
• Reports on Consumer Guarantees and Sale of Goods (1974-1976)
(e) Law Reform Commission of Nova Scotia
• Privity of Contract: Final Report (2004)
• Privity of Contract: Discussion Paper (2004)
(f) Ontario Law Reform Commission of Ontario
• Research Paper No. II(8): Mistakes in Contracts for the Sale of Goods (1975)
• Research Paper No.II(7): The Doctrine of Frustration in the Law of Sales (1974)
6. HONG KONG
Law Reform Commission of Hong Kong
• Privity of Contract: Report (2005)
• Privity of Contract: Consultation Paper (2004)
• Contracts for the Supply of Goods: Report (2002)
• Contracts for the Supply of Goods: Consultation Paper (2000)
• Sale of Goods and Supply of Services: Report (1990)
• The Control of Exemption Clauses: Report (1986)
7. INDIA
Law Commission of India
• Unfair Terms (Procedural and Substantive) in Contracts (2006)
• Sale of Goods Act 1930 (1958)
8. New Zealand Law Reform Commission
• Electronic Commerce Report Part Three (2000)
• Electronic Commerce Report Part Two (1999)
• Electronic Commerce Report Part One (1998)
• Electronic Commerce Project: Study Paper On International Trade Conventions (2000)
• Repeal of the Contracts Enforcement Act 1956: Discussion Paper (1997)
• The United Nations Convention on Contracts for the International Sale of Goods (1992)
9. Singapore
(a) Law Reform and Revision Division of Attorney General’s Chambers
• Report on Contracts (Right of Third Parties) Bill 2001
(b) Law Reform Committee of the Singapore Academy of Law
• Review of the Parol Evidence Rule (2006)
• The Impact of the Regulatory Framework on E-Commerce (2002)
• Reform of the Bills of Sale Act 1886 (1996)
• United Nations Convention on Contracts for the International Sale of Goods: Should Singapore Ratify? (1994)
Source: http://www.deti.ie/commerce/consumer/slrgwebpagelinks.htm
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