Power of Attorney Facts

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What is a Power of Attorney?
A power of attorney is an instrument empowering a specified person to act for and in the name of the person executing it.

Power of Attorney as an Agency:
A power of attorney is a delegation of authority in writing by which one person is empowered to do an act in the name of the other. The person who acts on behalf of another person (the principal) by his authority, express or implied, is called an agent and the relation between him and his principal is called agency.

Termination of a Power of Attorney:
A power of attorney can be terminated or cancelled by the principal by revoking his authority or by the power of attorney holder renouncing his authority. An agency (the authorised person to act as a POA) can be terminated by the principal (the executor) by revoking his authority or by the agent renouncing his authority, unless such revocation is prohibited under S. 202 of the Contract Act.

S. 201 of the Contract Act also states that an agency terminates, inter alia, by death of principal or agent.

Legal complications arising out of Power of Attorney.
Whether a power of attorney can be irrevocable in nature, and/or
whether an irrevocable power of attorney granted would terminate on death of a donor ?
When does a power of attorney become irrevocable?

(a) Legal provisions : (1) The Power of Attorney Act does not state when a power of attorney is irrevocable. However, in various commercial transactions, a donor gives an irrevocable power of attorney, on contractual basis, to secure the interest of the donee of the power.

(2) Under S. 4 of the (English) Powers of Attorney Act, 1971 a power of attorney is irrevocable if it is expressed to be so and is given to secure : (i) a proprietary interest of the donee of the power; or (ii) the performance of an obligation owed to the donee. Then, so long as the donee has the interest or the obligation remaining undischarged, the power cannot be revoked by the donor without the consent of the donee, or by death, incapacity, insolvency, winding up or dissolution of the donor.

(3) Illustration : In a typical Mumbai scenario, where redevelopment of property is common, A, being the owner of a piece of land over which he resides, gives B, a developer, an irrevocable power of attorney to develop such land and ultimately transfer the same in favour of a Society or Condominium or such Association of Persons. Such a power of attorney is given for a valuable consideration. In the event A dies whilst the property is in the process of being redeveloped, such an irrevocable power of attorney granted by A to B cannot be revoked or terminated and B is entitled to complete such redevelopment.

(4) Where a power of attorney is given for a valuable consideration and expressed to be irrevocable, or is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power is irrevocable.

(b) Authority coupled with interest : (1) S. 202 of the Contract Act lays down the rule that ‘authority coupled with interest is irrevocable’. (2) S. 202 of the Contract Act states that "where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest."

Illustrations :
(a) A gives authority to B to sell A’s land, and to pay himself out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(4) In the aforesaid illustrations, authority is given for the purpose of being a security for a debt, therefore it is irrevocable.

(5) Where the authority of an agent is given by deed, or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. (6) To make the authority irrevocable, the agent must have an interest in the property which forms the subject matter of the agency. Where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of any express contract, be terminated to the prejudice of such interest.

(7) The mere fact that a power is declared in the instrument granting it to be irrevocable, does not make it irrevocable.

(8) The exceptional case dealt with here is that in which the authority or power is coupled with an interest in the thing on which power is to be exercised.

(9) Instead of the words ‘authority coupled with an interest’ used in the English and American systems of law, the Section contains the words ‘the agent has himself an interest in the subject mater of the agency.’ Under the English law, what is meant by an authority coupled with an interest is this — that where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable. [Clerk v. Laurie, 2 H & N 199]. (10) In Prahlad v. T. F. Kumari, AIR 1956 Pat 233 where, under a document drawn in the form of a power of attorney, a lady agreed that the debts raised by X for her should be realised out of the collections of a particular estate and the effect of the document though not described as one of agency was to create an agency in favour of X, it was held that the agency was one coupled with an interest and therefore irrevocable and in substance amounted to an allocation of the funds to be appropriated towards the repayment of the debts.

(11) Similarly, when an agent is employed to enter into any contract, or do any other lawful act involving personal liability, or is expressly or impliedly authorised to discharge such liability on behalf of the principal, the authority becomes irrevocable as soon as the liability is incurred by the agent [Read v. Anderson, (1884) 13 QBD 779], and where an agent is authorised to pay money on behalf of his principal to a third person, the authority becomes irrevocable as soon as the agent enters into a contract, or otherwise becomes bound to pay or hold such money to or to the use of such person [Robertson v. Fauntleroy, (1823) 8 Moore 10].

(12) So, where a principal and agent agree for valuable consideration or under a seal that the agent is to have authority, for example, to collect rents in order to secure a loan [Spooner v. Sandilands, (1848) I Y & C. Ch. 390], or to sell certain land and to discharge a debt owed to him by the principal out of the purchase money [Gaussen v. Morton, (1830) IO B & C 731], the principal thereby confers an interest on the agent, and the agency cannot be revoked unilaterally.

(13) As decided in Pestanji Mancharji Wadia v. Matchett, (1870) 7 BHC AC 10, where an agent is authorised to recover a sum of money due from a third party to the principal, and to pay himself out of the amount so recovered the debts due to him from the principal, the agent has an interest in the subject matter of the agency, and the authority cannot be revoked.

(14) Illustration : A owes B a certain sum of money. A authorises B to recover from C, the rent which C owes A, and to pay himself (B) out of the rent recovered, the debts due to him from A. Such an authority cannot be revoked by A, because such authority confers an interest on B.

(15) So also a vendor promoter of a company, who is to be paid a commission out of the money raised by the issue of shares, has a clear and direct interest in raising the capital. An underwriter who promises to buy a certain number of shares from the promoter and authorises him to make the necessary application, cannot revoke the authority, this being an authority coupled with interest. [Carmichael’s case (1896) 2 Ch. 643]

(16) "If a borrower, in consideration of a loan, authorises the lender to receive the rents of Blackacres by way of security, the authority remains irrevocable until repayment of the loan in full has been effected. This doctrine applies only where the authority is created in order to protect the interest of the agent; it does not extend to a case where the authority is given for some other reason and the interest of the agent arises later." [Cheshire on the Law of Contracts, 6th Ed.]

(17) Illustration : A (lender) has given B (borrower) a certain loan. As a security for repayment of the loan, B authorises A to receive all the rent which B is entitled to — arising out of a certain property owned by B — until such loan is repayed by B to A. Such an authority created to protect the interest of A, is irrevocable.

(18) Further, the principle applies only to cases where authority is given for the purpose of being a security or a part of the security, and not to cases where the interest of the donee arises afterwards and incidentally. In such cases there is no authority coupled with an interest; but an independent authority, and an interest subsequently arising [Garapati Venkanna v. Mallupudi Atchuta-ramanna, AIR 1938 Mad. 542].

(19) However, it is pertinent to note that mere right to remuneration or commission does not constitute an agency coupled with interest.

(20) For example, the agents for the sale of cloth who are entitled to keep for themselves any excess over rates that they might secure from purchases have no interest in the property to be sold or in the sale proceeds thereof, so as to attract S. 202 of the Contract Act [Dalchand v. Seth Hazarimal, AIR 1932 Nag. 34].

(21) In another Bombay case, it was held that the mere fact that the salary of an agent collecting rents was to be paid out of the collections, did not create an interest sufficient to make the authority irrevocable [Vishnucharya v. Ramachandra, ILR 3 Bom. 253].

(22) For instance, as held in Lakshmichand Ramchand v. Chotooram Motiram, (1900) 24 Bom. 403, the interest which the agent has in effecting a sale and the prospect of remuneration to arise therefrom, do not constitute such an interest as would prevent the termination of the agency.

(23) If any such interest were to be created for the benefit of the agent, it should be contem-poraneously provided for in the instrument of agency itself and should not only be express but also be explicit. It should not give any room for doubt, nor could it be a matter of interpretation. An agency to be irrevocable should therefore create in the agent an interest in the subject matter contemporaneously with the document wherein such agency is created and it cannot be left to chance or guess or inference.

(24) In Corporation Bank v. Lalitha H Holla, AIR 1994 Kant. 133, held : the fact whether the power of attorney is given for securing the interest of the agent, can be ascertained from the facts de hors the express terms of the contract.

(25) In Kondayya Chetti v. Narasimhulu Chetti, (1986) 20 Mad. 97, held : The interest of the agent in the subject matter of the agency may be inferred from the language of the document creating the agency, and from the course of the dealings between the parties, it need not be expressly given. It is the existence of the interest and not the mode in which it is given, that is of importance.

(26) In Mariyakutty v. Chalandian Bank Ltd., AIR 1957 TC 174, the hypothecation deed showed that the shares and the right to the dividends on the same were all charged for the amount borrowed. It was further stipulated that as long as the debt was in existence, the pledgee was authorised to receive directly from the bank any dividend declared and appropriate the same towards interest. It was held that these words clearly created an agency in favour of the pledgee in view of the hypothecation deed which clearly authorised the pledgee to represent the owner of shares with regard to receipt of dividends from the bank, and that the agency created was one contemplated in S. 202, and could not be determined at the instance of the principal alone. IV. Whether an irrevocable power of attorney would terminate on death of donor ? (a) Indian Law : (1) The Supreme Court of India, in the case of Seth Loon Karan Sethiya v. Ivan E. John, AIR 1969 SC 73, held : where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. It is settled law that where the agency is created for valuable consideration and authority is given to effectuate a security or to secure interest of the agent, the authority cannot be revoked. (b) English Law : (1) According to S. 4(1) of the (English) Powers of Attorney Act, 1971 a power of attorney is irrevocable if it is expressed to be so and is given to secure : (i) a proprietary interest of the donee of the power; or (ii) the performance of an obligation owed to the donee. Then, so long as the donee has the interest or the obligation remaining undischarged, the power cannot be revoked by the donor without the consent of the donee, or by death, incapacity, insolvency, winding up or dissolution of the donor. (2) According to S. 126 of the (English) Law of Property Act, 1925 (15 & 16 Geo. V, c.20) Powers of attorney, which are given for a valuable consideration and which are stated in the instrument creating them to be irrevocable, cannot be revoked at any time either by any thing done by the donor of the power without the concurrence of the donee, or by the death, disability, or bankruptcy of the donor of the power. Any purported revocation will be ineffective both as regards the donee and a purchaser for value. (3) Adopting the classical statement of the rule given by Wilde, C.J. in Smart v. Sandars, (1848) 5 CB 895, 917, Bowstead on the Law of Agency, 14th Edition, page 423, states as follows : "(i) Where the authority of an agent is given by deed or for valuable consideration, for the purpose of effectuating any security, or of protecting or securing any interest of the agent, it is irrevocable during the subsistence of such security or interest. But it is not irrevocable merely because the agent has an interest in the exercise of it or has a special property in, or lien for advances upon, the subject matter of it, the authority not being given expressly for the purpose of securing such interest or advances : (ii) Where a power of attorney whenever created is expressed to be irrevocable and is given to secure a proprietary interest of the donee of the power, or the performance of an obligation owed to the donee, then, so long as the donee has that interest, or the obligation remains undischarged, the power is irrevocable; (iii) Authority expressed by this article to be irrevocable is not determined by the death, insanity or bankruptcy of the principal, nor . . . where the principal is an incorporated company, by its winding or dissolution, and cannot be revoked by the principal without the consent of the agent." V. Conclusion : What emerges from the above is that an irrevocable power of attorney creating an agency, wherein the agent (the donee) has an interest in the property and which forms the subject matter of such agency created for valuable consideration, the agency cannot be terminated to the prejudice of such interest, unless there is an express contract to the contrary. It can, therefore, be inferred that an irrevocable power of attorney granted in relation to a subject matter in which the donee has an interest, cannot be revoked by the donor, nor can it be terminated by the death, unsoundness of mind or insolvency of the donor to prejudice such interest created by the donor in favour of the donee.

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Senior Advocates vs Junior Advocates

Senior Advocates and Junior Advocates?

In legal profession and among the general public, we often hear the reference to ‘Senior Advocate’ and ‘Junior Advocate’. While the reference to ‘Senior Advocate’ is general and based on the age and experience of a particular legal professional, technically, an advocate recognized by the courts based on the rules and the practice is called ‘Senior Counsel’. While the ‘Senior Counsel’ is bound to follow a separate or special code of conduct as enshrined in the rules and as per the practice, there is no substantial difference between the rules governing ‘Senior Advocate’ and ‘Junior Advocate’ as such. Irrespective of real time exposure, talent and ability; barring corporates or knowledgeable people, general public sees an aged lawyer with good practice, as a ‘Senior Advocate’.  While it is absolutely true that experience matters in legal profession, it is also true that years of experience may not guarantee all the talent and required ability in profession. Many so-called ‘Senior Advocates’ are not in a position to draft a pleading properly and are not in a position to present the case properly in court. Examples are plenty. Still, these professionals manage to get brief or clients using their public relations and other talents. It is alleged that some so-called ‘Senior Advocates’ are favored in courts at-times based on their relations with the presiding officers and other issues rather based on the substance of the issue before the court. On many issues, a judge can exercise lot of discretion and it is very difficult to find-out as to how a particular court has favored a particular Advocate. While this happens on the one-side, we have very talented young legal graduates or professionals who may not require that much time to understand the profession and to acquire the required abilities in profession. However, irrespective of the ability of a young lawyer, these young lawyers are humiliated by the judges at times and this happens when a young lawyer appears against a ‘Senior Advocate’ or a ‘Senior Counsel’. While the young lawyers who are prepared to argue complicated matters and even with the ‘Senior Advocates’ and ‘Senior Counsel’ are bullied at times in Courts, young lawyers lacking the required talent are asked to wait in the court, read the papers and forced to argue the matters. This happens very frequently in courts. Already, young and talented graduates are not interested in legal profession due to various issues and these talented youngsters prefer to work in corporate word which guarantees good life and early settlement in life. This trend is not good for the legal profession and not good for the society. There is a need to attract and retain the young talent in legal profession. It would be a gigantic task as problems are plenty in our legal system and there are real problems which go beyond the possibility of ‘reform’.

If a judge laughs at a young lawyer presenting a case without any reason and logic, then, its illogical and nothing but humiliating that particular advocate. This comes with the mind-set of some judges who believes that lot of experience is required in profession and they believe that a young lawyer with little experience can never be right in his point of view. There are youngsters who are capable of addressing all these issues and who can convince any judge, but, those are exceptions. Young judges tend to recognize the talent and even among the senior judges, there are judges who are concerned at the system and degrading standards in profession. These responsible judges are very fair and tend to encourage and recognize the youngsters in legal profession. We can not completely blame the Bench for all the problems when it comes to giving due recognition to the young lawyers. Standards in legal education have degraded except the standards being maintained by few recognized law schools in this country. Irrespective of not so high standards in a particular law college, those law colleges too can produce brilliant law graduates and it mostly depends upon the interest of that particular student towards his studies and his abilities like command over language, drafting skills, presentation skills, public relations and logical thinking especially. There is also another problem. If a young law graduate joins with an Advocate office initially, then, it is very difficult to get an opportunity to argue the matters. In some cases, there can be justification due to the complex nature of the matter or the importance. There are cases where a Senior Advocate believes that only he can argue the matter and his assistants should continue to assist him in filing papers in Court etc. There are also Senior Advocates or Advocates who are willing to recognize the talent and believe his young colleagues in office, but, these kinds of people are exceptional. It is very unfortunate to note the standards of the Bench and also of the Bar are degraded gradually and it appears that it would be extremely difficult to repair the situation. There are judges who believe in doing what they feel is right irrespective of precedents and legal position. If a particular judge makes-up his mind to pass an order in a particular manner, he can very easily ignore the submissions, twist the law, quote the precedents on interpretation and can neglect the similar precedent simply on the pretext that the precedent submitted is not applicable to the facts of the case. An aggrieved can only prefer an Appeal though he fully believes that the order passed by a particular court is erroneous. For preferring an appeal against the erroneous order, the advocate should convince his client due to the expenses involved and at times, it becomes very costly if it involves preferring an appeal to the Supreme Court or preferring an appeal to the High Court from a Lower Court. Nothing can change this situation except the Bench believing in certain basic things and imparting good training to the judicial officers in the beginning and also frequently.

When it comes to the recognition being conferred on a particular advocate as ‘Senior Counsel’, this exercise is also being criticized very often now-a-days. The conferment in the past appears to be good and only deserved used to be recognized as ‘Senior Counsel’. If we look at the earlier generation of Senior Advocates, anyone tend to agree that they are deserved to be recognized as ‘Senior Counsel’. We have seen wonderful lawyers serving in the legal profession and also serving the society through their participation in public life. A Senior Counsel or a Senior Advocate or a good advocate should be good at understanding the case quickly, understanding the mind-set of the judge well and should be in a position to sum-up the case correctly assisting the Court. Anyone possesses this qualities should be seen as a good advocate whether he is ‘Senior Counsel’, ‘Senior Advocate’ or a ‘Junior Advocate’. As I believe, years of experience are not the sole criteria for conferring recognition upon a particular advocate as ‘Senior Counsel’. Irrespective of the age and years of experience of a particular advocate, if an advocate possesses the required qualities and abilities in profession, he should be seen as ‘Senior Advocate’ or ‘good advocate’.

It is also to be noted that, still, many old generation judges or the senior judges adhere to some basic standards and they believe in reforming the system, believe in encouraging young lawyers and they don’t humiliate young people. There are still wonderful judges. I have seen very prominent judges or senior judges exercising great patience while listening to the young lawyers and even when they are not presenting the case properly, these great judges exercises patience and never humiliate or bullies the young lawyers. Sometimes, the judges may have to guide the young lawyers properly and there is a need to give proper and good advice without discouraging him or humiliating him. In view of their engagements, there is nothing wrong in giving preference to the busy lawyers or the ‘Senior Counsels’, but, undue preference should never be given during the course of the proceeding. Normally, when a party engages a ‘Senior Counsel’, even other tend to do the same and this is the normal practice and there can be exceptions.  A ‘Senior Counsel’ may have good relations with many judges and infact many of the juniors of a ‘Senior Counsel’ should have been appointed as judges also. In view of these relations, it is alleged that some judges favour some particular ‘Senior Counsel’. A judge or a Court should never give this kind of impression that he will consider the case positively if a particular advocate or a ‘Senior Counsel’ is appointed. This is not good for the profession and the perception of the judicial system in this country. Despite lot of efforts to reform the legal system or the judicial system, we could not effectively bring the reforms addressing the issues of delay, technicalities, transparency and easy filing procedure. But, it is the collective responsibility of the legal professionals, society and the Government to look into these issues. A strong and efficient judiciary represents a strong ‘democracy’.

Earlier it is known that only rich prefers to enter into legal profession and one needs legacy also to stand in profession. Its true even today. But, with technological advancements and all-round growth in the society, there is a possibility for the professionals to come-up in legal profession even without any background. It takes lot of time to establish a good practice in profession and it requires lot of hard-work, patience and continuous curiosity.  To get appointed as Government pleaders one requires the political back-up and to get appointed as panel advocate of even Public Sector Undertakings (PSUs), one needs to know the route and should be in a position to manage the officials concerned. Ability takes back-seat in the society. There are so many problems in the legal profession or the system and I strongly believe that a collective effort will bring the required change in the system. It is very important to attract and retain the young talent in legal profession. These young law graduates and lawyers should be constantly encouraged in every possible way and so that, they will stay in profession and it brings glory to profession and also to the legal system. Many of the noted ‘Senior Lawyers’ today must have also been suffered in their initial days of career. There must have been lot of hard-work and they must have waited for years to reach a particular position in profession and to be considered as privileged. But, when they reach a particular position, it is their responsibility to look at the profession and they should try to do their level best to correct the system. Its their moral responsibility towards the legal profession and also towards the society.

Its not the business of any judge to humiliate or discourage an young lawyer just because he is appearing against a so-called ‘Senior Advocate’ or ‘Senior Counsel’. A judge should never have a biased view and he should be concerned at the case before him, pleadings, submissions and the law and nothing more. I have never faced this problem in profession, but, I know as to what happens normally and I have seen many instances where the judge simply laughs at a young lawyer just to humiliate him and there may not be any reason whatsoever for that laugh.  A judge, howsoever senior he is, should never think that he knows everything and there is no need for him to listen to a young lawyer and that’s not the quality of a good judge. A judge should never discriminate between a young lawyer and a senior lawyer and he should only be concerned at the pleadings before him, submissions, the law and nothing more. It may not be possible for every young lawyer to oppose the judge even if he is wrong.

I hope that both the Bench and the Bar wakes-up and look at the real issues challenging very respect of the profession and the system.

Source: http://durgaraovanayam.blogspot.in/2012/08/senior-advocates-and-junior-advocates.html

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The Recovery of Loans

The accepted practice is for people to approach civil courts for relief in respect of civil offences and for criminal offences to be tried in criminal courts. In addition to this, no one can be sent to gaol because of having committed a civil offence. Neither can people be jailed merely because they are unable to repay debts. This has been accepted not only at the national level but has in fact been enshrined in international covenants which have been signed by a vast majority of the world’s countries.

However, there are times when some financial entities and assorted money lenders have been accused of trying to turn civil wrongs into criminal offences by abusing the legal process. In all probability
this is done to pressurize borrowers to repay money.

The method which is apparently usually used is to accuse the borrower of having cheated and having committed a criminal breach of trust. Both cheating and criminal breaches of trust are offences under the Indian Penal Code, the former in the infamous Section 420 and the latter in Section 406.

High Courts are of course empowered to stop this from happening and frequently do. In the case of Alpic Finance v. Sadasivam, the Supreme Court upheld the order of the High Court quashing a criminal complaint against a borrower under such circumstances.

Also, although lawyers often use the ‘cheating and criminal breach of trust’ template, it is unclear exactly how it is possible to be guilty of both offences at the same time considering that, as the Madras High Court held in the 1936 case of R v. McIver, the two are incompatible. One rests on an intention to deceive while the other rests on a foundation of trust, so to speak.

Even if it is somehow possible to commit the offences simultaneously, the fact remains that civil wrongs are not to be disguised as criminal offences, and ordinarily, it should be possible to prevent this from happening by approaching the High Court.

source:http://lawmatters.in/content/the-recovery-of-loans

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Set up a Law Firm — Entrepreneur India

Set up a Law Firm


You might be a very capable lawyer, but running a business around your skills and qualifications is altogether a different ballgame. However, like all things business, having a plan and going step-by-step will make it a cakewalk.Registrations & Qualifications
To practice law in India, you must be at least 21 years old and hold a law degree from any Indian or foreign university recognized by the Bar Council of India. You must also be registered with any of the State Bar Councils in India. Although you can start your own firm as a fresher with guidance from established lawyers, a few years of work experience will not hurt at all.Practice Development Planning
A ‘Practice Development Plan’ is necessary to help you evaluate your strengths, weaknesses and the resources required to set up a law firm. This evaluation will give you a road map as well as a timetable for where you have to go and when to get there. Proper practice development planning begins with deciding on the kind of entity you propose to establish: a sole proprietorship or a partnership. Both these entities have their own pros and cons. For example, in a partnership, you could diversify your areas of expertise and quickly obtain additional sources of capital and clients. On the other hand, in a sole proprietorship, you will have increased flexibility, play a lead role in assignments, and can develop direct relationships with clients. Eventually, your practice’s growth will dictate when and how you will scale up.Name your firm
You would want to get the name of your law practice out to as many potential clients as possible. The name should be easy to remember and should relate to your practice. If you are setting up your practice with partners, you may consider a neutral name, the names of all the partners, or an acronym.The Practice Area
You should be certain about the areas in which you wish to practice. It is food to focus on more than one practice area; so, besides your core competency, also include the general practice of law. In many cases, clients have diverse legal needs and prefer ‘cheap generalists’ to expensive specialists. A general practice can thus develop into a more specific practice, based on clients’ needs and emerging market requirements.Location & Office Space
A lawyer’s office should be strategically located and accessible to existing and potential clients. If your main practice area is litigation, renting a chamber within the court complex in addition to your primary office may be a good idea.If you intend to set up a transactional-centric law practice, an office in a commercial building could be your best bet. On an average, 150 square feet of usable area per lawyer is required. In addition, you will need space to set up your reception, library, accounts department, IT department, etc.Practice Development
Once set up, the next step is to develop your client base. To achieve this, you should become a member of the several Indian and international chambers of commerce and bar associations, such as your local bar associations, the International Bar Association, FICCI and ASSOCHAM.You should also enter your firm in noteworthy international law directories, including Martindale Hubbell and the Asia Pacific Legal 500. You could also identify and execute a strategic alliance with foreign law firms, as this could result in a cross-referral of work.Lawyers & Staff
Engagement programs need to be developed to attract and retain committed, enthusiastic lawyers who will increase your firm’s profitability. To avoid misunderstandings with other lawyers, retainership agreements are commonly executed, detailing the terms of compensation and retention. These agreements should set monthly or annual billing targets in order to increase the productivity and efficiency of your lawyers.You should also develop a team of of-counsels, chartered accountants, company secretaries and consultants to serve your clients’ needs. Keeping the right employees actively involved in your practice is critical for long-term profitability and growth.Appointing a team of competent administrative staff—office managers, a receptionist, a chief information officer, IT technicians, accountants, support staff—is critical to the sustenance of your practice as well. Do practice the same diligence in their appointment.Accounts & Billing
The most important part of setting up and sustaining your law practice will be getting your clients to pay. Knowing a client’s preference regarding the wording or presentation of invoices is very helpful.Clients often have difficulty in paying for something they cannot see or feel, such as your professional advice. The source of information for invoices is your time records.If you have recorded all the work you have performed, preparing invoices will be a matter of transferring the narration of the services rendered from your time records to the invoices.To avoid any misunderstanding regarding the payment of your professional fees, you should draft your fee engagement agreement carefully; describe the scope of work and the fee you would charge for it.Technology
You must devote substantial time and resources to the protection of your data and information from unauthorized use. It is important to ensure that data and information is not damaged due to technical problems. Keep a regular backup of all your data at an offsite location as part of your disaster management plan.Advertising & Website
The Bar Council of India Rules initially prohibited an advocate from soliciting work or advertising, either directly or indirectly. Last year, however, the rule was amended to allow only the following information to be advertised. However, this also can only be advertised on the internet and not on print, radio or television:(1) Name of the firm
(2) Address, telephone numbers and e-mail id
(3) Your enrollment number, the date of enrollment, the name of State Bar Council where you originally enrolled, the name of the State Bar Council on whose roll name you currently stand, and the name of the Bar Association of which the advocate is a member
(4) Professional and academic qualifications.
(5) areas of practice.

Article Source: http://entrepreneurindia.in/set-up-a-law-firm/1308

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How to start up your own law firm | Analysis | Legally India - News for lawyers | Indian law firm, law school & student news and community |

Are you dreaming of becoming the next Zia? India is the world's only major legal market where you can still do more than just dream.

Legally India has asked more than a dozen legal entrepreneurs for their advice on how to live that dream.

"If you feel if you are not able to achieve what you want in larger firms with larger brand names, there is enough work to sustain and flourish when you set up on your own," claims Lex Counsel's co-founder Dimpy Mohanty.


Why would you?
"The usual reasons," muses Lexygen founder Vijay Sambamurthi, "the entrepreneurial bug more than anything else."

ABM Law Associates founder Abhishek Mathur blames aspiration: "It's something I've always wanted to do."

IP Gurus founder Pooja Dodd says she was looking for professional independence when she set up a new IP boutique earlier this year.

Indus G&D Law co-founder Gaurav Dani move to found Induslaw was "prompted simply because we couldn’t see ourselves working in those family driven firms".

That angle can be significant from a financial perspective too. Tight, family or 'lala firm' equity and organisational structures often make the idea of creating your own equity attractive.

"If successful, there is more money in this model than anywhere else," claims Indus' Dani. He explains that financially, he is now in a much better position than he would have been had he stayed at some of the large firms where he would probably be a partner or on track to partnership.

"One good feeling you have when working on your own is you think that the sky's the limit and you can do a lot of things," recalls Legal Spectrums' founder Asim Abbas.

Bright strategies
"Money is important but there's also such a thing as dream and a passion," explains Dani about Induslaw's initial idea. "There is a huge market in the mid-market area and there's no law firm offering that service and we felt that a law firm could tap into the market."

"What I thought was that there is no telecom law firm in the market," says Legal Spectrums Asim Abbas, who started up a niche telecoms practice.

Lexygen went for the niche private equity field.

But near full-service start-ups also exist and bright ideas do not just have to be restricted to an area of law.

"I had – and continue to have - certain strong ideas, how to build an organisation and what kind of organisation to work for myself," Lexygen's Sambamurthi told Legally India. "I figured the most effective and convincing way of doing it is to put my own equity into it."

Narasappa, Doraswamy & Raja was set up in 2006 on the premise of the three founding partners all having significant overseas experience and being "able to offer clients international drafting style at Indian price", explains the firm's co-founder Siddharth Raja.

Small hurdles
The barriers of entry in India – at least for local lawyers - are very low, whereas liability insurance and huge property costs can make it all but impossible to break into London or New York's legal scene.

"A maximum of about Rs 2 lakhs is sufficient to have a proper office at home," says Legal Spectrum's Abbas.

He explains that there are two different models for establishing a law firm. "The first is that you go for heavy investment in terms of infrastructure and lawyers' costs, which requires a lot of capital. Once you have everything in place, you get a revenue stream and clients."

"I followed a different model," he continues. "Start low with low infrastructure development and get clients and a revenue stream fast and follow on from there."

Abbas began in January 2008 and today still operates from his residence together with three other lawyers who also operate from their homes, although a real office is soon on the cards.

A disadvantage, he says, is that he has lost clients demanding a "proper" team and office, despite his long-time industry and client contacts. "But rightly so," he admits, "because an office and team give a comfort level to the client."

While the rate of growth with such a model can be lower, so is the risk.

"Because overhead costs are less you can survive on very minimal billing and in bad times, people look for cheaper options," argues KNM & Partners co-founder Vipender Mann. "There is an opportunity for small firms to survive."

Why wouldn't you?
Running a law firm is very different from working in one. Say what you will about law being a profession, at the end of the day you will be in charge of a business.

IP Gurus now has a team around five but Dodd says that nevertheless, as an individual you end up wearing a lot of different hats, doing admin, HR and everything else that is usually taken care of behind the scenes. And that is on top of getting clients and generating fees.

"It has been a lot more difficult than anticipated, but I'm surviving," she jokes.

Leaving the fold of a larger law firm will also see you waving goodbye to big-ticket transactions and brand equity for the foreseeable future.

"Goodwill is a big problem," agrees KNM's Mann. "Initially you have a big problem convincing people who you are." Often clients will also like the assurance of an established firm, which can be more comfortably blamed if transactions should go wrong.

Lex Counsel's Mohanty complains: "Particularly with government projects, they don't consider your previous experience in previous law firms - they want your experience to be in the firm where you're pitching for work."

Clients will instinctively also be looking to squeeze new firms on price, particularly if pitching against the established players. "People expect you to be rather low down with the billing, which is not what you want to project," she says.

An unknown brand also puts you into a difficult human resource Catch 22, without a flood of unsolicited CVs landing on your desk every day as is the case at the big firms.

ABM's Mathur says that for a start-up it is very important to have a "quality team" but most start-up firms do not have the deep pockets to hire the best or most experienced people in the market.

Managing cash flow is another initial challenge. "It is a shock to adjust," remembers Abbas. "I started Legal Spectrum in January and got my first payment in May – for four months there was no payment. If someone does not have the buffer for four or five months, you will have sleepless nights."

Branding can also make recovery harder, as larger firms often have the leverage to gently force clients to pay-up, despite clients themselves also suffering under a cash crunch.

"You need the money but clients do tend to take much longer than what you were either promised or expected," recounts ABM's Mathur. "And you have to be very careful with a client, because you can't be seen to be harsh or impatient to get the money."

How do you?
"It was hard initially," remembers Indus' Dani. "But we started getting small work, some advice, some opinion work and started to do that work to keep it ticking. And somehow you end up in a transaction and you end up with more than you can handle."

But before you rush to hand in your notice, good planning is vital.

"My advice is to make sure to know exactly what you're getting into – look at things you would never imagine," advises IP Gurus' Dodd. She says that initially she was doing almost no legal work and mostly dealt with recruiting, establishing systems, writing firm and lawyer profiles, trying to build a website (and seeking permission from the Bar Council of India) and more.

A good business plan should also include a good idea of where your money will come from.

"Ultimately for a law firm, when you leave, the biggest support comes from your existing client base," says Phoenix Legal co-founder Abhishek Saxena, adding that it is not easy for a start-up to get support from new clients.

Before leaving, most entrepreneurial lawyers therefore test the waters. "[Start-ups] generally discuss with their clients, 'if I start on my own, will you support me?', or they have some kind of understanding with in-house counsel or CEOs," sayd KNM's Mann.

While some small mandates might be thrown the start-up's way, many bigger clients' hands are often tied when it comes to institutionalised adviser relationships.

Family connections can help but will not replace hard work.

If you are leaving with a crowd, you should also be very clear on how costs, revenues and responsibilities are shared. "You need to make sure that you are along same wavelength," says Phoenix's Saxena.

"In the current day and age you'll have to spend more time with your partners than with your better half - you need to have a clear business plan charted out," he quips.

Golden years
All lawyers interviewed for this article report they are doing well and are happy with their career choice.

But this is perhaps not a surprise. 2003 to 2008 were the "golden years", remembers S&R Associates co-founder Sandip Bhagat, who set up in 2005. Most Indian firms grew very rapidly in that period but since then the market has gotten a lot more crowded and the economy has slowed.

So is it now too late to become the next ALMT, AZB, JSA, Luthra & Luthra or Trilegal?

"There is far more intense competition," agrees ABM's Mathur. "There is scope for another 100 similar placed law firms like me, there's enough work for everyone, but I don't know how fast you can become a law firm with a critical size, revenue and all-India presence now."

Nevertheless, opportunities exist to enter the big league, particularly if start-ups start merging and establishing a national presence, as many plan to do.

"It is not at all too late to start, there is enough depth in the market," claims Indus's Dani.

Phoenix's Saxena adds that "if you are confident in your abilities I don't think there is a real risk".

However, it will be a long road. All legal entrepreneurs agree that perseverance, hard work and consistency are the key qualities required.

After all, for the first few years your baby will only ever be as good as its last piece of advice.

But it will also be your very own baby.

Article Source:http://www.legallyindia.com/20090910179/Analysis/The-how-and-why-of-starting-up-your-own-law-firm

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How To Get New Clients For Your Law Firm

Your law firm needs new clients in order to stay in business. Many law firms do not actively market their services and thus miss many potential clients. Since the demand and supply dynamics keep changing, it is crucial to keep ahead of competition and promote your services. Here are some methods of reaching out to potential clients.

1) Referrals

Most law firms get in touch with potential clients through a network of common friends and acquaintances. See who among them know potential clients, and (subtly) ask them to refer your firm to those who might be looking for the services of an attorney.

2) Website

Having a well designed, informative website is crucial for law firms looking for new clients. Most people look up law firms on the Internet, and you can make things easier for them by putting up online forms they can fill if they need more information about your services. Search engine optimization is also crucial if you want people to find you through search engines. Hire the services of an SEO firm to ensure that your website is ranked high on search engines.

3) Seminars

Attend seminars and conventions to publicize the services offered by your law firm. Give speeches and interact with the audience. Try to give small gifts to members of the audience you think may be potential clients or lead you to potential clients. You can also ask for the business cards of these people.

4) Membership of Organizations

Join organizations you think can promote your business. See if the organization has members who are potential clients. Ask your clients if they are members of a particular organization. Never join an organization that cannot help you get in touch with new clients.

5) Advertising

Advertise your services in local radio shows, TV programs, Yellow Pages, and newspapers. Targeted advertising works much better than more expensive mass marketing. Overnight radio shows and cable TV are cheaper than primetime ads.

6) Direct Mailing

Use direct mailing services to promote your law firm. Ensure that the letters are not too long, and carry testimonials of previous clients. Give special offers if you like.

7) Press Releases/Articles

Nothing works like press releases and articles related to law. Be a regular contributor of legal articles to ezines, websites, and newspapers. This will attract readership and ensure that some of the readers know that you are an expert in your field.

These are just some of the methods you can use to publicize yours. Use targeted advertising to reach them. If you need more help in promoting your law firm, you could approach a professional agency for help. Your law firm needs new clients in order to stay in business. Many law firms do not actively market their services and thus miss many potential clients. Since the demand and supply dynamics keep changing, it is crucial to keep ahead of competition and promote your services. Here are some methods of reaching out to potential clients.

Alexander Gordon is a writer for http://www.smallbusinessconsulting.com - The Small Business Consulting Community. Sign-up for the free success steps newsletter and get our booklet valued at $24.95 for free as a special bonus. The newsletter provides daily strategies on starting and significantly growing a business.

Business Owners all across the country are joining "The Community of Small Business Owners” to receive and provide strategies, insight, tips, support and more on starting, managing, growing, and selling their businesses. As a member, you will have access to true Millionaire Business Owners who will provide strategies and tips from their real-life experiences.

Article Source: http://EzineArticles.com/?expert=Alexander_Gordon

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India Inheritance-Inheritance tax and law | Global Property Guide

India Inheritance-Inheritance tax and law | Global Property Guide

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Legal Writing Tip - Answering Questions at Oral Argument | University of Louisville Louis D. Brandeis School of Law

Legal Writing Tip - Answering Questions at Oral Argument | University of Louisville Louis D. Brandeis School of Law

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The Top 30 Blogs on Writing :: Delaware Employment Law Blog

The Top 30 Blogs on Writing :: Delaware Employment Law Blog

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Plain English and modern legal drafting - Part - 1

Part 1: What is plain English—really?

All legal writing should be appropriate for its audience—it should speak to the reader in words, sentences, and forms the intended reader can understand. Thus, transactional legal writing—legal drafting—should be appropriate for its audience: the parties to the transaction and, if they are represented by counsel, their lawyers. But in many transactions, particularly consumer transactions, the parties are not represented by counsel. The transactions are between nonlawyers without counsel or between a sophisticated party, who dictates the terms, and a nonlawyer consumer. Those nonlawyer consumers need plain English. To meet their needs, I offer this broad description of plain-English legal drafting:

Plain English is a form of English that can be read and understand by the typical nonlawyer.
Here are some specific traits of plain-English legal drafting:

Plain English all but forbids insider jargon, legal Latin, and archaic words.
Plain English strictly limits terms of art and always defines them in plain English.
Plain English sometimes requires more words and sentences than traditional legal drafting—to define terms of art and to explain complex subject matter.
Plain English also values brevity and concision—sometimes even at the expense of content.
Plain English often uses the first- and second-person pronouns you and we.
Plain English uses contractions.
Plain English often uses bullet lists, question-and-answer formatting, lots of headings, and document summaries.
Plain English uses shorter-than-average sentences and paragraphs.
For example, here’s a plain-English provision from a form produced by the Texas Office of the Consumer Credit Commissioner:

If I don’t pay an entire payment within 10 days after it’s due, you can charge me a late charge. The late charge will be 5% of the scheduled payment.
That’s plain. But ask yourself if that tone and style are appropriate for a complex, multi-million-dollar transaction between large corporations represented by counsel.

Source:"http://blogs.utexas.edu/legalwriting/

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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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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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