LEGAL THEORY- II

RIGHTS AND DUTIES

Right in the ordinary sense of the term means a number of things, but it is generally taken to
mean the standard of permitted action within a certain sphere. As a legal term, it means the
standard of permitted action by law. Such permitted action of a person is known as his legal
right.

A legal right must be distinguished from a moral or natural right. A legal right is an interest
recognized and protected by a rule of legal justice, an interest the violation of which would be
a legal wrong, done to him whose interest it is, and respect for which is a legal duty. Moral or
natural right means an interest recognized and protected by a rule of natural justice, an
interest the violation of which would be a moral wrong, and respect for which is a moral
duty.

Definition:-

Austin: According to Austin, right 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. According to him, a
person can be said to have a right only when another or others are bound or obliged by law to
do something or forbear in regard to him. It means that a right has always a corresponding
duty. This definition, as it appears on is very face, is imperfect because in this definition there
is no place for imperfect rights.

Holland: Holland defines legal right as the capacity residing in one man of controlling, with
the assent and assistance of the state the actions of others'. It is clear that Holland follows the
work given by Austin.

Salmond: he defines right from a different angle. He says, A right is an interest recognized
and protected by a rule of right'. It is an interest respect for which is a duty, and disregard of
which is a wrong. Rights are an indispensible unit in a society. It is something which you do
or abstain yourself from doing in order to favour some other person’s right.

In the case of State of Rajasthan vs Union of India, the Supreme Court stated that “Legal
rights in the strict sense are correlatives of legal duties and legal rights are defined as the
interests which the law protects by imposing duties on other persons. But the legal right in the
strict sense means right is the immunity from the legal power of another. Immunity is no
subjection at all”.

ESSENTIAL CONDITIONS OF LEGAL RIGHT

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

The person of inheritance/ Subject of right: He shall be the person who is the owner of the
right. He is the subject of the legal right. Such a person is called a person of inheritance.
Example:-Y purchase a van for Rs 20,000. Here Y is the subject of the right.

Even in the case when the property is bequest to the unborn child, the unborn child is the
owner of the property even though he is uncertain.

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

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

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

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

Will theory

The will-theory of rights says that the right emerges from the human will. It upholds that the
very objective or purpose of the law is to grant the widest possible means of self-assertion i.e.
the maximum of individual self-assertion, therefore, on this notion rights are nothing but only
inherent attributes of the human will. The mental attitude of the claim or demand is the
historical basis of rights. Even states cannot interfere because the man is sovereign in the
personal assertion of the individual’s will in the form of rights. The exponents of this theory
are Pollock, Vinogradoff, Austin, Holland, and H.L.A. Hart.

The definitions of right given by Austin and Holland lay down that the “will” is the main
element of a right. According to Austin, the right of a person means that others are obliged to
do or forebear from doing something about him. The Austinian conception of right is based
on the sovereign power of the state. Likewise, Austin defines the duty of an obligation the
breach of which is punishable because of the penal sanction attached to it.

Criticisms

Duguit strongly criticizes the “will” theory as he opines that the basis of law is the objective
fact of “social solidarity” and not the subjective will. The law is to protect only those acts or
rights which further “social solidarity”. The idea of an individual will is anti-social.

Secondly, the law respects the wills of the individuals but curtails them to the extent to which
it is in conflict with the wills of the other individuals or is in conflict with the social interest
in general. It is due to these reasons that Paton says that “will is an essential element in the
general conception of legal right, but it is not the only element”.

Interest Theory

The main proponent of this theory is Ihering; a scholar of the Sociological School of
Jurisprudence which considers Law is made to serve the Social Purpose and propounded the
concept of Social Engineering. In his “spirit of Roman law”. Ihering defined rights as a
legally protected interest. Interests are created by the community; not by the state. The basis
of a legal right interest and not will. Law always has a purpose and the purpose of the law is
to protect a certain interest and not the individual wills. Salmond also supported Interest
theory but added to it an element of recognition by the state. He viewed that a legal right only
exists when it is recognized and protected by the state. Thus it should attract enforceability.

Roscoe Pound also believed that legal rights are essential interests recognized and
administered by law and belong to the ‘science of law’ instead of ‘law’. He proposed that
such Rights are conceptions by which interests are given form to secure a legal order.

Dr.Allen has attempted to reconcile the two theories by pointing out that the absence of legal
right seems to be, not legally guaranteed power by itself nor legally protected interest by
itself, but the legally guaranteed power to realize an interest. Thus, a sound theory would be
to consider both the elements of “will” and “interest” as essential ingredients of a legal right.

Protection Theory

All rights are granted by the state in the form of law. So, rights are the actions permitted by
the state authority. Thus the most characteristic feature of a legal right is the recognition
granted by a legal system and its enforceability by a legal process.

CLASSIFICATION OF RIGHTS

Salmond classified rights in the following manner:

Positive and Negative Rights

A positive right corresponds to a corresponding duty and entitles its owners to have
something done for him without the performance of which his enjoyment of the right is
imperfect. The person subject to the duty is bound to do something. Negative rights have
negative duties corresponding to them and enjoyment is complete unless interference takes
place. Therefore, the majority of negative rights are against the entire world. in case of
negative rights, others are restrained to do something.

Real and Personal Rights

A real right corresponds to a duty imposed upon persons in general. A real right is available
against the whole world. Real rights are right in rem.

A personal right corresponds to a duty imposed upon determinate individuals. Personal rights
are right in personam.
Right in Rem and Right in Personam

It is derived from the Roman term ‘action in rem’. A right in rem is available against the
whole world.

It is derived from the Roman term ‘action in personam’. A right in personam is available
against a particular individual only

Proprietary and Personal Rights

Proprietary rights mean a right in one’s property. These rights have some economic or
monetary value. Personal rights are rights that arise out of any contractual obligation.
Personal rights are the entitlement of a person whereas proprietary rights mean rights of the
owner of wealth and property. Personal rights may not have economic value but have dignity
and reputation

Inheritable and Uninheritable Rights

A right is inheritable if it survives the owner. A right is un-inheritable if it dies with the
owner.

THE GENERAL CLASSIFICATION OF RIGHTS

The classifications mentioned below are all-inclusive and comprehensive:

 Antecedent right and remedial right (Primary and Sanctioning Right): Primary
rights are also called the antecedent or substantive rights. Similarly, sanctioning rights
are also called remedial or adjectival rights. A right exists independent of any other
right is antecedent right whereas the right is created from the violation of rights will
be remedial rights. A violation or breach of the primary rights, on the other hand,
gives rise to a sanctioning right or remedial right.
 Corporeal rights and incorporeal rights: Corporeal rights are rights over physical
property whereas incorporeal rights are rights over intellectual property.
 Fundamental rights and legal rights: Fundamental rights are the rights guaranteed
by the constitution whereas legal rights are guaranteed under statutory laws.
 Legal rights and equitable rights: Legal rights are guaranteed by way of
parliamentary law whereas equitable rights are guaranteed by equity law. Equity law
was solely recognized in the court of chancery. Before the passing of the judicature
 act, 1873, there were two distinct coordinate systems of law in England which were
called the common law and the equity law. At that time, legal rights were recognized
by the court of chancery, also the court of equity. This distinction was later on
abolished but the existence of common law and equity as two distinct branches of law
persists in England. In India, though we have no such distinction we consider Justice,
Equity, and Good Conscience as a source of law. If in any situation there is a conflict
between law and equity, the legal rule shall prevail. This is governed by the principle-
“where there are equal equities, the law shall prevail”.
 Perfect right and imperfect right: Perfect rights seek perfect duty whereas
imperfect rights seek conditional duty. Perfect rights have direct enforcement whereas
imperfect rights have indirect enforcement. “Perfect right” means the complete right
i.e. the right for which there is remedy also. If a breach is made to a right of a person
then if the aggrieved party has remedy left to get his right enforced is a perfect right
and when in case of a breach the right is not enforceable in a court of law then it is
known as “imperfect right”.
 Primary right and secondary rights: Primary rights are basic rights whereas
secondary rights are sanctioning rights.
 Principal rights and accessories right: Principal rights are apparent or main rights
whereas accessory rights are petty rights like servitude and lease etc. When one right
is available to a person because of the existence of another right than one right is
principal right and another right is an accessory right.
 Right in re propria and right in re aliena: “Re” means thing; “propria” means of
his own and “aliena” means of others. If a person has a right in his own thing or
property he is said to have a right in “re propria” and if he has a right in the property
belonging to another than he is said to have a right in re-aliena, also known as
encumbrances.
 Vested right and contingent right: Vested rights are direct rights in respect of which
all events essential to vest the right in the owner have happened. In the case of
Contingent rights, it depends upon the happening of condition precedent the
contingent right then it will become a vested right. The former is not dependent upon
the fulfillment of any condition and it creates an immediate proprietary right. Also, a
vested right is inheritable and transferable, a contingent right is un-inheritable and
non-transferable.
  Public and Private Rights: A right vested in the state is called a public right. The
state enforces such right as a representative of the subjects in the public interest. A
public right is possessed by every member of the public. A private right, on the other
hand, is concerned with only private individuals, that are both the parties connected
with it are private persons.
 Municipal and International Rights: Municipal rights are conferred by the law of a
country. International rights are conferred by international law.
 Jus Ad Rem: A right which is originated from a right. A right to a right is called jus
ad rem. The person of inherence has a right to have some other right transferred to
him. It is always a right in personam.

DUTIES

A legal obligation or legal duty is the behavior opposite to that regarding which a legal norm
attaches a coercive act as a sanction.

According to Keeton, a duty is an act of forbearance which is enforced by the state in respect
of a right vested in another and breach of which is wrong. Every right implies a co-relative
duty and vice-versa.

According to Prof. Dicey, “a duty is a species of obligation. People obey it due to indolence,
deference, sympathy, fear, and reason and due to psychological, social, and moral pressures.
Most duties are supported by the State. The breach of the duty is imprisonment or fine.”

Duty is the correlative of a right which can be understood as an obligation to do something. It

is an act whose opposite would be wrong. Whenever law ascribes duty to a person, a
corresponding right also exists with the person on whom the duty is imposed. This view was
stated by Salmond.

Salmond also believed that no right can exist without a corresponding duty. Every right or
duty involves a bond of a legal obligation by which two or more persons are bound together.
Thus, there can be no duty unless there is someone to whom it is due; there can be no right
unless is someone from whom it is claimed, and there can be no wrong unless there is
someone who is wronged, that is to say, someone whose right has been violated. This is also
called vinculum Juris which means “a bond of the law”. It is a tie that legally binds one
person to another.
According to Austin, Duties can be divided into two types:

a. Relative Duty – There is a corresponding right to such duties.

b. Absolute Duty – There is no corresponding right as such.

Austin considers the essence of a right is that it should be vested in some definite person and
be enforceable by some form of legal process instituted by him against the violator.

Thus, Austin assumes that a right cannot vest in an indeterminate or a vague entity like the
society or the people. The second assumption is that sovereign creates rights and can impose
or change these rights at its will. Consequently, the sovereign cannot be the holder of such
rights.

Austin stated 4 kinds of absolute duties:-

1. Duty towards God that is not towards human beings;

2. Duties towards indeterminate persons or the public at large, such as the duty not to commit
a nuisance.

3. Self-regarding Duties, such as the duty not to commit suicide or duty not to become
intoxicated.

4. Duty towards State or sovereign

Hibbert refers to absolute and relative duties. The former duties are owed only to the state,
breach of which is generally called a crime, and the remedy, therefore, is punishment. The
latter kind of duties is owed to any person other than the one who is imposing them, the
breach of which is called a civil injury which is redressable by compensation to the injured
party.

Classification of Duties

1. Moral Duty and Legal Duty: A Legal duty is the opposite of a legal wrong and it is
recognized by the law for the administration of justice. Moral duty is the opposite of
moral wrong though it is not recognized by law it is followed due to established social
norms and values.
 2. Antecedent duty and remedial duty: A duty exists independent of any other duty is
antecedent duty whereas the duties are created from the violation of rights will be the
remedial duty.
3. Fundamental duty and legal duty: Fundamental duties are duties imposed over
citizens which they owe towards their nation and its constitution whereas legal duties
are duties imposed by statutory laws.
4. Positive duty and negative duty: A positive duty is a duty when the law obliges us
to do an act whereas negative duty is when the law obliges us to refrain from doing an
act.
5. The primary duty and secondary duty: A primary duty is a duty that exists per se
and is an absolute duty independent of other whereas secondary duty is one which has
no independent existence of other duties and results from the violation of duty.
6. Vested duty and contingent duty: Vested duties are direct duty whereas contingent
duties are conditional duty.

CORRELATION BETWEEN RIGHTS AND DUTIES

The two most important views regarding whether the rights and duties are correlated or not
are Salmond’s view and Austin’s view.

According to Salmond “no right can exist without any corresponding duty and vice versa.”
He believed that every duty which is being performed is in respect of a correlated right
attached to it.

On the Contrary what Austin has to say is that all the types of duties are not similar and they
are divided between relative and absolute duty. Relative duties are the one which have
corresponding rights whereas Absolute duties are the one which are independent and have no
rights correlated to them. For example, not to commit suicide, is one of your absolute duty,
there is no corresponding right here.

According to Austin there are a bunch of duties which fall under absolute duties. Such as
duties to self, duties to sovereign etc. These are certain duties which are to be followed and
have no corresponding relations with rights. But Austin’s view has been criticized a lot lately.
Salmond has concluded that duties towards self becomes part of criminal law and thus
becomes legal duty and duties to sovereign/state are always corresponding to the rights which
are granted to us by the states. And The most accepted view regarding rights and duties over
the time is that they are necessarily correlative. They are the two most inevitable components
existing together in present day society.

 As we can describe a right as a power or privilege conferred by law which people

enjoy and on the other hand duty is a burden imposed by law which commands
obligeance for the good of society. And in order to enjoy a right properly there is a
need for other people to consider and respect it. Hence in this way we can say that
enjoyment of right by one person grants duty on another person to respect it. Thus
they work in corollary. They act as two phases of a single coin. For example if the
state has guaranteed right to life, the
 Rights act as an interest and legal rights become legal interests and these legal
interests are backed by law and in this case a duty is imparted on law to protect these
rights.
 The state guarantees certain rights to all of its individuals to promote welfare of the
society and protection of such rights is the state’s duty. Also when state is
guaranteeing rights it becomes a corresponding duty of the citizens to respect the state
and do not create hindrance in the functioning of state. It becomes an individual’s
duty to serve the state in his whole capacity.

Thus from the entire analysis that we have done in this article we can conclusively say that
both rights and duties always go hand in hand and it is impossible to exist in a society where
they cannot coexist. Thus, correlation of rights and duties is a very important for holistic and
entire development in any society.
PROPERTY: DEFINITION AND KINDS

The term property is derived from the Latin word 'properietate' and the French equivalent
'proprius' which means a thing owned. The concept of property and ownership are very
closely related to each other. There can be no property without ownership and ownership
without property.

The property includes the proprietary rights of a person and not his personal rights.
Proprietary rights constitute his estate or property and personal rights constitute his Status or
personal and condition. In another sense, the term property includes only those rights which
are both proprietary and real.

Definition

(a) Locke - According to Locke, "Every man has a property in his own person." every
individual has the right to preserve his property, that is his wife, liberty and estate."

(b) Bentham - According to Bentham "property is nothing more than the basis of s
certain expectation of deriving thereafter certain advantages by a thing the reason of
the relation in which we stand towards it. There is no image, no visible lineament
which can property the relation that constitutes property. It belongs not to physics, but
to metaphysics. It is altogether a conception of Mind. To it, all or any of these
physical circumstances failed to assist in conveying the idea of property.
(c) Salmond: The substantive civil law can be divided into three major sections, namely,
the law of property, the law of obligations and the law of status. The first deals with
the proprietary rights in rem, the second with proprietary rights in personam and the
third deal with personal or non-proprietary rights, whether in rem or in personam.

Kinds

Property is essentially of two kinds Corporeal Property and Incorporeal Property. Corporeal
Property can be further divided into Movable and Immovable Property and real and personal
property. Incorporeal property is of two kinds-in re propria and rights in re aliena or
encumbrances.
CORPOREAL PROPERTY

The other name for the corporeal property is tangible property because it has a tangible
existence. It relates to material things. The right of ownership of a material thing is the
general, permanent and inheritable right of the user of the property or thing. Further corporeal
property can be divided into two categories-

Movable: Chattels, for example, leases, to cows, to clothes etc are movable property. It
simply includes all corporeal property which is not immovable.

Immovable: Land, for example, is an immovable property. According to Salmond, an

immovable piece of land has many elements attached to it. It is inclusive of the ground
beneath the surface down to the centre of the world. Interestingly, it also includes the column
of space above the surface ad infinitum. According to the German Civil Code, the owner of a
particular piece of land owns the space above it as well. The right of free and harmless
possession of space at a reasonable height over the land is secured and governed by the Air
Navigation Act, 1920.

According to the General Clauses Act 1897, “Immovable property includes land, benefits
arising out of the land and things attached to the earth.”

According to the Indian Regulation Act, "immovable property includes land, building,
hereditary allowance, rights of way, lights, Ferries, Fisheries or any other benefit to arise out
of land and things attached to the earth or permanently fastened to anything attached to the
earth but not standing Timber, growing crops or grass.

Section 3 Para 2 of the Transfer of Property Act 1882 defines immovable property as
"immovable property does not include standing Timber, growing crops or grass. Movable
property includes corporeal property which is not immovable.

Real and Personal Property - In English law, the property has been divided into the real and
personal property. This division is identical to a great extent with that of immovable or
movable. The division into real and personal is not based on any logical principle but is a
result of the course of legal development in England.

a) Real property - The real property includes all rights over land with such additions and
exceptions, as the law has deemed fit.
b) Personal property - The law of personal property includes all other proprietary rights
whether they are in rem or in personam.

INCORPOREAL PROPERTY

Incorporeal property is intangible property. The other terms frequently used are intellectual or
conventional property. It includes all those valuable interests which are and can be protected
by law. The need to recognise and protect incorporeal property has been recognised in recent
times. The scope of the term property has widened and it has come to include virtual property
as well. In modern times, a large share of a country’s property can be found in the form of
shares of a company. Further incorporeal property is of two kinds- rights in re propria and
rights in re aliena.

Rights in re propria

Under this form of right, the right of ownership in one’s property is not exercised over
material objects. Generally, the law of property deals with material objects. However, there
are exceptions to this in the form of non-material things produced by human skills and labour.
The most important of these are patents, trademarks, artistic copyright, commercial goodwill
etc.

Holland added a new type of intangible property to the list. To quote him: “With such
intangible property should probably also be classified those royal privileges subsisting in the
hands of a subject which are known in English law as franchises, such as rights to have a fair
or market, a forest or free fishery.”

Rights in aliena

These rights are known by the name of encumbrances.in simpler words, these are rights in
rem over areas of property owned by another person. Such rights run parallel to res
encumbered. They bind the res in whosoever hands it may pass. These prevent the owner
from exercising some definite rights concerning his property. The main kinds of
encumbrances are lease, servitude, security and trusts.

Lease- it is an encumbrance giving a right to the possession and use of the property of
another person. It is the transfer of a right to enjoy a certain property.
Servitude– it is that kind of encumbrance which consists of a right to limited use of land
without having the possession of it. Examples of servitudes are- right of a way across the land
of somebody, the right of light and air etc.

Security– Lord Wrenbury has defined security as “a possession such that the grantee or
holder of security holds against the grantor a right to resort to some property or some fund for
the satisfaction of some demand, after whose satisfaction the balance of the property or funds
belongs to the grantor.” Securities are of two kinds- mortgage and lien.

Where a mortgage is the transfer of an interest in specific immovable property for the
purpose of securing payment of money advanced by way of loan. A lien is the right to hold
the property of another person as a security for the performance of an obligation.

Trust- An obligation annexed to the ownership of property. The persons in whose favour the
trusts are advanced are infants, lunatics, unborn persons etc.

MODES OF ACQUISITION OF PROPERTY

According to Salmond, there are four kinds of acquisition of property those are possession,
prescription, agreement and inheritance.

I) Possession -

A possession is the objective realization of ownership Possession means Physical Control

over a thing or an object. It is Prima facie evidence of ownership. The property which
belongs to no one i.e. Res nullius, belongs to the first possessor of it and he acquires a valid
title to it against the world. A property which is already in possession of someone else, when
acquired by possession, gives a good title to the possessor against all third persons except the
true owner. Even as against the true owner, the possessor is entitled to maintain his
possession until evicted in due course by law. In such a case of adverse possession, there are
in fact two owners the ownership of one is absolute and perfect, while that of the other is
relative and imperfect and often called possessory ownership by reason of its origin
possession. If a possessory owner is deprived of its possession by a person who is other than
the true owner, he has the right to recover possession of the same. If Property belongs to
nobody, the person who captures and possesses it has a good title against the whole world. In
this way, the birds of the air and the fish of the sea are the property of that person who first
catches them.

II) Prescription -

According to Salmond: "Prescription may be defined as the effect of lapse of time in creating
and destroying rights; it is the operation of time as a vestitive fact. Prescriptions are of two
kinds-Positive or acquisitive prescription and negative or extinctive prescription.

(a) Positive or Acquisitive Prescription

Positive Prescription means the creation of a right by the lapse of time. For example, right of
way is acquired by continued de facto use of it, undisputedly and openly for a period
Prescribed by law. Under Indian Easement Act, this period is 20 years.

(b) Negative or Extinctive Prescription.

Negative prescription is the destruction of a right by the lapse of time. Example, the right to
sue for nonpayment of a debt within a prescribed period is extinguished after the lapse of that
Period. In India, limitation Act prescribes three years period for extinction of the right.

III) Agreement -

Property may also be acquired by agreement which is enforceable by law. The owner of a
right can transfer his rights in property to another with or without consideration. If it is for
consideration it is called a sale and if it is without consideration it is called a gift. It is one of
the important principles of law based on the Maxim "Nemo dat quad habet legime', that is no
one can convey a better title than he himself has, as a general rule. According to Paton, an
agreement is an expression by two or more persons communicated each other to the other of a
common intention to affect the legal relation between them. An agreement has four essential
elements which are as follows -

1) There should be two or more parties to an agreement

2) Mutual consent of the parties

3) It should be communicated;
4) There should be common intention to affect the legal relationship

IV) Inheritance

Another method of acquiring property is by means of inheritance. When a person dies certain
rights survive him and pass on to his heirs and successors. There are others which die with
him. Those rights which survive him are called heritable or inheritable rights. Those rights
which do not survive him are called un-inheritable rights. Proprietary rights are inheritable as
they possess value. Personal rights are not inheritable as they constitute merely his status.
However, there are certain exceptions to the general rule. Personal right may not die in case
of hereditary titles. Proprietary rights maybe inheritable in the case of lease for the life of
lessee only or in case of joint ownership. Succession of the property of a person may be either
tested it or it may be intestate i.e. by means of a will or without a will. If the deceased has
made a will, then succession would take place according to the term to the will. But if there is
not will, then succession will take place by the operation of law which is known as non-
testamentary succession. In case there are no heirs of the deceased, his property shall go to
the State.

NEGLIGENCE: CRIMINAL LIABILITY

The meaning of the word negligence is “carelessness”. So it is basically a situation where one
person is injured or is harmed due to the carelessness of the other person. The other person
does not harm directly but due to an act that he committed negligently is the tort of
negligence committed. It is when one person owes another person, the duty of care, which
means that any other ordinary person would have taken care if he would have been there in
his place, therefore negligence is where due to the failure of one person to take care, another
person suffers harm, damage, injury or loss. Sometimes, situations arise in which there exists
no contractual relationship between two parties, neither written nor implied. These situations
are civil in nature and where there exists a contractual relationship that is where the concept
of the criminal liability arises. For example in a case where doctor is treating a patient in the
surgical room, if the patient has signed the contract where it is mentioned that the doctor will
not be liable in case of death, then there exists a contract but if the patient dies not because of
the disease but because of the negligent act that the doctor committed then it is criminal
negligence.
Negligence is of two kinds:

(a) Advertent negligence.

(b) Inadvertent negligence.

Advertent negligence: It is called willful negligence or recklessness also. In this negligence,

the harm done is foreseen as possible or probable, but it is not willed. For example, a person
who drives furiously in a crowded street and causes injury or harm to persons commits it by
advertent negligence. For legal purposes, such negligence is classed with intention.

Inadvertent negligence or simple negligence: The negligence which is a result of

ignorance, thoughtlessness or forgetfulness is inadvertent negligence. In such negligence, the
harm caused is neither foreseen nor wilful. For example, a doctor who treats a patient
improperly through negligence, or forgetfulness is guilty of inadvertent negligence.

Theories of Negligence

There are two theories of negligence. One theory was propounded by Salmond. According to
this theory, negligence is a state of mind, a mental attitude. This theory is called the
subjective theory of negligence. The other theory has been given by Fredrick. According to
him, negligence is a type of conduct. This is called the objective theory of negligence. These
theories shall be discussed separately.

(1) Subjective theory:

As mentioned earlier, this theory is given by Salmond. His view is that negligence is culpable
carelessness. Although negligence is not the same as thoughtlessness or inadvertence, it is
nevertheless essentially an attitude of indifference. Therefore, according to this view,
negligence essentially consists in the mental attitude of undue indifference with respect to
one's conduct and its consequences. A person is made liable on the ground of negligence
because he does not sufficiently desire to avoid a particular consequence i.e. harm.

He is careless about the consequence and does the act notwithstanding the risk that may
ensue. Winfield is also the supporter of this theory. He says that as a mental element in
tortious liability, negligence usually signifies total or partial inadvertence of the defendant to
his conduct and for its consequences.
(2) Objective theory:

This theory says that negligence is an objective fact. It is not an attitude of mind or a form of
mens rea, but it is a kind of conduct. Negligence is breach of duty to take care. It means that
one should take precaution against the harmful results of one's actions and he must refrain
from unreasonably dangerous kind of conduct. Pollock, the founder of the theory says that
negligence is the contrary of diligence, and no one describes diligence as a state of mind. So
it is never a mental state.

It is submitted that this view holds good in the law of tort where negligence means a failure to
achieve the objective standard of a reasonable man. If a person failed to achieve this objective
standard, the defence on the ground of the mental state that he took, the utmost care shall be
of no avail to him. The same is the principle in the criminal law also.

An attempt has been made to reconcile the two contrary theories with the argument that the
term negligence has two meanings, and one theory has adopted the one meaning, and the
other theory has adopted the other meaning, and each considers that the meaning given by it
is the exclusive meaning. Negligence is, sometimes used in one sense, and sometimes, it is
used in the other sense, and therefore, its meaning depends upon the context in which it is
used.

When negligence is contrasted with intention, it is used in the subjective sense. As the
wrongful intention is a state of mind, negligence is also a state of mind. Cases of negligence,
on examination of the defendant's mind, turn out to be the cases of wrongful intention. If a
father who neglects to provide food to his infant child and if the child dies, the father may be
guilty of wilful murder rather than of mere negligence. In the cases of this nature, one cannot
distinguish between wrongful intention and negligence without looking into the mind of the
wrongdoer, and observing his mental or subjective attitude towards his act and its
consequences. If one tries to judge them objectively, the two classes of offences are
indistinguishable.

Negligence has another meaning also. When negligence is contrasted with inevitable
accident, it means a particular kind of conduct. In cases where there is no question of
wrongful intention but the point to be determined is as to whether the wrongdoer caused the
harm without any fault on his part, or by his unintentional fault, it is decided on the basis as
to whether his conduct conformed to the standard of a reasonable man. He is liable only when
he has not taken the care which a reasonable man would have taken. In such cases, the state
of mind of the wrongdoer is irrelevant and everything is judged objectively.

CONCEPT OF OWNERSHIP AND POSSESSION

OWNERSHIP

According to Austin ownership means a right, which avails against everyone who is subject
to the law conferring the right to put thing to user of indefinite nature. It is right in rem which
is available to the owner against the world at large. It includes ownership over both corporeal
and incorporeal things. The former refers to physical objects and the latter refers to all claims.

According to Hebert ownership is a comprehensive right in rem. It is a bundle of four rights.

 Right to use a thing.

 Right to exclude others from using the thing.
 Right to dispose of the thing.
 Right to destroy the thing.

According to the Salmond ownership vests in the complex of rights which he exercises to the

exclusive of all others. For Salmond what constitute ownership is a bundle of rights which in

here resides in an individual. Salmond’s definition thus point out two attributes of ownership:

• Ownership is a relation between a person and right that is vested in him

• Ownership is incorporeal body or form.

KINDS OF OWNERSHIP

Corporeal and Incorporeal Ownership: Corporeal ownership is the ownership of a material

object and incorporeal ownership is the ownership of a right. Ownership of a house, a table or
a machine is corporeal ownership. Ownership of a copyright, a patent or a trademark is
incorporeal ownership. The distinction between corporeal and incorporeal ownership is
connected with the distinction between corporeal and incorporeal things. Incorporeal
ownership is described as ownership over tangible things. Corporeal things are those which
can be perceived and felt by the senses and which are intangible. Incorporeal ownership
includes ownership over intellectual objects and encumbrances.
Trust and Beneficial Ownership: Trust ownership is an instance of duplicate ownership.
Trust property is that which is owned by two persons at the same time. The relation between
the two owners is such that one of them is under an obligation to use his ownership for the
benefit of the other. The ownership is called beneficial ownership. The ownership of a trustee
is nominal and not real, but in the eye of law the trustee represents his beneficiary. In a trust,
the relationship between the two owners is such that one of them is under an obligation to use
his ownership for the benefit of the other. The former is called the trustee and his ownership
is trust ownership. The latter is called the beneficiary and his ownership is called beneficial
ownership.
Legal and Equitable Ownership: Legal ownership is that which has its origin in the rules of
common law and equitable ownership is that which proceeds from the rules of equity. In
many cases, equity recognizes ownership where law does not recognize ownership owing to
some legal defect. Legal rights may be enforced in rem but equitable rights are enforced in
personam as equity acts in personam. One person may be the legal owner and another person
the equitable owner of the same thing or right at the same time.

The equitable ownership of a legal right is different from the ownership of an equitable right.
The ownership of an equitable mortgage is different from the equitable ownership of a legal
mortgage.

There is no distinction between legal and equitable estates in India. Under the Indian Trusts
Act, a trustee is the legal owner of the trust property and the beneficiary has no direct interest
in the trust property itself. However, he has a right against the trustees to compel them to
carry out the provisions of the trust.

Vested and Contingent Ownership: Ownership is either vested or contingent. It is vested

ownership when the title of the owner is already perfect. It is contingent ownership when the
title of the owner is yet imperfect but is capable of becoming perfect on the fulfillment of
some condition. In the case of vested ownership, ownership is absolute. In the case of
contingent ownership it is conditional. For instance, a testator may leave property to his wife
for her life and on her death to A, if he is then alive, but if A is dead to B. Here A and B are
both owners of the property in question, but their ownership is merely contingent. It must,
however, be stated that contingent ownership of a thing is something more than a simple
chance or possibility of becoming an owner. It is more than a mere spes acquisitionis. A
contingent ownership is based upon the mere possibility of future acquisition, but it is based
upon the present existence of an inchoate or incomplete title.

Sole Ownership and Co-ownership: Ordinarily, a right is owned by one person only at a
time. However, duplicate ownership is as much possible as sole ownership. When the
ownership is vested in a single person, it is called sole ownership; when it is vested in two or
more persons at the same time, it is called coownership, of which co-ownership is a species.
For example, the members of a partnership firm are co-owners of the partnership property.
Under the Indian law, a co-owner is entitled to three essential rights, namely

1. Right to possession
2. Right to enjoy the property
3. Right to dispose

Co-ownership and Joint Ownership: According to Salmond, “co-ownership may assume

different forms. Its two chief kinds in English law are distinguished as ownership in common
and joint ownership. The most important difference between these relates to the effect of
death of one of the co-owners. If the ownership is common, the right of a dead man descends
to his successors like other inheritable rights, but on the death of one of two joint owners, his
ownership dies with him and the survivor becomes the sole owner by virtue of this right of
survivorship.

Absolute and Limited Ownership: An absolute owner is the one in whom are vested all the
rights over a thing to the exclusion of all. When all the rights of ownership, i.e. possession,
enjoyment and disposal are vested in a person without any restriction, the ownership is
absolute. But when there are restrictions as to user, duration or disposal, the ownership will
be called a limited ownership. For example, prior to the enactment of the Hindu Succession
Act, 1956, a woman had only a limited ownership over the estate because she held the
property only for her life and after her death; the property passed on to the last heir or last
holder of the property. Another example of limited ownership in English law is life tenancy
when an estate is held only for life.
POSSESSION

Salmond

The possession of a material object is the continuing exercise of a claim to the exclusive use
of it. Thus, possession involves two things: (1) claim of exclusive user; and (2) conscious or
actual exercise of this claim, that is, physical control over it. The former is the mental
element called as animus possessionis and the later is the physical element called as corpus
possidendi.

Federick Pollock

He pointed out that in common parlance a man is said to possess or to be possession of

anything of which he has apparent control, or from the use of which he has the apparent
power of excluding others. So, he also talks about the two elements: corpus possidendi and
animus possession is.

Savigny

He in his theory of possession says, the pith of corporeal possession is to be found in the
physical power of exclusion.

However, Salmond doesn’t agree with this view of Savigny that the possessor must have the
physical power to prohibit outside interference or obstruction. It is so firstly due to the fact
that certain things cannot be physically possessed, like A may have the right of way over
another person’s land this doesn’t mean that he has physical possession of the same. So,
Savigny’s theory wouldn’t be applicable in case of incorporeal possession. Another reason as
explained by Salmond through an example is: an infant has no physical capacity to exclude
others from depriving him of his possession like a strong and healthy man, nevertheless, if he
holds a coin with him, he would be deemed to have legal possession of it. So, the true test
according to Salmond is not the physical power of exclusion but the improbability or
unlikelihood of interference or obstruction by others.
ELEMENTS OF POSSESSION

Animus possidendi: Means intention to possess a thing. It deals with subjective and mental
intention to possess a thing. It deals with subjective and mental element. It denotes a strong
desire to possess a thing. Here the possessor must have strong intention to possess a thing he
must have an exclusive claim, Animus Possidendi need not be a claim or right and need not
be a own claim and it need not be specified.

Corpus possessionis: Corpus Possession is means physical possession of a thing it deals with
objective element. According to Savigny the actual physical control over a thing is called
corpus possessionis. The physical control gives to an assumption that others will not interfere
with it. Possessor must present personally and physically possess. The possession of a thing
extends to accessories too. Possession includes protection and secrecy of thing.

KINDS OF POSSESSION

Possession in fact: The actual or physical possession of a thing is called Possession in fact.
Also known as de facto possession. It indicates physical control of a person over a thing.
There may be a physical relation with the object and the person. That physical relation or
control need not be continuous.

Possession in law: Possession which is recognized and protected by law is called Possession
in law. It is also known as de jure possession it is a possession in the eye of law.

Corporeal and Incorporeal Possession: Corporeal possession is the possession of material

or tangible objects both movable like books, cattle, watch and immovable like house, land,
etc. And incorporeal possession means possession of immaterial or intangible objects like
copyright, patent, goodwill, reputation, etc. Corporeal possession consists of both the
elements, corpus and, but actual use of the thing is not necessary, for example, a person can
keep his ring locked in a safe and never use it but still he will be said to be in possession of
the ring. On the other hand, for incorporeal possession actual, continuous use is considered is
necessary because physical control or contact, with the things, in possession is not visible as
an objective fact.

Mediate and Immediate Possession: Mediate or indirect possession is the possession of a

thing through another person. For example, A purchases a watch through an agent or servant,
he has mediate possession of it so long as the watch remains with the agent or servant. But if
A goes to the market himself and buys the watch, he is in immediate possession of it.

Salmond has given three categories of mediate possession as follows:

• Possession acquired through an agent or servant;

• Possession held through a borrower or hirer to tenant, where the res, that is, the object
can be demanded at will;
• Possession is held through a person who is bound to return the object after a certain
period or on the fulfillment of certain conditions, like, the pledgee is bound to return
the goods pledged when the debt is paid."

Concurrent or duplicate possession: As mentioned above, exclusiveness is the essence of

possession. It is not possible that two persons have an independent as well as adverse claim to
possession of the same thing at one time. But it is possible that two persons have concurrent
claims to the possession of the same thing at the same time, that is, their claims are not
mutually adverse. And in such cases the possession is called as concurrent or duplicate
possession. The most important example of concurrent possession is what Salmond calls as
mediate and immediate possession, like of landlord and tenant respectively or of bailee and
bailor, etc. The possession of co-owners is another example of concurrent possession and is
called as compossessio in Roman Law.

Constructive Possession: It simply means that though the person is not in actual physical
contact or control over the thing but he has the power as well as the intention to deal with it at
his will. An illustration is of constructive possession is when goods sold by one person to
another are stored in a warehouse and the purchaser doesn’t take the actual physical control
over the goods but only the key of the warehouse is given to him by the seller. Here, the
purchaser is in constructive possession of those goods. Similarly, a tenant may be occupying
a house but the landlord has constructive possession of it. Further, Pollock has explained that
constructive possession is possession in law and not possession in fact. However, Keeton has
not recognized this type of possession at all.
Adverse Possession: It means that a person who doesn’t have legal title to a property, usually
a land, acquires ownership of it based on continuous possession or occupation of the land
without the permission of its legal owner. If the adverse possession continues, undisturbed,
for the prescribed period (which is 12 years in India) then the title of the real owner comes to
an end and the possessor becomes the owner thereof. This effect of the lapse of the prescribed
time on titles is called as ‘prescription’ and has two effects- positive or acquisitive for the
person in whose favor the right of ownership is created, and negative or extinctive for the
person whose right is extinguished. Lastly, the requisites of adverse possession can be
mentioned as:

• Continuity of possession for the prescribed period

• Adequate publicity, that is, the possession must not be held in secrecy but openly,
• Peaceful or undisturbed possession for the prescribed period.

MODES OF ACQUISITION OF POSSESSION

1. By Taking: It is the acquisition of possession without the consent of the previous

owner and it may either be rightful or wrongful. For example, as Keeton says, where
an inn-keeper seizes the goods of his guest, who has failed to pay his bill, there is
acquisition of possession by rightful taking. But where a thief steals something, he
acquires possession wrongful taking. But it is not necessary for acquisition of
possession by taking that the thing must be already in the possession of some other
person. For example, res nullis, that is, a thing belonging to no one, like, a wild
animal or bird, etc. and acquiring possession of a res nullis is also by way of taking.

2. By Delivery: it is the acquisition of possession with the consent of the previous owner
and is of two types, actual and constructive.
Actual delivery is the physical or actual transfer of a thing from the hands of one
person to another. It is of two kinds, one in which the owner still has a mediate
possession like when A lends his book to B, and the other in which the owner does
not retain even the mediate possession like when A sells the book to B.
Further constructive delivery is one in which there is no direct or actual transfer of the
possession of the thing. it is of three kinds:
Traditio Brevi Manu: it is the giving up of possession to someone who already has
the immediate possession of the thing. For example, a person sells a book to the hirer
thereof who is already in immediate possession of the book. So, in other words, it is
only the animus that is transferred as the transferee already has the corpus.
Constitutum Possessorium: as opposed to tradition brevi manu, constitutum
possessorium means that the mediate possession is transferred and the immediate
possession remains with the transferee. For example, if A purchases a bicycle from
 someone who also does the work of giving bicycles on hire. So, A allows him to keep
the bicycle and continue to use it for hiring purpose. Here, although the immediate
possession is still with the other person, A has got its possession through constructive
delivery.
Attornment: in this kind of delivery, there is transfer of mediate possession while
immediate possession is in the hands of a third person. For example, A has goods in
the warehouse of B and they are sold by A to C, then in this case A has constructively
delivered the goods to C as soon as B agrees to hold them for C and no longer for A.
3. Operation of law: Possession can be acquired by the operation of law also like in
case of adverse possession and of succession.

THEORY OF POSSESSION

Savigny Theory of Possession:

Savigny, based on the content of Roman Jurist Paul, said that there are two elements of
possession:

1) Corpus possessions “commonly known as ‘corpus’

2) Animus Domini ”known as ‘animus ‘.

Corpus

By corpus is implied a compelling physical control of the object. Savigny clarifying it says:
the physical intensity of managing the subject promptly and of barring any remote office over
it is the factum which must exist in each obtaining of possession.

This quick physical power isn’t important to proceed with the possession, as was required to
offer ascent to it, and proceeding with possession depends rather on the consistent intensity of
duplicating the first relationship freely. For this reason, we don’t lose possession by
unimportant non-appearance structure of the subject, which we have once appropriated to
ourselves, in spite of the fact that the physical connection in which we currently remain to it,
would not have gotten the job done in the primary case to get possession.

At the end of the day, as per Savigny, the quintessence of possession is to be found in the
physical intensity of prohibition. He sees that the “corpus possessions” might be of two sorts,
proportionately as it identifies with the initiation or maintenance of possession.
The corpus required initiation of possession in the present or real physical intensity of
utilizing the thing oneself and of barring every single other individual from the utilization of
it, while the “corpus” required for the maintenance of possession once procured may
comprise simply in the capacity to duplicate this power voluntarily.

Consequently, for instance, I get possession of a pony when I take him by the harness or ride
upon him or have him in my quick nearness, with the goal that I can anticipate all different
people from meddling with me. However, no such prompt physical connection is important to
hold the possession so required. I can put the horse in the stable or let it eat in the field but
then be in possession of him, in a much as I can take him by the harness when I wish and use
him to the avoidance of others.

Animus

Animus basically means the mental element or the aim to hold the possession as proprietor
against all others. In simple words, it is a cognizant aim to avoid others from the objective
aim of possession. Without the mental element, there can be no possession.

Savigny’s hypothesis discloses with respect as to why the occupant, the borrower, and the
operator had no possession “of the articles, objects so let, loaned or endowed to manage
them” in Roman law.

They had no “animus domini” as they didn’t plan to hold the object in their very own right.
Be that as it may, Savigny’s hypothesis neglects to clarify those cases where Roman law had
given the possessory right “the privilege to get or recuperate possession” to the people who
were not the proprietors of the item or property.

Savigny said that those cases were abnormalities and recommend that they were the cases of
“derivative possession”.

Salmond Theory

Salmond said that there is just a single origination that is possession indeed, which is
possession “in truth and in fact”. In law, the activity of possession depends entirely on the
criteria of sound judgment, and further, since possession of law is related to possession truth
be told, so possession in law, for him, is invented. Be that as it may, the possibility of
possession remains never again attempted to reality, it has rather procured the importance in
the most specialized sense.

Having rejected two distinct originations of possession.

 Possession in reality
 Possession in law

In any case, having in this manner, expected that possession, in reality, is possession in truth,
Salmond at that point continued to draw a partitioning line between possessions of physical
items, which he named “human possession” and the other which he named “spiritual
possession”. For human possession, he said that it is a “proceeding with the exercise of a
guarantee to the select utilization of it “Keeping practising of this case, as indicated by him, is
comprised of two components in particular which are as follows:

 Corpus possession
 Animus possidendi

In this manner, for Salmond, possession is both corpus and ill will. Salmond also thought
contained both the ability to utilize the thing had and the presence of the reason for the
special case that the holders use will not be meddled with. The last mentioned, then again,
comprised of intent to fitting to oneself selective utilization of the thing had. Salmond’s
“hostility possidendi“, which is intended to bar others, is an appropriation of the altered form
of Savigny’s “enmity domini“.

RELATION BETWEEN OWNERSHIP AND POSSESSION

http://www.infipark.com/articles/explain-relation-possession-ownership/
PERSON

According to Salmond, “A person is any being whom the law regards as capable of rights and
bound by legal duties.” There are two kinds of persons, Natural persons, and Legal persons.

Legal persons are juristic, fictitious or artificial persons and a natural person is a human being
with a natural personality and as per law is capable of rights and duties. A legal person has a
real existence but its personality is fictitious, because such a thing does not exist in fact but
which is deemed to exist in the eye of law.

KINDS

 Natural and
 Legal

Legal: Legal persons mean beings and things which are treated as persons by law. Thus 'legal
person' includes those things which are treated in the same way as human beings for the legal
purposes. A legal person says Salmond, is any subject matter other than a human being to
which law attributes personality. It includes an object, a mass of property, an institution, a
group of human beings etc. Law treats them as right and duty bearing units or entities likes a
natural person. It is by a fiction of law that they are treated as persons. The law in creating
legal persons personifies some real thing or object and then confers upon it a fictitious
personality. The former can be called the corpus and the latter the animus of the legal
personality.

Natural Persons: All human beings are not legal persons. In olden days, the slaves were not
considered legal persons. They were treated as chattel of their masters. A person who takes
religious or holy order is, for some purposes, considered to be civilly dead in many societies.

NATURE OF LEGAL PERSONALITY

Legal personality is an artificial creation of law. Entities under the law are capable of being
parties to a legal relationship. A natural person is a human being and legal persons are
artificial persons, such as a corporation. Law creates such corporation and gives certain legal
rights and duties of a human being.

A legal personality is what provides a person or organization rights and responsibilities by the
law. Usually, we automatically assume that Humans have a legal personality. This is so as
such legal systems are built for the use of human beings. These days, the concept of legal
personality is frequently a part of discussions about the rights or legal responsibility of the
entities such as corporations that cannot be defined by a single person.

Guru Granth Sahib: In Gurudwara Prabandhak Committee v. Somnath Das, (2000) 4

SC 146, the Supreme Court stating the historical background and sanctity of Guru Sahib held
it to be a juristic person.

THEORIES OF CORPORATE PERSONALITY

1) Fiction Theory: This theory says that only human beings can properly be called
‘persons'. Some kinds of groups etc., are regarded as persons, for certain purposes
only by a fiction of law and they have no real personality. Main supporters of this
theory are Savigny, Salmond and Dicey. This theory is most applicable to English law
where the courts have not proceeded on any hard and fast principle in their
recognition of juristic persons. There is much flexibility in the theory and it can
accommodate the various decisions (Which are sometimes divergent also) on legal
personality. This theory is very popular because it is not based on any metaphysical
notion or argument. It is argued on the basis of this theory that as a juristic person has
only a fictitious will, it cannot commit crimes.
2) Concession Theory: This theory is allied to the fiction theory. The supporters of both
theories are almost the same jurists. This theory says that corporate bodies have legal
personality only to the extent granted by law. Here law means the State. In other
words, the law is the exclusive source or authority which confers juristic personality.
Though this theory states a truism, by leaving the creation of juristic personality
absolutely at the discretion of state, it leaves room for mischief. This theory has been
used in many cases to suppress autonomous institutions. It differs from the fiction
theory in one important respect. It is that the former identifies law with the state
which the latter does not.
3) Realist Theory: This theory has another name also i.e., organic theory. The main
exponent of this theory is Gierke. Maitland also supports it. This theory says that a
group has a real will, real mind, and a real power of action. A corporation has all the
characteristics which a natural person has. Therefore, juristic person are real in the
same sense in which human beings are. Legal personality is not fictitious, nor does it
depend upon state's recognition. The emphasis, in this theory on corporate life
 contains elements of reality (at least in the modern age), but to attribute real will to
the corporation and to compare it with biological organism leads the theory to
absurdity. Closely linked with ‘realistic theory' is institutional theory. It has been
propounded by a French jurist Hauriou.
This theory is based on collectivist outlook. It says that the individual is integrated
into the institution and becomes a part of it. Different interpretations have been given
to the theory and have been used to serve divergent purpose. Pluralist interpretation is
that there can be independent institutions within the institution of state (they consider
state only as a supreme institution). Fascist interpretation is that the state is the only
institution and other institutions within it are parts of it, and therefore, they must
function according to the direction of the state. By putting interpretation they used the
theory to suppress other institutions.
4) Bracket Theory or Symbolist Theory: This theory says that the members of the
corporation are the only persons who have rights and duties. The granting of juristic
personality means putting a bracket around the members in order to treat them as a
unit. This is done for purposes of convenience. In other words, juristic personality is
only a symbol which helps in effectuating the interest or the purpose of the group. The
theory speaks great truth when it says that the groups are only to effectuate the
interest of its members, but it has certain weaknesses also.
The contention of the theory that only human beings have personality and not the
group is far from the truth. In modern times, it is agreed on all heads and is fully
established that corporation has a legal Personality which is separate and distinct from
its members and it has entirely different rights and duties. It is the separate personality
that enters into contract and other legal transactions with others. How can a person
enter into contract with a bracket? This question hits at the very root of the theory. An
important implication of the theory is that law can remove the bracket at any time and
can look behind the entity to discover the real state of affairs.
5) The Ownership Theory: This ownership theory has some importance when it is used
which pertains to estates and funds which are corporations sole. Moreover human
being can only be subjected to rights and certain obligations. Hence if such
personality cannot be subjected to such rights and duties then they should be termed
as subject less property. So the essence of this theory is that certain objectives and
interests of human being are protected by the law and property belongs to juristic
person does not belong to anyone but it does owned for a specific objective and
 purpose. Furthermore these juristic persons are there to give effect to some real
objectives.

CIVIL AND CRIMINAL JUSTICE SYSTEM

Criminal Justice System: In the criminal justice system, the crime victim reports a crime to
law enforcement who may investigate. If an arrest is made following an investigation, and
there is sufficient evidence to go forward, a prosecutor files charges against defendant and
pursues prosecution. The act that caused the harm is known as a “crime” in the criminal
justice system. Today the criminal justice system perceives crime to be committed against the
state. This perception explains a lot about why the system works as it does. In the criminal
case, the prosecutor is the attorney for all of the people of the state/jurisdiction, and does not
act on behalf of the individual victim. The prosecutor controls all key decisions of the case,
including whether to charge a defendant with a crime and what crime to charge, and whether
to offer or accept a plea deal or go to trial. The penalties imposed if the defendant is found
guilty can include incarceration/imprisonment, fines and forfeitures, probation, community
services, and sometimes restitution to the individual victim. The burden of proof in criminal
matters is “beyond a reasonable doubt,” which is much more difficult to achieve than the
“preponderance of evidence” standard used in most civil cases.

Civil Justice System: Regardless of whether a criminal prosecution was undertaken, or

whether defendant was found not guilty, crime victims may still be able to seek justice by
filing a civil lawsuit against the person or persons the victim believes caused the victim harm.
The civil justice system does not determine an offender’s guilt or innocence, but works to
determine whether the offender is liable for the harm caused to the victim. In pursuing the
civil lawsuit, the victim, who usually hires a private attorney, controls all of the key decisions
of the case, including whether to accept a settlement offer or go to trial. The act that caused
the harm is known as a “tort” in the civil justice system. In the civil case, the victim is
seeking to be compensated (usually with money) for the damages that he or she suffered as a
result of defendant’s tort. The amount of evidence needed to win in most civil cases (or what
is known as the burden of proof) is a “preponderance of evidence.” This burden of proof
essentially means that one side’s evidence must be more persuasive than the other; this is far
lower than the burden necessary in a criminal case. Statutes, known as “statutes of
limitation,” set time limits on how long you have to file a civil suit following the harm you
suffer. These time limits vary from state to state. If a lawsuit is filed after expiration of the
statute of limitations it will be dismissed as time-barred.

THEORIES OF PUNISHMENT

Retributive Theory of punishment: The Retributive Theory of Punishment, or the ‘Theory

of Vengeance’, as many people in the society would perceive it as, is the most basic, yet
inconsiderate theory of inflicting a penal sentence over a perpetrator. It is based on a very
small doctrine, namely the doctrine of Lex talionis, which if translated, means ‘an eye for an
eye’. Now, if looked at from the perspective of very serious and heinous offences, like the
Delhi gang rape case, people may feel that it is better to inflict such retributive punishments,
so as to ensure that a deterrent is set across the society, in order to prevent such crimes in the
near future.

‘The concept of retributive justice has been used in a variety of ways, but it is best understood
as that form of justice committed to the following three principles:

1) that those who commit certain kinds of wrongful acts, paradigmatically serious
crimes, morally deserve to suffer a proportionate punishment;
2) that it is intrinsically morally good—good without reference to any other goods that
might arise—if some legitimate punisher gives them the punishment they deserve;
and
3) that it is morally impermissible intentionally to punish the innocent or to inflict
disproportionately large punishments on wrongdoers.’

The above three principles clarify the needs for retributive justice even further. We may
understand retributive justice in this manner. The place where both Criminal Law as well as
Moral Law meet, is the place where mostly the retributive punishments are generated.

Deterrent Theory of punishment: In Deterrent theory of punishment, the term “DETER”

means to abstain from doing any wrongful act. The main aim of this theory is to “deter” (to
prevent) the criminals from attempting any crime or repeating the same crime in future. So, it
states that deterring crime by creating a fear is the objective; to set or establish an example
for the individuals or the whole society by punishing the criminal. That simply means,
according to this theory if someone commits any crime and he/she is punished by a severe
punishment, then, it may result maybe that the people of the society will be or may be aware
of the severe punishments for certain kinds of crimes and because of this fear in the minds of
the people of the society, the people may stop from committing any kind of crime or
wrongful act. Here I used the phrase “may stop” instead of “will stop”. That means, there is a
probability of committing any crime or repeating the same crime.

From the deterrent theories of Thomas Hobbes, Cesare Beccaria and J. Bentham, we came to
know that the theory of deterrence consists of 3 major components. They are as follows:

 Severity: It indicates the degree of punishment. To prevent crime, criminal law must
emphasize penalties to encourage citizen to obey the law. Excessively severe
punishments are unjust. If the punishment is too severe it may stop individuals from
committing any crime. And if the punishment is not severe enough, it will not deter
criminals from committing a crime.
 Certainty: It means making sure that punishments must happen whenever a criminal
act is committed. Philosopher Beccaria believed that if individuals know that their
undesirable acts will be punished, then they will refrain from offending in the future.
 Celerity: The punishment for any crime must be swift in order to deter crime. The
faster the punishment is awarded and imposed, it has more effect to deter crime.

Preventive Theory of punishment: Preventive theory of punishment seeks to prevent

prospective crimes by disabling the criminals. Main object of the preventive theory is
transforming the criminal, either permanently or temporarily. Under this theory the criminals
are punished by death sentence or life imprisonment etc.

Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive theory of
punishment due to its humanizing nature. Philosophy of preventive theory affirms that the
preventive theory serves as an effective deterrent and also a successful preventive theory
depends on the factors of promptness. The profounder of this theory held that the aim of
punishment is to prevent the crimes. The crimes can be prevented when the criminal and his
notorious activities are checked. The check is possible by disablement. The disablement may
be of different types. Confining inside the prison is a limited form of disablement, that is
temporary and when it is an unlimited form of disablement, that is permanent. It suggests that
imprisonment is the best mode of crime prevention, as it seeks to eliminate offenders from
society, thus disabling them from repeating the crime. The death penalty is also based on this
theory. This theory is another form of deterrent theory. One is to deter the society while
another is to prevent the offender from committing the crime. From an overall study, we
came to know that there are three most important ways of preventive punishment, they are as
follows:

 By creating the fear of punishment.

 By disabling the criminal permanently or temporarily from committing any other
crime.
 By way of reformation or making them a sober citizen of the society.

Incapacitation Theory of punishment: The word “incapacitation” means ‘to prevent the
offence by punishing, so that the future generation fears to commit the criminal act.’
Incapacitation happens either by removing the person from the society, either temporarily, or
permanently, or by some other method, which restricts him due to physical inability. One of
the most common way of incapacitation is incarceration of the offenders, but in case of
severe cases, capital punishments are also applied. The overall aim of incapacitation is
preventing or restraining the danger in the future.

One of the primary purposes of this theory is removing the sufficiently dangerous persons
from the society. The risk that is found to be posed by the offenders are largely a matter of
inception. Therefore, if one country treats one offence in one way, another country will treat
the same offence in a different way. For example, in the U.S., they use incarceration to
incapacitate offenders at a much higher rate, than in other countries. It has been seen that
unlike the other theories of punishments like deterrence, rehabilitation and restitution, the
theory of incapacitation simply rearranges the distribution of offenders in the society so that
the rate of crime decreases in the society. The main aim of the theory of incapacitation is to
dissuade others from the offenders in the past, so that it is not followed by the future
generation.

Expiatory or Compensatory Theory of punishment: The main look out in the law of
crimes is to penalize the criminal, and/or to seek his reformation and rehabilitation with all
the resources and goodwill available through the Courts and other Governmental and non-
Governmental organizations. It must be seen that the criminals should get proper judgement
for their crimes so caused and the harassment caused to the victim and towards their family
members and property. The victims in a crime can be compensated on mainly two grounds,
namely-
  A criminal who had inflicted an injury against the person (or group of persons), or the
property must be compensated for the loss caused that has caused to the victim, and
 The State that has failed to provide safety towards its citizens, must receive
compensation for the loss caused.

Compensation is the true essence of deterrent, reformative and a necessary contribution of

retribution.

Reformative Theory of punishment: This theory believes that Punishment should exist to
reform the criminal. Even if an offender commits a crime, he does not cease to be a human
being. He might have committed the crime under circumstances which might never occur
again.

The object of the punishment should be reform the offender. The criminal must be educated
and taught some art or craft or industry during his term of imprisonment, so that they may be
able to lead a good life and become a responsible and respectable citizen after release from
jail.

Utilitarian Theory of punishment: Under the utilitarian philosophy, laws ought to be

utilized to amplify the joy of society. Since wrongdoing and discipline are conflicting with
bliss, they ought to be kept to a base. Utilitarian’s comprehend that a wrongdoing-free society
doesn’t exist, yet they attempt to incur just as much discipline as is needed to forestall future
violations.