Hamiduddin - CH 11-16

CHAPTER XI
THE KINDS OF LEGAL RIGHT

79. Perfect and Imperfect Rights
Rights as well as duties are of two kinds, distinguishable as
perfect and Imperfect.
A perfect right is one which corresponds to a perfect duty, and
is not only recognised by law but also enforced by it. Enforceability
is the general test of such a right. A legal proceeding will lie for the
breach of such a right. The Courts of law not only recognise perfect
right but also enforce it, if necessary, with the help of the physical
force of the State. The right of a creditor to recover his dues from the
debtor within time is a perfect right.
On the other hand, an imperfect right is one which, though
recognised by the law, is not enforced by it, and as such falls short
of a perfect right. No legal proceeding will lie with regard to such a
right. Examples of such legal rights are time-barred debt or claims
barred by lapse of time, claims unenforceable by legal action on
account of the absence of some strict legal requirement, such as the
non-registration of a document where registration is compulsory
and so on. In a time-barred debt the creditor cannot recover his
dues not because his right has been destroyed but because the law
of limitation bars the remedy. The relationship of the creditor and
the debtor still subsists and if the debtor pays the creditor after the
lapse of time, no action will lie for the recovery of such payment
from the debtor. These are rights which receive recognition by the
Courts but they are imperfect because no action will lie for the
enforcement of such rights. Thus, the Statute of Limitation (i. e. the
Limitation Act) does not provide that after a certain time the debt
shall become extinct, but merely states that no action can be
brought for its recovery after the period of limitation as prescribed
by the Act.
The imperfect rights are exception to the maxim "ubijus ibi
rernedium" which means—where there is a right there is a remedy
i. e. there is no right without any remedy.
The law will recognise imperfect rights for the following
purposes which are of greatest importance and of must general
application
(1) An imperfect right may be good as a ground of defence,
though not as a ground of action. I cannot sue on an
informal contract, i.e. oil unregistered instrument
required by law to be registered, but if money is paid to
154 Jurisprudence & Comparative Legal Theory
nw or property delivered to me in pursuance of it. I can
successfully defend any claim for its recovery.
(2) An imperfect right is sufficient to support any security that
has been given for it. A mortgage or pledge remains
valid, although the debt secured by it has ceased to be
recoverable b y action. But if the debt is discharged, instead
of becoming merely imperfect, the security will disappear
along with it.
(3) An imperfect right may possess the capacity of becoming
perfect. The right of action may not be non-existent but
may be merely dormant. An informal verbal contract may
become enforceable by action, by reason of the fact that
written evidence of it has since come into existence. In like
manner, part payment or acknowledgment will raise, once
more to the level of a perfect right, a debt that has been
barred by the lapse of time. Thus, a promise to pay a time-
barred debt will be enforced by the Courts.
80. The legal nature of Rights against the State
Just as private individuals may have claims against each other,
a subject may also have claims against the State itself. Salmond says
that such rights against the State must necessarily be imperfect,
because the State cannot exercise force against itself. The absence of
the element of enforcement in the case of rights against the State has
led many writers to deny that they are legal rights at all. Austin
and Markby hold that a sovereign cannot be bound by a legal
duty. The State cannot be said to issue commands against itself. But
Samond considers that it is not correct to give such a narrow
definition to the term "legal right' as strictly those claims that are
legally enforced only, but also to include within the term all those
claims which are legally recognised by the State in the
administration of justice. All rights against the State are not legal,
any more than that all rights against private persons are not legal,
but some of them are, namely, those which can be sued for in the
Courts of justice. A contract with State is as much a source of legal
rights and obligations as is a contract between two private persons.
It is not to the point to say that rights against the State are held at
the States good pleasure, and are, therefore, not legal rights at all,
for, all other legal rights are in the same position. They are legal
rights not because the State is bound to recognise them, but because
it does so.
The Kinds of Legal Right 155
81. Positive and Negative Rights
In respect of their contents, rights are of two kinds, being either
positive or negative.
A positive right corresponds to a positive duty. It is a right that
he, on whom the duty lies, shall do some positive act on behalf of
the person entitled. It is an advantage conferred by the law on the
owner of the right by virtue of which he can compel others to do
something in his favour e. g. the right to recover debt from a debtor
is a positive right vested in the creditor.
A negative right, on the other hand, corresponds to a negative
duty, and is a right that the person bound shall refrain from doing
some act which would operate to the prejudice of the person
entitled. It is an advantage conferred by the law on the owner of the
right by virtue of which he can compel others not to do less some
act towards him e. g. every man has a right not to be killed or
injured in any way whatsoever. This is his negative right.
82. Rights in rem and Rights in personam (Jus in rem
and Jus in personam) or Real and personal rights
A right is rem, sometimes called a real right, corresponds to a
duty imposed upon the 'people in general. A right in personam,
sometimes called a personal right, corresponds to a duty imposed
upon a particular or determinate individual. The term jus in rem
and jus in personam are derived from the Roman terms actio in rem
and actio in personam. An actio in rem was an action for the
recovery of dominium in which the plaintiff claimed that certain
thing belonged to him and ought to be restored to him. An actio in
personam was one for enforcement of an obligation in which the
plaintiff claimed the payment of money, the performance of a
contract or the protection of some other personal rights vested in
him as against the defendant. Naturally enough, the right protected
by an actio in rem came to be called jus in rem and a right
protected by an actio in personam, jus in personam. The typical
modern example of a right in rem is that of the owner of land
against persons generally that they shall not interfere with his right
of ownership. A typical example of a right in personam, is that
arising between the parties to a contract. A right is rem, since it
relates to a greater number of persons, is somewhat arrogantly
defined as a right availing against the whole world at large,
although the usual definition is now more limited which describes it
as availing against persons generally. On the other hand, a right in
personam binds only a particular person or persons.
The distinctions between the two is one of great importance and
prominence in the law and the following illustrations may be taken
of it. My right to the peaceful possession of my farm or use of
money in my purse, is a real right or right in rem, for all the World
at large is under a duty towards me not to interfere with it, but my
right to receive money from one who owes it to me is personal,
because my right is available only against that particular person
who owes the money to me. Similarly, if I grant a lease of the farm
to a tenant, my right to receive the rent from him is a right in
personam, for It avails exclusively against the tenant himself. I have
a real right (right in rem) against every one not to be deprived of
my liberty or reputation. I have a personal right to receive
compensation from any individual person who has injured or
defamed me. In this respect, the right in rem and in personam may
be distinguished as primary right and secondary right respectively.
When I say that I have a real right to liberty and reputation it
necessarily means that no one should try to imprison me or defame
me except at his own peril. That is why, it is said that all real rights
(i. e. right in rem) are negative. Generally a personal right is
positive e. g. my right to receive money from my debtor. But
although all real rights are negative, that is not equally true that all
personal rights are positive. For example, many acts though
harmful are not considered by law to be wrongful and do not give
right of action to the sufferer e. g. trade competition. Thus, I have
the fullest liberty to compete with my fellow trader although it may
mean ruin to him. But in selling to him the goodwill of my
business, I may lawfully deprive myself of this liberty by an
express agreement to that effect. He thereby acquires against me a
right of exemption from competition and this 'right is personal as
well as negative'. Although right in rem and in personam are
sometimes called real and personal rights, the former expression
right in rem and in persortam, is more appropriate, because the
term 'personal rights' can also be used with another meaning,
namely, as being opposed to a proprietary right.
The distinctions between rights in rem and in personam applies
not only to right in the strict sense but also to liberties, powers and
immunities. Thus, freedom of speech is, within its limits, a liberty
in rem, while a licence to walk over the land of a particular
landowner is a liberty in personalii. The power to make a
contractual offer is a power in rem, while the power to accept an
offer made, and thus to create a contract, is a power in personam
availing against the person who has made the offer.
83. Proprietary and Personal Rights
'Property' is an extraordinarily ambiguous term and the
adjective 'proprietary' conveys the sante confusion. Salmond,
however, makes the following distinction between proprietary and
personal right. The aggregate of a mans proprietary rights
constitute his estate, his assets and his property in one of the many
senses of that most equivocal of legal terms. On the other hand, the
sum total of man's personal rights constitutes his status or personal
condition as opposed to his estate. If a person owns land, or chattel
or patent rights, or the goodwill of a business, or shares of a
company or if debts are owing to him, all these rights form part of
his estate. But if he is a free man and a citizen, a husband and a
father, the rights which he has as such pertain to his status or
standing in the law and constitute personal rights. The term status,
however, is unfortunately used in a considerable variety of different
senses of which the following may be distinguished
(a) Legal condition of any kind whether personal or
proprietary—This is the most comprehensive of general
use of the term. A man's status in this sense includes his
whole position in the law—the sum total of his legal rights,
duties, liabilities or other legal :elations, whether
proprietary or personal. Thus, we may speak of the status
of a land-owner, of a trustee, of an executor, of a solicitor
and so on. Hence the other specific meaning of the term—
(b) Personal legal condition, that is to say, a mans legal
condition, only so far his personal rights and burdens are
concerned to the exclusion of the proprietary relations. It is
in this sense that the term has hitherto been usd. Paton,
therefore; defines personal rights as only the i esiduary
rights which remain after proprietary rights have been
subtracted.
Thus, we speak of the status of a free man, of a citizen, of a
husband, of a father, and that of an alien, lunatic, infant and so on,
but not of a land-owner or a trustee.
(c) Personal capacities and incapacitites, as opposed to the
other elements—The status in this sense would include the
rules as to the contractual capacities or incapacities of a
married woman, but not to the personal rights or duties
between she and her husband.
(d) compulsory as opposed to conventional personal
condition—Here status means personal condition imposed
upon man by law without his consent as opposed to the
158 Jurisprudence & Comparative Legal Iheoiv
condition acquired for himself by agreement. The position
of a slave is a matter of status Eut that of a free servant is a
matter of contract. Marriage creates a status, for although it
is entered into by way of cons ant, it cannot be dissolved in
that way.
Salmorid concludes that the essential nature of the distinction
between the right in rem and in personam lies in the fact that
proprietary rights are valuable and personal rights are not. The
former are those which are worth in money, the latter are those that
are worth none. The former are the elements of a mans wealth; the
latter are merely elements in his well-being. On this point, Paton
observes that value is a difficult term to define unless we adopt the
test of exchange value, and we have seen that not all proprietary
rights can be exchanged, and that value cannot be precisely
applied. A mans right to his reputation may be very valuable, the
loss of reputation may mean loss of livelihood and the right to
physical integrity is a personal one. Yet health is a valuable asset in
the sense that economic welfare may depend on it.
84. Rights in re-propria and rights In re-ailena
A right in re-propria is a general right which a person has got
over the subject-matter of the right and which the possessor can
exercise without any interference by another. This general right
constitutes the ownership. The fullest conception of the right in re-
propria consists of the following four rights:
(1) Right to use a thing.
(2) Right to exclude others from using It.
(3) Right to dispose of it.
(4) Right to destroy the thing.
According to Austin, 'ahs.;i'ue ownership is a right over a
determinate thing, indefinite in point of user, unrestricted in point
of disposition and unlimited in point of duration".
On the other hand, right in re-aliena (which ma y also be
conveniently termed as encumbrances using that term in its widest
possible sense) is one which limits or deregates from some more
general right belonging to some other person in respect of the same
subject-matter i.e. it is a right which a person possesses with respect
to the property owned by another. It frequently happens that the
right in re-propria or the right of ownership vested in one person
becomes subject or subordinate to an adverse right vested in
another. This adverse right is called the right in re-aliena or the
encumbrance. It is a right which is detached from the general right
belonging to a person and which is vested in another person as
independent right, e. g. the right of an owner of a piece of land to
use a way over the land of his neighbour. The right of the owner
over his land is his general right which may be limited by his
neighbours right of way over the land. Such rights in re-aliena are
caPed easements or servitudes.
A right in re-aliena may be positive, such as a right of way
over the neighbour's field, or negative such as prohibiting his
neighbour from building in such a manner as to obstruct light and
air to his house.
A right in re-aliena has the following characteristics:
(1) A right subject to an encumbrance is called a servient
right, while the right with respect to which the
encumbrance exists, i. e. the encumbrance itself, is called
the dominant right.
(2) One encumbrance may be subject to another encumbrance
e. g. a lease may create a sub-lease.
(3) Alienation or change of ownership does not affect an
encumbrance.
(4) Personal rights may be encumbrances of other right e. g.
there may be lien over a chattel belonging to the owner.
(5) Real rights may be encumbrances of other rights e. g. a
lease or a mortgage or an easement over property.
(6) Personal as well as real rights may themselves be
encumbered.
Kinds of Encumbrances
The chief classes of encumbrances are four in number, namely,
Leases, Servitudes, Securities and Trusts. They have been
considered at length in a later chapter. In the meantime, the nature
of these encumbrances have been indicated in brief.
Lease—.A lease is the encumbrance of property vested in one
man by a right to the possession and use of it vested in another.
Servitude—It is a right to the limited use of a piece of land
unaccompanied either by the ownership or by the possession of it,
for example, a right of way, a right to the passage of light or water
across the adjoining land.
Securitv--lt is an encumbrance vested in a creditor over ftc:
property of his debtor, for the purpose of securing the recovery f
the debt or a right, for example, to retain possession of a thattcl
until the debt is paid.
Trust—It is an encumbrance in which the ownership of property
is limited by an equitable obligation to deal with it for the benefit of
someone else. The owner of the encumbered property is the trustee,
the owner of the encumbrance is the beneficiary.
85. Principal and Accessory Rights
The relation between principal and accessory right is the
reverse of that existing between servient and dominant rights. The
distinction between the two kinds of rights may be explained by an
example.
The owner of a farm Whiteacre has a right of way over the
neighbouring farm—Blackacre. Here Whiteacre is the dominant
tenement and the Blackacre is the servant tenement, and the right
of way of the owner of the dominant tenement over the servient
tenement is called the dominant right, while the limited right of the
owner of the servient tenement over his farm 'Blackacre', which is
subject to the rigM of way vested in another, is called servient right.
Now, the owner of Whiteacre has not only the absolute right to
enjoy the fruits of Whiteacre, but also the additional right with
respect to Blackacre, i. e. the right of way over it. This additional
accrued right with respect to Blackacre is called the accessory right,
and his absolute right over Whiteacre for whose benefit the
additional right has accrued is called the principal right.
Every right may be affected adversely or beneficially by the
existence of other rights. The influence is adverse when one right is
limited by another right vested in a different owner (i. e. the
limited r ight of the owner of servient tenement). This gives rise to
encumbrance. This influence is beneficial when one right has added
to it a supplementary right (say, the right of way) vested in the
same owner with respect to the land of a different owner. In this
case, the absolute right of the owner of a land so augmented by an
additional right is called the principle right, while the additional
right appertained to it is called the accessory right. Thus, a
servitude is accessory to the ownership of the land for whose benefit
it exists.
86. Legal and Equitable Rights
The difference between legal and equitable right is the outcome
of the distinction between Law and Equity. The existence of the
double system of law in England adirtinistered by different
Tribunals has led to the existence of a double system of rights, legal
rights recognised by the Common Law Courts, and equitable right
or equities recognised by the Court of Chancery. This distinction
The Kinds of Legal sight 161
between the two rights still exists in spite of the fusion of law and
equity by the Judicature Act of 1837. The distinction is still of
practical importance which is as follows
(1) The method of their creation and disposition are different.
A legal mortgage of land must be created by deed but an
equitable mortgage may be created either by a written
agreement or by deposit of mere title deeds.
(2) Equitable rights have a more precarious existence than
legal rights. Where two inconsistent legal rights are in
competition i. e. the same is adversely claimed by two
different persons, the first one in time prevails. The same
is the case when two inconsistent equitable right are in
competition. But in the case of conflict between a legal and
an equitable right, the legal right will prevail over the
equitable one even though the equitable right had been
created first, provided the owner of the legal right had
acquired it for value and without notice of the equitable
right. For example, as between a prior equitable mortgage
and subsequent legal mortgage the preference will be
given to the latter. This is based on maxim "Where there
are equal equities, the law will prevail".
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CHAPTER XII
OWNERSHIP
87. D efinition of Ownership
Ownership is a general right over a particular thing. It has
been defined by Austin as "a right over a determinate thing,
indefinite in point of user, unrestricted in point of duration".
Prof. Salmond defines ownership in its most general and
comprehensive sense as a relation between a person and any right
that is vested in him. That which a man owns in this sense is in all
cases a right, that is, the subject-matter of ownership in this sense
extends to all classes of rights, whether proprietary or personal,
right in rem or in personam, in re-propria or in re-aliena, and it
applies not only to right in the strict sense, but also to liberties,
power and immunities. Thus, I own a debt, a mortgage, a right of
way over neighbours land, a patent, a copyright, a power of
appointment, as well as a house, in other words, ownership consists
of a bundle of rights. The sum total of all rights vested in a person
includes all those things, which are owned by any particular
individual—whether animate or inanimate. That which a man owns
is in all cases a right, and every right is owned. Thus, to own a
piece of land means in truth to own a particular kind of right,
namely, the right to exclusive use and enjoyment of that land.
In this generic sense, ownership is opposed to two other
possible relations between a person and a right i. e. possession and
encumbrance.
Possession
(1) A man may possess a right without owning it as where a
wrongful occupant of a land makes use of a right of way or
other easement appurtenant to it.
(2) A man may own a right without possessing it as where a
man has let out his house on rent to appurtenant.
(3) Finally, ownership and possession may be united in one
and the same person, as where the owner is himself in
possession of his house, the de jure and de facto relations
being co-existent and coincident.
In the second place, the ownership of a right is opposed to the
eiicutnbrance of it. The ownership of a right may be limited or
subject to an advrse righ t vested in different owner, which is
called encumbrance. A may be the owner of a property, B the
lessee of it, C the sub-lessee, D the first mortgagee of it, and E the
Ownership 163
second mortgagee, and so on. Although encumbrance is opposed to
ownership, every encumbrance is nevertheless himself the owner of
the encumbrance. In the above cases, B is the owner of the lease, C
is the owner of the sub-lease and D is the owner of the mortgage
and so on.
88. Corporeal and Incorporeal Ownership
The distinction between corporeal and incorporeal ownership is
the outcome of the distinction between corporeal and incorporeal
things. The term thing—Res--however, is used in three distinct
senses by legal writers:
(1) In its first and simplest application, it means merely a
material object, regarded as the subject-matter of a right, e.
g. land, house, book, coins, etc. which may be perceived
by the senses.
(2) In the second and wider sense, the term thing includes
every subject-matter of a right, whether material or not. In
this sense, things are either material or immaterial, e. g.
land and chattels as well as man's life, reputation, health
and liberty.
(3) In the third application, the term thing means whatever a
man owns as a part of his estate or property i. e an
easement right. Things, therefore, as objects of ownership
are of two kinds—Corporeal and Incorporeal.
A corporeal thing is a material thing and a subject-matter of
corporeal ownership and an incorporeal thing is the subject-matter
of incorporeal ownership, or rather it is any proprietary right except
the right of full dominion over a material object which is regarded
as corporeal ownership.
Therefore, corporeal ownership means ownership over things
which can be perceived by the external organs of senses, e. g. the
owner of a house owns a corporeal thing. Incorporeal things are
those that cannot be perceived by the sense, e. g. a debt, a patent
and so on, e. g. the owner of a patent owns an incorporeal thing.
But this distinction between corporeal and incorporeal ownership is
only the mode of expressing ownership, because in all cases,
ownership is a right and not an objed. We usually speak of
acquiring and transferring land, but strictly speaking, it is an
acquisition and transfer of the rights in land. We nevertheless speak
of ownership of a material object as corporeal ownership and that of
an immaterial or incorporeal thing as incorporeal ownership in a
narrow sense.
But the use of the word corporeal ownership in its corporeal
sense is not always possible. I may own material coins i.e. money in
my pocket, but as to the money which is due to me, I own not the
money but the right to it. In such a case, it is difficult to draw any
accurate line of demarcation between corporeal and incorporeal
ownership. So, in order not to create confusion, Salmond says that
the ownership of a material thing means the jus in re-propria in
respect of that thing. On the other hand, a right in respect of others
land i. e. a right of way, is called jus in re-aliena, which is always
incorpreal even though the object of the right is a corporeal thing.
In its full and normal compass, corporeal ownership is the
absolute right in its entirety of the lawful uses of a corporeal thing
which may, however, be limited or eaten up by the dominant right
vested in the encumbrances who are owner of their respective
encumbrances, such as, leases, mortgages, servitude, etc, which
form an example of duplicate ownership. We find such duplicate
ownership, in co-ownership and in trust and beneficial ownership.
89. Sole Ownership and Co-ownership
Sole Ownership—Sole ownership means ownership of one
person only. When a right is owned by one person only at a time, it
is called sole ownership.
C'o-ownership----li may often happen that z right is vested in
more than one person at one and the same time. This is called co-
ownership. For example, partners of a1Tthe properties which
constitute the partnership assets. The right owned by co-owners is
not divided between them, each owning a separate part. The right
is undivided unity, which is vested at the same time in more than
one person. If two partners have at their bank a credit balance of
Taka 100, there is one debt of Taka 100 owing by the bank to them
at once and not two separate debts of Taka 50 due to each of them
individually. Each partner is entitled to the whole sum, just as each
would owe to the bank the whole of ti-e banks overdraft. As soon
as each of the two co-owners begins to .wn a part instead of the
whole, the co-ownership is dissolved into sole ownership by the
process known as partition. So. co-ownership arises when the same
right is owned by two or more persons at the same time. Each is the
owner of the whole of the right and not of part of it as partners,.
Thus, the right owned by co-owners is an undivided unity.
Co-ownership assumes two different forms distinguished as—
(a) ownership in common and (b) joint ownership. The most
important difference between the two relates to the effect of death of
one of the co-owners.
Ownership 165
Ownership in common—In this case the right of a deceased cc-
owner passes to his heirs or administrators and not to the surviving
CO-owners.
Joint ownership—The most important incident of joint
ownership is survivorship. If a joint owner dies, his interest passes
to the surviving owners and not to his heirs or legal
representatives.
90. Trust and beneficial ownership
Trust property is that which is owned by two persons at the
same time. It is created when a property is held' oñè person not
for his own benefit but for the benefit of someone else. The owner of
the property is under an obligation and is bound to hold it or use
his ownership for the benefit of the other.The former in whom the
property is vested is called the trustee and his ownership is called
the trust ownership, the latter for whose benefit the trust is created
is called the beneficiary and his ownership is called the beneficial
ownership.iAlthough, in law, the trustee is the legal owner, but he
has no right to make use of his ownership for his own benefit and
his right is nominal rather than real. Thus, a trust is a curious
instance of duplicate ownership, the trustee being the legal or
nominal while the beneficiary being the beneficial owner of the
property.
As between the trustee and the beneficiary the property
belongs to the latter, but as between the trustee and the third
persons, the fiction prevails and the trustee is regarded as the
owner.
Trust ownership and beneficial ownership are independent of
each other. Either of them may be transferred, while the other
remains unaffected Similarly, either kind of ownership may be
independently encumbered.
The purpose of trusteeship is that it is created in order to protect
the rights of those persons who are incapable of protecting their
interests themselves. Such persons are:
(1) Infants, lunatics and disqualified proprietors.
(2) Unborn persons.
(3) Large number of persons commonly interested in a matter.
(4) Persons having conflicting interests in the same property.
91. Legal and equitable ownership
Legal ownership is that which has its origin in the rules of
common law, while equitable ownership is that which proceeds
from the rules of equity, divergent from the common law. The
distinction between legal and equitable ownership is still
maintained in spite of the fusion of Common Law and Equity by
the Judicature Act of 1873. The distinction between legal and
equitable ownership is not identical with that as existing between
legal and equitable rights mentioned in a previous chapter. The
equitable ownership of a legal right is different from legal
ownership of an equitable right. For example, when a debt is orally
assigned by A to B. A remains the legal owner of it nonetheless,
but B becomes the equitable owner of it. But there is only one debt
s before, though it has now two owners. So a mortgage is a legal
right and the mortgagee owns it legally, but at the same time the
mortgagor owns it equitably, because Equity has made the
mortgagor the owner of the equity of recmption. Hence, the
ownership of the equity of redemption in a legal mortgage is the
equitable ownership of a legal right. Similarly, the ownership of an
equitable mortgage is a different thing from the equitable
ownership of a legal mortgage, because in the former there is only
one owner (i. e. the mortgagor) whereas in the latter there are two
distinct owners, one being the legal and the other equitable owner.
Further, the distinction between legal and equitable ownership
is not equivalent to that between trust and beneficial ownership. It
is true that in a trust and beneficial ownership, all the elements of a
legal and beneficial ownership are present. A trustee is generally
the legal owner and a beneficiary the equitable owner. But this is
not always true. A trustee may be an equitable owner. An
equitable owner (i. e. the beneficiary) might himself be trustee for
another person. Thus, when the equity of redemption in a legal
mortgage is settled upon trust, neither the trustee nor the
beneficiary possesses anything more than equitable ownership. The
legal ownership remains outstanding with the mortgagee.
92. Vested and Contingent ownership
Vested ownership—Ownership is said to have been vested
when the title of the owner with respect to any particular right is
perfect and complete and nothing more is required to be done to
complete the owner's title. The right is absolutely owned by the
owner who has an inimediatc right of present enjoyment or a
present, certain right of future enjoyment. For example, a property
is transferred to A for life and after his death to B. Here B has a
vested ownership in the property during the lifetime of A although
Ownership 167
the enjoyment is postponed till his death i. e. B has present certain
right of future enjoyment on the death of A, and if B dies during
the lifetime of A, the heirs of B will get the property. In technical
language B's interest is vested interest, though not vested in
possession; it becomes vested in possession only on the death of A
Contingent own ership—Ownership is contingent when the
owner's title to any right is yet imperfect and incomplete but is
capable of becoming perfect on the fulfillment of some condition, i.
e. some further event is necessary to complete or make it perfect.
Ownership is contingent when by virtue of a right, which is owned
and vested, a further right will be owned and vested on the
happening of some future event which may or may not occur. For
example, a property is transferred to A for life and after his death to
B if he is then alive, but if B is then dead to C. Here both B and C
have both contingent ownership in the property. Ownership of B is
conditional to his surviving A, while that of C is conditional to the
death of B during the lifetime of A and also to his surviving A.
Similarly, if property is left to A for life, remainder to B if he
attains the age of twenty-one at the time of A's death, B has two
conditions to fulfill before the right is vested in him. Because, here
B should not only have been alive at the time of A's death but also
should have attained the age of twenty one. This is what is called
the rule of 'double possibility'.
It is to be noticed that the contingent ownership of a right is
something more than a simple chance or possibility of becoming the
owner of it. It is more than a mere spes acquisitions. I have no
contingent ownership of a piece of land merely because I may buy
it if I so wish or its owner may leave it to me by his will.
Contingent ownership is based not upon the mere possibility of
future acquisition but upon the present existence of an inchoate or
incomplete title.
The conditions on which contingent ownership depends are
termed conditions precedent to distinguish them from another kind
known as conditions subsequent. A condition precedent is one by
the fulfillment of which an inchoate title is completed. In this case, I
acquire absolutely what I have already acquired conditionally. But
ownership subject to a condition subsequent is not contingent but
vested. Contingent ownership is that which is not yet vested but
may become so in the future; while ownership subject to a condition
subsequent is already vested, but may be divested or destroyed in
the future for non-fulfillment of the said conditions.
The distinction between the two kinds of ownership is shortly
this
(1) A vested ownership does not depend upon the fulfillment
of any condition; it creates an immediate right (i. e. the
vested interest) though the enjoyment (i. e. the vested in
possession) may be postponed to a future date. But a
contingent ownership is solely dependent upon the
fulfillment of the incumbent condition so that in case of non-
fulfillment of the condition the ownership may fall through.
(2) A vested ownership is transferable as well as heritable. But
a contingent ownership is inalienable and non-transferable.
(3) A vested ownership is not defeated by the death of the
owner before he obtains possession. If the vested owner dies
before actual enjoyment, the ownership with pass on to his
heirs. But a contingent ownership fails if the owner dies
before the happening of the specified event. A contingent
ownership may, however, ripen into a vested ownership on
the fulfillment of the contingency.
CHAPTER XIII
POSSESSION
93. Introduction
Since the time of Roman Lawyers, who brought their usual
acumen to the analysis of the essential nature of possession, the
problem has formed the subject of voluminous literature, for, its
practical importance is not less than its difficulty.
Salmond says that in the whole range of legal theory there is no
conception more difficult to understand than that of possession.
Because, the legal consequences which flow from the acquisition
and loss of possession are many and serious. Possession, for
example, is evidence of ownership; the possessor of a thing is
presumed to be the owner of it, and may put all other claimants to
proof of their title. Long possession is a sufficient title even to
property which originally belonged to another. The transfer of
possession is one of the chief methods of transferring ownership.
The first possession of a thing which as yet belongs to none is a
good title of right. Even is respect of property already owned, the
wrongful possession of it is a good title for the wrongdoer, as
against all the world except the true owner. Possession is also of
such efficacy that a possessor may in many cases confer a good title
on another, even though he has none himself, as when I obtain a
bank note from a thief, or goods from a factor who disposes of them
in fraud of his principal. Moreover, in English law possession is a
good title of right against anyone who cannot show a better. Many
legal systems treat possession as a provisional or temporary title
even against the true owner himself. Even a wrongdoer, who is
deprived of his possession, can recover it from any person
whatever, simply on the ground of his possession. Even the true
owner, who forcibly takes his own, may be forced to restore it to the
wrongdoer and then proceed in due course of law for the recovery
of the thing on the ground of his ownership. These are some of the
results which the law attributes to possession, rightfi1 or wrongful,
which are sufficient to show the importance of the conception of
possession, and the necessity of an adequate analysis of its essential
nature.
94. Possession if Fact and in Law
The law is the theory of things, as received and acted upon
within the Courts of justice, and this theory may or may not
conform to the reality of things outside. The eye of law does not
infallibly see things as they are. Partly by deliberate designs and
partly by the errors and accidents of historical developments, law
and fact, legal theory and the truth of things, may fail in complete
coincidence. With regard to possession also there is the possibility of
more or less serious divergences between legal principles and the
truth of things and between the law and the fact of possession,
partly intentional and avowed, partly accidental and unavowed. So,
not everything which is recognised as possession by the law needs
be such in truth , and in fact. And conversely, the law, by reasons,
good or bad, may be moved to exclude from the limits of the
conception facts which rightly fall within them. There are three
possible cases in this respect. First, possession may and usually does
exist both in fact and i n law. The law recognises as possession all
that is so in fact and nothing that is not so in fact unless there is
some special reason to the contrary. Secondly, possession may exist
in fact but not in law. e. g. possession by a servant of his master's
property, is for some purposes not recognises as such by the law
and he is then said to have detention or custody rather than
possession. Thirdly, possession may exist in law but not in fact; that
is to sa y, for some special reasons the law attributes the results of
possession to someone who as a matter of fact does not possess. The
possession thus fictitiously attributed to him is termed as
constructive. The Roman lawyers distinguished possession in fact as
possession naturalis, and possession in law as possessio civilis. In
consequence of this divergence, partly intentional and avowed, and
partly accidental and unavowed, between the law and the fact of
possession, it is impossible to formulate any abstract theory which
might completely harmonise with the detailed rules to be found in
any concrete body of rules and with the different aspects of the
concept of possession.
95. Corporeal and Incorporeal possession
As in the case of ownership so also in the case of possession a
distinction is to be drawn between corporeal and incorporeal
possession.
Corporeal possession is the possession of a material object, e. g.
a house, a farm, a piece of money. It is the continuing exercise of a
claim to the exclusive use of a tangible material object. Thus,
corporeal possession is a continuing relation between a person and a
material object. But incorporeal possession is the possession or
continuing exercise of a claim to anything other than a tangible
material thing, e. g. a way over another mans land, a right to light,
a title of rank, an office of profit, and such like. All these may be
possessed as well as owned. The possessor may or may not be the
Possession 171
owner of them and the owner of them may or may not be in
possession of them, Incorporeal possession includes—
(a) Possession of intellectual or immaterial objects which have
got only notional existence i. e. some interest or advantage
unconnected with the use of material objects. Such as,
goodwill, trade mark, a patent, or an office of profit; or
(b) Possession of encumbrances, i. e. non-exclusive use of
material object, such as right of way, right to light, etc.
Incorporeal possession is usually called or generally known as
the possession of a right. Hence, it may be defined as the
continuing exercise of a right and corporeal possession is
distinguished from it as the possession of thing.
As in the case of corporeal possession, so also in the case of
incorporeal possession, the two elements viz, animus (mental
element i. e. intention to possess a thing), and corpus (physical or
objective element) are necessary, that is, actual continuous use and
enjoyment is essential. In essence, therefore, the two forms of
possession are identical. Hence, possession in its full compass,
including both corporeal and incorporeal, may be defined as the
continuing exercise of any claim or right.
In the case of corporeal possession, the possession of a material
object is essential to constitute possession. In other words, the
possession of a material object is the continuing exercise of a claim to
the conclusive use of it. Actual use of it, however, is not essential. I
may lock my watch in a safe instead of keeping it in my pocket,
and though I do not look at it for twenty years. I remain in
possession of it nonetheless. In the case of incorporeal possession, on
the contrary, actual continuous use and enjoyment of it is essential,
as being the only mode of possession. I can acquire and retain
possession of a right of way only through actual and repeated use of
it. In the case of incorporeal things continuing non-use of it is
inconsistent with possession, though in the case of corporeal things
it is consistent with it.
Some writers are of opinion that genuine possession is always
corporeal, and incorporeal possession is quasi-possession-
something which is less than possession. So, a doubt arises as to
whether incorporeal possession is possession at all. To meet the
difficulty. Salmond uses the term 'possession' in a wider sense as to
include both corporeal and incorporeal possession. He observes.
"The two forms do in truth belong to a single genus. The true idea
of pos session is wider than that of corporeal possession, just as
the idea of ownership is wider than that of corporeal ownership".
96. Two elements in the conception possession
According to English law, possession involves two distinct
elements, one of which is called the mental or subjective element,
the other is called the physical or objective element. These two
elements were distinguished by Roman lawyers as animus
possidendi U. e. intention to possess) and corpus of possession
(physical power). "Neither of these", says Salmond, "is sufficient by
itself; possession begins only with their union, and lasts only till
one or the other disappears".
First element, namely, animus possidendi—The first conception
of possession, namely, the animus possidendi consists in the
intention of a person to possess or appropriate for himself the
exclusive use of the thing possessed. Mere possession without the
intention to claim possession over it is ineffective. A person does not
possess a field because he is walking over it unless he has the
intention of excluding others from using it. I may be alone in a
room with money lying on the table that does not belong to me. I
have absolute physical power to appropriate it but I have no
possession of it because I have no intention to possess it.
As to the nature of animus possidendi, Salniond makes the
following observations:
(1) The intention to possess a thing need not necessarily be a
claim of right. It may consciously be wrongful. The thief has
possession of it no less than that of the real owner. The
possessor of a thing is not he who has, or believes that he
has, a right to it, but he who intends to act as if he has such
a right.
(2) The claim of the possessor must be exclusive, but this power
of exclusion need not be absolute. Thus, I may possess my
land notwithstanding the fact that some other person, or
even the public at large, possess a right of way over it. I
intend to exclude all alien interference except such as
justified by the limited and special right of easement vested
in others.
(3) The animus possidendi need not amount to a claim or intent
to use it as owner, Thus, a tenant, a borrower or a pledge
may have possession no less real than the owner himself.
(4) The animus possidendi need not be a claim on one's own
behalf. I may possess a thing either on my own account or
on account of another. A servant, a trustee or an agent may
have true possession, though he claims exclusive use of the
thing on behalf of another than himself.
Possession 173
(5) The animus possidendi need not be specific but may be
general. Thus, I possess all the books in my library, though
I may have forgotten the existence of many of them. That is
to say, animus does not necessarily involve the continuous
and present knowledge of the thing possessed.
It might be thought in this connection that when a person is in
possession of a receptacle, such as a box, bag, cabinet or envelope,
his possession of the receptacle automatically gives him possession
of the contents. This is not, however, always so, at any rate for the
purpose of the law of larceny (theft) as inferred from the following
decided English cases
(1) In Merry & Green (7 M & W 623), the plaintiff purchased a
bureau at auction, and subsequently discovered money in it,
hidden in a secret drawer and belonging to the vendor. The
plaintiff, thereupon, appropriated the money; and it was held that
in doing so, he committed theft, as he obtained possession of the
money not when he innocently purchased the bureau, but when he
fraudulently abstracted the contents of it.
(2) In Cartwright v. Green (7 R R 99), a bureau was delivered
for the purposes of repairs to a carpenter, who discovered in a secret
drawer money which he converted to his own use. It was held that
he committed theft by wrongfully taking the money in his
possession.
(3) In R. v. Hudson (1943 K B 448), the prisoner received a letter
that was intended for someone else. He kept it for some days and
then, on opening of it found inside a cheque which he appropriated
to his own use. The Court of Criminal Appeal held that he was
guilty of theft.
Second element, namely, corpus of possession—To constitute
possession, the animus i. e the intention to possess is not in itself
sufficient, it must be accompanied by the physical ability to obtain
and retain possession, which is called corpus of possession. Corpus
involves the realisation of two things:
(a) In relation to the other persons there should exist the
present exclusion of all alien interference, and
(b) In relation to the thing possessed there should exist some
sort of security that no one will interfere with my enjoyment
of thing possessed.
These two elements of the corpus of possession are stated by
Salmond under two headings:
(1) Relation of the possessor to other persons, and
(2) The relation of the possessor to the thing possessed.
97. Relation of Possessor to rther persons
In order to constitute possessior over tangible object, the
relation of the possessor to other perso is must he such as to warrant
a security for their non-interference. 1 am in possession of a thing
when the facts of the case are such as to create a probable
expectation that I will not be interfered with. Absolute security is
not needed. Any measure of security is sufficient which reasonably
satisfies the intention to possess. All that is necessary is that I may
count on the continuous enjoyment of the things without
interruption. Such a measure of security may be derived from the
following sources:
W Physical strength of the possessor—This includes the
power to exclude all alien interference, if need be, by
physical force. Thus, if I own a purse of money and lock it
up in my safe. I certainly have possession of it. This
physical power constitutes an effective guarantee of
enjoyment.
(ii) Personal presence of the possessor—The physical power of
the possessor may, in many cases, be absent, but still the
very presence of the possessor is sufficient to constitute
possession. Thus, a little child has no physical power as
against a strong man, yet it possesses the money in its
hand. A dying man may acquire or retain possession by
his personal presence, but certainly not by any physical
power left in him.
(iii) Secrecy—If a person wants to keep a thing safe from
interference by others, he may hide it. He will thereby
gain reasonable guarantee of enjoyment and possession of
the thing and lust as effectually as the strong man fully
arrned.
(iv) Custom—Usage or custoili secures a guarantee against
interference, because the habit or tendency of mankind is
to observe or acquiesce in the established usage, e, g.
previous occupation of land, if not proved to be disturbed,
is the evidence of present possession.
(v) Respect for r4g1tfil claim—People posses greeer regard
for rightful claims than wro ngful ones. Hence a general
belief in the rightfulness of possession will hicrease Its
security.
(vi) Manifestation of intention to possess (aninu18 dominO—If
the intention to possess is mae clear, the security is
greatly increased. This consists pf not only manifesting an
Possession 175
intention of possession, but also the manifestation of
ownership over the thing possessed.
(Vii) The protection afforded by the possession of other thing—
Thus, the possession of a house may confer the possession
of all the things inside the house. The possession of a box
or packet may bring with it the possession of its contents.
98. Relation of possessor to the thing possessed
The second element of the corpus of pcssession is the relation of
the possessor to the thing possessed namely, that the claim must not
only be recognised by other persons, but also the claim must be
realised by the possession of the thing itself. There must be no
barrier between the person who claims possession and the thing
possessed to prevent his claim to the use of it, e. g. if I desire to
catch fish, I have no possession of them till I have them securely in
my net or my line. Again possession once gained may be lost by
the loss of my power to use that thing, e. g. when the bird in my
cage has flown away or when I have dropped my jewel box in the
sea. But so long as my expectation of its enjoyment is reasonable, It
amounts to present possession. Thus, my cow or my dog may have
lost its way, but it will probably return. I may have mislaid a book
in the house, but if I search hard for it, it will be found. These
things, therefore, I still possess though I cannot Jay my hand on
them at will.
99. Nature of possession
According to the English law, animus (intention) and corpus
(physical power) are the two elements which constitute possession.
Actual physical detention of the thing is unnecessary, e. g. when a
person goes out for a walk, he does not cease to possess the
furniture in his house. Neither need the power of exclusion be
actual; a child has no actual power of excluding an adult from
seizing the doll in her hand, but this does not prevent her from
possessing it. We must say that the nature of possession is not
strictly a question of fact, nor one of law, but a question of wired
law and fact. We propose to give here extracts of some of the
English cases on the point.
(1) In Bridges v. Ha wkes worth (21 Q 13 75), a parcel of bank
notes was dropped on the floor of the defendants shop,
where they were found by the plaintiff, a customer. Itws
held that the plaintiff had a good title to them as against the
defendant. For, it was the plaintiff and not the defendant,
who wa s the first to acquire possession of them. The
defendant has not the animus, for he did not know of their
existence. There the question decided was one of law.
(2) In T. V. Moor (1861 L & C 0, a bank note was dropped in
the shop of the prisoner, who on discovering it, picked it up
and converted it to his own use, well knowing that the
owner could be found. It was held that he was rightly
convicted of larceny (theft), from which it follows that he
was not in possession of the note until he actually
discovered it.
(3) In Elwis v, Brigg Gas Co. (33 Ch. D 562), the defendant-
Company took a lease of land from the plaintiff for erecting
gas work, and in the process of excavation found a
prehistoric boat six feet below the surface. It was held that
the boat belonged to the landlord and not to the tenant who
discovered it. According to the opinion of the Chatty, J,. it
was immaterial that the landlord wat, not aware of the
existence of the boat, all the same he was the first to possess
it.
(4) Similarly, in South Staffordshire Water Co. V. Sharmen, the
defendant was employed by the plaintiff-Company to clear
a pond upon their land and in doing so he found certain
gold rings at the bottom of it. It was held that the Company
was in possession of these things and that the defendant,
therefore, acquired no right to them.
Thus, whether the possession of one thing will bring with it the
possession of another that is thus connected with it, depend s , upon
the circumstances of the particular case. A chattel may be upon my
land, yet I have no possession of it unless the animus and corpus
both exist. I may have no animus as when by neighbours sheep,
with or without my knowledge, stray into my 'and. There may be
no corpus, as when I lose a jewel in my garden, an4 tannot find it
3gan. There may neither be corpus nor animus as when unknown
to me there is a jar of coins buried somewhere upon my estate.
100. Concur re nt possession
It is often expressed that two persons cannot be in possession of
the same thing at the same time. As a general rule, this is true
because exclusiveness is the essence of true possession, an d two
hostile claimants cannot both have possession at once. t is a
fundamental principle of possession that only one person can be in
possession of the samething at the same time. But claims which are
not adverse to each other may co-exist. Thus, concurrent or
Possession 177
duplicate possession is possible when the claims are not adverse, e.
g. owners in common may both be in possession of the same thing.
Iollowing are the cases of duplicate or concurrent possession:
Mediate and immediate possession—Mediate and immediate
possession co-exist in respect of the same thing; e. g. a landlord by
letting a house to a tenant may retain mediate possession While the
immediate possession is vested in the tenant. One person may
possess a thing for and on account of another. In such cases, the
former is in possession of the thing on anothers behalf. The
possession thus held by one man through a tenant, servant,
licensee, etc. is called mediate, while that is acquired or retained
directly and personally may be distinguished as direct or
immediate possession. If! myself go and purchase a book, I acquire
immediate possession of it; but if I send my servant to buy it for
me, I acquire a mediate possession of it through him until the book
is in my hand when it becomes immediate.
Joint possession—Two or more persons may possess the same
thing in common, as they may own it in common, e. g. possession
by the owners in common of the undivided joint family property.
Corporeal and Incorporeal possession—Corporeal or incorporeal
possession may co-exist in respect of the same thing. Thus, A may
possess the land while B may possess a right of way over it at the
same time.
101. Acquisition of Possession
The component elements necessary to constitute possession are
animus times corpus. Possession is acquired when these two
elements come into co-existence and the right of possession ceases
with the loss of either of the elements. There are two modes of
acquisition of corporeal possession namely, (1) Taking and (2)
Delivery.
Taking—Taking is the acquisition of possession without the
consent of the previous owner and the thing taken may or may not
have been in possession of the previous owner. Taking may be of
two kinds:
(1) Rightful—When there is no previous possessor of a thing,
taking possession of it is wrongful.
(IL) !'Vrig1ul—When there is a previous possessor of a thing,
hking possession of it (without consent) is wrongful.
Deivery—Delivery, on the other hand, is the acquisition of
possession with the consent of the previous owner. It is of two kinds
being distinguished as (i) actual and (ii) constructive delivery.
—13
Actual
Actual delivery is the transfer of immediate possession. It is of
two kinds:
(a) Where mediate possession is not retained by the transferor i.
e. both mediate and immediate possession are delivered to th
transferee, e. g. sale.
(b) Where mediate possession is retained by the transferor only
the immediate possession is delivered to the transferee, e. g. loan of
a furniture.
Constructive
Constructive delivery, on the other hand, is all that which is not
actual. It arises in those cases where the law construes that there has
been a delivery of possession though there is no actual delivery. It
is of three kinds
(a) The first form of constructive possession is that which the
Roman lawyers termed as traditio brev manu; for which
Salmond finds no English equivalent. It consists of the
surrender of mediate possession of a thing to one who is
already in immediate possession of the same, e. g. A lends
a watch to B and afterwards (while B still retains it) sells the
same to B. No fresh delivery is necessary.
(b) The second form of constructive delivery is that which s
called constitum possessorium (i.e. an agreement touching
possession). This is converse of traditio brevi manu. It is the
transfer of mediate possession while the immediate
possession is still in the hand of the transferor, e. g. A
purchases goods from B and there is an agreement betwe*n
them that B shall hold the goods on behalf of A. The goods
are construed as delivered to A.
(c) The third form of constructive delivery is that which is
known as attornrnent. This is the transfer of mediate
possession while the immediate possession is in the hands
of third person, e. g. X has kept his goods in the warehouse
of Y and then sells them to B. Thereafter. Y agrees to hold
the goods on behalf of B and not for X. Y retains the
immediate possession while the mediate possession has
been transferred to B.
102. Relation between possession and ownership
"Possession", says Ihering, "is the objective realisation of
ownership". Possession is in fact what ownership is in right.
J-iistor1cI1y the conception of possession is anterior to that of
ownership.
Possession 179
Possession is the de facto exercise of a claim, ownership is the de
jure recognition of it. A thing is owned by one when his claim is
maintained by the will of the State as expressed in the law, it is
possessed by him when his claim is maintained by his own self-
assertive will. Ownership is the guarantee of law, possession is the
guarantee of facts. Possession, therefore, is thee facto counterpart
of ownership.
Possession is the external form in which rightful claims
normally manifest themselves. Ownership tries to realise itself in
possession and possession endeavours to justify itself as ownership
The law of prescription determines the process by which, through
the influence of time, possession without title ripens into ownership,
and ownership without possession withers away and dies. The two
things tend mutually to coincide. The separation of these two
conceptions is an exceptional incident, due to accident, wrong or the
special nature of claims in question.
Generally, ownership and possession have the same subject-
matter. Whatever may by owned may also be possessed, and
whatever may be possessed may also be owned. To this general
statement there are two exceptions:
(1) There are certain claims which may be realised and
exercised in fact without receiving any recognition or
protection from law, there being no right vested either in
the claimant or anyone else. For example, men might
possess copyright, trade marks and other forms of
monopoly, even though the law erfuses to defend those
interests as legal rights. Claims to them may only be
realised de facto.
(2) Conversely, there are many rights which can be owned but
are not capable of being possessed. These rights are
transitory which do not admit of continuing exercise nor of
possession either. A creditor, for example, does not possess
the debt that is due to him, but he owns the right to the
debt which is transitory, because this right, when exercised,
is wholly fulfilled or destroyed. It is for this reason that
personal rights do not admit of possession. There are,
however, certain obligations which admit of possession
provided that they are of such a nature as to involve a
series of repeated acts of performance. Thus, I may possess a
right of way throu gh repeated acts of use just as I may
180 Jurisprud 'nce & Comparative Legal Theory
possess a right of light or support through continuous
enjoyment. Thus, repeated exercise of right in this respect is
equivalent to continued exercise.
103. Possessory Remedies
Possessory remedies are those legal remedies which are
available for the protection of possession even against ownership,
while those available for the protection of ownership itself may be
distinguished as proprietary.
In English law, possession is a good title of right against any
one who cannot show a better. A wrongful possessor has the right of
an owner with respect to all persons except the earlier possessor or
the true owner himself. Even a wrongdoer, who is deprived of his
possession, can recover it from any other person whatever, simply
on the ground of his possession. Even the true owner, who takes his
own, may be forced to restore it to the wrongdoer. He must first
give up possession and then proceed on due course of law for the
recovery of the thing on the ground of his ownership. The intention
of the law is that every possessor shall be entitled to retain and
recover his possession, until deprived of it by a judgment according
to law. In old times, possession was generally, guarded against by
means of violent self-help. But the tendency of the modern time is
to attain this end by a much more satisfactory and reasonable way.
It adjusts the burden of proof of ownership with perfect equity,
without recourse to any such anomaly as the protection of the
possessor against the owner. This it does by the operation of the
three following rules
(1) Prior possession is prima facie proof of title. Even in the
ordinary proprietary action a claimant need do nothing
more than prove that he had an older possession than that
of the defendant, for the law will presume from the prior
possession a better title. The maxim is, qui prior est
tempore potior est jure (where two rights are in conflict, the
earlier one prevails).
(2) A defendani is always at liberty to rebut this presumption
by proving that the better title is in himself,
(3) A defendant will not be permitted to set ep the defence jus
tertii, as it is called, that is to say, he W ill not be heard to
allege as against the plaintiff's claim, that neither the
plaintiff nor he himself but some third person is We true
owner.
CHAPTER XIV
PERSONS
104. Nature of personality
So far as legal theory is concerned, a person is any being whom
the law regards as capable or rights or duties. Any person that is so
capable is a person, whether a human being or not, and no being
that is not so capable is a person, even though he be a man. Persons
are the substances of which rights and duties are the attributes. It is
only in this respect that persons possess juridical significance and
this is the exclusive point of view from which personality receives
legal recognitions.
Salmond says that personality is a wider and vaguer term than
humanity. In the law, there may be men who are not persons
slaves, for example, are destitute of legal personality in any system
which regards them as incapable of rights or liabilities. Like cattle
they are things and the objects of rights; not persons and the
subjects of rights. Conversely, there are , in the law, persons who
are not men. A joint stock company or a municipal corporation is a
person in legal contemplation. So, also, in Hindu Law, idols are
legal persons which has been recognised by the Privy Council in
the case of Pramatha Nath Mullick v. Pradyumno Kumar Mullick
(1925) L R 52 IA 245. It is true that they are only fictitious, not real
persons but they are not men at all, either fictitious or real.
Hence in legal theory, whatever is capable of rights and duties
is a person. Persons so defined are of two kinds, distinguishable as
(1) natural and (2) legal.
Natural person—A natural person is a living human being who
is recognised by the state as capable of rights or duties, that is to
say, a person who has got a Status. A natural person must be (1) a
living human being and (2) he must be recognised by the State as a
person, that is to say, he must not be a slave or must not have
suffered civil death.
Legal or artifical or juristic person—An artificial or legal
person is such a group of human beings or a mass of property, as is,
in the eye of law, capable of rights and duties. A legal person is
any subject-matter or beings, real or imaginary, other than a
human being to which the law attributes personality by was of
fiction.
The distinction between natural and artificial person is shortly
this-
182 jurisprudence & Comparative Legal Theory
(1) The existence of artificial person is dependent on law, while
the existence of natural person is independent of law.
(2) The duration of existence of artificial person is often much
longer than the natural period of human life.
(3) Natural person acts for himself; while artificial person can act
only through authorised agent.
<a.105 Legal person : its creation and extinction's.
A legal person is any subject-matter other than a human being
to which the law attributes personality. Therefore, legal persons are
creatures of the law owing their very existence to the law alone. The
law, in creating legal persons, always does so by personifying some
real thing. Such a perspn has to this extent a real existence, and it is
his personality alone that is fictitious. The thing personified may be
termed the corpus or the body of legal person so created, it is the
body into which the law infuses the animus of a fictitious
personality.
Although every legal personality involves personification the
converse is not true. In popular language, for the sake of simplicity
of thought and speech, a subject matter is sometimes described as a
person even though the law will not treat it as a legal person. We
speak, for instance, of the estate of a deceased person as if it were
itself a person. We say that it owes debts or hs debts owing to it.
Similarly, we speak of a firm, a club, a jury, a Bench of judges, a
public meeting, etc. as distinct persons. The law, however,
recognises no legal personality in such cases. Legal personality is
not reached until the law itself invests a particular fictitious being
with legal right.
Creation—An artificial person is created by the law giving to a
group of persons or mass of property the character of a legal person.
The legal character is conferred when the said gro1p or mass
satisfies certain legal provisions. Hence, they are created (1) by
charter granted by the executive authority, and/or (2) by special
law.
Extinction—An artificial person comes to an end—
(1)by failure of its component part;
(2) by judicial proceedings leading up to the winding up of a
company;
(3) by forfeiture, and
(4) by surrender of privileges.
Persons 183
106. Classes of juristic persons
Legal persons, being arbitrary creations of the law, may be of
as many kinds as the law pleases. English law recognises only three
classes of legal persons—(1) Corporations, (2) Trade Unions and (3)
Friendly Societies
(1) Corporations—A corporation is a group or series of persons
which by a legal fiction is regarded and treated as a real
person. The creation and extinction of a corporation is
determined by law.
(2) Trade Union—A Trade Union is an association of workmen
or employers for the purpose, among other things, of
collective bargaining; in England, it has been accorded
legal personality by judicial decision.
(3) A friendly society—It is a voluntary association formed for
the purpose of raising, by the subscription of the members,
funds out of which advances may be made for the natural
relief and the maintenance of the members and their
families in sickness, infancy, old age, or infirmity.
But in pther systems of Jurisprudence their are several distinct
varieties of legal persons of which three may be selected for special
mention
(1) Corporations—The first class of legal persons consists of
Corporations as already defined, namely, those which are
constituted by the personification of groups or series of
individuals. The individuals forming the corpus of the legal
person are called its members. We shall consider this form
of legal personality more particularly in the sequel.
(2) Institutions—The second class is that in which the law
attributes fictitious personality not to the group or series of
persons connected with it but to the institution itself, such as
Hospital, Library, College, Church, University and regards
them as persons. But in English law, the legal personality is
attributed to the group of persons connected with it,
namely, the Chancellor, Vice-Chancellor, Fellows and
Graduates, etc.
(3) Funds—The third kind of legal person is that in which the
law attributes fictitious personality to some fund or property
devoted to special use, such as, a trust estate, a charitable
fund, the property of a dead man or of bankrupt. But in
English law, the legal personality is attributed not to the
fund or the estate but to the body of persons who
administer it, namely, the receiver, board of trustees, etc
107. CorpostIons
A corporation is a group or series of persons which is invested
by law with a personality, that is, by a legal fiction the group or
series of persons is regarded and treated as a real person. The
creation and extinction of corporation Is deteruined by law. The
individuals who thus form the corpus of the legal person are called
its members.
Out it should be noted that a mere association of human beings
does not form a corporation, because a corporation is not merely the
sum total of its component members—i. e. the shareholders, but
something superseded to them—viz, the fictitious or legal
personality. Legal personality is not reached until the law
recognises the fictitious being which represents the associated
individuals. A corporation comes into existence by the
personification of group or series of individuals i. e. when the law
attributes fictitious personality of the group or series of persons. The
fictitious personality is attached to the group collectively but not to
the persons individually. Hence, the personality of a corporation
differs from that of a natural person.
According to English system, corporations are of two kinds,
distinguished as corporations aggregate and corporations sole. A
corporation aggregate is an incorporated group of existing persons
which has several members at a time, e. g. a registered company
consisting of all the shareholders, a municipal corporation consisting
of all the inhabitants of the place, such a corporation is, in law,
something different from its members. The property of the
company is not the property of the shareholders. A shareholder
may enter into a contract with the company, for the two persons are
entirely distinct from each other. Therefore, it is perfectly possible
that a corporation may survive its last member and can exist
Without any member.
A corporation sole is a series of successive-persons, e. g.
Sovereigns, the Solicitor-General, the Posttnaster-General The
element of legal fiction involved here is that the law assumes that in
addition to the natural person who actually occupies that particular
official position, there is a mythical being who is, in law, the real
occupant of the office, and who never dies or. retires. The living
official is merely the agent or representative through whom the
legal person performs his function. The living officials come and go,
but this offspring of the law remains the same for ever. Property
owned by a person as a corporation sole is distinct from that which
he owns in his private capacity and will pass on his death, not to his
Persons 185
estate but to his successors-in-office. One important result of this is
that it enables gifts to be made to the successive holders of an office
which has been incorporated. Without such incorporation such a gift
would fail for remoteness, Corporations sole are not a peculiarity of
English law. The distinction between
between the two forms of incorporation
is also well known to foreign jurists.
In all these respects a corporation is essentia l ly different from an
unincorporated Partnership Firm. A firm is not a person in the eye
of law. It is nothing else than the sum of the individual members.
There is no legal entity, standing over against the partners, as a
company stands over against its shareholders. The property and
debts of the firm are nothing else 4an those of the existing
partners. There can be no firm which consists of one partner only,
but a company may consist of one member, that is, who manages,
the whole show, and the others in name only.
108. The Agents, Beneficiaries and Members of a
corporation
A corporation, having neither soul nor body, cannot act save
through the agency of some representative in the world of real
men. For the same reason, it can have no interest, save those which
are attributed to it as a trustee for or otherwise on behalf of actual
human beings. Whatever a company is reputed to do, in law, is
done, in fact by the directors or the shareholders as its agents and
representatives, Whatever interests, rights or property it possesses
in law are, in fact, those of its shareholders and are held by it for
their benefit. Every legal person, therefore, has corresponding to it,
in the world of natural persons, certain agents or representatives by
whom it acts and certain beneficiaries on whose behalf it exists and
fulfills its functions. Its representatives may or may not he different
persons from its beneficiaries, for these two capacities may or may
not be united in the same individuals. The shareholders of a
company are not merely the persons for whose benefit it exists; they
are also those by whom it acts. In the case of corporation established
for charitable purposes, it is otherwise, for the beneficiaries may
have no share whatever in the management of its affairs. The
relation between a corporation and its beneficiaries may or may not
amount to a trust in the proper sense of the term. A share in a
company is not the beneficial ownership of any portion of the
company's property, but the benefit of a contract made by the
shareholder with the company, under which he is entitled to be
paid a share of the profits made by the company, and of the surplus
assets on its dissolution. A share in a company is a chose in action
186 Jurisprudence & Comparative-Legal Theory
(in English Law)—an obligation between the company and the
shareholder.
It is worth notice that somL or all of the members of a
corporation may be corporations themselves. There is nothing to
prevent the shares of a company from being held by other
companies. In this case the idea of incorporation is duplicate and the
law creates a legal person by the personification of a group of
persons who themselves possess a merely legal personality.
109. The acts and liabilities of a corporation
When one person acts through an agent, the authority of the
agent is determined by the will and consent of the principal. But
that is not so in the case of a corporation. It is for the law to
determine not only as to who shall be an agent for a corporation,
but also the law determines within what limits the authority of the
agent should be exercised. A legal person is as incapable of
conferring authority upon an agent to act on its behalf as of doing
the act in person. The authority of the agents and representatives of
a corporation is, therefore, conferred, limited and determined not
by the will of the principal, but either (1) by the wills of some
human beings, who are for this purpose identified in law with the
corporation or (2) by the law itself. A good illustration of (1) is
afforded by companies incorporated under the Companies Act. The
first director may be appointed by or in accordance with the Articles
of Association, drawn up by the promoter of the company, or they
may be appointed at a meeting of the shareholders. But thereafter
the first directors are themselves regarded for many purposes as the
alter ego of the company and their wills are, within the limits of the
rules of law, regarded as the wills of the company.
An important rule in connection with companies incorporated
by special statute and companies incorporated under the general
provisions of the Companies Act is that their powers are restricted
by law in a way that the powers of a human being are not. Thus, a
company incorporated by special statute is limited to the power
conferred by the statute. In case of a company registered under the
Companies Act, the Memorandum of Association must set forth the
purposes for which it is established, and even the unanimous
consent of the whole body of shareholders cannot effectively enable
the company to act beyond the limits so marked out for its activity.
Any act which lies beyond these legally appointed limits will not
be imputed to the corporation, even though it is done is its name
and on its behalf. An act which goes beyond authority so conferred
is called ultra vires of the corporation and such act is null and void.
Persons 187
It is well settled by the law of England that a corporation may
be held liable for wrongful acts and this liability extends even to
those cases in which malice, fraud and other wrongful motive from
the special ingredient. The liability on the part of corporations is
extended to criminal liability too, and is also punished by way of a
fine or forfeiture of property as any private individual. That being
so, the question arises, whether it is natural justice to punish a
corporate body for the acts of its agent when the ultimate result of
such punishment is bound to fall on the shoulders of the
beneficiaries. To punish a corporation is nothing more than to
punish the innocent beneficiaries for no fault of theirs. To this
objection Salmond says that although the representatives of a
corporation are, in form and theory, the agents of that fictitious
person, yet, in substance and fact, they are agents of the
beneficiaries. Just as the principal is held liable for the acts of the
agents, so also in the case of a corporation. Thus a company is justly
held liable for the acts of the directors.
A second objection arises from the following considerations. If
the limits of the authority of the agents are determined by the law
itself, can any act done by the agents, which go beyond the
authority conferred upon them, be deemed to be the acts of the
corporation? If illegal, it cannot be the act of a corporation within the
limit of lawful authority; and if not within these limits, it cannot be
the act of a corporation. To this objection, Salmond offers two
different solutions. He says that in the first place, although a
fictitious person cannot do acts which go beyond the scope of his
authority, he certainly can fail to do what he has been authorised to
do, and can be punished for such omissions. And in the second
place, the liability of a corporation for the acts of its agents is a
perfectly logical application of the law as to an employer's liability
for the acts of his servant. It is a rule of law that the master is liable
for all the wrongs committed by his servant in the course of his
employment. A master is liable not only for the acts which the
master has authorised him to do, but also for the way in which the
servant does it. So is the corporation.
110. The uses and purposes of incorporation
Among the various reasons for admitting the fictitious extension
of personality, we may distinguish one as of general and
fundamental importance, namely, the difficulty which the law finds
in dealing with the common interests vested in a large number of
individuals and with a common action in the management and
protection of such interests. What we are familiar with is individual
ownership. If two persons carry on a partnership or own and
manage property in common, complications arise, with which the
law can deal without calling in the aid of fresh conceptions. But if
there are multitude of such ownership the law finds it impossible to
deal without the aid of fictitious conceptions to overcome these
difficulties, and the law aims to introduce as far as possible some
instrument for the realisation of its purpose of recognising the rights
of all the persons. There are two devices for the purpose, namely,
trusteeship and incorporation.
Trusteeship is generally used as a mode of overcoming the
difficulties created by the incapacity, uncertainty and multiplicity of
the persons to whom the property belongs. In such cases, the
property by law is deemed to be vested not in the virtual owners
(beneficiaries), but in one or more determinate individuals of full
capacity, who hold it for the benefit of those persons for whom it is
meant.
Incorporation is merely a development of the conception of
trusteeship. A trustee, in the case of a corporation, is a fictitious
being, as opposed to a trustee in case of an individual trust, who is
a real person. As between the real and the fictitious trustee, the
latter is preferable, because he never dies.
And secondly, incorporation enables traders to join together and
form one company with a limited liability. As the law stands, if any
one ventures into any particular trade, he has got to bear the whole
loss, it his venture results in any loss. Such risk is avoided by
incorporation. If the business is successful, the gains made by the
company will be held on behalf of the members, and if
unsuccessful, the losses must be borne by the company itself. For,
the debts of a corporation are not the debts of the members
themselves. The only risks run by the members is the amount that
they have contributed towards the share capital. The introduction of
incorporation has been a great boon to commerce and manufactures,
because it has enabled us to undertake big schemes and to venture
upon unthought of adventures.
Thirdly, as the property is vested in the corporation, it is not
necessary that it should he transferred to a new member on his
inclusion in order to give such member the benefit thereof.
It may be said that but for the creation of such artificial persons
the prosperity of the world would not have been possible.
Persons 189
111. The State as a Corporation
Of all forms of artificial persons, the greatest is the State. It owns
wealth and performs many important functions. But according to
the law of England, the State is not a corporation. The State owns no
property, is capable of no acts, and has no rights nor liabilities
imputed to it by the law. The explanation for all this is to be found
in the Monarchial form of Government. The real personality of the
King has rendered any incorporation of the State as superfluous.
Public property in the eye of the law belongs to the King. Whatever
is done by the State is in law done by the King and so on. In
modern times, it has become usual to speak of the Crown rather
than of the King. But this reference to the Crown is only a figure of
peech, because the Crown is not by itself a person in the eye of the
law.
112. The creation and extinction of Corporation
• The birth and death of legal persons are determined not by
nature, but by the law. They come into existence at the will of the
law, and they endure during its good pleasure. In England,
corporations may be established by Royal Charter, by statute, by
immemorial custom, and, in recent years, by agreement of their
members expressed in statutory forms and subject to statutory
provisions and limitations. They are in their own nature capable of
indefinite duration, this being indeed one of their chief virtues as
compared with humanity, but they are not incapable of destruction.
Its life can be brought to an end by the same authority by whom it
came into being or by the members or by the Court. The extinction
of a body rporate is called its dissolution—the severing of that
legal bond by which its members are knit together into .a unity. It
must be noted that it is perfectly possible for a corporation to
continue to live, although the last of its members is dead. In the
case of a corporation sole the person is merely dormant, and not
extinct, during the ink'rval between two successive occupants of the
office.
113. The legal status of lower animals
The only natural persons are human beings. Beasts are things
and not persons, either natural or legal. They may be objects of
legal rights and duties but never t1 e subjct of them. Beasts, like
men, are capble of acts and possess interests. Yet their acts; are
neither lawful nor unlawful, they are not recognised by the law, as
the appropriate subject-matter either of permission or of prohibition.
No animal can be the owner of property. The rule that a trespassing
beast may be distrained damage pheasant and kept until its owner
or someone else pays cotnpensation, does not, however, in the
modern law, involve any lgal recognition of the personality of the
animal.
A beast is as incapable of legal rights as of legal duties; for its
interests receive no recognition from the law. The law is made for
men and allows no fellowship or bonds of obligation between them
and the lower animals. A hurt done to the beast may be a wrong to
its owner or to the society of mankind, but it is no wrong to the
beast. No animal can he the owner of any property, even through
the medium of any trustee. If a trust is created for the benefit of a
particular animal, it is a trust of imperfect obligation and casts no
legal duty on the trustee to execute the trust.
There are, however, two cases in which beasts may be said to
possess certain legal rights (1) In the first place, cruelty to animals
is a criminal offence, but that is not so much on account of the love
for the beasts, but on account of the repugnant feelings produced to
the society by such cruelty. (2) Secondly, a trust for the benefit of a
particular class of animals, as opposed to one for an individual
animal (say my favourite dog), is valid and enforceable as a public
and charitable trust, e. g. a provision for the establishment and
maintenance of a home for stray dogs or broken-down horses. Such
trusts correspond not to private trusts but to public rights vested in
the community at large,—for the community is interested in the
well-being even to the deaf and dumb animals—which belong to it.
But these instances form no real exception. For, these duties
towards animals are conceived by the law not as a duty towards the
beasts, but as duties towards society itself. The animals are owned
by the society and hence the society has got an interest for their
protection. Therefore, these duties do not correspond to private
rights vested in the animals, hut to public rights vested in the
whole community.
114. The legal status of dead men
Ordinarily speaking, the personality of a human being may be
said to commence on birth and cease to exist at death, and in
general the law takes the same view. Dead men are no longer
p'rsons in the eye of the law. They have laid down their legal
personality with their lives and are now as destitute of legal rights
as of liabilities. Although the law does not confer rights upon the
dead, it does to some extent recognise and make account of a
person's desires and interests when alive. They are—(1) a mans
body, (2) his reputation and (3) his estate
Persons 191
(1) According to law, a corpse is the property of no one. It
cannot be disposed of by will and no wrongful dealing
with it can amount to theft. Again any testamentary
directions of a person as to the disposal of his body after his
death are destitute of legal effects. Similarly a permanent
trust for the maintenance of his tomb is illegal and void,
However, the criminal law secures decent burial for all
dead men, and the violation or desecration of a grave is an
offence under the Penal Code of India, Pakistan and
Bangladesh as well as of England. Every person dying in
England has a right to Christian burial. "Whether is
ground consecrated or unconsecrated, indignities offered to
huian remains improperly and indecently disinterring
them, are the grounds of an indictment" as decided in an
English case [Foster vs. Dodd (1867), 3 Q B 771.
(2) The reputation of the dead receives some degree of
protection from the criminal law. Under the Bangladesh
Penal Code, it may amoupt to defamation to impute
anything to a deceased person, if the imputation would
harm the reputatiqi of that person, if living, and is
intended to be hurtful to the feelings of his family or other
near relations. According to English law, a libel upon a
dead man will be punished as a misdemeanour but only
when its publication is in truth an attack upon the interests
of living persons. The right so attacked and so defended is
in reality not that of the dead, but that of his living
descendants.
(3) By far the most important matter in which the desires of
dead men are allowed by the law to regulate the actions of
the living is that of testamentary succession. For many
yc'rs after a man is dead his hand may continue to
regulate and determine the disposition and enjoyment of
the property which he owned while living.
115. The legal status of unborn persons
Though the dead possesses no legal personality, it is otherwise
with the unborn, Unlike dead persons, unborn persons do,
according to the law, possesses a personality. There is nothing in
law to prevent a person from owning property before he is born.
His ownership is necessarily contingent, indeed, for he may never
he born at all. But it is nonetheless a real and present ownership.
Thus, a person may settle property upon his wife and the children
that are to be born of her. Or he may die intestate and his unborn
child will inherit his estate. A child in its Mother's Womb is for
many purposes regarded by legal fiction as a1ea4y born. In the
words of Coke: "The law it many cases has consideration of him in
respect of the apparent expectation of te birth". thus, In the law of
property, there is a fiction that a child Is a person in being for the
purposes of (1) acquisition of property by the child itself, or (2)
being a life chosen to form part of the period in the rule against
perpetuities.
To a certain extent unborn persons may possess personal
interests. It has been held that a posthumous child is entitled to
compensation under Lord Campbells Act for the death of its father.
Willful or negligent injury inflicted on a child in the womb, by
reason of which it dies after it was born alive, amounts to murder or
manslaughter. A pregnant woman condemned to death is respited
as of right, until she has been delivered of her child.
The rights of an unborn person, whether proprietary or
personal, are all contingent on his birth as a living human being.
The legal personality attributed to him by way of anticipation falls
away ab initio if he never takes his place among the living.
Abortion and child destruction are crimes, but such acts do not
amount to murder or manslaughter unless the child is born alive. A
posthumous child may inherit, but if he dies in the womb or is still-
born, his inheritance fails to take effect, and no one can claim
through him, though it would be otherwise if he lived for an hour
after his birth. Finally, though the law imputes no rights to persons
not yet even conceived, it may protect their interests. If some of the
beneficiaries of a trust are unborn persons, the trust cannot be
varied without obtaining the Courts consent on their behalf.
116. Double capacity and double personality
Sometimes a single human being may hold two capacities to
possess legal rights. He is one man but two persons. In such a case
the law attributes to him double personality. As for example, a
trustee is two persons in the eye of law. In the right of his
beneficiary he is one person and in his own right he is another.
English law recognises many different capacities in which a
man may act. Often he has the power to act in an official or
representative capacity when he would have no power to do the act
in his private capacity or on his own account. But the niere fact that
a man has two or more capacities does not give him the power to
enter into a legal transaction with himself. For instance, at common
Persons 193
law a man could not sue himself or contract with himself or convey
property to himself; and it made no difference that he was acting on
each side in a different capacity. So, rigorous was the rule that if the
same party appeared on both sides to a contract, even though
accompanied by different parties in each case, the contract was void.
In many cases this rule worked hardship and its consequences had
to be mitigated. For example, where a creditor became his debtors
executor, the rule that he could not sue himself was mitigated by
giving him a right of retainer. Now by statute, where a person
purports to contract with himself and others, the contract is
enforceable as if it had been entered into with the other persons
alone. With such small exceptions the rule that a man cannot enter
into a legal transaction with himself remains unchanged.
—i4
CHAPTER XV
TITLE
117. Kinds of title

We have seen in a former chapter that every right (using the
term in the widest sense) involves title or source from which it is
derived. The title is the de facto antecedent of which the right is the
de jure consequence. Titles are, therefore, facts or events by the
operation of which the right becomes vested in its owner. Titles are
of two kinds, being either original or derivative. The former are
those which create a right de novo; the latter are those which
transfer an already existing right to a new owner. The catching of
fish is the original title of the right of ownership, whereas the
purchase of them is derivative title. The right acquired by the
fisherman is newly created, because it did not formerly exist in any
one. But that which is acquired by the purchaser is in legal theory
identical with that which is lost by the vendor. It is an old right
transferred, not a new right created. Yet in each case the fact which
vests the right is equally a title in the sense as already explained.
That is to say, whether a right is inborn or acquired, a title is
equally requisite.
118. Vestitive Facts
A vestitive fact is one which determines, positively or
negatively, the vesting of a right in the owner. It is one which
either creates, transfers or destroys rights. Some rights the law
confers upon man by birth e. g. right to life, liberty and reputation.
The other rights he must acquire for himself. But in both the cases
there is a source from which theright emanates. The generic term
"vestitive facts" is sometimes used to denote the creation, transfer or
extinction of such rights. The vestitive facts may be either, (i)
investitive facts or titles, or (ii) divestitive facts.
Investitive Facts or Titles-H'ln vestitive facts or titles are those by
means of which a right comes into existence. A title or investitive
fact is the de facto antecedent of which the right is the de jure
consequence. In other words, every right involves a source or a title
from which it is derived. Titles are of two kinds, being either
original or derivative. Original titles are those which create a right
for the first time e. g. when a person captures a wild animal
belonging to none. Derivative titles are those which transfer an
already existing right to a new owner e. g. A sells a piece of hind to
B. Here B derives the rights of the former owner of the land by
derivative tittle.
Title 195
Divestitive Facts—Divestitive facts are those through which
right terminates. It destroys (cause the loss of) rights e. g. the sale of
a property terminates the right of its Divestitive facts may
be o two kinds, iz. alienative i.e. the transfer of rights or
extinctive i.e. destruction of rights. The payment of a debt by a
debtor to a creditor is an example of extinctive fact. Here the
creditors right is divested as well as extinguished by the payment
of the debts.
But the derivative titles and alienative facts are merely the
same facts looked from a different point of view. The transfer of a
right means the acquisition of that right by the transferee. It
becomes a vestitive fact in the transferee, and a divestitive fact in
the transferor. In other words, the transfer of a right is an event
which has a double aspect. It is the acquisition of a right by the
transferee and the loss of it by the transferor. The purchase is a
derivative title but the sale is an alienative fact. Yet they are two
different sides of the same event.
The above distinctions and divisions are exhibited in the
following table:
Investitive ( Original Creation of

Facts or Titles.) Titles. Rights.
Derivative
Vestitive Facts L Titles. ' Transfer
of Rights.
Divestitive ( Alienative)
Facts. Facts. Destruction
Extinctive of Rights.
( Facts.
Vestitive Facts—Whether they reate, . r ansfer or extinguish
rights are divisible into two fundamentally distinct classes,
according as they operate in pursuance of the will of the,-,e;-sons
concerned, or independently of it. That is to say, the creition,
transfer and extinction of rights are either voluntary or involuntary.
Vestitive facts may, therefore, be divided into two chief classes
according to the source from which they originate. They are (1) acts
of the party or acts in the law and (2) acts of the law.
119. Acts in the Law
(1) Acts in the Law—An act of the party, technicaiiy known as
an act in the law, is an expression of the will or intention of th'
person concerned directed to the creation, transfer or xti cti. of
right e. g, a contract or a deed or a conveyance or testamentary
disposition. Hence an act in the law may be defined as "a
manifestation of the will of a private individual directed to the
origin, extinction or modification of rights". It is called by the
English writer a "Juristic act". It, is an act of a private person
according to law. Acts in the law are of two kinds:
Unilateral (One-sided)--In this case, there is only one party
whose will is effective e. g., a testamentary disposition, the exer.ise
of a power of appointment, the avoidance of a voidable contract and
so on.
Bilateral (two-sided)—A bilateral act is one which involves the
consenting wills of two or more distinct person e. g. a contract, a
mortgage, etc.
Acts of the Law—An act of the law, on the other hand, is the
creation, transfer or extinction of a right by the operation of the law
itself, independently of any consent thereto on the part cf the
person concerned i.e where the facts arise independent of the will of
the parties e. g. intestate succession, in which case the law itself will
dispose of the estate of a person dying intestate i. e. intestate
succession. Similarly, if a decree is passed against me by a
competent court, or if I am adjudged an insolvent, my goods will be
taken into execution by the judgment creditor in the first case, or
my pi Dperty will vest with the official assignee, in the second case,
whether I will it or not.
120. Agreements
Of all vestitive facts, acts in the law i. e. acts of the party, are
the most important, and among acts in the law, agreements are
entitied to the chief place. The importance of agreement as a
vestitive fact lies in the universality of its operation. There are few
rights which cannot be acquired, transferred and extinguished by
agreement. Looking from this point of view agreements may be
divided into four classes:
C'on tracts—A contract is an agreement which creates a personal
obligation, a right in personam, between the parties to the
agreement, and which is enforceable by law.
Grants—A grant is an agreement which creates a right of any
other kind e. g. grants of leases, easements, etc.
Assignmen t—An assignment is an agreement for transferring a
right, e. g. assignment of life estate, Insurance policy, etc.
Releases—A release is an agreement for extinguishing right e.
g. an agreement by a creditor releasing the debtor from the liability
to pay his debt.
Title 197
121. Valid, Void and Voidable Agreements
From the point of view of legal efficacy, agreement may be
considered to be of three kinds
Valid—A valid agreement creates in favour of one party a legal
obligation binding upon the other. It is an agreement which is fully
operative and is in agreement with the true intention of the parties.
Void—A void agreement is one to which the law refuse to give
recognition as the expressed will of the parties. A void agreement is
no agreement at all e. g. an agreement made under a mistake.
Voidable—A voidable agreement stands midway between the
two. It is not a nullity, but its operation is conditional and not
absolute. A voidable agreement is one which can be avoided or set
aside at the option of one of the parties to the contract. That is to say,
it is void or valid at the election of t1. parties to it. Thus, a void
agreement is a nullity from the very beginning; but a voidable
agreement is presumed to be valid unless and until it is avoided.
Void and voidable agreements are classed together as invalid.
As far as the English law is concerned, the following is a
complete classification of agreement:
(I) Valid agreements;
(2) Voidable agreements;
(3) Void agreements;
(4) Unenforceable agreement; that is to say, no action will lie
for enforcement of it e. g. claim barred by limitation;
(5) Illegal agreements, i. e agreements which are not only
void, but to make such an agreement is an offence e. g. a
Criminal Conspiracy;
(6) Rescindable agreements; agreements which, even if they
have been partly performed, a court will not only absolve
the party entitled to rescission from complete discharge, but
also restore the parties to their former position;
(7) Agreement determinable upon a condition subsequent, e.
g. agreement made void by subsequent impossibility;
(8) Apparent agreement, e. g where there is no agreement at
all, but only an appearance of it e. g. where the parties are
not speaking of the same thing at all. Thus money paid
under them is recover ble as money paid under a mistake
of fact.
122. Causes of invalidity of Agreement
The chief causes of invalidity of agreements are six in number.
They are as follows:
(1) Incapacity—Certain classes of persons are considered by law
to be incapable from entering into a contract, such as
minors, lunatics.
(2) Informality or want of formality--Certain formalities must
be observed for the validity of some agreements.
Registration and attestation are the most important forms. In
the absence of these formalities the agreements are held to
be of no account, e. g. if a mortgage deed is not properly
attested and registered it can not be taken into account at
all.
The following are the purposes of all thes formalities:
(i) It is evidence of consent,
(ii) It facilitates the proof of what has occurred,
(iii) It prevents the bargain from being rashly struck.
Illegality—Where the agreement is for the performance of a
thing which is forbidden by the law, e. g. an agreement by way .f
wager, it becomes invalid (i. e. illegal). An agreement becomes
invalid if-
(i) it is forbidden by law; or
(ii) it is of such a nature that, if permitted, it would defeat the
provision of any law; or
(iii) it is fraudulent; or
(iv) it involves or implies an injury to the person or property
of another; or
(v) it is immoral; or
(vi) it is opposed to public policy.
Error or mistake—Error or mistake, as a ground of invalidity of
contract, is of two kinds essentialand unessential. Essential error is
of such a nature as to prevent the existence of any real consent, and
therefore, of any real agreement. If A agrees to sell land to B, but A
is thinking of one piece of land, and B of another, the agreement is
wholly void, as there is in truth no agreement at all, but only the
external semblance of one. In order to render the contract invalid,
the mistake mustbe essential and mustsatisfyall thefollowing
conditions:
(i) The mistake must be mutual—i. e. both the parties must
have been under a mistake.
(ii) t must be a mistake of fact and not of law. This is based on
the maxim—ignorance of law is no excuse.
(iii) The fact, of which the mistake is made, must be essential to
the agreement.
Title 199
Unessential error, on the other hand, is that which does not
relate to the nature or contents of the agreement, but only to some
external circumstances, serving as an inducement, which led to the
making of it, as when A agrees to buy B's horse because he
believes it to be sound, whereas it is really unsound. This is not
essential error, for there is a true consensus, as the parties have
agreed to the same thing in the same sense, though one of them
would not have made the agreement had he not been under a
mistake. The general rule is that unessential error has no effect on
the validity of an agreement. Neither party is in any was concerned
in law with the reasons which induced the other to give his consent.
That which a man consents to he must abide by, whether his
reasons are good or bad. And it is so even though one party is well
aware of the error of the other.
This rule, however, is subject to an important exception, for
even unessential error will in general make an agreement voidable
at the option of the mistaken party, if it has been caused by the
misrepresentation of the other party. He who is merely mistaken is
nonetheless bound by his agreement; but he who is misled has a
right to rescind the agreement so procured.
Coercion—Where the consent to the agreement is obtained by
any form of compulsion or undue influence, it becomes the product
of coercion and not a free agreement. The consent of the parties
must be freely given, in order to render an agreement valid.
Fraud, undue influence and coercion, on the part of either party,
vitiate the contract and tender it voidable at the option of the other
party. To prove such undue influence, it must be established-
(i) that a party was in a position to determine the will of the
other party;
(ii) that he has used that position to obtain an unfair
advantage for himself.
Want of consideration--A consideration in its widest sense is
the reason; motive or inducement which causes a person to bind
himself ,,by an agreement. Such consideration must be real though
not adeqjite. It must have some value in the eye of law. It must not
be illegal nor it should be past. The law considers that an
agreement which is not caused by any inducement or consideration
is destitute of legal effect.
CHAPTER XVI
LIABILITY
123. Nature of Liability
When any person commits a wrong, he is said to be liable or
responsible for it. Liability or responsibility is the vinculum juris, i.
e. the bond of legal necessity that exists between the wrong-doer
and the remedy of the wrong. A man's liability consists in those
things which he must do or suffer because he has failed in doing
what he ought to have done. Liability has its source in the supreme
will of the State.
Liability may be, in the first place, either civil or criminal, and
in the second place, either remedial or penal, the nature of which
has already been sufficiently considered in a previous chapter on
the Administration of Justice. In the case of civil or remedial
liability, the direct purpose of the law is the enforcement of a right
vested in the plaintiff in civil proceedings. In the case of criminal or
penal liability, the purpose of the law, direct or ulterior, is the
punishment of the wrong-doer in criminal proceedings. The
liability of a borrower to repay the money is remedial, that of the
publisher of a libel to be imprisoned or to pay damages to the
person injured by him, is penal. All criminal liability is penal. Civil
liability, on the other hand, is sometimes penal and sometimes
remedial.
124. Rem edial Liability
Remedial liability is that in which the sole intention of the law
is the enforcement of the plaintiffs right and the idea of punishment
is entirely absent. Thus the liability of the borrower to repay the
money lent is remedial. The existence of a remedial liability
depends upon the existence of a legal duty binding upon the
defendant and unfulfilled by him. Whenever the law creates a
duty, it should enforce the specific fulfillment of it. So, what a man
is bound to do by a rule of law, he is made to do so, by the force of
law. But to this general principle there are three exceptions. These
are
(1) Duties of imperfect obligation:
The breach of such duty creates no liability at all and as
such gives no cause of action e. g. a thne-barred debt is no
doubt a legal debt, but the payment of it will not be
enforced by any court of law.
(2) Where the specific enforcement or fulfillment of a duty is
not possible due to the breach of it. There are duties which
Liability 201
cannot be specifically enforced when once they are broken.
Such duty is by its very nature incapable of specific
enforcement e. g. it is the duty of every person to refrain
from doing anything that is likely to injure the reputation
of others. But when a libel has already been published the
wrong-doer cannot be made to undo what he has already
done. Wrongs of this kind cannot be remedial; they can
only be punished.
(3) Where the specific performance of the duty is possible but
in—expedient, and the law considers that the award of
compensation will meet the requirements of the law. There
are duties, the specific enforcement of which the law can,
but will not enforce, because it is either inadvisable or in-
expedient to do so. Thus the law will refuse to enforce
specific performance of a promise of marriage or the breach
of contract of service on the ground of public policy. In
such cases the law provides pecuniary compensation.
125. Penal Liability
Penal liability is that ii which the sole intention of the !w is
the punishment of the wrong-doer. Here the idea of punishment is
predominant. The primary purpose of punishment is that It should
be deterrent. Where the law finds it impossible or inexpedient to
enforce a duty specifically, it fulfills its purpose by inflicting
punishment on the wrong-doer. The liability of a wrong-doer in
such cases is called penal liability.
Punishment, however, is not inflicted upon the won-doer
merely for doing a wrongful act; he must have done it with a guilty
mind. In other words, two conditions must be satisfied before
punishment can be inflicted upon a person; viz, (i) that he has
committed a breach of his duty, and (ii) that it would have been
possible for him to know that he was committing a wrong if he had
exercised due diligence. In other words, a person is penally liable
only for those wrongful acts which he does either willfully or
negligently. These two conditions of penal liability are sufficiently
indicated by the maxim—actus non facit reum, nisi mens sit rea, I.
e. the act alone does not amount to guilt, it must be accompanied by
guilty mind.
126. Acts—Nature of act and its elements
The term act is not capable of being defined with an. , great
precision, since in ordinary language, it is used at diffei-en4 times to
point different contrasts. Acts are generally events ; -hich suhecI
to the control of the human will. An act may, however, be resolved
into the following successive steps:
(1) Weighing the consequence in mind,
(2) Making a decision i. e. will,
(3) Bodily movement,
Will is the mental decision which is preceded by the weighing
of the consequences and is succeeded by a bodily movement; or in
other words, it is the choice of an act after consideration of its
consequences.
Classifications—Acts, so defined, may be divided into the
following classes:
(1) Positive and negative acts—The former are acts of
commission and the latter are acts of omission or
forbearance. A wrong-doer either does that which he ought
not to do, or omits to do that which he ought to do.
(2) Internal and external acts—The former are the acts of the
mind and the latter are the acts of the body. To think is an
internal act, to speak is an external act. Every external act
involves an internal act, but the converse is not always true.
(3) Intentional and unintentional acts—An intentional act is one
which is foreseen and desired by the doer, while an
unintentional act is one which is neither foreseen not
desired by the doer. It is unintentional when it is not the
result of any determination of the will towards the actual
results.
Elements—Every act is made up of three parts:
(1) Its origin is some mental or bodily activity of the doer e. g.
a gun is taken up in hand.
(2) Its circumstances e. g., the gum is loaded.
(3) Its consequences e. g., the trigger is pulled and a man is
killed.
Two classes of wrongful acts—Every wrong is an act which is
mischievous in the eye of law, because of its harmful consequences.
These consequences are of two kinds—actual or anticipated. In other
words, an act may be mischievous in two wa ys—either in its actual
results or in its tendencies. The first consists of those acts which
actually result in harmful consequences, the second consist of those
acts which may not end in harmful consequences, but which the
law regards as mischievous. Considered in respect of those
consequences, wrongful acts are, therefore, of two kinds;
Liability 203
(I) In the first case, there is no wrong or cause of action
without proof of actual damage and actual damage is
essential to the cause of action. They are actionable only on
proof of actual damage. Slander, for example, is in general
not actionable without proof of some loss sustained by the
plaintiff.
(2) In the second case, it is sufficient to prove the act itself even
though no harm has followed it. They are actionable per se
(without proof of actual damage) e. g. trespass, libel breach
of contract, etc. for, in law, they are acts of mischievous
tendencies and, as such, are actionable without any proof
of actual harm resulting therefrom.
With respect to this distinction between wrongs which do and
those which do not require proof of actual damage, it is to be
noticed that civil liability belongs to the former and criminal
wrongs commonly belong to the latter class. So, if by negligent
driving I expose others to the risk of being run over, I am not
deemed guilty of any civil wrong until an accident actually
happens. But criminal liability is sufficiently established by proof of
some act which is deemed dangerous in its tendencies even though
the issue is, in fact, harmless.
127. Damnum sine injuria
All wrongs are mischievous in the eye of law, but the converse
is not always true. There are many acts which though harmful are
not wrongful or, in other words, all mischiefs are not wrongful.
Such acts may result in serious injury, but no action will lie for the
injury thus caused. Because such acts do not cause what is called
legal damage, that is, the injury caused is no injury in the eye of
the law. The law will allow the doer of such act knowingly to inflict
harm on another and will not hold him liable for it. Harm of this
kind is called damnum sine injuria. Salmond divides such cases of
damnum sine injuria into two classes
(1) Where the harm done to the individual is a gain to the
society, e. g. competition in trade; or excavation on one's
land in such a manner as to withdraw the support required
by the building on. the adjoining property owned by other.
(2) The second class of damnum sine injuria includes all those
cases in which although real harm is done to the
community, yet it is so trivial or so difficult to prove that it
is considered by law inadvisable or inexpedient to attempt
its prevention by the law. The mischief is of such a nature
that the legal remedy would be worse than the disease.
In may, however, be pointed out that only in the sphere of
criminal law certain acts are made crimes, all other harmful kinds of
conduct of trivial nature belonging to the damnurn sine injuria. It is
disputed whether a similar principle ho l ds true of tort, or whether
there is a general theory of tortious liability for harmful acts.
12$. Mens rea
The general condition of penal liability is based on the maxim
actus non facit reum, nisi mens sit rea—i. e. the act itself creates no
guilt in the absence of a guilty mind. This is generally known
the doctrine of mens rea or the guilty mind. Penal liability is
commonly based on the co-existence of two conditions. These are;
(1) Material condition—That is, the doing of some overt ac
the person to be held liable. This material condition implies
two requisites:
(i) An act must be done.
(ii) The act must be done by the person to be held liable.
(2) Formal condition—That is, the mens rea or the guilty mind
with which the act is done. An enquiry must be made into
the mental attitude of the doer of the act before the law can
rightly punish the act, that is, a person is responsible not for
his acts in themselves but for his acts coupled with mens rea
or guilty mind. This mens rea or guilty mind may assume
one of tow forms—wrongful intention and culpable
negligence. The act must be done either with (i) wrongful
intention i. e. intentionally or without just cause or excuse,
or (ii) with culpable negligence or carelessness on the part
of the wrong-doer. Hence, wrongful intent and culpable
negligence are the two alternative forms of mens rea one or
the other of which is commonly required by law as a
condition of liability.
A person is, therefore, liable when he intentionally commits a
wrong; he is also liable when he does the wrongful act negligently,
because he did not take sufficient care to avoid it. Such punishment
will make him to be careful in future. A man intends the
consequences, when he foresees or desires them; he is guilty of
negligence when he does not desire the consequences and does not
act in order to produce them, but is nevertheless indifferent or
careless whether they happen or not. But if the act is neither
intentional nor negligent. i. e. not only did he not intend it, but did
his best to avoid it, no purpose will be served b y punishing him.
Liability 205
Thus, a person is liable of he acts (1) with wrongful intent or (2)
with culpable negligence. So the wrong-doers conduct must be
voluntary i. e. either willful or careless (negligent). These two
mental conditions are grouped together under the term mens rea.
Yet there are exceptional cases which the law regards as so
serious and harmful that it thinks fit to punish the wrong-doer even
in the absence of any intention or negligence—when the law takes
into account only the material condition and disregard the formal
condition of liability. Wrongs which are thus independent of mens
rea are distinguished as wrongs of strict or absolute liability.
From what has been stated above, we may state that in respect
of the requirements of mens rea, wrongs may be divided into three
classes:
Intentional or wilful wrongs—Here mens rea amounts to an evil
intention, or design or knowledge of the wrongfulness of the acts.
Wrongs of negligence Here mens rea assumes the form of
mere carelessness. It is the absence of such care as it was the duty of
the wrong-doer to use.
Wrongs of strict or absolute liability—Here mens rea is not
required at all. These are the acts for which a man is responsible
irrespective of the existences of either wrongful intention or
culpable negligence. Thus they are the exceptions to doctrine of
mens rea, which is not recognised as a necessary condition of
responsibility.
129. The Nature of Intention
Salmond defines 'intention' as the conscious purpose or design
with which an act is done. It is the foreknowledge of the act coupled
with the desire of it. An act may be intentional when it exists in
idea before it is realised into a fact, or wholly unintentional when it
did not exist in idea before it became realised in fact, or partly
intentional. e. g. if throw stones, I may intend to break a window
but not to do personal harm to any, yet, in the result, I may do both
these things.
Intention does not necessarily involve expectation, e. g. if I fire
at a man a mile away. I may not expect to hit him, but at the same
time, I intend to shoot him. Conversely, expectation does not in
itself amount to intention, e. g. an operating surgeon may well
know beforehand that his patient will probable die of operation.
Yet, he does not intend the fatal consequences which he expects. He
intends the recovery which he hopes for but does not expect.
Now, what shall be of consequence which, though not desired,
are nevertheless known to be cert in, and are the inevitable
consequences of certain things which are desired. For example, a
manufacturer establishes a factory in which he employs many
workmen who are daily exposed to the risk of dangerous
machinery or processes. He knows with certainty that from time to
time fatal accident will, notwithstanding all precautions, occur to the
workmen so employed. Does he then intend their deaths? Again, a
Military Commander orders his troops into action, well knowing
that many of them, will lose their lives. Does he intentionally cause
their deaths? Salmond says that these questions are to be answered
in the negative Such consequences, though foreseen as certain, are
not desired and, therefore, not intended. It is not possible to define
the term 'intent' as to include both the consequences which, though
probable, are not desired and which, though improbable, are
desired.
Again, I may desire and intend a particular result, but the
result may be quite the different from what I had intended it to be.
Thus he who does grievous hurt to another, though with no intent
to kill him, is guilty of murder if death ensues. Therefore, it is
sometimes said that a person is presumed in law to intend the
natural of necessary results of his actions. This maxim, if strictly
applied, would take away from its scope the difference between
intentional and negligent wrong-doing. But criminal liability will
not exempt a person froi the liability for the consequences of his
wrong-doing, for no person who knows that certain results will flow
from his illegal acts, will he suffered to say that he did not intend
them. In other words, in criminal law the intention that is material
is usually the general intention. ,o commit a crime and not the
specific intention. Thus, if A shoots B intending to kill him, but the
shot a.ctually kills C, this is held to he the murder of C, and A will
not he permitted to say that he did not intend to murder C, So also,
if A throws stone at one window and breaks another, it has been
held to be malicious damage io the window actually broken.
130. Intention, Motive and Malice
Intention and motive invariably go together but there is a
subtle difference hetweer the two. A wrongful act i, e. a crime is
seldom intended or desjr'i d committed for its own sake. The
wrong-doer has in view some ulterior cbject which he desires to
obtain, that is, there is some purpose or object which he desires to
fulfill by means of his crinirl act. Thus, I f a thief robs a person, his
Liability 207
immediate intention is of course to rob him, but there may also be
some purpose behind the act of robbing which may be to buy food
with it or to pay a debt. This ulterior intent is called the motive of
the act. The immediate act consists of intention.
Secondly, a mans motive for an act consists in a desire for
something which will confer a real or imagined benefit of some
kind on the actor himself, whereas his intention need not relate
some personal interests of this kind. The point of asking what a
man intends is to discover what he is trying to achieve. The point of
asking for his motive is to find out what personal advantage he is
seeking to gain, and a motiveless act is one aimed at no such
personal advantage.
The objective of one wrongful act may be the commission of
another. I may make a die with intent to coin bad money; I may
coin bad money with intent to utter it; I may utter it with intent to
defraud. Each of these acts is or may be a distinct criminal offence,
and the intention of any one of them is immediate with respect to
that act itself, but ulterior with respect to all that go before it in the
series.
Again, a person's ulterior intent may be complex instead of
simple; he may act from two or more current motives instead of
from one only. Thus, he may institute a prosecution partiy from a
desire to see justice done, but partly also from ill-will towards the
defendant.
Malice—Closely connected with the law and theory of
intentional wrong-doing is the legal use of the word malice. In a
narrow and popular sense, malice means ill-will or spite or
malevolence, but its legal significance is much wider. In its legal
sense, it means any kind of intent or purpose which the law
disapproves. Malice means, in law, wrongful intention or
recklessness. Any act done with one of these elements is, in the
language of the law, malicious. The equivalent Latin term malitia
means badness, physical or moral wickedness in disposition or
conduct—not exclusively ill-will or malevolence. Hence the malice
of English law includes all iorms of evil purpose, design, intent or
motive.
We have seen in a previous chapter the distinction between the
immediate intention with whjh an act is done and its ulterior
purpose or motive. The term malice is applied in law to both these
An act done with a bad intention or had motive is said to have been
done maliciously. But it may also mean either e two. For
example, in the phrases malicious homicide' and 'malicious injury'
to property, 'malicioiTmere1y a collective term for intention and
recklessness without any reference to motive. Similarly, I burn
down a house maliciously if I burn it on purpose or realising the
possibility that what I do will set it on fire. There is here no
reference to any ulterior purpose or motive. But, on the other hind,
malicious prosecution does not mean any intentional prosecutiot; it
means, more narrowly, a prosecution, inspired by some motive of
which the law disapproves. A prosecution is malicious, if, for
example, its ulterior intent is the extortion of money from the
accused. So, also, with the malice which is needed to make a man
liable for defamation on a privileged occasion. I do not utter
defamatory statements maliciously simple because I utter them
intentionally. Malice in common acceptation means ill-will against a
person; but in its legal sense, it means a wrongful act done
intentionally, without just cause or excuse.
Save in exceptional cases, malice in the sense of improper
motive, is entirely irrelevant for determining the question of legal
liability. The law in general asks merely what the defendant has
done and not why he did iL
131. Relevance and Irrelevance of Motives
We have already seen in what way and to what extent a mans
immediate intent is material in a question of liability. Intention and
negligence are the two alternative conditions of penal liability. We
have now to consider the relevance or materiality not of the
immediate but of the ulterior intent. To what extent does the law
take into account the motives of a wrong-doer? To what extent will it
enouire, not merely what the defendant has done, but why he has
done it? To what extent is malice, in the sense of improper motive,
an element in legal wrong-doing?
As a general rule, a persons motive is immaterial in
determining the question of legal liability. An act otherwise lawful
does not become unlawful because it is done with a bad motive or
conversely, an act otherwise unlawful cairrtot be excused on the
ground that it was done with the best of motives. In other words,
the law will judge a person by what he does and not the reasons
good or bad, which caused him to do it. An act prima facie lawful is
not unlawful and actionable on account of the motives which
dictated it. An illustration of this irrelevance of motives is the right
of a land-owner to do harm to adjpining proprietors in certain
defined ways by acts done on his own land. But there are three
Liability 209
exceptions to the above general rule as to the irrelevance of
motives. Thus, motive is essential and relevant in the following
cases;
Criminal attempts—Criminal attempts constitute the first of the
exceptions to the rule that a persons ulterior intent or motive is
irrelevant in law. An attempt to commit an offence is itself a crime
and punishable because the attempt reveals the criminal character
and guilty mind of the offender and because it may constitute a
danger to the social interest concerned. Therefore, the law makes no
distinction between a crime and an attempt to commit a crime.
Every attempt is an act done with intent to commit the offence so
attempted. The act in itself may be innocent, but is deemed to be
criminal by reason of the purpose i. e. the wrongful motive with
which it is done. A criminal attempt bears criminal intent upon its
face as it is itself the evidence of criminal intent with which it Is
done. Thus, to buy or load a gun even with intent to murder is not
an offence. But to lie in wait with a loaded gunman act which itself
proclaims the criminal intention and the guilty mind of the person
attempting the act and is, therefor, punishable as an offence. Again,
if a man standing by the side of a haystack strikes a match, this act
will be quite lawful and innocent if done with the purpose of
lighting his pipe, but it will be unlawful and criminal if done with
the purpose of setting fire to the haystack. For then it will constitute
the crime of attempted arson. The existence of ulterior intent or
motive is the essence of an attempt and can render unlawful an
otherwise lawful act. Hence motive is relevant in criminal attempt.
Cases in which particular intent forms part of the definition of a
criminal offence—A second exception to the irrelevance of motive
comprises all those cases in which a particular intent forms part of
the definition of criminal offence. For example, the offence of
burglary consists in breaking and entering a dwelling house by
night with intent to commit a felony or theft therein. So, forgery
consists in making a false document with intent to defraud. In all
such instances, the motive is the source, in whole or part, of the
mischievous tendency of the act and is, therefore, material in law.
Malicious prosecution—In civil (as opposed to criminal) liability
motive is very seldom relevant. In almost all cases the law looks to
the act alone and makes no inquiries into the motives from which It
proceeds. There are, however, certain exceptions even in the civil
law, where motive forms one of the principal ingredients. There are
cases where it is thought expedient in the public interest to allow
certain specified kinds of harm to be done to indivi4us, so krng a$
—Th
they are done for some good and sufficient reason; but the ground
of this privilege falls away as soon as it is abused for bad ends. In
such cases, therefore, malice is an essential element in the cause of
action. Examples of wrongs of this class are defamation (in cases of
privilege) and malicious prosecution. In these instances the plaintiff
must prove malice, because in all of them the defendant's act is one
which falls under the head of damnum sine injuria so long, but so
long only, as it is done with good intent.
A prosecution is malicious when it is inspired by soMe motive
of which the law disapproves. Malicious prosecution does not mean
intentional prosecution. In order to succeed in such a case the
plaintiff must prove that The defendant acted with a malicious
intention i. e. with a wrongful motive or ulterior wrongful intent.
Thus malice or improper motive is the gist of the action of ITtaliciour
prosecution and is, therefore, relevant in such a case. Malicious
prosecution is one of those few wrongs where improper or wrongful
motive is essential to constitute liability.
132. Jus Necessitatis in relation to wrongs
So far as the abstract theory of responsibility is concerned, an
act, which is necessary, is not wrongful, even though done with 1u11
and deliberate intention. This is a special case in which Motive
operates as a ground of excuse. This is the case of jus necessitatis. It
is a familiar proverb that necessity knows no law ; Necessitas non
hahet legem. In such cases, although the element of intention is
present, niens rea or guilty mind is presumed to be absent, for
necessity knows no law.
Necessity, however, does not mean inevitability i. e an act
which can in no possible manner be avoided. An act which Is
necessary is one where the actor could have chosen otherwise, but
he had highly compelling reasons for the choice he made. In a
situatiop of so-called necessity, the law itself permits a departure
from its own principles. For example, it would be lawful in an
emergency to damage the property of another in order to save life.
The common Illustration of this right of necessity where
punishment would be ineffective is the case of two drowning Men
clinging to a plank that will not support pore than one of theM.
This, in the opinion of Sir John Stephen, is not a criMe. Salmorid
gives the illustration of another familiar cas of necessity in which
ship-wrded sailors are driven to choose death by starvation of the
one si4e and rnurdçr and cannibahstp oil the other. It is the right of
thg stronger to use his strength for his own preservation. A third
Liability 211
case is that of a crime committed under the pressure of illegal threat
of death or grievous bodily harm. In this connection. Hobbes
observes—"If a man by the terror of present death be compelled to
do an act against the law, he is totally excused, because no law can
oblige a man to abandon his own preservation". But the English
courts in the famous case of Dudley have held that no necessity will
justify what would otherwise be murder, although it is
acknowledged as a reason for the reduction of the penalty. Ship-
wrecked sailors who kill and eat their comrades to save their own
lives are in law guilty of murder itself; but the clemency of the
Crown will commute the sentence to a short term of imprisonment.
Thus, jus necessitatis is a special case in which intention is present
but the mens rea is absent. The effect of jus necessitatjs is two-fold
(1) It is admitted and recognised as a ground of excuse in some
cases.
(2) In other cases it reduces the seriousness and gravity of the
crime as stated above.
133. Negligence
Negligence is culpable carelessness. "It is" says Willes, J . "the
absence of such care as it was the duty of the defendant to use". It
excludes wrongful intention. Thus, if I do harm but thoughtlessly
believing that there was no danger, I am guilty of negligence. But
carelessness or negligence does not necessarily consists in
thoughtlessness or inadvertence. Thus, if I drive furiously down a
crowded street, I may be fully conscious of the serious risk to which
I expose other persons. I may not intend to injure any of them, but
knowingly and intentionally expose them to the danger and if a
fatal accident happens, I am liable, at the most, not for wilful but for
negligent homicide. So, when I consciously expose another to the
risk of wrongful harm but without any wish to harm him and harm
actually ensues, it is not wilful since it was not desired, nor
inadvertent since it was foreseen as possible or probable, but
nevertheless negligent. 'Negligence', says Salmond, 'consists in the
mental attitude of undue indifference with respect to one's conduct
and its consequence.
Negligence is of two kinds
(1) advertent and (2) inadvertent or simple negligence.
Advertent or Willful Negligence
Here the harm is foreseen as possible or probable, but it is not
at all willed or intended—e. g. a person who does a dangerous act
knows fully well that he is exposing others to a serious risk of
injury-4--here he is guilty of wilful negligence—his act is wilful
because the harm is foreseen although it was not intended.
Inadvertent or Simple Negligence
Here the barm is neither foreseen nor willed. Thus a physician
who treats a patient improperly through ignorance or forgetfulness
is guilty of simple negligence; but if he does the same in order to
save himself from troubles, or by way of scientific experiment with
full knowledge of the dangers involved, his negligence is wilful.
Similarly, a drunken man is liable for negligence, if he stumbles as
he walks along the street and breaks a shop window although he
may have been exceedingly anxious to walk straight and to avoid
any such accident, because if he had been careful while getting
drunk the accident would not have happened. Again, a physician
may devote to the treatment and cure of his patient with care far in
excess of that which another skilful physician would consider
unnecessary, yet if his treatment is wrong, he is guilty of
negligence because he was careless in taking work calling for
greater skill than he possessed.
134. Duty and Standard of Care
Carelessness is not made a ground of liability except in those
cases in which the law has imposed a duty of carefulness. In all
other cases, complete indifference as to the interest of others is
allowable. No general principles can be laid down, however, with
regard to the existence of this duty, for this is a matter which
depends upon the facts of each case. Speaking generally, in the
criminal law the liability for negligence is quite exceptional. In the
civil law, on the other hand, an act which would be a civil wrong, if
done intentionally, is also a civil wrong if done negligently. In
other words, negligence is culpable or not culpable, as the law
thinks fit to provide.
Standard of care—The degree of carelessness varies directly
with the risk to which other persons are exposed by the act in
question. The law does not demand the highest degree of care of
which human nature is capable. The law demands not that which is
possible but that which is reasonable in view of the magnitude of
the risk. It is of course dangerous to drive a car in a crowded street.
Yet it is expedient in the interest of the public that such activities
should go on and men be exposed to the risk incidental to such
activities. It is a question of law whether in any particular
circumstance a duty of care exists.
Liability 213
"Negligence" it has been said, "is the omitting to do an act
w hich a reasonable man would do, or the doing of something which
a reasonable man would not do". What amounts to reasonable care
depends entirely upon the circumstances of the particular case. The
care taken by the prudent man has always been the rule.
138. Degree of Negligence
English law recognises only one standard of care and, therefore,
only one degree of negligence. Whenever a person is under a duty
to take care at all, he is bound to take that amount of it which is
deemed reasonable under the circumstances; and the absence of this
care is culpable negligence. It is a question of law (i. e. it is a
question for the Judge to decide) whether in any particular
circumstances a duty of care exists. But where a system of law
recognises only one standared of care, it does not necessarily follow
that it must recognise only one degree of negligence. For since
negligence consists in falling bellow the standard of care recognised
by law, the further the defendant falls below this standard, the
greater his negligence. There are then degrees of negligence and
these could be taken into account by law for both criminal and civil
purpose. In crimes of negligence the law could provide that greater
the negligence the greater the punishment. Although English law
does not recognise many offences of negligence, but the different
gradations of carelessness can be found in the law relating to read
traffic. Here a distinction is drawn between ordinary negligence,
criminal negligence and gross negligence. Ordinary negligence is
such failure to use care as could render a person civilly but not
criminally liable; criminal negligence is a greater failure and a
greater falling below the Standard of care and renders a man guilty
of driving offence—(and even within this category the law
distinguishes between the negligent offence of careless driving and
more negligent offence of dangerous driving); gross negligence is a
yet greater fall below the standard and is such a wholly
unreasonable failure to take care as to make the defendant guilty
not only of driving offence, but also of manslaughter in the event of
his conduct resulting in another person's death.
Roman law recognises two degrees of negligence viz, gross
negligence (culpa lata) and slight negligence (culpa levis). It looked
upon gross negligence as equivalent to wrongful intention. On the
very face of it, this appears to be a paradox, because intention and
negligence are two poles apart. However, if we go deep into the
subject, we find that the grossest form of negligence may touch the
border-land of design or purpose. For, there must come a point
where gross negligence cannot be negligence at all. Its grossness
raises a presumption against its reality. If a newborn child is left to
die from want of medical attention or nursing, it may be that its
death is due to negligence only, but it is more probable that it is
due to wrongful purpose, namely, infanticide. Again, in certain
cases negligent acts are deemed to be wrongful in intent by the
law, e. g. the law of homicide (not amounting to murder). An intent
to cause grievous bodily harm is imputed as an intent to kill, if
death ensues.
136. The Subjective and Objective Theories of
Negligence
There are two rival theories of the meaning of the term
negligence. According to one, negligence is a state of mind;
according to the other, it is not a state of m!nd but merely a type of
conduct. The opposing views may conveniently be distinguished as
the subjective and objective theories of negligence. The former view
was adopted by Sir John Salmond, the other by Sir Frederick
Pollock.
The subjective theory of negligence—In the subjective sense,
negligence signifies a particular state of mind and is opposed to
wrongful intention. Prof, Salmond used the term negligence in this
sense. His view was that a careless person is that person who does
not care; his attitude is essentially one or indifference. Negligence,
on this view, essentially consists in the mental attitude of undue
indifference with respect to ones conduct and its consequences.
The subjective theory has the meiit of making clear the
distinction between intention and negligence. The wilful wrong-
doer desires the harmful consequences and, therefore, does the act
in order that they may ensue. The negligent wrong-doer does not
desire the harmful consequences but in many cases is careless and
indifferent whether they ensue or not and, therefore, does the act
notwithstanding the risk that they may ensue. The wilful wrong-
doer is liable because he desires to do the harm; the negligent
wrong-doer is liable because he does not sufficiently desire to avoid
it.
The truth contained in the subjective theory is that in certain
situations any conclusion as to whether a man had been negligent
will depend partly on conclusions as to his state of mind. But to
identify negligence with any one state of mind is a confusion and
an over simplification. We have seen that negligence consists in the
failure to comply with a standard of care and that such failure can
Liability 215
result from a variety of factors, including ignorance, inadvertence
and even clumsiness. Again, the state of mind is also not
conclusive. In certain circumstances it may be held in law that a
reasonable man could know things that the defendant did npt
know, and the defendant will be blamed for not knowing and held
liable because he ought to know.
The objective theory of negligence—According to Sit Frederick
Pollock, negligence is not a subjective, but an objective fact. It is not
a particular state of mind or a form of mens rea at all, but a
particular kind of conduct. It is a breach of the duty of takihg care
and to take care means to take precautions against the harmful
result of one's actions, and to refrain from unreasonably dangerous
kinds of conduct. To drive at night without light is negligence,
because, to carry lights is a precaution taken by all reasonable and
prudent men for the avoidance of accidents. If the defei%dant has
failed to achieve this standard, it is no defence for him to show that
he was anxious to avoid doing harm and took the utmost care of
which he was capable. The same seems to hold good in criminal
law. This view obtains powerful support from the law of tot, where
it is clearly settled that negligence means a failure to achieve the
standard of a reasonable man.
It is, however, possible to reconcile both these two theories of
negligence. In criminal law a sharp distinction is drawn between
intentionally causing harm and negligently causing harm, and in
deciding whether the accused is guilty of either, we must have
regard to his knowledge, aims, motives and so on, Cases of
apparent negligence may, upon examination of the party's state of
min4, turn our to be cases of wrongful intention. A trap door may
be left unbolted, in order that one's enemy may fall through It and
so die, Poison may be left unlabelled, with intent that someone may
drink it by mistake. A father who neglects to provide medicine for
his sick child may be guilty of wilful, murder, rather than of mere
negligence. In none of these cases, nor, indeed in many others, can
we distinguish between intentional and negligent wrongdoing,
save by looking into the mind of the offender and observing his
subjective attitude towards his act and its consequences. Externally
and objectively the two classes of offences are indistinguishable. In
the objective sense, Prof. Salmond uses the term 'negligent conduct'
and not merely negligence. Thus negligence is either state of the
mind or a conduct resulting from such mental state.
216 jurisprudence & Comparative Legal Theory
137. Negligence and Inadvertence
According to Austin, negligence, signifies a particular state of
mind of one who inadvertently omits ail act and breaks a positive
duty. Hence negligence consists essentially in Inadvertence, that Is,
In failure to be alert, circumspect or vigilant. It is the omission of an
act and the violation of a positive duty. The act Is omitted because
the agent does not advert to it.
Prof. Salrnond raises the following criticism to the above
Austinian theory of negligence:
All negligence is not inadvertent—Negligence does not
necessarily consist in thoughtlessness or inadvertence. There may
be such a thing as advertent negligence or wilful negligence—
where the wrong-doer foresees the harm as possible or probable but
does not will or intend it at all. At first sight the term wilful
negligence appears to be self contradictory, but really it is not so. A
person who drives his car furiously down a crowded road (say
Nawabpur Road, Dhaka) knows fully well that he is exposing
others to danger but he does not intend harm to anybody. Here he
is guilty of wilful negligence—it is wilful because the harm is
foreseen, although it is not intended.
All inadvertence is not negligence—Inadvertence may be
caused by many causes, such as mistake, accident, deliberate
intention and carelessness. But it is not negligence unless it is
caused by carelessness. The essence of negligence is not
inadvertence but carelessness.
138. Wrongs of Absolute or Strict Liability
A person is liable if he acts with wrongful intent or with
culpable negligence. These two mental conditions are grouped
together under the term mens rea. Wrongs of absolute or strict
liability are those wrongs for which a person is made responsible
irrespective of the existence of either wrongful intention or
negligence. They form exceptions to the maxim, Actus non facit
reum nisi mens sit rea I. e. the act alone does not make the doer of
it guilty unless it is done with a guilty mind. The chief instances of
this kind of liability fall under three classes:
(1) Mistake of law, (2) Mistake of fact, and (3) Accident.
Mistake of law—Ignorance of law is no excuse for breaking it.
The maxim to this effect is ignorantia juris neniinern excusaf. The
rule is absolute and the presumption is irrebuttable. The reason for
this rigorous principle are variously stated thus:
Liability 217
Black stones View
The law Is definite and knowable. Every citizen ought to know
the law under which he lives and by which his actions are
governed. Therefore, innocent ignorance of law is impossible. It is
the duty of every man to know that part of the law which concerns
him.
Savigily's View
The jaw Is in most cases derived from the rules of natural
Justice. Therefore, although a man may be ignorant that he is
breaking the law, he knows very well that he is acting unjustly and
dishonestly and thereby violating a right. So, if the law refuses to
recognise his ignorance as an excuse, he has little ground of
complaint.
Austin's View
It is extremely difficult to enquire whether the party did
actually know the law. Hence, if ignorance of law were admitted as
a ground of exemption, the court would be involved in questions
which it were scarcely possible to solve, and which would render
the administration of justice next to impossible.
According to Salmond none the above reasons sufficiently
justifies the rule. He criticises the above view thus:
(1) There is no doubt that all these considerations are
substantial, but they do not afford a sufficient justification
for the strict application of this principle;
(ii) That the law is knowable by all who want to know, is
more an ideal than an actual fact;
(iii) That it is impossible to distinguish between wilful and
negligent ignorance of law is by no means wholly true;
and
(iv) That the law is based on principles of natural justice is far
from truth, Hence Salmond remarks that the rule,
however, is restricted to matters of general law and not
matters of private right.
Mistake of fact—Ignorance of law is not an excuse but ignorance
of fact Is often so. Inevitable ignorance of fact affords a good defence.
Mistake of fact is an excuse unless it is the result of carelessness or
negligence. Hence ignorance of fact is a defence to criminal liability,
when the act is clearly wrong in itself or when the act is absolutely
prohibited, presence or absence of knowledge being immaterial.
The general rule of English law is that mistake of fact is an
excuse within the sphere of criminal law, while in civil law the
responsibility is commonly absolute in this respect. ThUs, so far as
civil liability is concerned, it is the general principle of law that he
who intentionally interferes with the person, reputation, property or
other rightful interests of another, does so, at his peril, and will not
be he permitted to plead that he believed in good faith and on
reasonable grounds the existence of some circumstances which
justified his acts. If I trespass on another man's land, It is no defence
to me that I believed it on good grounds to be my own. If,
intending to arrest A, I arrest B liy mistake instead, I am civilly
liable to him, notwithstanding the greatest care taken by me to
ascertain his identity. If I falsely but innocently make a defamatory
statement about another, I am liable to him, however, careful I may
have been to ascertain the truth. In civil law, therefore, mistake of
fact, can hardly be regarded as a ground of legal excuse.
In the criminal law, however, the matter is otherwise. Absolute
criminal liability for a mistake of fact is quite exceptional. An
instance of it is the liability of him who abducts a girl under the age
of legal consent; inevitable mistake as to her age is no defence; he
must take the risk.
Accident—Inevitable accident is commonly recognised as a
good ground of exemption from liability both in civil andcriminal
law. Inevitable accident is that which could not possibly be
prevented by the exercise of ordinary care, caution and skill. It does
not however mean absolutely inevitable, but means "not avoidable
by any such precaution as a reasonable man doing such an act then
and there could be expected to take".
Every act which is not done intentionally is done either
accidentally or by mistake. It is done accidentally when it is
unintentional in respect of its consequences. It is done by mistake,
when it is intentional with respect to its consequences but
unintentional with respect to some material circumstances. If I drive
a car over a man in the dark because I do not know that he is on the
road, I injure him accidentally; but If I procure his arrest because I
mistake him for someone who is liable to arrest, I injure him not
accidentally but by mistake. In the former case I did not intend the
harm at all, while in the latter case I fully Intended it.
Accident like mistake is either culpable or inevitable. It is
culpable when it is due to negligence; but inevitable when the
avoidance of it would have required a degree of care exceeding the
standard demanded by the law. Culpable accident is no defence
save in those exceptional cases where wrongful intent is the
exclusive and necessary ground of liability. But inevitable accident
Liability 219
is commonly a good defence both in the civil and the criminal law.
There are, however, some exceptions in the civil law, where even
inevitable accident is no ground of defence. There are cases in
which the law insists that a person shall do certain things at his own
peril, and if any harm is caused, he is liable irrespective of
inevitable accidents, because in such a case, there is an absolute
duty of insuring safety to others. Certain things are a source of
extraordinary risk, and a man who exposes his neighbour to such
risk is held answerable or liable to his neighbour as an insurer
against consequent mischief. Here the liability cannot be avoided
even by proof that utmost diligence and care has been taken. The
examples are:
(1) When damage is done by the escape of dangerous
substances, brought or kept by anyone upon his land (e. g.
constructing of a reservoir of water) as held in the famous
case of Raylad vs. Fletcher.
(2) When a man keeps wild beasts
(3) When a man erects dangerous structures by which
passengers in the highway may come to harm.
(4) Every man is absolutely responsible for the trespass of his
cattle.
139. Grounds of Exemption from Liability
There are various conditions which, when present, will prevent
an act from being wrongful which, in their absence, could be a
wrong, Under such condition the act is said to be justified or
excused. The following are the general grounds of exemption from
liability:
(1) Inevitable mistake—That is an accident which could not
have been avoided by the use of reasonable care and
caution.
(2) Mistake of facts—Mistake of fact with the exceptions, as
discussed in Section 138 (at page 224).
(3) Absence of wrongful intention, and
(4) Absence of culpable negligence.
140. Vicarious Liability
As a general rule, a man is liable for his own wrongful act, but
there are certain exceptional cases which both ancient and modern
law imposes on him vicarious liability for the acts of others though
he had no part in those acts. In these cases one person is held liable
for the wrong done by another. Criminal liability, however, is
never vicarious. Modern civil law recognises vicarious liability in
two classes of cases as follows:
The master's liability for the acts of the servant while acting in
the course of his employment—A master is liable for the wrongful
acts or omissions committed by his servant in the course of his
employment, whether the wrong be committed negligently, want
only, or even wilfully and though no express command of the
master is proved. All acts done by a servant in the course of his
etnployment are presumed to have been done by his master's
express or implied authority and are, therefore, regarded as the acts
of his master for which he is rightly held responsible. The maxim is
qui facit per alium facit per se. i. e., he who does an act through
another is deemed to do it himself. The reasons for this liability are
as follows:
(a) The rational basis for such liability is the evidential
difficulty in the way of proving actual authority. It is
extremely difficult to prove actual authority and very easy
to disprove it in many cases and hence it is necessary and
expedient to establish a conclusive presumption of it.
(b) A further reason is that generally, employers are, while
their servants are not, financially capable of bearing the
burden of civil liability. A person who is capable of
making compensation for the results of his wrongful
activities, should not be allowed to escape from the duty of
doing so be delegating the exercise of those activities to his
servants or agents from whom no compensation can be
obtained.
Responsibility of living persons for the act of dead persons—
The common law maxim was actio personalis morifor cum persona;
personal liability dies with the person i. e. a person cannot be
punished in his grave. Therefore, as a general rule, criminal
liability extinguishes with the death of the wrong-doer. But this rule
of law has to a great extent been abrogated by statutory provisions
with regard to penal redress, a civil action. It is now settled that the
liability to penal redress must originate in the lifetime of the wrong-
doer, but once it has originated it is to continue in spite of the death
of the wrong-doer (This is known as the principle of compensation.)
Firstly, because when a wrong has been committed, the person
wronged should not be deprived of his remedy, that is to say, a
valuable right should not become extinct by a mere irrelevant
accident such as the death of the offender. There is no sufficient
reason why a debt should not survive a deceased person; but the
responsi1i1ity for assault, defamation and other acts involving
compensation should be exempted from liability. And secondly,
Liability 221
although punishment cannot be inflicted after death, yet 'thp threat
of civil consequences to the successor might serve as a deterrent
during his lifetime and this primary object of punishment can be
fulfilled by allowing actions against his estate, and no injstice is
thereby done to the successors, because the property alone which is
bequeathed to them is made liable for the acts of the deceased and
they are not personally liable as in old times.
It is to be noted that punishment is effective not when it is
committed, but at the time it is threatened. A threat of evil to be
inflicted upon the descendants of a man at the expense of his estate
will certainly operate as a deterrent influence on him.
141. Measure of Criminal Liability
In every crime there are three elements which must be taken
into consideration for the appropriate measure of punishment.
These are (i) the motive to the commission of the offence, (ii) the
magnitude of the offence, and (iii) the character of the offender.
Motive of the offence—The object of punishment is to counteract
the natural motives for the commission of the crime. So, otherthings
being equal, the stronger the natural motive to commit an offence,
the greater should be the punishment, or, in other words, the
greater the impulse or temptation to commit a crime the greater
should be the punishment.
But in exceptional cases extreme temptation under compelling
circumstances may form a ground for mitigating punishment, e.g. a
person who steals in order to feed his hungry children, he having
no other means to satisfy their hunger. Sometimes offences are
committed merely through the influence of bad company or society
and not through the strength of bad motives. In such cases, the
above principle or fundamental rule should not be strictly followed.
Magnitude of the offence—Other things being equal, the
greater the offence, that is to say, the greater the evil consequences
of the offence, the greater should be the punishment. As to why
punishment should be measured by the evil caused to other
persons and not solely by the profit derived by the offender,
Salmond gives the following reasons:
(a) It is profitable and likely to be more effective to employ
proportionately greater punishment with the hope of
preventing greater mischief.
(b) If the punishment varies with the magnitude of the offence
the wrong-doer is thereby given a chance to choose less
serious crime and to receive lesser form of punishment. To
put it negatively, if the punishment for theft and for
murder were the same, the offender could naturally choose
murder because there wpuld b': lesser chance of detection,
because dead man tells no taks— and the risk involved is
the same.
Character of the offender—The worse the character or the
disposition of the offender the more severe is the punishment which
he deserves. In the matter of punishment, one of the most important
factors that should be taken into consideration is the repetition of the
crime by one who has already been punished for similar offence
previously committed by him. The law rightly imposes upon
habitual offenders penalties which are disproportionate to the
magnitude of the offence. Again, grater the depravity of the
character of the offender, the greater should be the penalty inflicted.
To kill a child in order to facilitate a robbery is a proof of
extraordinary depravity of human mind, which offers greater
punishment. Any fact Which indicates depravity of disposition is a
circumstance of aggravation and, therefore, calls for enhanced
punishment. Such facts are:
(1) Repetition of the crime-.--A punishment generally adopted
for normal man is not appropriate for habitual offenders.
(2) Wilful offences—These offences are punished with greater.
severity than those which are caused by mere negligence.
(3) Offences contrary to natura affection—To kill one's father is
viewed with greater abhorrence and, therefore, punished
with great severity.
(4) Mischief disproportionate to profit—To kill a man for pick-
pocketing is a proof of extraordinary depravity of
disposition and, therefore, punished with great severity.
(5) Decrease or deficiency of sensibility—Punishrrtent must
increase as sensibility diminishes. The more depraved the
offender the greater should be the punishment.
142. Measure of Civil Liability
The characteristic of civil liability is that it is measured
exclusively by the magnitude of the offence, that is to say, the
amount of loss inflicted by in irrespective of the character of the
offender, or of the motive for the offence. This liability consists of
the compulsory compensation to the person injured as an
instrument of punishment of the offender. This form of punishment
is called penal redress.
Liability 223
As an instrument of punishment penal redress has merits as
well as demerits. But in the whole, this form of redress possesses
greater advantages thaft Imprisonment, because the redress is both
the gain for him who has been wronged, as well as punishment to
him who has committed the wrong. Moreover, this form of remedy
affords greater interests to the person wronged, an interest which is
almost absent in the case of criminal law.
But penal redress talert by itself falls short of the requirements
of a rational scheme of unishment. Therefore, in all developed
bodies of law, its operation is supplemented and deficiencies made
good by a co-ordirtate system of criminal liability. An equitable
combination of the two (civil and criminal) offers a very efficient
instrument for the maintenance of justice.

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CHAPTER XI

THE KINDS OF LEGAL RIGHT

117. Kinds of title

Investitive ( Original Creation of

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