Notes

LAW OF TORT

SCOPE OF THE LAW OF TORTS The law of tort is a branch of civil law. The word "tort" is derived from the Latin word tortum which means twisted or crooked or wrong. Hence a tort is conduct which is twisted or crooked and not straight. As a technical term of English law, however, tort has acquired a special meaning as a species of civil injury or wrong.

FALSE IMPRISONMENT

Complete deprivation of liberty A false imprisonment of one is the complete deprivation of his liberty for any time, however short, without lawful cause. There need not be any actual imprisonment in the ordinary sense, i.e., incarceration. Even a person who is too ill and incapacitated to move about may have an action for false imprisonment if his freedom of movement had actually been restrained for any time, however short it may have been.

DEFAMATION

Introduction The right of each man during his lifetime to the unimpaired possession of his reputation and good name is recognised by law. Reputation depends upon opinion and opinion in the main on the communication of thought and information from one individual to another. A person's own opinion about himself is not his reputation. It means rather the opinion of others about him. The good name one bears or the esteem in which one is held in society is one's reputation.

REMOTENESS OF DAMAGE

REMOTENESS OF DAMAGE The rule of remoteness of damage runs through the whole realm of compensation. A plaintiff is not entitled to get damages if the damage sustained by him is too remote a consequence of the defendant's conduct. The chain of causation between the defendant's act and the plaintiff's injury must not be too indirect for no man is liable in law ad infinitum for the consequences of his acts. The reason for the rule is that law cannot take account of everything that follows a wrongful act; it regards some subsequent matters as outside the scope of its selection.

NEGLIGENCE

NEGLIGENCE Mental state and conduct In the modern law of tort, the word negligence has two meaning. Firstly, it indicates the state of mind of a party in doing an act and secondly, it means a conduct which the law deems wrongful. It means blameworthy inadvertence in the consequences of conduct insofar as a reasonable man would have adverted to them.

NUISANCE

NUISANCE "Nuisance may be described as unlawful interference with a person's use or enjoyment of land or of some right over, or in connection with, it." (Winfield)

CASES OF STRICT LIABILITY

CASES OF STRICT LIABILITY We shall now consider certain classes of cases in which the liabilities of the defendants are more strict than it ordinary cases. In those cases of strict liability, liability is imposed on the defendants irrespective of considerations of their mental state. Liability is not based on blameworthiness. Even innocent persons are held liable for harm caused to others on account of escape of things from their land. Certain Judges who formulated these principles called them as cases of absolute liability, but this is not accurate, for many of these rules have got various recognised exceptions and not absolute. Nevertheless they have undoubtedly laid down rules of much stricter liability.

ABUSE OF LEGAL PROCEDURE

Malicious prosecution and certain other malicious processes Every honest citizen wants protection from begin unnecessarily dragged before a court of law for unjust charges made against him. This will cause him unnecessary vexation, worry, annoyance, inconvenience and expenses, even if he is finally acquitted of the particular charge. In such cases, the law has rightly allowed compensation to injured parties from those who have unjustly set the law in motion. Thus it is an actionable wrong for one to institute certain kinds of legal proceedings against another person maliciously and without reasonable and probable cause.

GENERAL DEFENCES

GENERAL DEFENCES Although particular specific torts may have particular special defences such as truth and fair comment to defamation. still there are certain general defences which are applicable to all torts. They are the following: 1. Volenti non fit injuria - Harm suffered with the plaintiff's consent. 2. Inevitable accident. 3. Mistake. 4. Private defence. 5. Necessity. 6. Statutory authority

MASTER AND SERVANT

Rule of vicarious liability "A master is liable for any tort which the servant commits in the course of his employment. There is no doubt that the servant is liable for his act." Normally a person who has done the wrongful act should alone be made liable for the injurious consequences arising out of it. Persons who are innocent of a crime or any other wrongful act should not be made liable for it. But the principle of various liability is an exception to it. By this principle, a master is made liable for a wrong committed by his servant in the course of his employment. An innocent man is made answerable for the wrongful acts of another. This may appear to be highly objectionable and immoral on the face of it.

DAMAGES

DAMAGES Damage and damages: Real and nominal damages Damage is actual injury or loss. Damages are the sum of money which a person wronged is entitled to receive from the wrongdoer as compensation for the wrong. Damages recoverable in a tortious action may be either nominal or real. Nominal damages are a small sum of money awarded by way of recognition of the existence of some legal right vested in the plaintiff and the violation of it by the defendant. Real damages are those which are assessed and awarded as compensation for damage actually suffered by the plaintiff. All cases of injuria sine damno fall under this head. For trespass and other torts which are actionable per se nominal damage will at least be awarded.

EASEMENT

"An easement is a right which the owner or occupier of certain land possesses, as such for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain another land not his own."

HINDU LAW

Who is a Hindu? The HMA defines a Hindu in Section 2. The following persons are governed by Hindu Law : 1. Those who are Hindus by birth. 2. Those who follow Hindu religion. [S.2(1)(a)] 3. Those who are converts to Hinduism, or those who by reconversion accept Hindu religion again, as was also upheld in Perumal Madar v. Ponnuswami. [S.2(1), Expl. (c)] 4. Those who are known as Hindus. 5. Jains, Sikhs and Buddhists. [S.2(1)(b)]

RESTITUTION OF CONJUGAL RIGHTS

RESTITUTION OF CONJUGAL RIGHTS Section 9 HMA provides: 9. Restitution of conjugal rights. - When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

DIFFERENCE BETWEEN DIVORCE AND JUDICIAL SEPARATION

Judicial separation is a separation of husband and wife under orders of a court which puts an end to cohabitation, but not to the marriage itself. Husband or wife, any one of them, can have it by making an applicant to the District Court or High Court.

REMARRIAGE

REMARRIAGE Under Section 15 HMA, when a marriage "has been dissolved by a decree of divorce", it shall be lawful for either party to marry again if there is no right of appeal against the decree; or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented; or an appeal has been presented but the same has been dismissed by the court.

CUSTODY AND GUARDIANSHIP

The concept of custody is related to physical control over a person or property whereas the concept of guardianship is akin to trusteeship. A guardian is a trustee in relation to the person for whose guardianship he is so appointed. The position of guardian is more onerous than of a mere custodian. Custody may be for short duration and for specific purpose but it is not so in the case of guardianship.

ADOPTION

ADOPTION The HAMA governs adoption and all matters related to it among Hindus. This Act has codified the Hindu Law of adoption, leaving little scope for anomalies. The Act has no retrospective effect.

JOINT HINDU FAMILY

JOINT HINDU FAMILY The joint Hindu family consists of all persons lineally descended, however remotely, from a common ancestor. Such a family includes wives and unmarried daughters of male members. The whole body of such a family, consisting of males and females, constitutes a sort of corporation where members are joint by way of their sapinda relationship to each other.

INTESTATE SUCCESSION - HINDU LAW

INTESTATE SUCCESSION - HINDU LAW Intestate succession for Hindu is governed by the Hindu Succession Act, 1956 (HSA). Testamentary succession of Hindus is governed by the ISA.

SCHOOLS OF JURISPRUDENCE

Schools of Jurisprudence There are basically five schools of jurisprudence. We will discuss these schools along with their leading jurists.

RENAISSANCE PERIOD OF NATURAL LAW

Renaissance Period OF Natural Law The period of renaissance in the history of the development of natural law may also be called the modern classical era which is marked by rationalism and the emergence of new ideas in different fields of knowledge.

ANALYTICAL SCHOOL OF JURISPRUDENCE

Analytical School of Jurisprudence Introduction Analytical school is also known as the Austinian school since this approach is established by John Austin. It is also called as an imperative school because it treats law as command of the sovereign. Dias terms this approach as “Positivism” as the subject-matter of the school is positive law.

HISTORICAL SCHOOL OF JURISPRUDENCE

Historical School of Jurisprudence Introduction Historical school of jurisprudence believes that law is an outcome of a long historical development of the society because it originates from the social custom, conventions religious principles, economic needs and relations of the people.

SOCIOLOGICAL SCHOOL OF JURISPRUDENCE

Sociological School of Jurisprudence INTRODUCTION Comte was the first writer to use the term sociology which he described as a positive science of social facts. Subsequently, writers and jurists tried to find a link between sociology and law. Gurvitch, for example, said that the meeting point of sociology and law is the sociology of law. Sociology of law should, however, be distinguished from sociological jurisprudence. The latter primarily studies law but in doing so it studies its relation with an impact on society; whereas sociology of law primarily studies society and studies law only peripherally.

NATURE, PURPOSE AND FUNCTION OF LAW

Nature, Purpose and Function of Law MEANING AND NATURE OF LAW Law is the subject-matter of jurisprudence since the latter deals with the study of law. In its most general and comprehensive sense, it means any rule of action and includes any standards or pattern to which actions are or ought to be confirmed.

KINDS OF LAW

Kinds of Law Introduction The phrase law has been derived from the Teutonic phrase Lag which means that specific. The law may be described as a specific rule of demeanour and human relations. It additionally approaches a uniform rule of conduct that’s applicable equally to all the human beings of the state. The law prescribes and regulates well-known situations of human pastime inside the kingdom. In simple phrases, the law is a specific energy of the country. Under the header law, there has been covered kinds of law which get applied according to the different cases being prevalent.

THEORIES OF JURISTIC PERSONALITY

Theories of Juristic Personality Ethical Natural law philosophers of the 17th and 18th centuries as well as the metaphysical theorists of 19th century postulated the concept of will as an essential requirement for exercising legal right. They also believed that personality is the subjective possibility of a rightful will.

CONCEPT OF STATE AND SOVEREIGNTY

Concept of State And Sovereignty The origin of State has been a favourite subject of speculation. The Greeks organised city-states which according to them had a divine origin. And sovereignty is one of the chief attributes of statehood. This term was for the first time introduced by the French political thinker Jean Bodin…

CONCEPT OF LEGAL RIGHTS

Concept of Legal Rights Meaning, Definition and Concept of Right In English law, right means that which is straight and not crooked. It is an opposition from the wrong which is twisted from the straight. Right has been derived from the Latin word, rectus which means to rectify or correct or from jus, which means just or justice.

RIGHTS AND DUTIES IN JURISPRUDENCE

Rights and Duties in Jurisprudence INTRODUCTION The development of society is credited to the constant evolution of law. When people come into contact with each other, everyone has certain rights and duties obligated towards one another. A right and duty are the pillars of law, and are hence consequently protected by it. Both these concepts are intertwined. The concepts of legal rights and duties in Jurisprudence are elucidated below.

CONCEPT OF JUSTICE

Concept of Justice Introduction The concept of justice is as old as the origin and growth of human society. A man living in society desires peace and, while living in he tends to experience a conflict of interests and expects a rightful conduct on the others part. And this is why jurists like Salmond and Roscoe Pound have emphasized the importance of justice.

PRECEDENT

Precedent Precedent means judgment or decision of a court of law cited as an authority for the legal principle embodied in it. The doctrine of precedent which is also known as stare decisis, i.e. stand by the decision, is based on the principle that like cases should be decided alike. Once a case is decided by judge by applying the principle, a case on similar facts which may arise in future must also be decided by applying the same principle. This is not always saves the time and labour of judges, but also secures certainty, predictability and uniformity in the applications of law.

OBITER DICTA

Obiter Dicta The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an obiter dictum. The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases.

RATIO DECIDENDI

RATIO DECIDENDI When we say that a is the abstract ratio dicidendi which alone has the force of law as regard the world at large. It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta,the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis. Certain courts are able to overrule decisions of a court of coordinate jurisdiction—however, out of interests of judicial comity, they generally try to follow coordinate rationes.

LEGISLATION AND ITS TYPES

LEGISLATION AND ITS TYPES Introduction “Legis” means law and “latum” means making. Legislation means lawmaking. It also refers to the law made by the legislature. It may also be defined as the promulgation of legal rules by an authority that has the power to do so. It is the formal declaration of the legal rules by the legislative organ of the body politic.

LAWS OF PROPERTY UNDER JURISPRUDENCE

Laws of Property Under Jurisprudence Introduction The term property is commonly used to define the objects which are owned. In other words, property denotes those things in which the right of ownership can be expanded. The term property includes both living and non-living things. Lands, chattels, shares, and debts are included in the property.

POSSESSION

Possession Possession means physical control or acquisition of property by a person. Ownership of a property is based on the possession of the property. Possession is the prima facie evidence of ownership. For any proprietary matter, the law gives first priority to a person who is in possession of the property.

OWNERSHIP DEFINITION, CONCEPT AND KINDS

Ownership: Definition, Concept, and Kinds Meaning & Definition Ownership refers to the relation that a person has with an object that he owns. It is an aggregate of all the rights that he has with regard to the said object. These rights are in rem, that is, they can be enforced against the whole world and not just any specific person. The concept of ownership flows from that of possession. In primitive societies, there was no idea of ownership. The only concept that they identified with was that of possession. It was only after they started settling down by building homes and cultivating land that they developed the idea of ownership.

SUBJECTS OF INTERNATIONAL LAW

Subjects Of International Law By subjects of international law it is meant that those entities which possess international personality. In other words subjects of international law are those entities that have rights duties and obligations under international law and which have capacity to possess such right, duties and obligations by bringing international claims.

INTERNATIONAL COURT OF JUSTICE – ICJ

International Court of Justice – ICJ Introduction and Historical Perspective of ICJ International Court of justice – ICJ is a principal organ under International law, created to resolve the disputes between the states. It bears a great responsibility in resolving International disputes. International Court of Justice is the successor of Permanent Court of Justice.

SETTLEMENT OF DISPUTES

Settlement of Disputes Introduction Disputes are inextricably linked to international relations. Increasingly these disputes are no longer just primarily between states but also between states and other parties like international organizations and other non-state actors, and between these actors mutually. In this context, the Charter of the United Nations (UN) plays a major role, in particular, regarding disputes between states. Article 2 of the UN Charter States that all Member States have to settle their international disputes by peaceful means in such a manner that international peace and security, and justice are not endangered. This view was again confirmed in 1982 in a resolution (Res. 37/10) of the UN General Assembly, the so-called Manila Declaration on the Peaceful Settlement of International Disputes.

DISARMAMENT – MEANING, EFFORTS, NOTABLE TREATIES AND POSITION OF INDIA

DISARMAMENT – Meaning, Efforts, Notable Treaties and Position of India Introduction Disarmament in the broad sense means the total abolition of armaments of all types – conventional as well as nuclear. It is different from regulation of armaments which means reduction and restriction of armaments. The desire for the total ban on armaments has been expressed time and again since the beginning of the 20th century, but its intensity began to grow only after the Second World War. With the use of atom bombs in Hiroshima and Nagasaki, the question of disarmament assumed new dimensions. The problem of disarmament is not only legal but is also economic, political, military and technical. Its legal aspect became significant with the efforts of the United Nations for the formulation of comprehensive international conventions.

PRINCIPLE OF NON-REFOULEMENT

Principle of Non-Refoulement Introduction: Refoulement translated roughly as ‘turning back’ of refugees, includes both the rejection of refugees at the border as well as the deportation of refugees from inside of a country. The Principle of Non-refoulement is what defines the lines around the “turning back” – who, who not, when, when not, how, how not, why, why not, etc.

WAR UNDER INTERNATIONAL LAW

War Under International Law INTRODUCTION Law of war is the part of international law which deals with the commencement, demeanor, and termination of warfare. Its aim is to limit the suffering caused to combatants and, more particularly, to those who may be described as the victims of war—that is noncombatant civilians and those no longer able to take part in hostilities. Thus, the wounded, the sick, the shipwrecked, and prisoners of war also require protection by law. One of the primary cause of the evolution of mankind is considered to be war. There have usually been normal practices in warfare, however only within the last 150 years have States made worldwide rules to restrict the consequences of the armed battle for humanitarian reasons. There was no proper rules and regulation for the conduct of warfare.

EXCLUSIVE ECONOMIC ZONE (EEZ)

Exclusive Economic Zone (EEZ) Introduction Exclusive Economic Zone (EEZ) is comparatively a concept of recent origin. The concept of EEZ was initiated by Kenya in 1972 at the Geneva session of the UN Committee on Peaceful uses of Sea-bed and Ocean Floor Beyond the limits of National Jurisdiction. The EEZ finally found a place in the Convention on the Law of the Sea of 1982. Since then, it has become a generally accepted institution of the law of the sea. In Tunisia vs Libya, [ICJ Reports 1982 p. 18] it was stated that the concept of EEZ can be regarded as a part of customary laws.

CONTINENTAL SHELF – MEANING, PRINCIPLE AND CASE LAWS

Continental Shelf – Meaning, Principle and Case Laws Introduction The concept of the continental shelf is mainly co-related with an exploitation of the natural resources from the sea adjacent to the territorial sea. This was one of the important developments after the Second World War in relation to the law of the sea was the evolution and acceptance of the concept of the continental shelf. The President of the United States proclaimed that the natural resources of the continental shelf were ‘beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States and subject to its jurisdiction and control’. The continental shelf was regarded ‘as an extension of the landmass of the coastal nation’. The main reason for this action of the United States was to reserve for itself, the oil and mineral resources in the seabed which had become technologically possible to drill.

TERRITORIAL SEA – MEANING, BREADTH AND THE RIGHTS OF STATES

Territorial Sea – Meaning, Breadth And The Rights Of States Introduction: Territorial sea is that part of the sea which is adjacent to the coastal State and which is bounded by the high seas on its outer edge. The Coastal State exercises its sovereignty over this area as it exercises over its internal waters. The sovereignty extends to the airspace over the territorial sea as well as its bed and sub-soil. This sovereignty accrues to a State under the customary international law which no State can refuse.

LAW OF THE SEA – HISTORY, EVOLUTION AND PROVISIONS

LAW OF THE SEA – HISTORY, EVOLUTION AND PROVISIONS Introduction Law of the sea has developed steadily and gradually since the time of Grotius. Earlier the powerful States laid extensive claims of sovereignty over specific portions of the open sea. With the developments in trade and commerce in the 20th century and the realization of the inexhaustible use of the sea, the classic principle of ‘mare liberium’ or ‘freedom of the seas’ has been eclipsed.

ALIENS – ADMISSION, EXPULSION AND RIGHTS UNDER INTERNATIONAL LAW

Aliens – Admission, Expulsion And Rights Under International Law INTRODUCTION The term ‘Alien’ is generally associated with extraterrestrial beings on spaceships in outer space. In the legal aspect though, it refers to a foreign-born resident who is not a citizen by virtue of parentage or naturalization and who is still a citizen or subject of another country. It essentially means those who live in a state other than those of which they are nationals. The presence of such people in other states is legally termed as ‘aliens’.

EXTRADITION AND ASYLUM

Extradition and Asylum WHAT IS EXTRADITION? Extradition is the conventional process in which a person is surrendered by one state to another on the basis of a treaty, or comity, or some bilateral arrangement between the two sovereign states. This request of extradition made by a sovereign state is usually initiated at first place because the individual demanded by the state is charged with a crime but not tried, or tried and convicted yet the accused escaped and reached the territory of the other sovereign state.

NATIONALITY, CITIZENSHIP AND STATELESSNESS

Nationality, Citizenship And Statelessness Introduction Nationality is a highly sensitive issue as it is a manifestation of a country’s sovereignty and identity as a country. “It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.” “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” “According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the existence of reciprocal rights and duties.”

RECOGNITION OF STATE – ITS IMPLICATION, MODES AND NECESSITY

Recognition Of State – Its Implication, Modes And Necessity Main addressors of the international law are the sovereign states. For an entity of being called a state and to enjoy rights, duties and obligations under international law, it is necessary that the existing state have given awareness of its capability of being a state. Such awareness by existing states is called recognition.

SUBJECTS OF INTERNATIONAL LAW

Subjects Of International Law By subjects of international law it is meant that those entities which possess international personality. In other words subjects of international law are those entities that have rights duties and obligations under international law and which have capacity to possess such right, duties and obligations by bringing international claims.

EVOLUTION OF INTERNATIONAL LAW

EVOLUTION OF INTERNATIONAL LAW INTRODUCTION Law is that element which binds the members of the community together in their adherence to recognised values and standards. The foundations of international law (or the law of nations) as it is understood today lie firmly in the development of Western culture and political organization. The growth of European notions of sovereignty and the independent nation-state required an acceptable method whereby inter-state relations could be conducted in accordance with commonly accepted standards of behaviour, and international law filled the gap. But although the law of nations took root and flowered with the sophistication of Renaissance Europe, the seeds of this particular hybrid plant are of far older lineage.

SOURCES OF INTERNATIONAL LAW

SOURCES OF INTERNATIONAL LAW Sources of International law mean those origins from where it attains its authority and coercive agency. According to the provisions of the Statute of International Court of Justice there are following sources, on the basis of which Court can decide a case:

LIMITED LIABILITY PARTNERSHIP

Nature and features of limited liability partnership (LLP) A limited liability partnership (LLP) is defined as "a legal business entity partnership whereby the LLP is responsible for the debts of the business and not the partners". The Limited Liability Partnership Act, 2008 was enacted to make provisions for the formation and regulation of limited liability partnerships. Sections 55-58 related to conversion of existing partnership firms, private as well as public unlisted companies, into LLP came into force on 31 May 2009. Further, Section 51 and Sections 63-65 related to winding up of an LLP came into force on 10 July 2012.

PARTNERSHIP ACT

Definition and nature of partnership The Partnership Act, 1932 was enacted by Parliament to regulate partnership firms in India. It is based on the English Partnership Act of 1890. It came into force on 1 October 1932. Previously, the law relating to Partnerships were contained in the Contract Act, 1872, in its Chapter XI, Sections 239-266, but the provisions were not found satisfactory and hence the Chapter was repealed and a new and separate Partnership Act was enacted. This Act extends to the whole of India except the State of Jammu and Kashmir. Partnership is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. This definition is contained in Section 4, Partnership Act, 1932 and states:

DECLARATORY DECREES

DECLARATORY DECREES Sections 34 and 35 lay down the law relating to declaratory decrees. A declaratory decree is a decree declaratory of a right which is doubtful or which requires to be cleared. The object of declaratory decrees is to prevent future litigation by removing the existing cause of the controversy.

RESCISSION OF CONTRACTS

RESCISSION OF CONTRACTS The rescission of contract necessarily constitutes a bar to its performance by either of the party to it (Chapter XXIV). Any person on whom the burden of a contract has been imposed by means of a fraud or illegality or something equivalent which makes the contract either void or voidable may ask the court to declare the contract as non-binding. This is rescission, that is, getting rid of a contract.

SPECIFIC PERFORMANCE OF CONTRACTS

SPECIFIC PERFORMANCE OF CONTRACTS Specific performance is equitable relief given by a court in case of breach of contract in the form of a judgment that the defendant is to actually perform the contract according to its terms and stipulations. From every contract there immediately and directly results an obligation on each of the contracting parties towards the other to perform such of the terms of the contract as he has undertaken to perform.

SPECIFIC RELIEF ACT

INTRODUCTION TO THE OUTLINE OF THE ACT A large number of remedial aspects of law have been taken care of by the Specific Relief Act of 1963 (47 of 1963). This Act is replacement of the earlier Act of 1877. This Act does not confer any rights in reliefs in itself. It only provides a specific relief so as to remedy the violating of a legal right.