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.

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.

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."

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:

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.