Juris Final

MEASURE OF CIVIL AND CRIMINAL LIABILITY

CHANAKYA NATIONAL LAW UNIVERSITY Final draft for fulfilment of project of Jurisprudence II On “MEASURE OF CIVIL AND CRIMINAL LIABILITY”

Submitted to: - Dr. Manoranjan Kumar Faculty of Jurisprudence II

Submitted by: KartikayTrivedi Roll no.1532 3rd year B.A. LL.B. (Hons.)

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MEASURE OF CIVIL AND CRIMINAL LIABILITY

TABLE OF CONTENTS RESEARCH METHODOLOGY ................................................................................................ 4 CHAPTER 1- INTRODUCTION: LIABILITY ............................................................................. 5 CHAPTER 2- CIVIL LIABILITY AND ITS MEASURES........................................................... 7 CHAPTER 3 – CRIMINAL LIABILITY AND ITS MEASURES ................................................ 9 CHAPTER 4 - CONCLUSION, CRITICISM AND SUGGESTIONS ........................................ 14 BIBLIOGRAPHY ......................................................................................................................... 16

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MEASURE OF CIVIL AND CRIMINAL LIABILITY

ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Manoranjan Kumar without the kind and support of whom the completion of the project would have been a herculean task for me. He took out time from his busy schedule to help me to complete this project and suggested me from where and how to collect data.

Acknowledges are also due to my friends who gave their valuable and meticulous advice which was very useful in writing the project.

I would also like to express my gratitude towards the library staff for working long hours to facilitate us with required material going a long way in quenching our thirst for education.

I would also like to express my gratitude towards my parents and all those unseen hands who helped me out at every stage of my project.

KARTIKAY TRIVEDI

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MEASURE OF CIVIL AND CRIMINAL LIABILITY

RESEARCH METHODOLOGY

AIMS AND OBJECTIVESThe research will do the research to understand the various measures of civil and criminal liability.

HYPOTHESISThe researcher strongly believes that motive, magnitude of the offence along with the character of the offender constitutes the measures of criminal liability whereas there is only the magnitude of the offence in civil liability.

METHOD OF RESEARCHThe researcher will emphasize and use the doctrinal method to prepare the project.

SOURCESPrimary Sources

Books



Websites

Secondary sources

Journals



Articles

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MEASURE OF CIVIL AND CRIMINAL LIABILITY

CHAPTER 1- INTRODUCTION: LIABILITY In civilized societies most of the relation between the individual and the state are governed by rules made or recognized by the state; that is, law. Law lays down the rights and duties of the individuals. In other words, it prescribes what one is to do and what one is not to do and what one is entitled to get "it” done. A branch of these rules is called wrong. When a person has committed a wrong, he is said to be liable. Thus, liability is the condition of the person who has committed a wrong. Liability or responsibility results from a wrong of breach of duty. It is something which a person must do or suffer on account of his failure to do what he ought to have done "duty”. A person has a choice in fulfilling his duty, but liability arises independently of one’s choice. Liability is the "vinculum Juris”, i.e. the bond of legal necessity that exists between the wrongdoer and the remedy of the wrong. Liability differs from obligation in as much as the latter refers to what a person ought to do on account of some duty cast upon him but the former refers to something which the person must do or suffer because he has already failed to do. One of the traditional fields of orthodox jurisprudence is liability. This also ahs felt the impact of new jurisprudence.1 The term liability, which occupied a place of pride in the hierarchy of the legal concepts has in English law been used to express three things. 1) It has been used to express the position of person who has undertaken to do or to abstain from doing something by contract with another person. 2) The term has been used to express the condition of person who has failed in the performance of source duty, and who is consequently, called upon to make compensation to some person who has suffered damage thereby. 3) The term “liability” has been used to express the condition of a person who has not failed in the performance of any duty, but who has done an act which has caused damage to another for which he is required to make compensation.2

1 2

P.B.Mukherji, The new jurisprudence, P.I3 MARKBY, Elements of Law (3rd Ed. 1885) P.292

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MEASURE OF CIVIL AND CRIMINAL LIABILITY The duty to fulfil a contract and the duty to make compensation for damage caused by an act which is not a breach of duty are primary duties, whereas duty to make compensation for damage caused by a breach of duty is a secondary one. Liability “ex-conlracto ” which is liability to a primary duty and liability “ex-delicto ”, which is liability to a secondary duty have long since been recognized as two subdivisions of the same class. DEFINITIONS Liability, as defined by SALMOND, is the bond of necessity that exists wrongdoer and the remedy of the wrong has more often been said to have contract or delict.3 Roman lawyers seem to have had some similar notion, and they tried to squeeze all liability under those two expressions by adding to each class a number of things which did not properly holding to it, which they called “quasi-contract” and “quasi-delicit".4 Very likely the Roman law had some good practical reason for so doing. According to MARKY : “the word liability is used to describe the condition of a person who has a duty to perform ". According to AUSTIN, liability consists in those things which a wrongdoer must do or suffer. It is the ultimatum of law and has its source in the supreme will of the state. Liability rises from a breach o duty which may be in the form of an act or omission. He prefers to call liability as "imputability". To quote him, “these certain forbearances, commissions or acts, together with such of their consequences as it was the purpose of the duties to avert are imputable to the persons who have forborne, omitted or acted. Or the plight or predicament of the persons who have forborne, omitted or acts, is styled imputability”.5

3

MARKBY : Op.eit. PP 293-294 SALMOND : Jurisprudenc (12th Ed.) P.349 5 https://www.vbook.pub.com/presentation/273523610/Liability-UNDER-jurisprudence 4

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MEASURE OF CIVIL AND CRIMINAL LIABILITY

CHAPTER 2- CIVIL LIABILITY AND ITS MEASURES Civil liability is the enforcement of the right of the plaintiff against tire defendant in civil proceedings. A civil liability gives arise to civil proceedings whose purpose is the enforcement of certain rights claimed by the plaintiff against the defendant. Examples of civil proceedings are an action for recovery of a debt, restoration of property, the specific performance of a contract, recovery of damages, the issuing of an injunction against the threatened injury, etc. In the case of civil proceedings, the remedy is in the form of damages, a judgment for the payment of debt, an injunction specific performance, delivery of possession or property, a decree of divorce, etc. Civil liability is measured by the magnitude of the wrong done but while measuring criminal liability we take into consideration the motive, intention, character of the offender and the magnitude of the offence.6 Civil liability gives a person rights to obtain redress from another person e.g. the ability to sue for damages for personal injury. There is also the right to obtain an injunction. For there to be an award of damages, the injured party has to have suffered an actual loss, be it personal injury, damage to property, or financial loss. The burden of proof is "the balance of probability" which is much lower than for criminal matters. If there has been a relevant criminal conviction in a particular matter, then the burden of proof in any related civil action is reversed, so that the defendant has to prove he is not liable. An example of this would be a conviction of a company for breach of health and safety legislation, followed by the injured employee suing the company for damages for personal injury. A disincentive to suing is that the losing party pays the winners costs. In fact, this works out as a substantial proportion of the costs, rather than 100%, so a successful plaintiff has his award of damages diminished in practical terms. As a matter of public policy, it is not possible to have an enforceable insurance policy in relation to criminal penalties.7 THE MEASURE OF CIVIL LIABILITY In the case of a civil wrong, motive is irrelevant. It is only the magnitude of the offence that determines the liability. The liability of the offender is not measured by the consequences which

6 7

V.D. Mahajan : Jurisprudence & Legal Theory. P. 366. http://www.rsc.org/images/2_difference_tcm18-17644.pdf

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MEASURE OF CIVIL AND CRIMINAL LIABILITY he meant to ensure, but by the evil which he succeeded in doing. The liability consists of the compulsory compensation to given to the injured person and that is to be considered as a punishment for the offence. In penal redress, compensation in money is given to the injured person and punishment is imposed upon the offender. A rational system of law must combine the advantages of penal redress with a coordinate system of criminal liability. The reason is that penal redress alone is not considered to be sufficient. The purpose of civil liability is compensation to the injured parts. The quantum of damages is, however, dependent on the actual loss suffered by the plaintiff. It must be noted that neither the character nor motive8 of the defendant are relevant in determining he liability in civil cases. Law takes into consideration only the actual consequences that follow a wrongful act and not the probable or intended ones. However, in certain cases higher damages may be awarded where defendant’s conduct has aggravated the plaintiff’s sufferings. In others higher damages may be justified in view of the defendant’s behavior. Thus, the court would award higher damages to a woman plaintiff in a defamation case as compared with the male plaintiff because law expects greater respect for woman in the society. It would thus be seen that liability arises out of the legal sanctions provided by the state. It is because of these legal sanctions that the laws seeks to protest the interest of the individuals in the society. These sanctions are an effective measure to ensure performance of duties by persons and refrain from committing breaches thereof.9

8

By way of exception, motive is relevant in only a few civil wrongs such as defamation, conspiracy, deceit, malicious prosecution, etc. the reason being that they are crime also and a crime requires "mens rea" 9 https://lawshelf.com/courseware/entry/civil-and-criminal-liability

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MEASURE OF CIVIL AND CRIMINAL LIABILITY

CHAPTER 3 – CRIMINAL LIABILITY AND ITS MEASURES Criminal liability is the liability to be punished in criminal proceeding. In criminal matters, it is usually the state prosecuting the defendant before a magistrate, or a judge and jury in the Crown Court. The basic assumption in criminal liability is that there is both a mental element and physical element to the offence. For example, theft involves "dishonestly" which is a question of mental attitude, and "appropriating" which is a physical act. The burden of proof for criminal offences is that of "beyond reasonable doubt". It should be realised that various offences in relation to, for example, road traffic law or environmental law have been so structured that the "mental element" is in fact not required for a conviction. This has been as a matter of public policy to make it possible to obtain convictions which otherwise would be very difficult. The penalties for criminal offences are fines and imprisonment, as well as other non-custodial punishments. The main purpose of penal liability is either directly or indirectly, to punish a wrong-doer. The basic principle underlying penal liability is contained in the maxim - "actus non facit reum, nisi mens sit rea ” which means that act alone does not amount to crime, unless it is accompanied by guilty mind. Therefore, two elements i.e. (i) act; and (ii) guilty mind are essential to constitute a crime. 10 No person can be punished merely because his act resulted into some crime unless it was accompanied by “Mens Rea” or guilty mind. Conversely, mere presence of “mens rea" shall not constitute a crime unless it is accompanied by some act. Thus "act” is he physical element of the crime and “mens rea ” is the mental element. Generally a man is hold criminally liable only for those wrongful acts which he does either wilfully or negligently. There are, however, some exceptional cases when law imposes strict liability as in case of offences under the licensing acts or offences against public health. In such cases, the act itself becomes punishable even without the presence of guilty mind or negligence. That apart, the criminal law exempts certain categories of cases from penal liability. These are commonly known as defences or general exceptions and include mistake of act, accidents, infancy, minority, necessity, self-defence, voluntary intoxication, etc. If the offender succeeds in establishing any of these defences, he is not punished though his offence may satisfy the two conditions of “actus ” and “mens rea". The maxim “actus 10

V.D. Mahajan : Jurisprudence & Legal Theory. P. 367.

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MEASURE OF CIVIL AND CRIMINAL LIABILITY non facit reum nisi mens sit rea” stated long before by St.AUGUSTINE,11 became, with slight change the best known maxim of the English criminal law though the words ultimately used by COKE. As late as in 1798, KENYON, C.J. had stated that “the intent and act must both concur to constitute the crime”. Since that time the English reports do not show any case in which the authority of Lord KENYON has been denied by the English courts. The maxi thus, which has been accepted by the English courts as a cardinal doctrine of English law for centuries, recognizes that there are two constituent elements in crime, i) A physical element, and ii) A mental element, and It makes plain that at common law no man may be found guilty of crime and therefore legally punishable unless in addition to having brought about a harm which the law forbids, he had at the time a legally reprehensible state of mind. It is, therefore, necessary to reach an understanding of these two constituent parts of criminal responsibility. According to AUSTIN intention and negligence are the alternative forms in which ‘‘mens rea” can exhibit itself. It is a condition precedent for the existence of guilt. In other words, a person is liable to be punished if he does a wrongful act intentionally or negligently. SALMOND calls it the physical or material condition of liability. If there is no act, there can be no punishment. To quote Justice BRYAN : “the thought of man cannot be tried, for the devil itself knoweth not the thought of man KENNY gives the following example : “a man takes an umbrella from a stand at his club with intent to steal it, but finds it his own”. He has committed no offence. The second condition 6f penal liability is “mens rea" or guilty mind. An act is punishable only if it is done intentionally or negligently. Intention and negligence are the alternative forms in which “mens rea ” can exhibit itself. The conditions of penal liability, the act does not constitute a guilt unless it is done with a guilty intention. Two things are required to be considered in this connection and those are the act and the “mens rea” or the guilty mind of the doer of the act. "Mens rea ” requires the consideration of intention and negligence. The act is called the material condition of penal liability and the "mens rea” is called the formal condition of penal liability.12

11

St AUGUSTINE had said : "Ream Lmguam non facit nisi mens rea", sermons no. 180 C.2; cited m Pollock & Mai Hand, Hist. Of English law, 11476, N.5 12 http://www.rsc.org/images/2_difference_tcm18-17644.pdf

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MEASURE OF CIVIL AND CRIMINAL LIABILITY THE MEASURE OF CRIMINAL LIABILTY It depends upon the theory of punishment, on the concept of the state. The measure of the criminal liability is different in different legal systems. The measure of the liability is determined on various considerations: a) First, the measure of liability in a particular society depends on the theory or, in other words the aim of the punishment, recognized by the society. If the punishment is for the purposes of the retribution, the law will look into the motive of the wrongdoer and would take it as the chief measure of the liability. If the purpose of punishment is to reform the wrongdoer, the measure of the liability would be the character of the wrongdoer and so on: b) Second, the measure of the liability depends upon the concept of the state and the kind of the government in a particular society. In Nazi Germany to be a jew was the gravest offence, and similarly to speak and to act against the wishes of the dictator was a very serious crime. In a socialist state the grave offences are those that undermine the interest of the society. c) Third, the measures of the liability also on the values which are recognized n a particular society. In India, where sex morality is considered to be a great virtue the punishment for sexual offences has been very severe since early time, but in England, where the sex morality is not the same as it is in India, adultery is not an 934 offence and in some cases seduction is a civil wrong and the wrongdoer is liable only for compensation. MODERN PRINCIPLE Thus, in modem times the principle is that all the offences do not involve equal guilt on the part of the wrongdoer and all the offender are not guilty for the same offence. This being so, the punishment of all kinds of offences and for all wrongdoers having committed the same offence cannot be uniform. The aim of the law is to bring the maximum good at the costs of the maximum sacrifice, therefore, in awarding the punishment it proceeds on foe same line. If the punishment is same for assault and murder, a person who intends to cause injury to his enemy would prefer to cause the later kind of the injury. Thus the uniform punishment for every offence would bring more evil than good. Similarly, if the punishment is very severe such as hanging for petty thefts it may bring down the crimes, but the "evil so prevented would be far outweighed by that which the law would be called on to inflict in the cases in which its threats proved unavailing”. Therefore, Page 11 of 16

MEASURE OF CIVIL AND CRIMINAL LIABILITY the different offences have different punishments and secondly the judge is left with ample direction in awarding punishments. 13 The law has generally fixed the maximum punishment that can be awarded in a particular offence and the judge awards the punishment within the limit taking into consideration the nature of the guilt, and the character of the offender, etc. In modern times, thought there is a great theoretical support of the reformative theory of punishment in practice, the punishment to some extent, serves the retributive purpose and in the most part the deterrent purposed. Therefore, the factors which are taken into consideration in determining the liability are the following. 1) Motive for the commission of the offence. The motive of the offence is a very important factor in determining the liability. If the motive to commit the offence is very strong, the punishment would be severe, because the punishment aims at counteracting the motives which made the offender to commit the crime. 2) Magnitude of the Offence The Magnitude of the Offence the other things being equal, if an offence brings greater evil consequences or has greater evil tendencies the punishment should be severe. Some criticize this view and say that the liability should not be determined on the basis of the evil caused to a person, but it should be determined on the basis of the benefit derived by the offender by his wrongful act. It is submitted that the punishment on the basis of the magnitude of the offence greatly helps in preventing offences, and where the offender is to choose one wrongful act out of many of the same nature, he would prefer to commit one for which there is lesser punishment. Thus the severe punishment for grave offences deters the wrongdoer from committing it. 3) Character of the Offender The Character of the Offender The character of the offender is also a fact or in the measure liability, in other words, it is a consideration in determining the punishment. The offenders who have become habitual and have undergone punishment, to them punishment loses much of its rigour and light punishment does not deter them. Therefore, they are given severe punishments.

13

V.D. Mahajan : Jurisprudence & Legal Theory. P. 368.

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MEASURE OF CIVIL AND CRIMINAL LIABILITY SOME OTHER FACTORS There are some other factors also which are taken into consideration in determining the punishment. One such factor is the nature of the offence. The offences which are inhuman and heinous deserve severe punishment. The sensibility of the offender is also taken into consideration. A simple censor or rebuke might hurt the sensibility of a wrongdoer who did a wrong casually in the heat of a passion or anger and he may not commit the offence again, but to a habitual offender the censor or rebuke will have no effect, therefore, he should be given a severe punishment for the same offence.14

14

http://www.infipark.com/articles/liability-distinguish-civil-criminal-liability-penal-remedial-liability/

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CHAPTER 4 - CONCLUSION, CRITICISM AND SUGGESTIONS According to Austin, liability consists of those things which a wrongdoer must do or suffer. It is the ultimatum of law and has its source in the supreme will of the state. Liability arises from a breach of duty which may be in the form of an act or omission. Liability has occupied a place of pride in the hierarchy of legal concepts. It has been used to include three things: 1. To express the position of a person who undertakes to do some-thing. 2. To express the condition of a person who has failed in the performance of duty; and 3. To express the condition of a person who has not failed to perform his contract but has caused damage to the other person. “Liability or responsibility, says Salmond : “is the bond of necessity that exists between the wrongdoer and the remedy of the wrong.”Markby says : “The word liability is used to describe the conditions of a person who has a duty to perform.” Thus, liability is the plight, condition, or the state of the person who has acted, for borne or omitted contrary to law. It may also be described as the state of the person who has violated a right or acted contrary to a duty. Liability is either “civil” or “criminal”, either “remedial” or “penal”. Whilst criminal liability is always penal, civil liability may be either remedial or penal. The law has generally fixed the maximum punishment that can be awarded in a particular offence and the judge awards the punishment within the limit taking into consideration the nature of the guilt, and the character of the offender, etc. In modern times, thought there is a great theoretical support of the reformative theory of punishment in practice, the punishment to some extent, serves the retributive purpose and in the most part the deterrent purposed. A civil case is initiated when a person or corporation claims that another person or corporation has failed to carry out a legal duty that was owed to the plaintiff, and can be brought before both state and federal courts. The plaintiff may come before the court to request the defendant be ordered to fulfill his or her legal duty or provide compensation for the harm caused to the Page 14 of 16

MEASURE OF CIVIL AND CRIMINAL LIABILITY plaintiff.In the example of a car accident, the civil legal duty is an expectation that the defendant will not act in a reckless or negligent manner while operating his or her vehicle on the road. If you have been involved in a car accident, you may have the right to bring a civil claim against the driver or his or her insurance company to receive monetary compensation for your injuries because of the driver's fault or negligence. Compensation for physical and mental pain and suffering that resulted from the accident are known as "general damages," and can only be recovered from a personal injury civil lawsuit. In addition, you may be entitled to receive payment for property damage to your vehicle. Criminal lawsuits are initiated by the local government, typically at the city or county level, by the prosecutor, where the defendant is accused of a crime through a formal accusation known as an indictment. The victim of the crime is not responsible for bringing the case before the court like you do with a civil case; the government prosecutes on behalf of the victim. Once the court has determined that the defendant is guilty for his or her crime, the court will order a sentence on the defendant. The sentence could include a fine, incarceration, or released supervision in the community. The burden of proof is significantly higher for a criminal case than it is in a civil lawsuit. The government must prove the defendant's guilt beyond a reasonable doubt before a jury of peers. However, if the defendant is found guilty of criminal charges, this can be used as evidence in a civil liability case. The Hypothesis of the researcher came to be TRUE.

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BIBLIOGRAPHY  Books 1. P.B.Mukherji, The New Jurisprudence 2. MARKBY, Elements of Law 3. V.D. Mahajan : Jurisprudence & Legal Theory

 Websites 1. https://www.kylawpractice.com/blog/2015/september/what-is-the-difference-betweencivil-and-crimina/ 2. http://www.rsc.org/images/2_difference_tcm18-17644.pdf 3. https://www.academia.edu/37839538/Criminal_Liability 4. http://www.infipark.com/articles/liability-distinguish-civil-criminal-liability-penalremedial-liability/ 5. https://lawshelf.com/courseware/entry/civil-and-criminal-liability

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