English Jurisprudence

Q1. Define Jurisprudence? Explain practical value of jurisprudence.

1. INTRODUCTION:

The study of jurisprudence started with the Romans. The definitions gives by the Roman jurists are vague and inadequate but they put forth the idea of a legal science. Every jurist has its own notion of the subject matter and the proper limits of jurisprudence depend upon his ideology and the nature of society. The world jurisprudence used is different languages in different senses. In French it refers “case law”. These have been a shift during the last one century and jurisprudence today is envisaged in more broader sense than it had understood in Australia age.

2. MEANING OF JURISPRUDENCE:

The term jurisprudence is derived from the Latin word “Jurisprudentia” which means either “Knowledge of law” or “skill in law”.

3. DEFINITION OF JURISPRUDENCE:

It is definition to give a universal and uniform definition of jurisprudence. Following definitions have been given by the leading jurists.

I. AUSTIN‟ S DEFINITION:

Austin defines jurisprudence as “the philosophy of positive law” positive law laid down by a political superior for controlling the conduct of those subjects to his authority.

a. Divisions Of Jurisprudence By Austin:

Austin divided the jurisprudence into following:

(i) General Jurisprudence (ii) Particular Jurisprudence

(i) General Jurisprudence:

General Jurisprudence includes such subject or ends of law as are common to all systems.

(ii) Particular Jurisprudence:

Particular Jurisprudence is the science of any actual system of law or any portion of it.

b. Criticism On Austin‟ s Definition:

Salmond‟ s criticism: The error in Austin‟ s idea of general jurisprudence lies in the fact that he assumes that unless a legal principal is common to many legal systems, it cannot be dealt with in general jurisprudence. There may be many schools of jurisprudence but not different kinds of it.

Holland‟s Criticism: Holland‟s points out that it is only the material which is particular and not the science itself.

II. HOLLAND‟S DEFINITION OF JURISPRUDENCE:

Sir Thomas Erskine Holland defines Jurisprudence as “The formal science of positive law”.

a. Analysis Of Holland‟ s Definition:

According to Holland, Jurisprudence is not a material science. Holland follows the Austin‟s definition but he adds the term “formal” which means “that which concerns only the form and not its essence”. He says that jurisprudence is only a formal science i.e., a science which describes only the form or the external side of the subject and not its internal contents.

b. Criticism:

By Gray: The real relation of jurisprudence to law is treated but how law is treated.

By Dr.Jenks: He observed that jurist can only recognize a law by its form, for it is the form which causes the manifold matter of the phenomena to be perceived but having got the form as it were, on the operating table, has to dissect it and ascertain its meaning Jurisprudence is concerned with means rather than with ends, though some of its means are ends in themselves.

III. SALMOND‟ S DEFINITION:

Salmond defines Jurisprudence as “The Science of Law”. By law he means the “law of the land” Or “civil”.

Salmond uses the term Jurisprudence is two senses.

(i)Generic sense:

Generic jurisprudence includes the entire body of legal doctrines. In that sense, jurisprudence is of 3 kinds.

(a) Expository or Systematic Jurisprudence:

It deals with the contents of an actual legal system as existing law at any time, whether in past or in presents.

(b) Legal History:

It deals with the history of development of law.

(c) Science of legislation:

The purpose of the science of legislation is to set forth law as it is. It deals with the ideal of the legal system and the purpose for which it exists.

(ii) Specific Sense:

Specific jurisprudence deals with a particular department of legal doctrines. In this sense, it is also called theoretical or general jurisprudence. It is also defined as “the science of the first principal of the Civil Law.”

In this sense, he divides the subject into 3 branches:

(a) Analytical Jurisprudence

(b) Historical Jurisprudence

A.Criticism:

It is submitted that Salmond had failed to give an accurate and scientific and also the divisions made by him of jurisprudence into general and particular raises a great deal of criticism as the Holland observes that these expressions should be discarded, as the science should be treated as incapable of being divided into these two branches.

IV. DEFINITION OF JURISPRUDENCE AT PRESENT JUNCTURE:

The term jurisprudence may tentatively be described as any thought or writing about law and its relation to other disciplines such as philosophy, economics, anthropology and money others.

4. SCOPE OF JURISPRUDENCE:

There is no unanimity of opinion regarding the scope of jurisprudence. It may be discussed under the following three heads.

I. Early Period:

In the early period, jurisprudence has been so defined as to cover moral and religious percepts also and that has created confusion.

II. Austinian Period:

It was the Austin, who distinguished law form morality and theology and restricted the term to the body of rules set and enforced by the sovereign or supreme law-making authority within the realm. So the scope of jurisprudence was limited to the study of the concept of positive law only.

III. Modern Period:

At present, there is a tendency to widen the scope of jurisprudence. The present view is that the limited. It includes all concepts human order and human conduct is state and society.

View of P.B Mukherji: Jurisprudence includes political social, economic and cultural ideas. It covers the study of man in relation to state and society.

View of Lord Redcliffe: Jurisprudence is a part of history, a part of economics and sociology, a part of ethics and a philosophy of life.

5. IMPORTANCE AND UTILITY OF JURISPRUDENCE:

Jurisprudence in basically a theoretical subject but it also has a practical and educational value. The enumerated as under.

(i) Remove the complexities of law:

One of the tasks of jurisprudence is to construct concepts and make law more manageable and rational.

(ii) Answers the new problems:

Jurisprudence can teach people to look around them and realize that answers to new legal problems must be found by a consideration of the present social needs and not in the wisdom of the past.

(iii) Grammar of Mind:

Jurisprudence is the grammar of law. It throws light on the basic ideas and the fundamental principles of law e.g., negligence, liability etc.

(iv) Training of Mind:

Jurisprudence trains the mind to solve the difficult legal provisions in legal way.

(v) Grasp on the subject:

It helps is knowing and grasping the language, grammar, the basis of treatment and assumption upon which subject rests.

(vi) Useful in Art of pleading and legislation:

It helps legislators and the lawyer the proper use of legal terminology. It relieves them of the botheration creation of defining again and again certain expressions e.g., right, duty etc.

To Interpret law:

It helps the judges and the lawyers in ascertaining the true meanings of the law passed by the legislatures by providing the rules of interpretation.

(viii) To study foreign law.

It enable a lawyer to study foreign law because the fundamental principal are generally common to all systems of law.

(ix) Importance under the light of different jurists:

By Dr. M.J Sethna: The value of jurisprudence lies in examining the consequences of law and its administration on social welfare and suggesting changes for the betterment of the superstructure of laws.

By M. Dias: The study of jurisprudence is an opportunity for the lawyer to bring theory and life into focus, for it concerns human thought in relation to social existence.

6. CONCLUSION:

To conclude, I can say, that jurisprudence is the science of law and there are different methods of approach to it. The true purpose of the study of jurisprudence should not be confined to the study of positive law alone but must include normative study, that deal with the improvement of law in the context of prevailing, socio-economic and political philosophies of time, place and circumstances.

Q2. Define Jurisprudence and explain the various kinds of jurisprudence.

Q. what is jurisprudence? Discus the scope of analytical, historical and ethical jurisprudence.

Q. Define jurisprudence. What are its various kinds? Discuss the scope of analytical jurisprudence.

1. INTRODUCTION:

The word jurisprudence is derived from the Latin word “jurisprudential” which means knowledge of law or skill in the law. Jurisprudence is a study of the fundamental legal principles. It may describe as any thought or writing about law. Jurisprudence is been classified into different branches according to their approaches.

2. DEFINITION OF JURISPRUDENCE:

I. according To Austin „‟Jurisprudence is a philosophy of positive law‟‟

II. According To Salmond: “Jurisprudence is the science of civil law. By law he means the law of the land.”

III. According To Keeton: “Jurisprudence is the study and systematic arrangement of the general principles of law.”

3. KINDS OF JURISPRUDENCE:

Salmond divides jurisprudence into three kinds:

I. Analytical

II. Historical

III. Ethical

I. ANALYTICAL JURISPRUDENCE:

Analytical jurisprudence deals with the analysis of basic principles of law. It is not concerned with the past stages of its evolution. It is also not concerned with its goodness or badness. The purpose is to analyses and dissects the law of the land as it exists today.

(i) Jurists Related with Analytical School:

Jeremy bentham was the real founder of the English Analytical School. Later on Austin took over the analytical method. Other chief exponents are Sir William Markby, Amos, Holland, Salmond and prof. Hart.

(ii) Scope of Analytical Jurisprudence:

According to salmond, scope of analytical Jurisprudence lies as follows:

(i) Analysis of the concept of law.

(ii) An examination of the relation between civil law and other forms of law. (iii)An analysis of the ideas of state, sovereignty and administration of justice.

(iv) Study of sources of law.

(v) Investigation of the theory of legislation, judicial precedents and customary law.

(vi) An inquiry into the scientific arrangement of law into distinct departments along with an analysis of distinctions on which the division is based.

(vii) An analysis of the concept of legal right.

(viii) An investigation of the theory of legal liability in civil and criminal cases.

(ix) An examination of other relevant legal concepts.

(iii) Importance of Analytical Jurisprudence:

The analytical jurisprudence brought about precision in legal thinking. It provided us with clear, definite and scientific terminology. It deliberately excluded all external considerations which fall outside the scope of law.

II. HISTORICAL JURISPRUDENCE:

Historical jurisprudence deals with the scientific study of evolution and development of principle of law. Historical jurisprudence is the history of the legal principles and conceptions of legal system.

(i) Jurists related with Historical jurisprudence:

Historical school was headed by savigny, montesqieu, rousseau etc..

(ii) Scope of Historical Jurisprudence:

The scope of historical jurisprudence is as under:

(a) It deals with law as it appears in its various forms at its several stages of development.

(b) It deals with the origin and development of those legal conceptions and principles which are as essential in their nature as to deserve a place in the philosophy of law.

(c) It seeks to show the conditions that gave rise to the legal conceptions, to trace their spread and development, and to point out those conditions and influences which modifying them in the varying course of their existence.

(iii) Importance of historical jurisprudence:

The contribution of historical school is that law cannot be understood without an appreciation of the Historical jurisprudence is a movement for fact against fancy, a call for a return form myth to reality.

III. ETHICAL JURISPRUDENCE:

Ethical jurisprudence deals with the law as it ought to be in an ideal state. It investigates the purpose of law and the measure and manner in which that purpose is fulfilled. It concerns itself with the relation of law to certain ideals which law is meant to achieve.

(i) Jurists related with Ethical Jurisprudence:

The chief exponents of ethical jurisprudence are bentham, Hobbes Kant etc.

(ii) Scope of Ethical Jurisprudence:

According to salmond, a book of ethical jurisprudence may concern itself with all or any of the following matters:

(a) The concept of law

(b) The relation between law and justice

(d) The distinction between the sphere of justice as the subject-matter of law the other branches of right with which law is not concerned and which pertain to morals exclusively.

(e) The ethical significance and validity of those legal concept and principles which are so fundamental in their nature as to be the proper subject-matter of analytical jurisprudence.

4. OTHER KINDS OF JURISPRUDENCE:

At present time, following are also regarded as different kinds of jurisprudence:

I. Sociological jurisprudence

II. American Realism

III. Comparative realism

IV. Comparative jurisprudence

V. Synthetic Jurisprudence

I. Sociological Jurisprudence:

The sociological school devotes its attention not to the ethical content and of law but to the actual circumstances which give rise to legal institutions and which condition their scope and operation.

(i) Jurists related with sociological jurisprudence:

The chief exponents of sociological school are monstesqieu, comte, spencer , duguit etc.

(ii) Scope of sociological jurisprudence:

The scope of sociological jurisprudence lies as under:

(a) It was attempted to study to study law as seeking social origin of law and legal institutions.

(b) Testing law as a given social phenomenon.

III. American Realism:

The realist movement is a part of the sociological approach. It differs from the sociological school as it is a little concerned with the ends if law. It concentrates on a scientific observation of law in its making and working. The American realist movement is a combination of the analytical positivist and sociological approaches. The advocates of the realist movement concentrate on the decisions gives by law Courts. They not only study the judgments gives by the judges but the human factor in the judges and lawyers. They study the forces which influence judges in reaching their decision.

III. Scandinavian Realists:

The Scandinavian realists have played a vital but important part in the total rejection of natural law philosophy. They deny that rules of conduct can be compellingly deduced form immutable and inalienable principles of justice.

IV. Comparative Jurisprudence:

The comparative method considers the development of two or systems of law. By comparing the notions and ideas prevailing in any one system with those in another, it discovers those rules which are common to the legal system studied.

V. Synthetic Jurisprudence:

Knowledge is a synthetic whole and cannot be divided into water tight compartments. The necessity for synthetic jurisprudence arises from the fact that it is necessary to determine the truth form all aspects and form different angles. According to Dr.Sethna jurisprudence is the study of fundamental legal principles including their philosophical, historical and sociological basis and an analysis of legal concept. Prof. Hall, Julius stone and dennis Liyod are great advocates of synthetic jurisprudence.

5. CONCLUSION:

To conclude, I can say that there are many approaches of studying jurisprudence. Jurisprudence is a part of history, economics, sociology ethics and a philosophy of life. It has been classified into different kinds by various jurists. Apart from traditional approaches the new approaches are empirical and priori. The former proceeds from facts to generalization and the letter start with a generalization in the light of which facts are examined.

Q3. Explain the imperative theory of law also discuss the objections raised against Austinain Theory. Or

Q. Discuss imperative theory relating to nature of law. Also evaluate the criticism raised against it. Or

Q. Law is the command of sovereign. Explain by giving illustrations in support of your answer. Or

Q. Laws are imperative in nature according to John Austin. Give your arguments for and against this theory. Or

Q. Explain the theory of imperative law. Is moral law imperative? Discuss.

1. INTRODUCTION:

In the words of Prof. Dias, the positivist represented a reaction against the priori methods of thinking which turned away from the realities of actual law in order to discover in nature or reason the principal of universal validity. Positivist law and therefore they knows as positivist or analysts, and opposed to the theory of law. The idea that law as the command of sovereign was advanced firstly by Hobbes and then Bodin and Bentham etc. but found its chief expression in Austin, whose theory of law was contained in “The province of Jurisprudence”

first published in 1832, and it is therefore also called as “Austin‟ s of law”.

2. IMPERATIVE OR AUSTIN‟ S THEORY OF LAW:

Austin says that law is a command which obliges a person to a course of conduct. It is laid down by a political sovereign and enforceable by a sanction.

3. FEATURES OF IMPERATIVE THEORY:

According to Austin, positive law has three main features:

I. Command

II. Sovereign

III. Sanction

I. COMMAND:

The first feature of law is that it is a type of command.

According to Austin: Commands are expressions of desire given by superiors to inferiors.

(i)Laws are general commands:

There are commands which are not. Austin distinguishes law from other commands by their generality. Laws are general commands, unlike commands given on parade grounds and obeyed there then troops.

II. SOVEREIGN:

According to Austin, a sovereign is any person or body of persons, whom the bulk of a political society habitually obeys and who does not himself habitually obeys some other persons or persons.

Characteristics of Sovereign:

(i) Source of Laws:

Sovereign is the source of law. Every law is set, by a sovereign persons or body of persons.

(ii) Source of Power:

Prof. Laski says that there are there implications of the definition of sovereignty given by Austin. The state is a legal order in which there is a determinate authority acting as the ultimate source of power.

(iii) Indivisible Power:

The power of sovereign is indivisible. It cannot be divided. Accordingly to Austin, there can only be one sovereign in the state. The totality of sovereign is vested in one person or a body of persons.

(iv) Habitual obedient by People:

The chief characteristic of sovereign lies in the power to exact habitual obedience from the bulk of the member of the society.

III. SANCTION:

The term sanction is derived from Roman law. According to Salmond “Sanction is the instrument of coercion by which any system of imperative law is enforced Physical force is the sanction applied by the state in the administration.

4. CRITICISM:

Austin‟s theory of law has been criticized on many grounds.

(i) Laws Before State:

According to Historical School, law is prior to and independent of political authority and enforcement. A state enforced it becomes law because the state enforces it.

(ii) Gunman Law:

Some have criticized the positivist theory of law as a theory of gunman, as t makes no real distinction between a law and the command of bank-robber who points his gun at the bank clerk and orders him to give him money.

Reply; This criticism over looks Austin‟ s second requirement of law which requires that only that command is law which is given by political superior or sovereign.

(iii) Generality of Law:

According to Austin, law is a general rule of conduct, but that is not practicable in every sphere of law. A law in the sense of Act of the legislature may be particular in the fullest sense of the word. A Divorce Act is law even if it does not apply to all persons.

(iv) Promulgation:

According to Austin, law is a command and that has to be communicated to the people by whom it is meant to be obeyed or followed but this is not essential for the validity of a rule of law.

(v) Law as Command:

According to Austin, law is a command of the sovereign but the greater part of a legal system consists of laws which neither command nor forbid things to be done e.g. right to vote.

(vi) Existence of Personal Commander:

The term command suggests the existence of a personal commander. In modern legal systems, it is impossible to identify any commander in the personal sense.

(vii) Refusal of Precedents as Laws:

The bulk of the English law has been created by the decision of the Court. To describe the judges as delegates by the positivists is misleading.

(viii) Sanction:

The concept of sanction is also misleading as in modern democratic country, the sanction behind law is not the force of the state but the willingness of the people to obey the same.

(ix) Sanction is not essential elements:

Sanction is not an essential of law, as in civil law no such sanction is to be found.

(x) Disregard of ethical elements:

According to salmond, Austin‟s theory of law is one-sided and inadequatic. It disregards the moral or ethical elements in law.

Not applicable to International Law:

Austin‟ s definition of law cannot be applied to international law that is to say that international Law is not an imperative law. The international law is not the command of any sovereign, yet it is considered to be law by all concerned.

(xii) Not Applicable to constitutional law:

Austin‟s definition of law does not apply to constitutional law which cannot too call commands of any sovereign. Constitutional law of a country defines the powers of various organs of the state.

5. IS MORAL LAW IMPERATIVE?

Moral law has also been called the divine law, the law of reason, the universal or common law or eternal law. It is called the command of God imposed upon men. Natural law appeals to the reason of man. It does not possess physical compulsion. It embodies the principles of morality. Natural or moral law exists only in an ideal state and differs from positive law of state. In Austin view of law morality altogether ignores therefore moral law is not an imperative law.

6. CONCLUSION:

To conclude, I can says, that Inspite of criticism of Austin‟s theory of law, it cannot be denied that Austin rendered a great service by giving a clear and simple definition of law. He makers a distinction between what laws is and what it ought to be. It seeks to define law not be reference to its contents but according to the formed criteria which differentiate legal rules from other rules such as those of morals, etiquette etc.

Q4. Explain the classification of civil law.

Q. What is meant by the term general law and special law? 1iiusration the kinds of special law that stand outside the domain of the General law.

1. INTRODUCTION:

In the words of Thurman Arnold “obviously law can never be defined with equal obviousness; however it should be said that the adherents of the institution must never up the struggle to define law.” According to salmond, the whole body of law can be divided into two parts, general and special law. General Law consists of the general or ordinary law of the land.

Special law consists of certain other bodies of legal rules which are so special and exceptional in their nature, or application that it is convenient to treat them as standing outside the general and ordinary law.

2. DIVISION OR CLASSIFICATION OF CIVIL LAW:

Sir Johr Salmond classified the civil law into two parts:

(a) General Law (b) Special Law

I. GENERAL LAW:

The general law of a country is its territorial law, which applies to all person, things, act legal rules which are taken judicial notice of the Courts whenever there is any occasion for their application.

(i)Shapes of General law:

General Law is of three shapes:

(a) Statute law (b) Equity (c) Common law

(ii) Examples: Examples of general law are the law of contract or the Pakistan penal Code.

II. SPECIAL LAW:

That part of the law which has no general application throughout country, but which is also enforced by the Courts is the special law. It consists of those legal rules which Court will not recognize of apply them as a matter of course but which must be specially proved and brought notice of the Courts by the parties interested in their recognition.

(i)Illustration:

The Court may not and ordinarily it does not Know, what a `particular custom is. The parties have to prove such a custom if they rely upon.

3. KINDS OF SPECIAL LAW:

Salmond refers to six kinds of special laws which fall outside the general law.

(i) Local law: Local law is the law of the locality and not the general law of the country. It is of two types:

(a) Local customary law

(b) Enacted law

(a) Local Customary Law: It is that law, which is derived from immemorial customs, prevails in the particular locality of the state.

(b) Enacted law: It means such law proceeding form local legislative authorities.

(ii) The conflict of laws:

The conflict of laws is also known as foreign law or private international law. Justice and expediency require sometimes that the municipal Courts apply a rule of foreign law to determine the right and liabilities of the litigants before it.

(iii) Conventional law:

Conventional law arises out of agreement between the parties who are subject to it e.g., rules of a club or Articles of Association of Company.

(iv) Autonomic law:

By autonomic law is that species of law which has its source in various form of subordinate legislative authority possessed by private persons and bodies of person. Such form of law is enforced in the Court but it is not general application e.g., law of universities, railway companies etc.

(v) Martial law:

Martial law is the law administered in the Courts maintained by military authorities. It is of three kinds:

(a) It is the law for the discipline and control of the army itself and is commonly known as military law.

(b) The law by which the army governs in times governs times of war occupied territory, outside the realm.

(vi) International law as administrated in prize Courts:

It is a special kind of law which is dealt by the prize Courts in the times of war. Prize law is that part of law which regulates the practice of the capture of the ships and cargoes at sea in times of war. Prize law is the branch of civil law. It has two characters.

(a) It is international law because it prevails between nations.

(b) It is civil law as it is administered in civil Courts.

(vii) Mercantile Customs:

Another kind of special law consist of the body of mercantile wage knows as the law merchant. The law relating to Hundis derives its origin form mercantile customs.

4. CONCLUSION:

To conclude, I can say, that both general and special law are the parts of the law or corpus juris. According to Salmond, the test of distinction is judicial notice. By judicial notice is meant by knowledge which any Court possesses and acts upon as contrasted with any knowledge which a Court is bound to acquire on the strength of evidence produced for the purpose. In General law court is bound to take a judicial notice while in special law it is not necessary.

Q 5.Explain the terms Question of law question of fact and mixed question of law and fact.

Q. Bring out clearly points of distinction between question of law and question of fact.

1. INTRODUCTION:

It is commonly said that all questions which arise for consideration in a Court of justice are of two kinds. They are either question of law or of fact. It has been found to be very difficult to define the exact difference between law and fact. Law consists of the abstract rules and facts are the raw materials on the basis of which the law creates certain rights and duties.

2. QUESTION OF LAW:

According to salmond, the term question of law is used in three distinct, thought related senses.

I. In The First Sense

Questions Authoritatively Answered By Law:

In first sense, it means a question, which the Court is bound to answer in accordance with a rule of law which has already been authoritatively answered by the Court. All other questions of fact. It excludes the right of the Court to answer the question as he thinks fit.

Illustration: Whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonor is a question of law to be determined in accordance with certain fixed principles laid down in the bills of Exchange Act.

II. In The Second Sense

Interpretation of Statutory Provision:

In the second sense, it means a question as to what the law is on a particular point. This arises in cases where a rule of law is ambiguous and requires determination.

Transformation of Second Sense into First Sense:

Once the provision has been authoritatively interpreted by the judge. It becomes a judicial precedent and a settled question of law. The question as to meaning of that provision is thus transformed from the second into first sense.

III. In The Third Sense

Questions To Be Answered By Judges:

In the third sense, all question whose answers given by the judges and not the jury are questions of law.

(i) General Rule:

There is general rule that questions of law are for the judges and questions of fact are for the jury to decide.

(ii) Exceptions:

There are numerous exceptions to the general rule many questions of fact are withdrawn from the cognizance of the jury and answered by the judges. The interpretation of a document, though often a pure question of fact is within the province of the judge.

3. QUESTION OF FACT:

The term question of fact is also two different senses:

I. Wider sense

II. Narrow sense

I. Wider Sense:

In a Wider or general sense, all questions which are not questions which are not questions of law are questions of fact.

According to Salmond:

A question of fact means any question

(i) Which is not previously determined by a rule of law.

(ii) Other than question as to what the law is.

(iii) Which is to be answered by the jury and not the judge.

II. Narrow Sense:

In a narrow sense, question of fact means only those questions which are not subject to judicial discretion. Judicial determines what is right, just and equitable.

Illustration: The question as to whether the accused has committed the criminal act with which he is charged is a question of fact.

4. MIXED QUESTION OF LAW AND FACT:

Some questions are partly of law and partly of fact. Such questions are called mixed questions of law and fact. If there is a dispute whether a partnership exists among certain parties or not.

i) It is question of fact as to what is to what is the basic relationship between the parties.

ii) It is a question of law whether the basic relationship between the parties constitute partnership in the eyes of law or not.

5. TRANSFORMATION OF QUESTIONS OF FACT INTO LAW:

As more and more cases are decided, identical decisions are given by the judges in those cases which have similar facts. Old case law is quoted in fresh cases so to a lesser extent, even question of fact are converted into questions of law.

6. DIFFERENCE BETWEEN QUESTION OF LAW AND FACT:

According to Paton, however difficult it may be to define exact difference between law and fact, the distinction itself is fundamental for any legal system.

(i)Relation:

Question of law is purely related with the law. Question of fact is not related with the law.

(ii)As to Proof:

There is no need to prove question of law. Question of fact is needed to prove.

(iii)As to conversion:

Question of law cannot be converted into question of fact. Question of fact may be converted into question of law.

(iv) Duty of Judge:

In a question of law, is the duty of the Court to ascertain the law and decide to case accordingly.

In a question of fact, it is the duty of the Court to weigh the evidence and then come to its conclusion.

(v) As to Authoritatively Answered:

Every question which has been authoritatively answered by the law is a question of law.

Every question which has not been determined before and authoritatively answered by the law is a question of fact.

(vi) Nature:

Law consists of abstract rules which attempt to reduce to order the teeming facts of life. Facts are the raw materials on the basis of which the law creates certain rights and duties.

7. CONCLUSION:

The sum up, I can say, that all matters and questions which come before a Court of justice are either of law or fact or judicial discretion. As the legal system grows, there is a tendency to transform question of fact, into those of questions of law. Even in questions of pure fact, there are already pre-determined and authoritative answers.

Q6. What is legal right? What are the kinds of legal right?

Q. Define legal rights. Also explain the following:

a)Positive and negative rights

b)Real and Personal rights

c)Vested and contingent rights

Q. Define legal right? Explain fully the following kinds of legal right:

a)Primary and sanctioning right

b) Rights in re-propria and rights in re-aliena

c) Rights in rem and rights in Personam

Q. Explain the kinds of legal rights as classified by Salmond.

Q. Define legal right? Discuss any four kinds of a right.

1. INTRODUCTION:

There can be on duty without a right and According to Hebert “a right is one person‟ capacity of obliging others to do or forbear by means not of his own strength but by the strength of a third party. If such third part is God, the right is Divine. If such third part is the public generally acting though opinion, the right is moral. If such third part is the stale acting directly or indirectly, the

right is legal.”

2. DEFINITION OF LEGAL RIGHT:

The term legal right has been used in two senses:

I. Restricted Or Popular Sense:

(i)According to Gray:

“A legal is that powers which a man has to take a person or person do or refrain from doing a certain act or certain acts, so far as the power arises form society imposing a legal duty upon a person or persons.”

II. Wider Sense:

In a wide sense, legal right includes any legally recognized interest whether it corresponds to a legal duty or not. It is an addition or benefit conferred upon a person by a rule of law.

3. KINDS OF LEGAL RIGHTS:

Following are the kinds of legal rights:

I. PERFECT AND IMPERFECT RIGHTS:

(i) Perfect right:

According to salmond, a perfect right is one which corresponds to a perfect duty i.e., which is enforced by law.

Example: A contract especially enforceable through the Court of law is an example of perfect right.

(ii) Imperfect right:

An imperfect right is that which is recognized by law but cannot be enforced by law due to some impediment. These may be turn into perfect rights.

(i)Positive right:

A positive right corresponds positive duty and the person subject to the duty is bound to do something.

Example: „A‟ borrows money to „B‟. it is the right of „B‟ that „A‟ gave money back to „B‟.

(ii) Negative right:

Negative right corresponds to negative duties. The enjoyment of negative rights is complete unless such interference takes place.

Example: If I have some money in my pocket. I have a negative right against all others not to disturb it.

III. REAL AND PERSONAL RIGHTS:

(i)Real right:

According to salmond, a real right corresponds to a duty imposed upon persons in general. It available against whole word. Real rights are generally a negative right as the duties which can be expected form the whole world are of a negative character.

Example:

I have a right to be deprived of my life is a real right as it is available against the whole world.

(ii) Personal right:

A personal right corresponds to a duty imposed upon determinate individuals. It against a particular person. Personal rights are generally positive right as it imposes a duty on a particular person to do something.

Example: I have a personal right to receive compensation form any individual who is any harms me.

IV. RIGHTS IN REM AND RIGHTS IN PERSONAM:

(i) Rights in Rem:

It is derived from the Roman term action in Rem” . It is available the whole world Examples are rights of ownership and possession. My right of possession and ownership is protected by law against all those who those may interfere with the same.

(ii) Rights in Personam:

It is derived from the Roman term “ action in personam,” Right in personam corresponds to duty imposed upon determinate persons.

Example: Rights under a contract are right in Personam as the parties to the contract alone are bound by it.

V. PROPRIETARY AND PERSONAL RIGHTS:

(i) Proprietary Right:

The proprietary rights of a person include his estate, his assets and his property in many forms. They have some economic or monetary value. They possess both judicial and economic importance.

Example: The right to debt, the right to goodwill etc.

(ii) Personal right:

Personal right pertains to man, s status or standing in the law. They promote the man, s wellbeing. Personal rights possess merely judicial importance.

Example: Right to life, reputation etc. is personal rights.

VI. INHERITABLE AND UNINHERITABLE RIGHTS:

(i) Inheritable Rights:

Inheritable rights are those which survive its owners.

Example: „A‟ dies leaves his property him „B‟ his legal heir becomes owner of such property. This is an inheritable right.

(ii) Un-inheritable right:

A right is un-inheritable if it dies with its owners e. g. personal rights die with its owner and cannot be inherit.

VII. RIGHTS IN REPROPRIA AND RIGHTS IN RE ALIENA:

(i) Rights in Re-Propria:

Rights in Re-propria are rights in one, s own property. These are complete rights to which other right can be attached.

Example: The owner of a chattel has a right in re-propria over it.

(ii) Right in Re-aliena:

Rights are Re-aliena is rights over the property of another person. These rights derogate form the rights of another person and add to the rights of their holder.

Example: My right of way across the land another person is a right re-aliena.

VIII. PRINCIPAL AND ACCESSORY RIGHTS:

Principal rights exist independently of other rights. Accessory rights are appurtenant to other rights and they have a beneficial on the principal rights.

Example: „X‟ owes money to „Y‟ and he executes a mortgage deed in favor of „Y‟. The debt is the principal right and the security in the form of mortgage is the accessory right.

IX. LEGAL AND EQUITABLE RIGHTS:

(i) Legal Rights: Legal rights are those which were recognized by common Law Court e. g., right to vote etc.

(i) Equitable Rights: Equitable rights are those which were recognized by the Court of chancery.

Example: The right of the mortgagor to redeem the property is regarded as a creation of the Courts of equity and is an equitable right knows as the equity of redemption.

X. PRIMARY AND SECONDARY RIGHTS:

(i) Primary Rights:

Primary rights are also called antecedent, sanctioned or enjoyment rights. These are those rights which are independent of a wrong having been committed. They exist for own sake. They are antecedent to be wrongful act or omission.

Example: Right of reputation, Right to life etc.

(ii) Secondary Rights:

Secondary rights are also called sanctioning, restitutory or remedial rights. Secondary rights are a part of the machinery provided by the state of the redress of injury done to the primary rights. Their necessity arises on account of the fact that primary rights are very often violated by the persons.

Example: Rights to obtain compensation for defamation to person.

XI. PUBLIC AND PRIVATE RIGHTS: PUBLIC RIGHTS:

(i) Public rights:

A public right is possessed by every member of the public. It is between a state and the private individual e. g., right to vote etc.

(ii) Private right:

A private right is concerned only with the individuals. Both the parties connected with the right are private persons e.g., contract entered into by two individuals.

XI. VESTED AND CONTINGENT RIGHTS:

(i) Vested right:

A vested is a right in right in respect of which all events necessary to vest it completely in the owner have happened. No other conditions remain to be satisfied.

Example: If a valid deed of transfer is executed by; A; in favour of „B‟, „B‟ acquires a vested right.

(ii) Contingent right:‟

According to paton when part of the in vestitive acts have occurred, the right is contingent until the happening of all the facts on which the title depends.”

Example: „A‟ executes a deed in favour of „B‟ according to which he entitles to the possession of certain property when attains the age of 21, the right is contingent right and it will be vested only when he attains the age of 21.s

XII. SERVANT AND DOMINANT RIGHTS:

A servant right is one which is subject to an encumbrance. The encumbrance which derogates form it may be contrasted as dominant.

Example: “X” as the owner of certain house a right of way over the land of „Y‟, his neighbor.

The house of „X‟ is the dominant heritage and „X‟ is the dominant owner. The house of „Y‟ is the servant heritage and „Y‟ is the servant owner.

XIII. MUNICIPAL AND INTERNATIONAL RIGHTS:

(i) Municipal rights:

Municipal right are conferred by the law of a country, it is enjoyed by the individuals living in a country.

(ii) International rights:

International rights are conferred by international law. The subject of the International rights is the persons recognized as such by International law.

XIV. RIGHTS AT REST AND RIGHTS IN MOTION:

According to Holland, when a right is stated with reference to its „orbit‟ and its “infringement‟, it is a right at rest. “Orbit‟ means the extent of advantages conferred by such right and infringement means an act which interference with the enjoyment of those advantages. Causes by which rights are either connected or disconnected with persons are discussed under rights in motion.

XV. ORDINARY AND FUNDAMENTAL RIGHTS:

Some rights are ordinary and some are fundamental rights. The distinction between the two lies that fundamental rights are often guaranteed by the constitution i. e., right to life, liberty etc.

XVI. JUS AD REM:

A jus ad rem is a right to right. It is always a right in personam.

Example: If „A‟ sells his house to „B‟. „B‟ acquires a right against „A‟ to have the house transferred to himself.

4. CONCLUSION:

To conclude, I can say, that legal rights are those which are conferred by the state on certain individuals and imposes corresponding duties on others. It is enforced by the physical force of the state. It is been classified into different kinds according to their scope by various authors.

Q.7: Define administration of justice. Briefly trace the origin of administration of justice.

Q. Discuss and distinguish between civil and criminal justice.

Q. Explain the advantages and disadvantages of administration of justice.

Q. What is the necessity of administration of justice? How would you distinguish between civil and criminal justice.

1. INTRODUCTION:

“Administration of Justice is the firmest pillar of the Government. It is sovereign and cannot be violated with impunity.” (George Washington)

The most essential functions of a state are primarily two, war and administration of justice. If a state is not capable of performing either or both of these functions, it cannot be called a state. The most important and primary purpose of law is to achieve justice and justice can be achieved through administration.

2. DEFINITION OF ADMINISTRATION OF JUSTICE:

(i) By Salmond:

“The administration of justice implies the maintenance of right within a political community by means of the physical force of the stats.”

3. NECESSITY OF ADMINISTRATION OF JUSTICE:

In primitive times might was the sole right. Every man was his own judge. A person wronged would seek revenge by his own hands. To stop this loot it appears necessary that some strong tribunal should hold administration and now a state perform this function.

According to Jeremy Taylor:

“A herd of wolves is quieter and more at one than. So many men, unless they all have one reason in them or have one power over them.”

According to Hobbes:

“Without a common power to keep them all in awe, it is not possible for individuals to live in

society.”

I. Reasons for Administration of Justice:

Following are the reasons for the necessity of administration of justice.

(i) No common reason among men:‟

According to salmond, men do not have one reason in them and each is moved by his own interests and passions. The only alternative is one power over men.

(ii) Man is fighting animal:

Man is by nature a fighting animal and force is the ultima ratio of all mankind.

(iii) To stop criminal minority:

Force is necessary to stop the criminal minority and prevent them from gaining an unfair advantage over the law-abiding majority in the state:

(iv) Check Injustice;

Without physical force, injustice is unchecked, and the life of the people is solitary, poor nasty and short.

(v) Man is a social animal:

The social nature of the man demands that he must live in society. While living so, man must have experienced a conflict of interests and that created the necessary for providing the administration of justice.

4. ORIGIN ADMINISTRATION OF JUSTICE:

The origin and growth of administration of justice is identical with origin and growth of man. The social nature of man demands that he must live in society. While living so, he must have experienced a conflict of interests and that created the necessary for providing for the administration of justice may be divided into three stages.

I. First Stage:

At the first stage personal vengeance was allowed every man carried his life in his hands. He was liable to be attacked at any time and he could resist by overpowering his opponent. At the stage, every man was the sole measure of right.

II. Second Stage:

The second stage started with the rise of political states. However those states were not strong enough to regulate crime and inflict punishment on the criminals. The state merely regulated private vengeance and violent self-help. The state enforced the concept of “a tooth for a tooth”, “an eye for an eye” , “a life for life”. The state provided that a life shall not be taken for a tooth or for an eye.

III. Third Stage:

With the growth of the power of the state, the state began to act as a judge to assess liability and impose penalty. It provided punishment for private vengeance. The civil law and administration of civil justice helped the wronged and became a substitute for the violent self-help of the primitive days. At present administration of justice is a natural corollary to the growth in power of political state.

5. CLASSIFICATION OF ADMINISTRATION OF JUSTICE:

Administration of civil justice is divided into two parts:

I. Administration of civil justice

II. Administration of criminal justice

I. ADMINISTRATION OF CIVIL JUSTICE:

Administration of civil justice is dealt with in civil proceedings. The object of civil justice is to enforce rights.

Kinds of rights:

There are two rights connected with the civil justice:

(i) Primary

(ii) Secondary

(i) Primary Rights:

Primary rights are those rights which exist as such. It arises out of a conduct. All fundamental rights are primary rights. A primary right may be enforced by specific enforcement.

(ii) Sanctioning or secondary rights:

Sanctioning rights are those which come into begin after the violation of primary right. Sanctioning rights are:

The right to the compensated by damages by the wrong-doer.

The right to exact the imposition of pecuniary penalty on the wrong doer by penal action. Illustration: „A‟ enters into a contract his right if contract is broken, his right to damages for the loss caused to him for the breach of contract is sanctioning right.

II. ADMINISTRATION OF CRIMINAL JUSTICE:

Administration of criminal justice is dealt with in criminal proceedings. The object of criminal justice is to punish the wrong-doer. From very ancient time, a number of theories have been given concerning the purpose of punishment which may be broadly divided into two classes. The view of one class is that, the end of criminal justice is to protect and add to welfare of the state and society. The view of other class is that the purpose of punishment is retribution.

5. DISTINCTION BETWEEN CIVIL AND CRIMINAL JUSTICE:

The difference between criminal justice and civil justice cannot be considered in terms of natural acts or the physical consequences of the fact. Following are the differences between civil and criminal justice.

(i) As to Administration :

Civil justice is administration according to one set of forms. Criminal justice according to another set of forms.

(ii) Place of Administration:

Civil justice is administered in one set of Courts i.e., civil Courts.

Criminal justice is administered in different set of Courts i.e., criminal Courts.

(iii) As to object:

The object of civil justice is to enforce rights,

The object of criminal justice is to punish the wrong.

(iv) Proceedings:

Civil justice is dealt with in civil proceedings. Criminal justice is dealt with in criminal proceedings.

(v) Dealing:

Civil justice deals with private wrongs.

Criminal justice deals with public wrongs i. e, crimes against society.

(vi) As to Parties:

In civil proceedings, private individuals are parties i.e., plaintiff vs. defendant. In criminal proceedings state constitutes itself as a party i. e, state vs. accused.

(vii) Consequences:

Civil wrong are less harmful.

Criminal are more harmful.

(viii)As to outcome:

Civil proceeding results in judgment for damages etc.

Criminal proceedings result in one or a number of punishments.

(ix) As to Institution of Proceedings:

In a civil wrong, the injured person need sue the wrong-doer.

In a crime, the person injured cannot prevent proceeding begin taken to punish the wrong-doer for the state controls the procedure.

6. ADVANTAGES AND DISADVANTAGES OF LEGAL JUSTICE:

The legal justice has many advantages as well as disadvantages.

I. ADVANTAGES:

(i) Legal justice ensures uniformity and certainty in the administration of justice.

(ii) Everyone knows what the law is and there is no scope of arbitrary action.

(iii) The judges have to give decisions according to the declared law of the country. (iv)There is a impartiality in administration of justice.

(v) Impartiality is secured in the administration of justice.

(vi) Judges are required to give their decisions according to the per-determined legal principles and they cannot go beyond them.

(vii) Law is already laid down and judges have to act accordingly.

(viii) Legal justice represents the collective wisdom of the community and that is always to be preferred to the wisdom of any one individual

II. DISADVANTAGES:

(i) One disadvantage is that it is rigid.

(ii) Law has already been laid down in precedents.

It is not always possible to adjust it to the changing needs of society.

(iv) Society may change more rapidly than legal justice and may result in hardship and injustice.

(v) Another defect of legal justice is its formalism or technicalities. (vi)Judges attach more importance to legal technicalities than they deserve.

(vii) The legal justice is complex. Modern society is becoming more and more complicated if law is to serve its needs it has to be complicated.

7. CONCLUSION:

To conclude, I can say, in the words of Prof. Sidgwick “In determining a nation‟ s rank in political civilization, no test is more decisive than the degree in which justice as defined by the law is actually realized in its judicial administration.” The modern administration of justice is a natural corollary to the growth in power of political state, which began to act as a judge to assess liability and impose penalty.

Q8. Discuss the primary and secondary functions of Court of law.

Q . What are the secondary functions of Court? Or

Q . What are primary functions of Civil Courts? Or

Q . Explain the functions assumed by Civil Courts.

1. INTRODUCTION:

In a sphere of law Court of law haw to perform two fold functions primary and secondary. The primary function of a Court of law is the administration of justice. It has to enforce rights and punish wrongs. But in addition to this, other functions are also performed by Court of law, which are known as secondary functions.

2. FUNCTION OF COURTS OF LAW:

The functions of Court of law may be classified into two categories.

I. Primary Functions

II. Secondary Functions

3. PRIMARY FUNCTIONS:

The primary function of Court of law is the administration of Justice.

I. MEANING OF ADMINISTRATION OF JUSTICE:

(i) According to prof. Salmond:

“The administration of justice implies the maintenance of right within a political community by means of the physical force of the state.”

(ii) According to George Washington:

“Administration of justice is the firmest pillar of Govt. Law exists to bind together the community. It is sovereign and cannot be violated with impurity.

II. CLASSIFICATION OF ADMINISTRATION OF JUSTICE:

Administration of justice is divided into two parts.

(i)Administration of Civil Justice:

Administration of Civil Justice is death with civil proceedings. The object of civil justice is to enforce rights.

Kinds of rights:

There are two rights connected with the civil justice

(a) Primary

(b) Secondary

(a) Primary Rights:

Primary rights are those rights which exist as such. It arises out of a conduct. All fundamental rights are primary rights. Primary rights may be enforced by specific enforcement.

Illustration: If „A‟ enters into a contract, his right to have the contract performed is primary right.

(b) Sanctioning or Secondary Rights:

Sanctioning rights are those, which come into being after the violation of right sanctioning rights is the right to be compensated by damages by the wrong-doer.

The right to exact the imposition of pecuniary penalty on the wrong-doer by penal action Illustration: „A‟ enters into a contract; his right to have the contract performed is primary right. If contract is broke, his right to damages for the loss caused to him for the breach of contract is sanctioning right.

(ii) Administration of Criminal Justice:

Administration of criminal justice is dealt with in criminal proceedings. The object of criminal justice is to punish the wrong-doer. Form very ancient time, a number of theories has been given concerning the purpose of theories have been given concerning the purpose of punishment, which may be broadly divided into two classes. The view of one class is that the end of criminal justice is to protect and add to the welfare of the state and society. The view of other class is that the purpose of punishment is retribution.

4. SECONDARY FUNCTIONS:

Courts are primarily established to perform the essential or primary functions, but once they established, they are also to perform secondary functions. These are miscellaneous and indeterminate in character and number and tend to increase with the advancing complexity of modern civilization. They fall chiefly into four groups.

I. ACTIONS AGAINST THE STATE:

The Courts of law can exercise adjudication, upon claims made by citizens against the state itself. A suit can be brought against the state for contractual liability etc. in England the crown Proceedings Act, 1947 provides that where a person has a claim against the crown, that claim can be enforced.

In Pakistan claims may be put up against the state through the process of writ petitions, by virtue of Article 199 of the constitution of Pakistan 1973.

II. DECLARATION OF RIGHTS:

Another function of the Courts is the declaration of the rights of individuals. This is done where the rights of the parties are uncertain. A litigant may claim the assistance of a Court of law because his rights have been violated, but because they are uncertain.

Examples: Examples of declaratory proceedings are the declaration of legitimacy and authoritative interpretation of wills.

III. ADMINISTRATIONS:

In certain cases, Courts of justice undertake the management and distribution of the property of a deceased person and also of minors whose property is put under the Court of wards. Other examples are the administration of a trust, liquidation of a company by the Court etc.

IV. TITLES OF RIGHT:

In certain cases, judicial decrees are employed as the means of creating, extinguishing and transferring rights. Example of such functions are decree of divorce appointment of removal of trustees etc. in such cases, the judgments of the Courts operate not as the remedy of a wrong but as a title of right.

5. CONCLUSION:

To conclude, I can say, that as the Lord Bryce writs “There is no better test of the test if the excellence of a Govt then the efficiency of its judicial system “and judicial system is run through the Court of law. They have to perform primary and secondary functions, but the object of both these functions is the welfare of the citizen.

Q9. Explain various theories of punishment.

1. INTRODUCTION:

The most essential functions of a state are primarily two wars and administration of justice administration of justice is classified into two parts, civil justice and criminal justice. The purpose of criminal justice is to punish the wrong-doer, who is punished by the state. On the question whether the purpose of punishment is the desire to make men better or to protect society, certain theories have been given by different jurists.

2. MEANING OF PUNISHMENT:

Punishment may be regarded as a method of protecting society by reducing the occurrence of criminal behavior or we can consider it as an and itself.

3. THEORIES OF PUNISHMENT:

There are certain theories behind the concept of punishment.

I. DETERRENT THEORY:

According to this theory, the object of criminal justice in awarding punishment is to deter the people from committing crimes again.

According to Prof. Salmond:

“Punishment is before all things deterrent and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like minded with him.”

According to Locke:

The aim of punishment is not revenge but terror. An exemplary punishment should be given to the criminals so that the others may learn a lesson from him.

Manu States: “Penalty keeps the people under control.”

Criticism: There is a lot criticism of the deterrent theory of punishment in modern times:

(a) Excessive harshness of punishment tends to defeat its own purpose by arousing the sympathy of the public towards those who are given cruel punishment.

(b) Deterrent punishment is likely to harden the criminal instead of creating in him the fear of law.

II. PREVENTIVE THEORY:

In preventive theory, the offenders are disabled from repeating the offences by such punishment. Such as imprisonment, death, exile etc. this theory does not act so much on the motive of the wrong-doer but disables his physical power to commit the offence.

Prof. Paton States:

The preventive theory concentrates on the prisoner but seeks to prevent him from offending again in the future.

Example: An example of preventive punishment is the cancellation of the driving license of a person.

Criticism: This theory has been criticized on following.

(a) It hardens the first offender by putting him in constant association with the habitual offenders.

(b) When offender puts in jail, it breeds more crime.

III. REFORMATIVE THEORY:

According to this theory, the object of punishment should be the reform of the offender. Even if he commits a crime, he does not cease to be a human being. He must be educated and taught some art of industry during the period of his imprisonment so that he may be able to state his life against after his release from jail.

Prof. Jennings States:

“Punishment not the revenge but to reform the offender.”

Criticism: The view of Salmond on the reformation theory is that if criminals are to be sent to prison to be transformed into good citizens, prisons must be turned into comfortable dwelling places. The theory of reformative punishment alone is not sufficient and there should be a compromise between the deterrent theory and the reformative theory and the deterrent theory must have the last word.

IV. RETRIBUTIVE THEORY:

In primitive times, punishment was mainly retributive. The person wronged was allowed to have his revenge against the wrong-doer. The principal of “an eye for an eye” a “tooth for a tooth” was recognized and following. The plato was a was a supporter of the retributive theory.

Prof. Kant Stated:

“Judicial punishment can never serve merely as a means to further another good, whether for the offender himself or for society, but must always be inflicted on him for the sole reason that he has committed a crime.”

Criticism: Critics points out to punishment in itself is not a remedy for the mischief. Punishment in itself is an evil and can be justified only on the ground that it is going to yield better result.

V. EXPIATIVE THEORY:

This theory is similar to the idea of retribution. Expiation means the suffering or punishment for an offence. To suffer punishment is to pay a debt due to the law that is been violated.

Lilly states:

“The wrong whereby he has transgressed the law of right, has incurred a debt. Justice requires that the debt be paid that wrong be expiated.”

Criticism: Justice Holmes writes “This passion of vengeance is not one which we encourage, either as private individuals or as law makers.”

VI. COMPENSATORY THEORY:

According to this theory, the object of punishment must be not merely to prevent further crimes but also to compensate the victim of the crime. The contention is that mainspring of criminality is greed and if the offender is made to return the ill-gotten benefits of the crime, the spring of criminality would dry up.

Criticism: This theory has been criticized on the following points.

(a) It tends to over simply the motives of crime. The motive of crime is not always economic.

(b) Even in case of offences actuated by economic motives the economic position of the poor offender may be such that compensation may not be available.

4. CONCLUSION:

To conclude, I can say, that a perfect system of criminal justice cannot be based on any one theory of punishment. Every theory has its own merits and every effort must be made to take the good points of all. The deterrent aspect of punishment must not be ignored, likewise the reformative aspect be given its due place.

Q10. Define custom? Example various kind of custom. Or

Q .Define custom. What are the essential of a valid custom? Discuss or

Q. Discuss custom as a source of law what are the requirements of a valid local

Custom as a source of law. Or Q. Explain briefly essentials of a valid custom as a source of law. Or Q. What are the essential of a valid local custom?

1. INTRODUCTION:

A study of ancient shows that law-making was not the business of the kings. Law of the country was to be found in the customs of the people which developed spontaneously according to circumstances. It was felt that a particular way of doing things was more convenient than others when the same things was done again and again in a particular way, it assumed the of custom. According to salmond custom is the legal source of law.

. MEANING OF CUSTOM:

(i) According to Salmond:

“Custom is the embodiment of those principles which have commended themselves to the national and national conscience as the principles of justice and public utility.”

(ii) According to Austin:

Custom is a rule of conduct which the governed observed spontaneously and not in pursuance of law set by political superior.”

(iii) According to Holland:

“Custom is .a generally observed course of conduct.”

3. KINDS OF CUSTOM:

Custom are of two kinds:

I. Legal Custom II. Conventional Custom

I. Legal Custom:

According to Salmond, a legal custom is one whose legal authority is absolute, one which in itself and propria vigore possesses the force of law:

(i)Kinds of legal Custom:

Legal Custom is of the following kinds:

(a) General Custom

(b) Local Custom

(a) General Custom:

General customs are those which have force of law throughout the territory. The common law of England is based upon general customs of the realm.

(a) Local Custom:

The local customs are those which operate have the force of law in a particular locality. The authority of a local custom is higher than that of general custom.

II. Conventional Custom:

A Conventional custom is one whose authority is conditional on its acceptance in the agreement between the parties to be bound by it. There is a process by which conventional usage comes to have the force of law.

Conditions to treat usage as custom:

Certain conditions must be satisfied before a court is entitled to incorporate the usages into contracts.

(i) The usage must be so well-established as to be notorious

(ii) The usage must be reasonable

(iii) Usage cannot alter general law of and land.

(iv)A usage should not nullify or very the express term of the contract.

Example: The law of negotiable instruments before it was embodied in the statute was a part of the Law Merchant, which is conventional custom.

4. REQUISITES OF VALID CUSTOM:

Following are the requisites for a valid custom, treated are a law.

I. IMMEMORIAL: A Custom to be valid must be proved to be immemorial.

According to Blackstone:

“A custom in order that in may be legal and binding, must have been used so long that the memory of man not to the contrary, so that if anyone can show the beginning of it, it is good custom.”

II. REASONABLE:

Another essential of a valid custom is that it must be reasonable. The unreasonableness of custom must be so great that its enforcement results in greater harm than if there were no custom at all.

According to Port. Allen:

The unreasonableness of custom must be proved and not its reasonableness.

III. CONTINUOUS:

A custom must not continuously observe and if it has not been continuously and uninterruptedly observed, the presumption is that it existed at all.

IV. PEACEABLE ENJOYMENT:

The enjoyment of a custom must be a peaceable one.

V. CERTAINTY:

A valid custom must be certain and definite, if there are any ambiguities in it or it keeps change, it is not a valid custom.

VI. COMPULSORY OBSERVANCE:

A custom is valid if its observance is compulsory. An optical observance is ineffective.

According to Blackstone:

“A custom that all the inhabitants shall be rated towards the maintenance of a bridge will be good, but a custom that every man is to contribute thereto at his own pleasure is idle and indeed no custom at all.”

VII. GENERAL OR UNIVERSAL:

The custom must be general or universal.

According to custom:

“In the absence of unanimity of opinion, custom becomes powerless or rather does not exist.”

VIII. NOT OPPOSED TO PUBLIC POLICY:

A valid custom must not be opposed to public policy or the principles of morality.

IX. NOT OPPOSED WITH STATUTE LAW:

A valid custom must be conflict with the statute law of the country.

According to Coke:

“No custom or prescription can take away the force of an Act of parliament.”

X. CONSISTENT WITH EACH OTHER:

According to Blackstone customs must be consistent with each other; one custom cannot be set up in opposition to another.

5. BINDING FORCE OF CUSTOM:

When the custom is given the force if law, it becomes binding.

I. THEORIES REGARDING

Transformation of Custom into Law:

There are two theories regarding the question as to when a question is transformed into law:

(i) Historical theory

(ii) Analytical theory

(i) Historical theory:

According to the historical theory, the growth of law does not depend upon the arbitrary will of any individual. It does not depend upon any accident. It grows as a result of the intelligence of the people. Custom is derived from the common consciousness of the people.

According to puchta:

Custom is not only self-sufficient and independent of state imprimatur but is a condition to all sound legislation.

Criticism: According to paton:

The growth of most of the customs is not the result of any conscious thought but of tentative practice.

According to Allen:

“All customs cannot be attributed to the common consciousness of the people. In many cases, customs have arisen on account of the convenience of the ruling class.”

(ii) Analytical theory:

Austin, Holland, and Gray are the advocates of analytical theory.

According to Austin:

Customs is a source of law and not law itself. Customs are not positive laws until their existence is recognized by the decisions of the Courts.

According to Holland:

Customs are not laws when they arise but they are largely adopted into laws by state recognition.

Criticism: By Allen:

Custom grows by conduct and it is therefore a mistake to measure its validity solely by the elements of express sanction, accorded by Courts of law of by other determinate authority.

II. REASONS FOR CUSTOM IS GIVEN THE FORCE LAW:

Following are the reasons, why custom is given the force of law.

(i)Principles of national conscience:

Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth, justice and public policy.

According to Salmond:

“Custom is to society what laws is to the state. Each is the expression and realization of the measure of man, s insight and ability, of the principles of right and justice.”

(ii) Expectation of continuance:

Another reason for the binding force of custom is the expectation of its continuance is the future. Justice demands that this expectation should be fulfilled and not frustrated.

(iii) Observance by a large number of people:

Sometimes a custom is observed by a large number of persons in society and in course of time the same come to have the force of law.

Example: In every bill of exchange there is custom of giving three days of grace.

(iv) Interests of Society:

Custom rests on the popular conviction that it is in the interests of society. This conviction is so strong that it does not found desirable to go against it.

Useful to the law giver:

According to paton:

Custom is useful to the law-giver and codifier is two ways. It provides that material out of which the law can be fashioned. There is a tendency to adopt the maxim whatever has been authority in the past is a safe guide for the future.

6. CONCLUSION:

To conclude, I can say, that custom is an important source of law. It lies in the foundation of all legal systems. They come into existence with the existence of society. However with the passage of time, the importance of custom began decline, the judgments of the Courts began to cove some of the fields previously occupied by custom. Modern looks to legislature for enacting at a speed which is demanded by the atomic age.

Q11. What is legislation according to salmond how it is been classified by him.

Q. what do you understand by subordinate legislation. Discuss its chief forms.

Q. Define legislation. Distinguish between supreme and subordinate legislation.

Q. Explain supreme and subordinate legislation and describe various form of Subordinate legislation.

1. INTRODUCTION:

The term legislation is derived from Latin words “legis” meaning law and “latum” meaning “to make”. Legislation means the making or setting of law. In wider sense, the term legislation is used to include all methods of law-making but in a restricted sense, it includes every expression of the legislation whether the same is directed to the making of law or not. The law that has its source in legislation is called enacted law, statute law or written law.

2. DEFINITION OF LEGISLATION:

I. According To Salmoned:

“Legislation is that source of law which consists in the declaration of legal rules by the competent authority.”

According To Gray:

“Legislation means the formal utterance of the legislative organs of the society.”

III. According To Holland:

“The making of general orders by our judges is as true legislation as is carried on by the crown.”

3. LEGISLATION AS SOURCE OF LAW:

Legislation as a source of law many be discussed by analyzing the following approach.

I. ANALYTICAL APPROACH:

The view of the analytical school is that typical law is a statute and legislation is the normal process of law making. They neither approve of the usurpation of the legislative functions by the judiciary, nor considered custom as a source of law.

II. HISTORICAL APPROACH:

The view of the Historical school is that legislation is the least creative of the sources of law. It has no independent creative role at all. Its only legitimate purpose is to give better from and made more effective the custom.

Criticism: Both analytical and Historical school goes to extremes. The mistake by the analytical school is that, it regards legislation as a sole source of law and does not attach any importance to the custom and precedent. The mistake of the Historical school is that, it does not regard legislation as a source of law.

According to Dean Pound:

Legislation is of two types, organizing and creative. The existence of the creative cannot be doubted in modern times when there is abnormal legislative activity.

4. KINDS OF LEGISLATION:

According to Prof. Salmond, Legislation is of two kinds:

I. Supreme legislation

II. Subordinate Legislation

I. SUPREME LEGISLATION:

Supreme legislation is that which proceed from sovereign power in the state. It cannot be repealed, annulled or controlled by any other legislative authority.

According to Austinian Theory:

It is logically impossible for there to be any legal limitations on the sovereign authority. Sovereign on Austin‟s definition owes obedience to on one.

Example: In England, Parliament is the supreme legislation authority. An Act of parliament cannot be held void for unreasonableness or it seems upon any other ground.

II. SUBORDINATE LEGISLATION:

Subordinate legislation is that which proceed from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior authority. Example: Legislation made by the Municipal Corporation is the subordinate legislation.

A.Kinds Of Subordinate Legislation:

Salmond mentions five chief forms of subordinate legislation.

(i) Colonial legislation:

The laws made by the colonies and other dependencies of crown subject to the control of imperial parliament. However it is be noted, that after passing of the statute of West Minster of 1931, the dominion legislation have been powers to make may any law they please.

(ii) Executive legislation:

The laws made by the executive body in order to regulate the administrative functions of the state. The executive may also frame detailed rules and legislation as supplementing the statutory provisions of the legislature. There are certain checks or control on executive legislation vir.

(a) Parliamentary control which can modify, amend or refuse altogether the powers.

(b) Parliamentary supervision

(d) Power must be handed over to trustworthy persons.

(e) Public opinion

(f) Experts opinion

(iii) Judicial legislation:

The Superior Courts are given limited powers to make general rules for the regulation of their own procedure. It is true legislation in the true sense to the term e. g., High Court rules and regulations.

(iv) Municipal legislation:

Municipal authorities are also allowed to make bye-laws for limited purpose within their areas. These are binding upon the people generally and offences against these by-laws are punishable.

(v) Autonomous Legislation:

These are the formal utterances of private persons or groups of them who are given a limited legislation authority to make laws touching matters which concerns themselves e. g, laws made by universities etc.

Both salmond and Gary have held that autonomous legislation it not properly speaking statutory law of the state at all, although it is law within the community which has imposed it.

5. CONCLUSION:

To conclude, I can say, that legislation consist in the declaration of legal rules by a competent authority conferring upon such rules, the force of law. It is either supreme or subordinate and difference between these two lies in a fact that the supreme legislation proceeds from the sovereign in the state while the subordinate legislation is dependent for its existence and validity on such sovereign authority

Q12. Example the factors that reduce the binding authority of a precedent. Q .Discuss different kinds of precedents.

1. INTRODUCTION:

Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. A judicial precedent is one precedent contains I itself a principle of law. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries. The common law of England has been built up the decisions of England judges. There are so many reasons why precedents operate as an authoritative source of law and it also has many kinds according to its probative force.

2. DEFINITION OF PRECEDENT:

I. According To Prof .Osborn:

“Precedent is a judgment or decision of a Court of law cited as an authority for deciding a similar set of facts.”

II. According To Prof. keeton:

“A judicial precedent in a judicial decision to which authority has in some measure been attached.”

3. NATURE OF PRECEDENTS:

A precedent is purely constitutive and in no degree abrogative. This means that a judicial decision can make a law but cannot alter it. Where there is a settled rule of law, it is the duty of the judges to follow the same.

4. BINDING AUTHORITY OF PRECEDENTS :

The binding authority of precedent is based on the principle of stare deciss, which means

(i) To abide by the law already decided

(ii) To follow the law already decided

5. REASONS FOR BINDING AUTHORITY OF JUDICIAL PRECEDENTS:

Following are the reasons why precedents have been given the binding authority:

(i) Justice is administered by a body of judges.

(ii) The judges being legal experts are pre-eminently fixed to lay down the law of the bar.

(iii) A case once decided in presumed to be correct as long as it not reversed by the higher Court.

(iv) The rule that the law as laid down in previous case must be followed induces confidence in the minds of litigants.

(v) That which is delivered in judgment must be taken for established truth.

(vi) Law becomes certain and known.

(vii) It is conducive to social development administration of justice becomes fair.

(viii) A precedent is proof of custom.

(ix) It promotes uniformity and certainty of legal administration.

It shows respect for the opinions and decisions of one„s predecessors.

(xi)That convenience demands once a question is decided it should not be reargued every time it arises.

6. KINDS OF PRECEDENTS:

Following are the different kinds of precedents:

I. Authoritative and persuasive

II. Declaratory and original

I. Authoritative And Persuasive:

(i)Authoritative precedents:

According to Salmond an authoritative precedent is one which judges must follow whether they approve of it or not. These are the legal sources of law and establish law in pursuance of definite rule of law which confers upon them that effect.

Kinds of Authoritative precedents:

Authoritative Precedents are of two kinds:

(a) Absolute Authoritative precedents

(b) Conditional Authoritative precedents.

(a) Absolute Authoritative precedents:

Absolute authoritative precedents are those which have to be followed by the judges even if they do not approve of them.

Example: The decisions of the House of Lords are absolutely binding on all the Courts in England.

(b) Conditional Authoritative precedents:

A conditional authoritative precedent is one which though ordinarily binding on the Court to which it is cited, but is liable to be disregarded in certain circumstances.

Example: The decision of the single judge of a High Court is absolutely authoritative for the subordinate judiciary but is only conditionally authoritative, if cited before the Division bench of the High Court.

(ii) Persuasive precedents:

A persuasive precedent is one which the judges are under no obligation to follow but which they will take into consideration. It is a historical source of law and will be followed only if its reasoning is sound flawless.

Example: The decisions of superior of other countries I .e, India, England etc.

II. Declaratory And Original Precedent:

(i) Declaratory precedent:

According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. The rule is applied because it is already law.

(ii) Original Precedent:

An original precedent is one which creates and applies a new law. It is law for the future because it is now applied. They along develop the law of the country.

7. CIRCUMSTANCES WHICH DESTROY OR WEAKEN THE BINDING FORCE OF PRECEDENTS:

There are certain exceptions to the rule that precedents are binding, which are as under:

(i) Abrogated Decision:

A decision ceases to be binding if a statute statutory rule inconsistent with it is subsequently enacted or if it is reversed or over-ruled by a higher Court.

(ii) Affirmation or reversal on a different ground:

A decision which affirmed or reversed on another point is deprived of any absolute binding force which it might otherwise have had.

Example: A case is decided in High Court on ground „A‟ and then goes on an appeal to the supreme Court which decided it on ground „B‟ nothing being said upon ‟A‟ . it loses its binding force as far as the ground „A‟ concerned.

(iii) Ignorance of statute:

A precedent is not binding if it was rendered in ignorance of statute or a rule having the force of statute i.e., delegated legislation.

(iv) Inconsistency with earlier decisions of higher Court:

A precedent loses its binding force if it is inconsistent with the decision of higher Court. Example: If the high Court decides a case in ignorance of a decision of Supreme Court, the decision of High Court is not binding on any lower Court.

(v) Inconsistency between earlier decisions same rank:

Where authorities of equal standing are in conflict, a lower Court has the freedom to pick and choose between them. It loses its binding force.

(vi) Precedents not fully argued:

When a particular point involved in a decision is not taken notice of and is not argued by a counsel, the Court may decide in favour of one party, whereas if all the points had been put forth, the decision may have been in favour of the other party. Such a rule is not an authority on the point which had not been argued.

K. Balkrishna Rao Vs. Haji Abdullah Sait:

“It was observed that the binding force of the precedents does not depend on whether a particular argument was considered therein or not provided the point with reference to which an argument was subsequently advanced was actually decided by the Supreme Court.”

(vii) Decisions of equally divided Courts:

Where an appellate Court is equally divided, the practice is to dismiss the appeal and holds that decision appealed form is the correct one.

(viii) Erroneous decisions:

Decisions which are founded on wrong principles loses its binding force may be over-ruled by higher Courts;

(ix) Decisions not followed for a long time:

If a precedent is not following for a long time, its authority starts deteriorating.

(x) Ex-parte decision:

Decisions made in the absence of other party are ex-parts decisions and such decisions weaken its binding force.

(xi) Decisions criticized by lawyers etc.:

Decisions which are criticized by the lawyers, judges etc., they tends to be weaken.

8. CONCLUSION:

To conclude, I can say, that the precedents are an important source of law. The operation of precedents is an important is based on the presumption that judicial decisions are correct. Only that precedent is binding on the Court which is on all fours with the case before it. If the facts in both the cases are the same, the decision is said to be on authority. If the facts of the case are different and the judges merely act on the analogy pervious rule, he expounds a new principle of law and his decision is said to be on principle.

Q13. Define Precedent. What is meant by Ratio Decidendi and obiter Dicta?

Q. What do you understand by Ratio Decidendi? Explain the factors that destroy or diminish its application.

1. INTRODUCTION:

Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. It is an important source of law. A judicial precedent is one which contains in itself a principal of law. That underlying principal is termed as Ratio Decideni while other things which are said by the Court by the way or the statements of law and which are beyond the requirement of the particular case are termed as obiter Dictum.

2. DEFINITION OF PRECEDENT:

I. According To Prof. Osborn:

“Precedent is a judgment or decision of a Court of law cites as an authority for deciding a similar set of facts.”

II. According To Prof. Keeton:

“A judicial precedent is a judicial decision to which authority has in some measure been attached.”

3. RATIO DECIDENDI:

Ratio decidendi is a reason of which the judge decides the case. It describes the principal of the case.

I. Definition:

(i) According to Prof. Salmond:

“A precedent is a judicial decision which contains in itself a principal. The underlying principal which turns from its authoritative element is often termed the ratio decidendi.”

(ii) According to Repert cross:

“A ratio decidendi is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.”

(v) Expectation of continuance:

Another reason for the binding force of custom is the expectation of its continuance is the future. Justice demands that this expectation should be fulfilled and not frustrated.

(vi) Observance by a large number of people:

Sometimes a custom is observed by a large number of persons in society and in course of time the same come to have the force of law.

Example: In every bill of exchange there is custom of giving three days of grace.

(vii) Interests of Society:

Custom rests on the popular conviction that it is in the interests of society. This conviction is so strong that it does not found desirable to go against it.

Useful to the law giver: According to paton:

6. CONCLUSION:

Q11. What is legislation according to salmond how it is been classified by him.

Q. what do you understand by subordinate legislation. Discuss its chief forms.

Q. Define legislation. Distinguish between supreme and subordinate legislation.

R. Explain supreme and subordinate legislation and describe various form of Subordinate legislation.

1. INTRODUCTION:

2. DEFINITION OF LEGISLATION:

I. According To Salmoned:

“Legislation is that source of law which consists in the declaration of legal rules by the competent authority.”

According To Gray:

“Legislation means the formal utterance of the legislative organs of the society.”

III. According To Holland:

“The making of general orders by our judges is as true legislation as is carried on by the crown.”

4. LEGISLATION AS SOURCE OF LAW:

Legislation as a source of law many be discussed by analyzing the following approach.

I. ANALYTICAL APPROACH:

II. HISTORICAL APPROACH:

According to Dean Pound:

Legislation is of two types, organizing and creative. The existence of the creative cannot be doubted in modern times when there is abnormal legislative activity.

4. KINDS OF LEGISLATION:

According to Prof. Salmond, Legislation is of two kinds:

III. Supreme legislation

IV. Subordinate Legislation

III. SUPREME LEGISLATION:

Supreme legislation is that which proceed from sovereign power in the state. It cannot be repealed, annulled or controlled by any other legislative authority.

According to Austinian Theory:

It is logically impossible for there to be any legal limitations on the sovereign authority. Sovereign on Austin‟s definition owes obedience to on one.

Example: In England, Parliament is the supreme legislation authority. An Act of parliament cannot be held void for unreasonableness or it seems upon any other ground.

IV. SUBORDINATE LEGISLATION:

A.Kinds Of Subordinate Legislation:

Salmond mentions five chief forms of subordinate legislation.

(iii) Colonial legislation:

(iv) Executive legislation:

(g) Parliamentary control which can modify, amend or refuse altogether the powers.

(h) Parliamentary supervision

(i) Judicial control

(j) Power must be handed over to trustworthy persons.

(k) Public opinion

(l) Experts opinion

(vi) Judicial legislation:

(vii) Municipal legislation:

Municipal authorities are also allowed to make bye-laws for limited purpose within their areas. These are binding upon the people generally and offences against these by-laws are punishable.

(viii) Autonomous Legislation:

Both salmond and Gary have held that autonomous legislation it not properly speaking statutory law of the state at all, although it is law within the community which has imposed it.

5. CONCLUSION:

Q12. Example the factors that reduce the binding authority of a precedent. Q .Discuss different kinds of precedents.

3. INTRODUCTION:

4. DEFINITION OF PRECEDENT:

III. According To Prof .Osborn:

“Precedent is a judgment or decision of a Court of law cited as an authority for deciding a similar set of facts.”

IV. According To Prof. keeton:

“A judicial precedent in a judicial decision to which authority has in some measure been attached.”

5. NATURE OF PRECEDENTS:

6. BINDING AUTHORITY OF PRECEDENTS :

The binding authority of precedent is based on the principle of stare deciss, which means

(iii) To abide by the law already decided

(iv) To follow the law already decided

5. REASONS FOR BINDING AUTHORITY OF JUDICIAL PRECEDENTS:

Following are the reasons why precedents have been given the binding authority:

(x) Justice is administered by a body of judges.

(xi) The judges being legal experts are pre-eminently fixed to lay down the law of the bar.

(xii) A case once decided in presumed to be correct as long as it not reversed by the higher Court.

(xiii) The rule that the law as laid down in previous case must be followed induces confidence in the minds of litigants.

(xiv) That which is delivered in judgment must be taken for established truth.

(xv) Law becomes certain and known.

(xvi) It is conducive to social development administration of justice becomes fair.

(xvii) A precedent is proof of custom.

(xviii) It promotes uniformity and certainty of legal administration.

It shows respect for the opinions and decisions of one„s predecessors.

(xi)That convenience demands once a question is decided it should not be reargued every time it arises.

6. KINDS OF PRECEDENTS:

Following are the different kinds of precedents:

III. Authoritative and persuasive

IV. Declaratory and original

I. Authoritative And Persuasive:

(i)Authoritative precedents:

Kinds of Authoritative precedents:

Authoritative Precedents are of two kinds:

(d) Conditional Authoritative precedents.

(c) Absolute Authoritative precedents:

Absolute authoritative precedents are those which have to be followed by the judges even if they do not approve of them.

Example: The decisions of the House of Lords are absolutely binding on all the Courts in England.

(d) Conditional Authoritative precedents:

A conditional authoritative precedent is one which though ordinarily binding on the Court to which it is cited, but is liable to be disregarded in certain circumstances.

(ii) Persuasive precedents:

Example: The decisions of superior of other countries I .e, India, England etc.

II. Declaratory And Original Precedent:

(iii) Declaratory precedent:

According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. The rule is applied because it is already law.

(iv) Original Precedent:

An original precedent is one which creates and applies a new law. It is law for the future because it is now applied. They along develop the law of the country.

7. CIRCUMSTANCES WHICH DESTROY OR WEAKEN THE BINDING FORCE OF PRECEDENTS:

There are certain exceptions to the rule that precedents are binding, which are as under:

(vii) Abrogated Decision:

A decision ceases to be binding if a statute statutory rule inconsistent with it is subsequently enacted or if it is reversed or over-ruled by a higher Court.

(viii) Affirmation or reversal on a different ground:

A decision which affirmed or reversed on another point is deprived of any absolute binding force which it might otherwise have had.

(ix) Ignorance of statute:

A precedent is not binding if it was rendered in ignorance of statute or a rule having the force of statute i.e., delegated legislation.

(x) Inconsistency with earlier decisions of higher Court:

(xi) Inconsistency between earlier decisions same rank:

Where authorities of equal standing are in conflict, a lower Court has the freedom to pick and choose between them. It loses its binding force.

(xii) Precedents not fully argued:

K. Balkrishna Rao Vs. Haji Abdullah Sait:

(x) Decisions of equally divided Courts:

Where an appellate Court is equally divided, the practice is to dismiss the appeal and holds that decision appealed form is the correct one.

(xi) Erroneous decisions:

Decisions which are founded on wrong principles loses its binding force may be over-ruled by higher Courts;

(xii) Decisions not followed for a long time:

If a precedent is not following for a long time, its authority starts deteriorating.

(xii) Ex-parte decision:

Decisions made in the absence of other party are ex-parts decisions and such decisions weaken its binding force.

(xiii) Decisions criticized by lawyers etc.:

Decisions which are criticized by the lawyers, judges etc., they tends to be weaken.

8. CONCLUSION:

Q13. Define Precedent. What is meant by Ratio Decidendi and obiter Dicta?

R. What do you understand by Ratio Decidendi? Explain the factors that destroy or diminish its application.

1. INTRODUCTION:

2. DEFINITION OF PRECEDENT:

I. According To Prof. Osborn:

“Precedent is a judgment or decision of a Court of law cites as an authority for deciding a similar set of facts.”

II. According To Prof. Keeton:

“A judicial precedent is a judicial decision to which authority has in some measure been attached.”

3. RATIO DECIDENDI:

Ratio decidendi is a reason of which the judge decides the case. It describes the principal of the case.

I. Definition:

(iii) According to Prof. Salmond:

“A precedent is a judicial decision which contains in itself a principal. The underlying principal which turns from its authoritative element is often termed the ratio decidendi.”

(iv) According to Repert cross:

“A ratio decidendi is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.”

II. Effect Of Ratio Decidendi:

According to Salmond, the concrete decision is binding between the parties to it but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. The Court while deciding questions on principal have either to follow an already existing rule of law or if there is not authority to formulate some general rule and act upon it.

III. Must Relevant To Case:

In so formulating the rule judges must continue themselves to the requirements of the requirements of the case in hand.

Prof. Salmond stated:

“The only judicial principles which are authoritative are those which are thus relevant in their subject matter and limited in these scopes.”

IV. Rules Determining Ratio Decidendi:

In Section 29 of Salmond on jurisprudence, rules determining ratio decidendi have been indicated. The material observations contained in the section 27 are as below.

(i) Case decides Generally:

What a case decides generally and as all the world is the ratio decidendi or rule of law for which it is authority.

(ii) As between the Parties:

What it decides between the parties includes for more than this. The law provides that once a case has been heard and all appeals have been taken, all parties to the dispute and their successors are bound by it and these matters are become “res judicata” between them and cannot be the subject of further dispute.

(iii) As against persons not parties to suit:

As against persons not parties to the suit, the only part of a case which is conclusive (with the exception of cases relating to status) is the general rule of law for which it is authority. This rule or preposition may be described roughly as the rule which the Court regarded as government the case.

V.Methods Of Determining Ratio Decidendi:

Different jurists have advanced different tests ascertaining the ratio decidendi.

(i)Reversal Test:

The Reversal test of Professor Wambaugh suggested that the ratio decidendi can be discovered by reversing the preposition of law put forward by the Court and inquiring whether the decision would be the same notwithstanding the reversal. If it is the same then the preposition of law is no part of the ratio. The ratio is a general rule without which the case would have been decided otherwise.

Criticism: Lord Simonds has pointed out defects in the Suggestion. In cases where a judge has given two alternative grounds for a decision. The test of Prof. Wambaugh would compel us to deny the case any ratio decidendi because whichever preposition was revealed the decision will stand on the other.

(ii) Goodhart‟ s Theory:

According to Prof. Goodhart ratio decidendi is not the reason for the decision, for the reason may be bad and yet the case may come to be an authority. According to him the ratio decidendi is the conclusion reached by the judges on the basis of the material facts and on the exclusion of the immaterial once. He strictly falls in line with the views of the American professor. Oliphant who suggested that we should confine ourselves to only the decision and disregard what the judge has said in giving his decision Goodhart‟ s theory implies that it is the deciding judge who decides what are the material facts and that these can be discovered by a perusal of the judgment.

Criticism: It overlooks two points:

(i) It is within the function of judges in subsequent cases to say what they choose to regard as the material facts of the earlier case.

(ii) Two persons may agree as to a collection of individual facts and yet from different impressions of the group of them as a unit.

4. OBITER DICTUM:

All that is said by the Court by the way or the statements of law which go beyond the requirements of the particular case and which lay down a rule that is irrelevant or unnecessary for the purpose in hand are called obiter dictum.

I. DEFINITION OF OBITER DICTA:

(i) Prof. Patterson Stated:

Obiter dictum is a statement of law in the opinion which could not logically be a major premise of the selected factors of the decision.”

(ii) Dr. Goodhart; s stated:

“A conclusion based on a fact the existence of which has not been determined by the Court.”

II. FORCE OF PERSUASIVE PRECEDENTS:

The obiter dicta have the force of persuasive precedents only. In the course of his judgment a judge may let fall various observation not precisely relevant to the issue before him. The judges are not bound to follow them. They can take advantage of them but they are not bound to follow them.

III. ADVANTAGES OF OBITER DICTUM:‟

Following are the advantages of obiter dictum:

(i) Obiter dictum help in the growth of law.

(ii) These sometimes help the cause of the reform of law.

(iii) The judges are expected to know the law and their observations are bound to carry weight with the government.

(iv) The defects in the legal system can be pointed out in the obiter dictum.

(v) They serve to suggest solutions to problems not yet decided by the Courts.

IV. KINDS OF DICTA:

According to Lord Sterndale Dicta are of different kinds and varying degrees of Weight.

(i) Causal expressions of opinion:

Sometimes they may be called almost casual expressions of opinion upon a point which has not been raised in the case and is not really present to the judge‟s mind. Such dicta though entitled to the respect due to the speaker, may fairly be disregarded by judges before whom the point has been raised and argued in a way to bring it under much fuller consideration.

(ii) Deliberate expressions of opinion:

Deliberate expressions of opinion given after consideration upon a point clearly brought and argued before the Court. It is open to other judges to give decisions contrary to such dicta but much greater weight attaches to them than to the former class.

5. CONCLUSION:

To conclusion, I can say, that the decision given by the judges contains ratio decidendi i. e., the reasoning and sometimes the obiter dictum which are nothing but the observations of the judges on a particular point which is not strictly relevant to the point in-issue but which is helpful for the growth of law.

Q14. Define legislation? How it is superior to precedent.

1. INTRODUCTION:

Law may be found to proceed form many legal sources. One of which is enacted law having its source in legislation and the other is case law having its source in precedent. As regards legislation, it has its source in the law making will of the state on the other hand, precedent has its source in the ratio decidendi and obiter dicta of the judicial decision. Both legislation and precedent has advantages over each other.

2. DEFINITION OF LEGISLATION:

I. According To Salmond:

“Legislation in that source of law which consists in the declaration of legal rules by the competent authority.”

II. According To Gray:

“Legislation means the formal utterances of the legislative organs of the society.”

3. DEFINITION OF PRECEDENT:

I. According To Prof. Osborn:

“Precedent is a judgment or decision of a Court of law cited as an authority for deciding a similar set of facts.”

II. According To Prof. keeton:

“A judicial precedent is a judicial decision to which authority has in some measure been attached.”

4. ADVANTAGES OF LEGISLATION OVER PRECEDENTS:

Following are the advantages which legislation has over precedent.

(i)Abrogative power:

Legislation has abrogative power. It can abolish the existing law, which necessary for legal reform. Precedent dose not enjoy the abrogative power and it cannot reverse the existing law.

(ii) Advantage of efficiency:

In legislation, the doctrine of separation of power results in increased efficiency. The duty of making laws is reserved for the legislature, while that of interpreting it for the judiciary so in case of precedents, the functions of legislation and interpretation are combined and that is hardly desirable.

(iii) Satisfaction of principle of natural justice:

Legislation satisfies the requirement of natural justice that laws shall be knows before they are enforced. Law is formally declared to the proper and will be subject to punishment if they violate the same. In case of precedent, it is created and declared in the very act of applying and enforcing it.

(iv) Law for future cases:

Legislation making rules for cases that have not yet arisen, but precedent must wait until the actual concrete incident comes before the Courts for decision.

(v) Power to make anticipatory rules:

New points may be arisen in both a statute and case law. There may be an omission which has to be made good or a doubt to be settled or a defect cured. Legislature can settle this in on time, when existence is brought to its notice. But precedent must wait, until by chance, the very case arises or the decision is challenged in a superior Court.

(vi) Superior in form:

Legislation is superior in form to precedent. It is brief, clear easily accessible and knowable while the quest for the principle of law in a judicial decision entails a long search through multitudinous reports.

(vii) General Supremacy over precedent:

Legislation is a superior over precedent as law can be made against some precedent but the precedent cannot exist opposed to statute law.

(viii) Suitable for fact changes:

Legislation is some suitable for fast changes which time needed. According to prof Friedman “It will be difficult to deny that in modern circumstances development of law through precedent is slow, costly, cumbrous and often reactionary. It is therefore less suitable for a time of fast changes and restlessness.

5. CONCLUSION:

To conclude I can say, that both legislation and precedent are equally important and one cannot achieve its object without the other. For a planned progress legislation is necessary. To interpret it and to apply and to adapt it to particular case, case, law is equally necessary. Both these sources contribute equally to the development of law.

Q15. Define person? Describe various types of legal person and distinguish between corporation and firm. Or Q. Who is a person? Explain kinds of person. What is meant by concept of double personality?

1. INTRODUCTION:

The word “Person” is derived from the Latin word “Persona”. To begin with, it simply meant mask then it was used to denote the part played by a man in life and then in the sense of a man who played the part. But now under a legal theory, a person is any being who is capable of sustaining rights and duties. At common law persons are divided into different kinds and different attributes given to them.

2. DEFINITION OF PERSON:

I. According To Salmond:

“A person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person whether a human being or not so capable is a person even though he is a men.”

II. According To Gray:

“Person is an entity to which rights and duties may be attributed.”

3. KINDS OF PERSON:

Following are the kinds of person as recognized by law:

I. Natural Person

II. Legal Person

I. Natural Person:

According to Holland “A natural person is such a human begin as is regarded by the law as capable of rights and duties.” Natural persons are living human beings recognized as persons by the state.

(i)Requisites of human being:

Following are the requisites of normal human being:

(a) He must be recognized as possessing a sufficient state to enable him to possess rights and duties.

(b) He must be born alive.

II. Legal Person:

Legal persons are also knows as artificial, juristic or fictitious person. They are real or imaginary beings to whom personality is attributed by law by way of fiction, where is does not exist in fact. They are also defined as those things, mass of property, group of human beings or an institution upon whom the law has conferred a legal status and who are in the eye of law capable of having rights and duties as natural persons.

A.Essentials Of Legal Person:

Following are the essentials of legal person:

(a) Corpus:

The corpus is the body into which the law infuses the “animus”, will or intention of a fictitious personality.

(b) Animus:

The animus which is the personality or the will of the person.

B.Double Fiction:

There is a double fiction in a juristic person:

(a) By one fiction, the legal person is created or made an entity.

(b) By second fiction, it is clothes with the will of a living being.

C.Kinds Of Legal Person:

There are three of legal persons:

(i) Corporation

(ii) Institution

(iii) Fund or estate

(i)Corporation:

A corporation is an artificial or fictitious person. The individuals forming the corpus of the corporation are called its members.

Conditions for the existence of corporation:

Following conditions are necessary for the existence of a corporation:

(a) There must be a group or body of human beings associated for certain purposes.

(b) There must be organs through which the body or the group acts.

Kinds of corporation:

There are two kinds of corporation:

(a) Corporation Aggregate

(b) Corporation Sole

(a) Corporation Aggregate:

According to Halsbury‟s Laws of England

“A corporation aggregate is a collection of individuals untied into one body, under a special domination, having perpetual succession under an artificial from and vested by the policy of the law with the capacity of acting in several respects.”

The number of corporation aggregate is very lager and they are of various kinds. For example registered company.

Slamond vs. Salmond and Co. (1897):

“In this case it was held that the company was a separate distinct entity.”

(b) Sole corporation:

Corporation sole is an incorporated series of successive persons. It is a corporation which has one member at a time. According to Dias and Hughes the main purpose of corporation sole is to ensure continuity. Moreover, the occupant of the office can acquire property for the benefit of his successor. A corporation sole in an example of dual personality

Example: Examples of corporation sole are the offices of the post-master General, Auditor General and President of the Country.

(ii) Institution:

In some cases, the corpus or the object personified is not a group or succession of individuals but an institution itself.

Example: College, Church, Library, Mosque etc.

(iii) Fund or estate:

In some cases, the corpus or the object personified is some fund or reserved for a particular purpose.

Example: Examples of this kind of legal persons are the property of a dead man, the estate of an insolvent, an estate under a trust etc.

4. DOUBLE PERSONALITY:

Law recognized many different capacities in which a man may act. If a single human being has in one capacity, there arises a case of dual personality. The natural person may owe a duty to the legal person or he may have rights against him. The trustee as an individual may owe money to or enter into contract with himself in his capacity as a trustee.

Example: A corporation sole is an example of dual personality.

5. CONCLUSION:

To conclusion, I can say, that according to legal theory, only that being is designated as person who is capable of holding rights and duties irrespective of the fact whether he is human being or not. At common law persons are divided in two kinds by way of their existence by fiction or by fact.

Q 16.What is the legal status of

(a) Dead person

(b)Animals

Q . Ordinarily, the personality of human being may be said to commence on birth and ceases to exist on death. Discuss what the rights of dead person are.

1. INTRODUCTION:

The word “Person” is derived from the Latin word “Persona”. To begin with, it simply meant a mask, than it was used to denote the part played by a man in life and then in the sense of a man who played the part. But now under a legal theory, a person is any being who is capable of sustaining rights and duties. Any being that is so capable is a person whether he is a human being or not.

2. DEFINITION OF PERSON:

I. According To Prof. Salmond:

“A person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person, whether a human being or not and no being capable is a person, even though he is a man.”

II. According To Gray:

“Person is an entity to which rights and duties may be attributed.”

3. LEGAL STATUS OF DEAD PERSON:

The personality of human being commences its existence on birth and ceases to exist at death. Dead men are no longer persons in the eye of law. They have no rights because they have no interests. All that the law does is, it to some degree recognizes and takes into account after a man, s death his desires and interests when alive.

I. Rights Of Dead Person:

There are three things in respect of which the anxieties of living men extend even after their death. Those are his body his reputation and his estate.

(i) Body:

Living men is interested in the treatment to be given to his own dead-body. A corpse is the property of on one. It cannot be disposed of by will or any other instrument criminal law secures a decent burial for all dead men and the violation of a grave is a criminal offence.

(ii) Reputation:

The reputation of a person receives some degree of protection form criminal law. A libel upon a dead man is punished as a misdemeanor when its publication is an attack on the interests of living person. As a matter of fact this right is in reality not that of the dead person but of his living descendents.

(iii) Property:

A dead man continues to determine the enjoyment of the property, which he owned, while he was alive. The law of succession permits the desires of the dead person to regulate the actions of the living persons. In addition to this, whatever he has left behind to distributed as gifts or given in charity will be respect by law and enforced according to his wishes laid down is a proper document i.e., will deed.

4. LEGAL STATUS OF UNBORN PERSON:

Before discussing the status of unborn person, we must distinguish a child who is living in womb of its mother and an unborn child in the sense of future generations i.e., who is not conceived in the womb of its mother. The law given a statue of person to a child who is not yet been born but conceived in its mother‟s womb.

According to coke:

“The law in many cases hath consideration of him in respect of the apparent expectation of his birth,:

I. CONTINGENCY OF RIGHTS OF UNBORN PERSON:

The rights of unborn person whether proprietary or personal are all contingent on his birth as a living human being.

II. RIGHTS OF UNBORN PERSON:

Following are the rights of a unborn person.

(i)Rights to Compensation:

An unborn child is entitled to compensation for the death of his father, willful or negligent injury inflicted on a child in the womb.

(ii) Rights to be born:

An unborn person has a right to be born and abortion and child destruction are declared as crimes to protect his right of him. A pregnant woman condemned to death is respited as of right until she has been delivered of her child.

(iii) Right to Inherit:

In unborn child may inherit, but if he dies in the womb or is still-born, his inheritance fails to take effect and on one claim thought him.

(iv) Beneficiary of trust:

An unborn child may be made beneficiary of the trust and such trust cannot be varied without obtaining the consent of the Court on their behalf.

(v) Right to own:

There is nothing in law to prevent a man form owing property before he is born. His ownership is contingent on his born alive and once born alive, his contingent ownership will become vested.

(vi) Right to gift:

A direct gift may be made to the child in womb.

(vii) Right to Partition:

In Hindu Law, if a partition is made, a share should be allotted to a child in the womb which is contingent on his as a living human being.

5. LEGAL STATUS OF ANIMALS:

I. Primitive View:

Beasts were regarded as persons in the old days. There are examples in Greek law where they tried and punished for offences to human beings.

II. Modern View:

In modern law animals are not regarded as person, they are things. The only natural people are human beings and beasts are not person either natural or legal. They are merely things.

III. Reasons For Incapability:

Following are the reasons for incapability of animals as person.

(i) Not subjects of rights:

They are often the object of legal rights and duties but never the subject of them.

(ii) Acts: Their acts are neither lawful nor unlawful.

(iii) Subject-matter:

They are not recognized by law as the appropriate subject-matter either of permission or prohibition.

(iv) Incapability: A beast in incapable of legal rights as of legal duties.

(v) Recognition: His interests are not recognized by law.

(vi) Moral rights: They possess moral rights but those are not recognized by any legal system.

(vii) Cannot be the owner:

No animal can be owner of any property even through the medium of a human trustee.

IV. Exceptions:

There are two cases in which beasts may be thought to possess legal rights.

(i) Cruelty to animals is a criminal offence.

(ii) A trustee for the benefit of particular class of animals is made like broken down horses.

Criticism:

(i) Cruelty to animals is an offence not because of any love animals but because of the ill effects produced in society by perpetuation of cruelty.

(ii) The trust is crated for the protection and benefit not an individual animal but for a group as it is charitable and public trust. All these duties are contemplated by law not towards the animals but towards society.

6. CONCLUSION:

To conclude, I can say, that according to the legal theory, only that being is designated as person who is capable of holding rights and duties, irrespective of the fact whether he is human being or not, existed or not. i.e., corporations, idols, dead and unborn child are the best examples of his concept of personality.

Q17. Distinguish between corporation and a firm. Can we hold corporation liable for her acts.

1. INTRODUCTION:

The outstanding feature of a corporation is its independent corporate existence. A corporation is in law a person. It is a distinct legal persona existing independent of its members. By fiction of law, a corporation is a distinct entity, yet in reality it is an association of persons who are the beneficial owners of all the corporate property so a corporation on its own is liable to its acts. A corporation is different from the firm as the firm is not considered to be a legal person.

2. DEFINITION OF CORPORATION:

A corporation is an artificial or fictitious person constituted by the personification of a group or a series of individuals.

3. MEANING OF FIRM:

A firm is the relation between the people who have agreed to share the profits of a business carried on by all of them acting for all.

4. DIFFERENCE BETWEEN CORPORATION AND FIRM:

Following are the differences between corporation and firm.

I. Legal Entity:

Corporation is a separate legal entity apart from its members.

A firm does not have corporate personality, so it is not a separate personality from its members.

II. Liability:

In corporation, liability of corporation and its members are different. In firm, partners are jointly liable.

Legal Status:

A corporation can sue and be sued. A firm cannot sue of its own name.

IV. Duration:

A corporation has a perpetual succession even if a member of it dies it continues.

A firm has not perpetual succession. A firm can be extinguished by the extinction of any of its two members.

V. Existence:

A corporation can exist even with one member.

This is not possible in the case of partnership firm. There must be more than one member of a partnership firm.

VI. Contract With Members:

It is possible for a corporation to enter into a contract with its members. No firm can enter into a contract with its members.

VII. Rights And Duties:

A corporation can have rights and duties different from its members. This is not possible with the firm.

VIII. Possession Of Property:

A corporation can possess the property different from its members. The property of the firm is the property of the members.

IX. Base Of Formation”

The base of corporation is voluntary.

Base of formation of a firm is based on the maxim “Consensus Of Idem”, which means consent of both the parties. If both the parties are consenter, they can from a firm.

5. LIABILITY OF CORPORATION:

A corporation is a separate distinct entity and this fact was firmly established in the leading case.

“Salomon vs. Salomon and Co. Ltd (1897) A. C 22

“It was held that the company is at law a different person altogether from the subscribers of the memorandum.”

The law provides that a corporation owns both civil and criminal liability, for the acts done by its agents within the scope of their employment.

I. CIVIL LIABILITY OF A CORPORATION:

(i)As regards tortuous Act:

A corporation is liable for the tortuous acts of its servants or agents if the act was done within the scope and course of employment and act was within the powers of corporation. This is the rule of vicarious liability.

Citizen‟s life Assurance Co vs. Brown (1904) A. C 423

“It was held that the corporation was liable for the tort of defamation on the ground that it was liable for the torts of its servants committed in the course of the employment.”

(ii) As regards contractual liability: General Rule:

Generally a corporation contracts under a seal and the presence of the seal is an evidence of the assents of the corporation.

Exceptions:

(a) An agent is bound to act within the scope of his authority if he wishes the act to bind the corporation.

(b) The capacity of a corporation to act may be limited by the terms of its charter or by the statute creating it. In these cases, any attempt to perform an act beyond those powers would be ultra vires and would have of no legal effect.

II. CRIMINAL LIABILITY OF A CORPORATION:

Corporation cannot have a guilty intention necessary for a crime as a corporation has no mind of its own. But a corporation can be punished for the offences. This is so when a statutory duty is not performed by corporation or the same is performed badly in these cases punishment is usually by way of fine.

(i)Elements necessary for criminal liability of corporation:

According to Keeton “In crime, the occurrence of three elements is necessary before liability can be property attributed to the corporation.

(a) The crime must be one in which it is not necessary to prove a guilty state of mind in the person charged.

(b) The act must be of a kind that the act or omission of the agent may also be said to be the act or omission of the corporation.

(c) The punishment must be a fine at least as an alternative or some other punishment which may be inflicted on the corporation.

6. CONCLUSION:

To conclusion, I can say that corporation is a legal person and its liabilities are different from its members. A corporation is held responsible on the ground that it should not have selected careless and dishonest agents.

Q18. Define legal right. Discuss the essentials of a legal right.

Q. Explain with illustration the object of legal right.

Q. Define legal right. Explain its essential characteristics.

1. INTRODUCTION:

There can be no duty without a right and according to Hebert “a right is one person’s capacity of obliging others to be or forbear by means not of his own strength but by the strength of a third party. If such third part is God, the right is Divine. If such third party is the public generally acting through opinion, the right is moral. If such third party is the state acting directly or

indirectly, the right is legal.” According to Salmond, every legal has some essential to qualify as legal right.

2. DEFINITION OF LEGAL RIGHT:

The term legal has been used in two senses:

I. Restricted Or Popular Senses:

(i) According to Gray:

“A legal right is that power which a man has to take a person or persons do or refrain doing a certain act or certain acts. So far as the power arises form society imposing a legal duty upon a person or persons.

(ii) According to Justice Holmes:

“A legal right is nothing but a permission to exercise certain natural power and upon certain conditions to obtain protection, or compensation by the aid public force.”

II. Wider Sense:

In a wider sense, legal right includes any legally recognized interest, whether it corresponds to legal duty or not. It is an addition on benefit conferred upon a person by a rule of law.

3. ESSENTIAL CHARACTERISTICS OF LEGAL RIGHT:

According to salmond, there are five characteristics or essential elements of legal right, though according to others, such as Keeton and Holland, there are only four characteristics, as for a title to them is only a source of a right and so not characteristic.

(i) Vested in person:

It is vested in person who is the owner of the right. He is the subject of the legal right and in sometimes described as the person of inheritance. The owner of a right need not be a determinate or fixed person. If an individual owes a duty towards society at legal, an indeterminate body is the subject of inherence.

(ii) Available against person:

It is available against a person who is bound by the correlative duty to respect that right. Such a person is called the person of incidence or the subject of the duty.

(iii) Content of right:

Another essential element of a legal right is its content or substance. It may be an „act which a person bound by the duty has to do or it may be „forbearance‟ on his part in favour of the person entitled to the right.

(iv) Object of the right:

The act or forbearance relates to something which is designated the object or subject matter of the right.

(v) Title to the right:

Another essential element of a legal is the title to the right. Facts must how the right vested in the owner of the right. That may be by purchase, gift, inheritance etc.

Illustration: A man buys a house form another. The buyer will be the person of inherence i.e., the owner of right and the seller and the other person generally the persons of incidence i.e.,

persons who are under a corresponding duty. The object of the right will be the house. The contents of the right are forbearance, non-interference with the exclusive use of the house. The title to the right is the fact of the sale the of the house.

4. OBJECTS OF THE RIGHT:

A right being a legally protected interest, the object of the right is the thing in which has his interest which he desires to take or obtain by means of the duty which the law imposes on other person.

I. Views Regarding Nature Of Object:

There is no unanimity of opinion as to whether every right must have an object or not.

(i)According to one view:

There are some writers who are of the view that there are some rights without objects. According to her the object of a right means some material thing to which it relates. In this sense, an object is not an essential element in the conception of right, and that rights can exist without and object e.g., a right to reputation.

II. Classification Of Rights According To Their Objects:

Slalomed refers to seven kinds of rights by reference to their objects.

(i) Rights over material things.

These are the most important legal rights in respect of their number and variety. Examples are one‟ s right to own his car, house etc.

(ii) Right in respect of one, s own person:

A right to life, health, personal liberty and reputation fall within this class. Here the object is something immaterial.

(iii) Right of reputation:

There is also the right of reputation. By reputation we mean the good opinion that other person have about a person. A person has right not to be libeled. Such a right has obtained legal recognition and protection.

(iv) Right in respect of domestic relation:

There are rights in respect of domestic relation. Every person has an interest and in the society, affections and security of his wife and children. Here the object of the right is the affection and society of the other or by stretching the argument, the object can be the person to whose affection the owner of a right has a right to.

(v) Right in respect of other rights:

A right may have another right as its subject-matter. A Jus ad rem. There are writers like Gray who distinguish between rights to rights which can be specifically enforced and rights or rights the violation of which gives rise only to some lesser remedy.

Example: By a promise of marriage, a woman acquires a right to be married. She acquires the right of a wife on being actually married.

Rights over immaterial property:

There are rights over immaterial property and examples of such right are the patent rights, copy-rights, trade marks etc. the object of patent rights it an invention and the copy-right is the form of expression used by the another etc.

(vii) Right to Services:

There are right to services. There rights are created by the contract between two person. Such as master and servant, physician and patient, advocate and client etc. here the object of the right is the skill-knowledge, strength, time etc.

Example: If a physician is hired, the hirer gets a right to the use and benefit of his skill and knowledge.

5. CONCLUSION:

To conclude, I can say, that to qualify a legal right as a legal right, it must possess some characteristics or essential out of which one is the object of right. An object is an essential in the idea of a right. A right without an object in respect of which it exists is as impossible as a right without a subject to whom it belongs.

Q19. Discuss various principals of interpretation of enacted law.

1. INTRODUCTION:

A statute has to take effect through the interpretation of the Courts. So one of the most important functions of the Court is the construction of statute. In statute law the words Litera Scripta forms the law and hence meaning to the words are important. There are certain rules of interpretation of statute, which Courts follows while interpreting it.

2. MEANING OF INTERPRETATION:

I. According To Salmond:

“By interpreting or construction is meant the process by which the Courts seek to ascertain the meaning of legislation through the medium of authoritative forms in which it is expressed.”

3. RULES OF INTERPRETATION:

I. Grammatical Interpretation:

In grammatical interpretation only the verbal expression of law is taken into consideration and the Courts do not go beyond the literal egis.

“Sussex Peerage Case”

It was observed that “if the words of statute are in themselves precise and unambiguous, then the words themselves alone can best declare the intention of the law-giver.”

(i)Defects in Grammatical Interpretation:

Prof. Salmond refers to three logical defects by which grammatical interpretation may be affected.

(a) The language of the statute may be ambiguous.

(b) The language may be inconsistent with each other and thereby destroy and nullify their meaning.

II. Golden Rule:

The literal interpretation is a means to ascertain the general purport of the statute or ratio legis. In difficult cases, the Court may go beyond the words of the statue and take help from other sources. This rule is called the Golden Rule.

III. Mischief Rule:

It is maintained that when the true intention of the legislature cannot be determined by the language of the statute in question, the judges may look at the law before the Act and the mischief in the law which the statue was intended to remedy. The Act is to be construed in such a manner as to suppress the mischief and advance remedy. This rule of interpretation is knows as mischief rule.

“Heydon‟ s Case”

This mischief rule takes its origin from the above cited case in which four things were observer.

(i) What was the common law before the making of the Act.

(ii) What was the mischief and defect for which the common law did not provide?

(iii) What remedy the parliament hath resolved and appointed to cure the disease.

(iv) The true reason of the remedy and judges shall suppress the mischief and advance the remedy.

IV. Logical Interpretation:

In logical interpretation, the Courts are allowed to depart from the letter of the law and try to find out the true intention of the legislation. It only applies when grammatical is not possible.

(i)According to Gary:

“Logical interpretation calls for the comparison of the statute with other statutes and with the whole system of law and for the consideration of the term and circumstances in which statute was passes.”

V. Strict and Equitable Interpretation:

When to possible meanings could be given to statute because of its ambiguity and the adoption of a meaning which is more obvious and consonant with the popular use of the language the interpretation will be strict.

Equitable:

When Court rejects the natural and most knows interpretation in favour of another which conforms better too the intention of the legislation, though it may not fit for the ordinary us of language, the interpretation is equitable interpretation.

VI. Restrictive And Extensive Interpretation:

Equitable interpretation is either restrictive of extensive. The rule of restrictive interpretation is applied to penal and fiscal statutes. In such cases, Courts applied a construction which imposes a lesser penalty on the subject. In extensive interpretation judge may stretch the word from narrower to the wider sense of which it is inherently capable of.

Historical Interpretation:

The method of historical interpretation is adopted when language of a statute gives no clue to the intention of the legislation however the Courts cannot travel out of the language used in the statute.

VIII. Sociological Interpretation:

The jurists of the sociological school are prepared to give a lot of freedom to the judges while interpreting a statute. The view of the Kohler is that for the determination of the correct interpretation, Court can properly refer to the history of social movements and require into the social needs, objects and purposes which were agitating the society at the time of legislation and which the statute had in view.

IX. Equity Of A Statute:

The principle of a equity of a statute is defined by coke in these words.

“Equity is a construction made by the judges that cases out of the letter of a statute yet being within the same mischief or causes of making the same shall be within the same remedy that the statute provided; and the reason therefore is for that the law makes could not possibly set down all cases in express terms.”

“Riggs Vs Palmer:

“It was held that a murdered could not be permitted to take under the will of his victim and transmit rights to his own heirs, although the statute did not benefiting by the testamentary disposition of his victim.”

X. Rule of Cases Omissus:

It is not the business of the Court to fill up the gaps in a statute. That is the function of legislation.

According to Lord Wright:

“It may be that there is a Cases Omissus, but if so, that omission can only be supplied by a statutory action. That would be the work of legislation, not of construction, and outside the provider of the Court.”

XI. Whole Construction:

The statute must be read as a whole and construction should be put on all parts of the statute every clause of the statute should be construed with reference to the context and other clauses of the Act.

XII. In According With Policy of Statute:

The interpretation of a statute is in accordance with the policy and object of the statute in question.

XIII. Plain Construction:

If the language of the statute is clear, it must be enforced although the result may seem harsh or unfair or inconvenient

XIV. Rule Of Ejusdem Generis:

It is the general rule of construction that where a broad class is spoken of and general words follow, the class first mentioned is to be taken as the most comprehensive and the general

words treated as referring to matters ejusdem generis with such class. It implies the exclusion of other persons or things of the same class which are not mentioned.

XV. No Retrospective Effect:

The general rule of interpretation is that no law is to have retrospective effect i. e., not deal with the past events, unless a specific intention to that effect is given in the statute itself.

Xvi. Rules Of Presumptions:

While interpreting a statute, certain presumptions have to be taken into consideration by the Courts.

(i) Legislation not make mistaken:

It is always to be presumed that the legislature does not make mistaken, and if it does make a mistaken, it is not for a Court to correct the same.

(ii) Legislation knows the practices:

Another presumption is that legislation knows the practice.

(iii) Legislation not intended inconvenience:

Another presumption is that the legislation does not intend what is intend what is inconvenient or unreasonable. If an enactment is such that by reading in its ordinary sense, it produce injustice whereas by reading in a sense which is not ordinary, but does not produce injustice then it must be assumed that the legislation intended that it should be so read as to produce no injustice.

(iv) Legislation not intend alteration in existing law:

Another presumption is that the legislation does not intend any alteration in the existing law except what is expressly declares. A statute should not be interpreted as affecting a fundamental alteration in the general law unless it uses words which point to that conclusion.

(v) Legislation not interferes with vested rights.

It is a proper rule of construction not to construe an Act of Parliament as interfering with or injuring person rights without compensation unless one is obliged to so construe it.

(vi) Statute not violate International law:

Another presumption is that statutes d not violate the Principles of International law. The judges may not pronounce an Act ultravires as contravening International Law.

XVI. Technicalities to Be Deprecated:

The Courts must look at the substance and not the form and technicalities must be deprecated.

XVIII. In Favor Of Accused:

All penal statutes must be construed in favor of the accused.

4. CONCLUSION:

To conclude, I can say that it is the duty of the legislation to enact and make laws and it is the duty of the Courts to interpret it and apply it, according to certain well knows rules of interpretation. Where once certain words in an Act of Parliament have received a judicial construction in one of the superior Courts, it uses in the same meaning unless the legislation alter it in the subsequent statute.

Q20. Define Possession. Do you agree that possession is 9/10th of ownership? Or

Q. Possession is considered to the prima facie evidence of ownership. Explain the logic behind the idea. Or

Q. Define Possession. Explain in the concept of Animus Possidendi. How possidendi is realized. Or

Q. what is meant by possession in fact and possession in law? Explain with examples.

1. INTRODUCTION:

Possession is one the most important concept in the whole range of legal history. It is mere fact, which has an enormous legal significance, to which legal rights are attached and legal consequences flow. Possession is prima facie evidence of ownership and anyone desiring to disturb it must show either a title or a better possessor right. Possession is 9/10th of ownership.

2. DEFINITION OF POSSESSION:

I. According To Salomnd:

“The possession of the material object is the continuing exercise of a claim to the exclusive use of it”

II. According To Pollock:

“In common speech, a man is said to possess or to be in possession of anything which he has the apparent control or form the use of which he has the apparent power of excluding others.”

3. POSSESSION AS EVIDENCE OF OWNERSHIP: According To Ihering:

Possession is ownership on the defensive. It is the evidence of ownership. Possession is the nine points of law and hence protection should be given to possession.

I. Illustrations:

To support the above statement, following illustration or cases may be put.

(i) A finder of goods becomes its owner against the whole world except the true owner. [Hannah vs. peel, 1945]

(ii) If a person is in adverse possession of a property for 12 or more years, he becomes the legal owner of that property and the tight of the original owner is extinguished.

(iii) In many legal systems, possession is provisional or temporary title even against the true owner. Even a wrongful possessor who is deprived of his possession can recover if form any of whatsoever, or the ground of his possession.

(iv) Even the true owner, who retakes his own, must first restore possession to the wrongdoer and then proceed to secure possession on the ground of his ownership.

Example: In Pakistan, under section 145 Cr .p . c, a magistrate can restore possession back to the person forcibly dispossessed form an immoveable property, which is likely to cause breach of public pace.

(v) First possession of a thing which as yet belongs to on one is good title of right.

(vi) Prior possession is prima facie proof of it.

He who is in possession first in time has a better title than the one who has no Possession.

II. Possessory Remedies:

Possessory remedies are those which exist for the protection of possession even against ownership. One of the main reasons for the possessory remedies is that the possession is the prima facie evidence of ownership

III. Doctrine Of Jus TertII:

Thought possession is a prime facie proof of ownership, A defendant is at liable to rebut that presumption by providing that he has a better title but a defendant who has violated the possession of the plaintiff is not allowed to setup the defence of jus Tertii which means that he cannot that neither the plaintiff nor he has title, but some third person has.

Example: English law considers jus tertii as a good defence under the following circumstances.

(i) When the defendant defends the action on behalf of and by the authority of the owner.

(ii) When he committed the complained of by the authority of the true owner.

(iii) When he has already made satisfaction of the true owner by retuning property to him.

4. CATEGORIES OF POSSESSION:

Possession is divided into two categories:

I. Possession in fact

II. Possession in law

I. Possession In Fact:

Possession in fact is actual or physical possession. It is a physical relation to a person who had the things within his control deal with it as he liked to the exclusion of everyone else.

Example: When a servant holds certain things in his custody on behalf of the master, he has the possession in fact and not in law.

II. Possession In Law:

Possession in law means possession un the eye of law. It means a possession which is recognized and protected by law. Law wanted to give possession, or the right to exercise a claim to the exclusive control of a things, and along with it all the other advantages and rights which were closely associated with the idea of possession or physical control to a person, who had no actual physical control over it.

Example: When a servant holds certain good on behalf of his master, a master still holds possession in law thought not in fact.

A. Fundamental Element In Possession In Fact And Possession In Law:

There is sometimes a discrepancy between possession in fact and possession in law, although usually possession exists both in fact and in law in the same person. A person who is in defacto possession of a thing also come to have dejure possession. The fundamental element both in possession in fact and possession in law is the same viz. possibility of excluding every person other than the possessor form the use or control of the thing.

5. ELEMENTS OF POSSESSION:

There are two elements of possession.

I. Corpus possession (physical element)

II. Animus possidendi (mental element)

I. CORPUS POSSESSION:

It meant that there exists such physical power or physical contract of the possessor in relation to the thing possessed. So as to give rise to the reasonable assumption the other people will not interfere with it.

A.Essentials Of Corpus Possession:

To constitute the corpus possession is:

(i) There must be a guarantee of control between the person in possession and the thing possessed.

(ii) So long as there is a guarantee of control, physical contact is not necessary.

(iii) The control may be exercised by a servant or an agent.

B.Consideration Of Corpus Of Possession:

Salmond considers corpus possession under two headings:

(i) Relation of the possession to things possessed.

(ii) Relation of the possessor to the other person.

(i) Relation of the possessor to the things possessed:

All that is necessary is that the possessor must have the physical power of dealing with the things exclusively as his own.

According to Savigny:

“The physical power of dealing with the subject immediately and of excluding any foreign agency over it is factum which must exist in every acquisition of possession.”

(ii) Relation of the possessor to the other person:

When I possess a thing, it means that others shall not interfere with the use of the thing. Salmond points out that this measure of security that a person will not be interfered with can be derived from several sources.

(a) Physical Power of the possessor: By physical power of the possessor to exclude alien interference.

(b) Personal Presence of the [Possessor: By the personal presence the possessor e.g., A dying man may retain or acquire possession by his personal presence but not by any physical power left in him.

(c) Secrecy: Another source of security may be secrecy. By hiding the thing the possessor can always exclude alien interference.

(d) Custom: Another measure of security custom e.g., if a man has ploughed and sown and reaped the harvest year after year, he can reasonably expect to do it again the next year without interference.

Respect for rightful claim: Another measure of security claim as against a wrongful one, will be accepted and respected by the community at large. It depends upon opinion of the community.

(f) Manifestation of Animus domini: Another means of security is the manifestation of the animus domini i.e., the visibility of the claim. The animus can be manifested only by an avert act.

(g) Protection afforded by possession of other things: Another measure of security is the protection afforded by the possession of other things. The possession of a house considers possession of chattels situated upon it.

II. ANIMUS POSSIDENDI:

Animus possidendi is the intent to appropriate to oneself the exclusive use of the things possessed. It is the conscious intention of the individual to exclude others form the control of an object.

According to Savigny:

“Every case of possession is formed on the state of consciousness of unlimited physical power.

A.Different Aspects Of Animus Possidendi:

There are certain aspects of animus possidiendi which have to be considered.

(i) Not necessarily a claim of right:

The animus possidendi is not necessarily a claim of right. It may consciously wrongful. The thief has a possession no less real than that of the true owner.

(ii) Exclusive claim:

The claim of the possessor must be exclusive. He must intend to exclude other person form the use of the things possessed. A mere intent or claim of use cannot amount to the possession of the material thing itself.

(iii) Need not claim of thing:

The animus possidendi need not be a claim to the use of the things at all as in the case of a pledge or a bailee with a line.

(iv) Need not claim on one, s own behalf:

The animus possidendi need not be a claim on one, s own behalf. As servant, agent of trustee may have true possession though he claims the exclusive use or control of the thing on behalf of another.

(v) Need not be specified:

The animus Possidendi need not be specified but may be merely general‟. A general intent with respect to a class of thongs is sufficient to confer possession of the individual object belonging to the class even of the individual exercise is unknown e.g. I possess all the books in my library even though I may have forgotten the existence of many of them.

6. CONCLUSION:

To conclude, I can say, that many legal consequences flow form the acquisition and loss of possession. It is the prima facie title of the ownership. The possession may be in fact or in law and two elements corpus and animus must be present in the case of possession and neither of them alone is sufficient to constitute it.

Q21. Discuss various modes of acquisition of possession.

Q. Define possession. What are various kinds of possession?

Q. Discuss the difference between possession and ownership.

Q. Write a comprehensive note on direct, indirect and duplicate possession. Give illustrations whenever necessary.

1. INTRODUCTION:

Possession is one of the most important concept in the whole range of legal history. It is a mere fact which has an enormous legal significance to which legal rights are attached and legal consequences flow from the loss and acquisition of possession. So that topic of acquisition of possession is very important in the study of possession. Possession is also divided into eight different kinds.

2. DEFINITION OF POSSESSION:

I. According To Salmond:

“The possession of the material object to the continuing exercise of a claim is the exclusive use of it.”

II. According To Pollock:

“In common speech, a man is said to possess or to be in possession of anything which has the apparent control or from the use of which he has the apparent power of excluding others.”

3. MODES OF ACQUISITION OF POSSESSION:

Possession is acquired whenever the animus and corpus united. So there are there modes of acquiring possession.

I. Taking

II. Delivery

III. Operation of the law

I. TAKING:

Possession is acquired by taking with the requisite animus, and it is done without the consent of the owner. It may be done in the following ways:

(i) Rightful taking of possession:

A shopkeeper is entitled to get some money from a customer and the shopkeeper takes possession of the things of the customer. This is an example of the rightful taking of possession.

(ii) Wrongfully taking of possession:

If a thief steals something from an individual, his acquisition of possession is wrongful.

(iii) Original taking of possession:

If a person captures a wild animal which does not belong to anybody, the possession is called original.

II. DELIVERY:

Another way of acquisition of possession is by delivery. In this case, a thing is acquired with the consent and co-operation of the previous possessor.

A.Kinds Of Delivery:

It is of two Kinds:

(i) Actual

(ii) Constructive

(i) Actual delivery:

In Actual delivery, the union of the corpus and animus is brought about for the first time in the transferee, as a result of the delivery by the transferor. The transferor may or may not retain mediate possession depending on the nature of the transaction.

Example: „A‟ lend his book to „B‟ „A‟ retain the mediate possession of the book but if „A‟ sells this Book to him, he lose mediate possession.

(ii) Constructive Delivery:

To salmond, constructive delivery is that which is not actual, that is to say there are no physical dealings with the thing but mere change of animus intention possession is secured.

Forms of constructive delivery:

It may take many of 3 forms or kinds.

(a) Traditio brevi manu:

In this case, possession is surrendered to one who has already in possession of it e. g., I lend you a book; afterwards make a presents of it to you.

(b) Constitutum Possessorium:

In this case, mediate possession is transferred to the transferee and transferor to the transferee and and transferor still holds the immediate possession.

Example: I buy books from the shop. The shopkeeper agrees to holds books on my account, it is a constructive delivery.

(c) Attornment:

In this case, there is transfer of mediate possession from the transferor to the transferee while the immediate possession remains outstanding in some third person.

Example: „A‟ sells land to „B‟ C is in possession as a tenant „C‟ agree with the „B‟ to hold for the future on his account of „A‟ Here „B‟ secures mediate possession by constructive delivery by way of attornment.

III. OPERATION OF LAW:

The law removes goods from the control of one person to the control of another e. g., If a person dies, the possession of his property is transferred to successors and legal representative.

Resnullius:

According to this principal, the first finder of a thing has a good title to that thing against all but the true owner.

Exceptions:

This rule is subject to the following exceptions:

(a) The rule does not apply if the owner of the property on which the thing itself and the property.

(b) If the finder finds the thing as the servant or agent of another person.

I. IMMEDIATE AND MEDIATE:

(i) Immediate possession:

Immediate possession is also called direct possession. If the relation between the possessor and the thing possessed is a direct one it is a case of immediate possession.

Example: If „A‟ go to the bazaar and buy thing personally, it is a case of immediate possession.

(ii) Mediate possession:

Mediate possession is also knows as indirect possession. When the relation between the possessors and the thing is through the intervention or agency of some other person, it is called mediate possession.

Example: If „A‟ send his agent to the bazaar to buy something and he does make the purchase, the possession of „A‟ is mediate.

Categories of Mediate Possession:

There are three categories of mediate possession.

(a) First category:

In it, the owner has possession through an agent or servant who acquires and retails possession of a thing entirely on behalf of the owner without claiming any interest for himself e. g., buying a book on behalf of owner.

Criticism: It is pointed out that in case of an agent or servant, he does not possess the thing but has merely the custody of the thing. The animus possidendi is lacking.

(b) Second category:

In the second category, the immediate possession is whit a person who holds the thing on his behalf and the behalf of some other person and who is bound to hand over the thing whenever that other person desire e. g., where someone borrows a book from someone.

Criticism: It is pointed out that two persons cannot be in possession of the same thing at the same time adversely to each other. The reason is that if one person has both the corpus of possession and the animus possidendi he has full possession of the thing.

(c) Third category:

In the case of third category, the immediate possession is with one person but he is bound to return the same after a certain period or on the fulfillment of certain conditions.

Example: If „A‟ owe some money to „B‟ and pledge certain things to him „B‟ has immediate possession of the thing pledged but is bound to return the same to the „A‟ on payment of the debt.

II. CORPOREAL AND INCORPOREAL POSSESSION:

(i)Corporeal Possession:

Corporeal possession is the possession of a material object e. g., possession of a car, books etc.

(ii) Incorporeal Possession:

Incorporeal possession is the possession of anything other than material object. It is the possession of a right e. g., possession of a copyright etc.

III. REPRESENTATIVE POSSESSION:

Representative possession is that in which the owner has possession of a thing through an agent or servant. The essence lies in a fact that the master has the animus (intent) to exercise control over the thing in the hands of his servant or agent.

IV. CONCURRENT POSSESSION:

In the case of concurrent possession, the possession of a thing may be in the hands of two or more persons at the same time but their claims are to adverse or destructive to each other.

Example: I possess a piece of land and another person may have the right of way on the same land.

V. DERIVATIVE POSSESSION:

In derivative possession, the holder of the thing combines in himself both the physical and mental elements which constitute legal possession e. g., creditor has derivative possession of the thing pledged to him.

VI. CONSTRUCTIVE POSSESSION:

It is not an actual possession. It is a possession in law and not in fact.

Example: Giving of key of a building is the giving constructive possession of the building.

VII. ADVERSE POSSESSION:

The possession of property by a person is adverse to every other person, having or claiming to have right to the possession of the same, by virtue of a different title when adverse possession is established, it extinguishes the title of true owner.

Condition for Adverse Possession:

(a) Possession must be an invasion of the ownership of another i. e., ownership must belong to some other person.

(b) Possession should be actual exclusive and adequate in continuity and publicity.

(d) It should be exercised openly i. e., without stealth.

(e) THE ACT OF POSSESSION MUST BE WITHOUT PERMISSION.

VIII. DUPLICATE POSSESSION:

Claims to possession which admit of concurrent realization give rise to duplicate possession.

5. DIFFERENCE BETWEEN POSSESSION AND OWNERSHIP:

Ownership and possession have the same subject-matter. The two things stand mutually to coincide ownership strives to realize itself in possession endeavors to justify itself as ownership. Following are the differences between these two terms.

(i)Nature:

Possession is the de facto exercise of a claim while ownership is the de jure recognition of that claim.

(ii) As to Guarantee:

Possession is the guarantee of the facts while ownership is the guarantee of law.

(iii) As to spirit.

Possession without ownership is the body of fact uninformed by the spirit of right. While ownership without possession is right unaccompanied by that environment of fact in which it normally realizes itself.

(iv) Effect:

Possession is a evidence of ownership while the ownership is not the evidence of possession.

(v) Effect of Time:

Through the influence of time, possession without title ripens into ownership and ownership without possession withers away and dies.

(vi) As to conception:

Ownership is concrete is the absolute while possession is the concrete realization of that concept.

(vii) As to Alienation or destruction of a thing:

The owner may alienate a thing or even destroy it is such a manner that he does not disturb the rights of other people. While a possession has no such rights as regards to the thing possessed.

(viii) Acquisition:

The transfer of possession is comparatively easier and less technical but the transfer of ownership is most cases involve a technical process of conveyance.

(ix) Remedies:

For the protection of ownership, proprietary remedies are available while for the protection of possession, possessory remedies are available.

6. CONCLUSION:

To conclusion, I can say that possession is an essential concept in legal system. It is a prime facie evidence of ownership. It is classified into different kinds and different ways are provided for the acquisition of it.

Q22. Define ownership. Example the modes of acquisition of ownership.

1. INTRODUCTION:

The concept of ownership is one of the fundamental juristic concepts common to all systems of law. This concept began to grow when people started planting trees, cultivating lands and building their homes. They began to think in terms of „mine‟ and „their‟. The idea of ownership followed the idea of possession.

IDEA OF OWNERSHIP: According to Keeton:

The right of ownership is a conception clearly easy to understand but difficult to define with exactitude. There are two main theories with regard to the idea of ownership. The great exponents of two views are „Austin‟ and „Salomnd‟.”

I. AUSTIN „S VIEW OF OWNERSHIP”

According to Austin ownership means a right which avails against everyone who is subject to the law conferring the right to put thing to use of indefinite nature.

A.Attributes Of Ownership:

According to Austin, there are three attributes of ownership.

(i) Indefinite in point of user:

The first attribute of the ownership is that it is indefinite in point of user because the thing owned may be used by the owner in very many ways e.g., an owner may build a house on his land may use it for cultivation.

(ii) Unrestricted in print of disposition:

The second attribute of ownership is a right of transfer or disposition without any restriction.

(iii) Permanency:

The third attribute of ownership is the permanence of the right of ownership. This right exists so long as the thing exists and extinguished with the destruction of the thing.

Criticism:

Austin„s idea of ownership has been criticized on the following grounds:

(i) It is pointed out that ownership is not a right a right but a bundle of rights.

(ii) It is not merely a right but also a relationship between right owner and the person owing it.

(iii) Restrictions may be imposed on the use of the thing by means of an agreement or by the operation of law.

(iv) Certain restrictions are imposed on the right of disposal of the owner. The transfer of property is not allowed if its object is merely to defeat or delay the creditors.

II. SALMOND „S VIEW OF OWNERSHIP:

According to salmond ownership is a relation between a person and any rights that vested in him. That which man owns is a right and not a thing. To own a piece of land means to own a particular kind of right in the land.

Criticism:

Salmonds„s view of ownership has been criticized by many writers:

(i) According to Diguit:

Ownership is a relationship between a person and a thing over which he is permitted on account of this relationship, complete disposal, use and enjoyment. What is owner is a thing and not a right.

(ii) According to Cook:

To use the term “owner” to express the relationship between a person and right is to introduce unnecessary confusion. Ownership is the name given to the bundle of right.

According to Kocourek

Ownership is a relationship of the owner of the owner and right to a thing which can be economically enjoyed. The right of ownership is a matter of legal protection.

3. ESSENTIALS OF OWNERSHIP:

(i) Indefinite in point of user:

It is indefinite in point of user. The owner has liberty to use the thing. He in under no duty not to use it. But under mature legal systems, qualifications have been imposed on the user of the property. Every owner must use the object of ownership in a way as to not to injure the right of other person.

(ii) Unrestricted in point of disposition:

Ownership is unrestricted in print of disposition. An owner can effectively dispose of his property by a conveyance during his lifetime or by will after his death. However restrictions may be imposed by law e.g., transfer of property made with intent to defeat or delay the creditors can be set aside.

(iii) Right to possess:

The owner has a right to possess the thing which he owns. It is immaterial whether he has actual possession of it or not.

(iv) Exhaust the thing:

Owner has the right to exhaust the thing while using it, if the nature of the thing owned in such.

(v) Residuary character:

Ownership has a residuary character. An owner may part with several rights in respect of the thing owner by him. Inspite of that, he continues to be the owner of the thing in view of residuary character.

Example: „X‟ an owner may give a lease of his property to „Y‟ and an easement to „Z‟. His ownership of the land still consists of the residual rights.

(vi) Right to destroy etc.:

Generally, the owner has the right to destroy or alienate the thing the owns.

(vii) Vest in person:

Ownership can only vest in a person.

4. MODES OF ACQUISITION OF OWNERSHIP:

Following are the different modes of acquisition of ownership:

I. Original

II. Derivative

I. ORIGINAL:

There are three modes of original acquisition.

(i) Absolute

(ii) Extinctive

(iii) Accessory

(i)ABSOLUTE:

Ownership is absolute when the same is acquired over previously ownerless object. The rule is that the first occupier becomes the owner. Absolute ownership can acquired in following two ways:

(a) Occupation

(b) Specification

(a) Occupation:

The physical control of the thing is essential in the case of occupation. Such an ownership is acquired in the case of wild animals, birds, fish etc.

(b) Specification:

In the case of specification, material belonging to one person are given a new shape clay may belong to one person but the sculptor may make a statute out of it.

(ii) Extinctive:

Ownership is extinctive if the ownership of a previous person is finished on account of adverse possession by the acquire.

(iii) Accessory:

It is accessory if the ownership is acquired as a result of accession. If some land is added on account of a change in the course of the river, the same is acquired by the owner of the property adjoining it through the process of accession.

II. DERIVATIVE:

Ownership may consist in taking the thing form another with or without his consent both are the cases of derivative acquisition since the new owner‟ s title is derived from that of his predecessor.

5. CONCLUSION:

To conclude, I can say, that concept of ownership is very important. As stated by Hold swarthy the English law reached the concept of ownership as an absolute right through development in the law of possession.

Q23. What is ownership? Explain the following term.

(i)Vested and contingent ownership. (ii) Sole and co-ownership.

Q. what is ownership? Explain the following terms: (i) Vested and contingent ownership

(ii) Trust and beneficiary ownership (iii)Sole and co-ownership

Q. Define ownership. Give explanation of its various kinds.

Q. Define ownership? Distinguish between vested and contingent ownership.

Q. Define ownership and write a comprehensive note on vested and contingent ownership.

1. INTRODUCTION:

The concept of ownership is one of the fundamental justice concepts common to all system of law. This concept began to grow when people started plating trees, cultivating lands and building their homes. They began to think in term of “Mine” and “Their”. The idea ownership following the idea of possession.

2. IDEA OF OWNERSHIP:

According to Keeton:

The right of ownership is a conception clearly easy to understand but difficult to define with exactitude there are two main theories with regard to the idea of ownership. The great exponents of two views are “Austin” and “Salmond”.

I. Austin‟s View Of Ownership:

According to Austin ownership means a right which avails everyone who is subject to the law conferring the right to put thing to user of indefinite nature.”

3. KINDS OF OWNERSHIP:

Following are the different kinds of ownership:

I. CORPOREAL AND INCORPOREAL:

(i) Corporeal:

Corporeal ownership is the ownership of a material object. It is connected with the corporeal things. Corporeal things are those which can be perceived and felt by the senses e. g., ownership of a house, car etc. is corporeal ownership.

(ii) Incorporeal:

Incorporeal ownership is the ownership of a right. It is connected with the incorporeal things are those which cannot be perceived by the senses and which are intangible. Incorporeal ownership includes ownership over intellectual objects and encumbrance‟s e. g., ownership of a copy right or trademark etc. is incorporeal ownership.

II. TRUST AND BENEFICIAL OWNERSHIP:

(i) Trust ownership:

Trust ownership is an instance of duplicate ownership. Trust property is that which is owned by two people at the sometime. The ownership is only a matter of from and not real. His ownership is only a matter of from and not of substance. He is under an obligation to use his ownership for the benefit of other.

(ii) Beneficial ownership:

In a trust, the relationship between the two owners is such that one of them is under an obligation to use ownership for the benefit of other. That other person for whose benefit the ownership of the formed is used is called the beneficial ownership.

Example: If property is given to „X‟ on trust „Y‟ „X‟ would be the trustee and his ownership would be trust ownership and „Y‟ would be the beneficiary and his ownership would be beneficiary ownership.

III. LEGAL AND EQUITABLE OWNERSHIP:

(i) Legal ownership:

It is that which has its origin in the rules of common law and legal owner is one who is recognized as owner by common law.

Equitable ownership:

It is that which proceeds from the rules of equity. In many cases equity recognize ownership where law does not recognize owing to some legal defect. Equitable ownership always implied legal ownership.

Illustration: If „A‟ has entered into an agreement for sale of some land with „B‟ and „B‟ refuses to execute the agreement, the remedy open to „A‟ in a Court of common law is to sue for damages but under equity „A‟ can obtain the specific performance of a contract and equity would grant „A‟ the equitable ownership of that land.

IV. VESTED AND CONTINGENT OWNERSHIP:

(i)Vested ownership:

When the title of the owner is perfect. It is called vested ownership. The word vested is used in two senses:

(a) The right may be vested in possession e. g., property is given to „A‟ for life. His interest is vested in possession.

(b) The right may be vested in interest.

Example: Property is given to „A‟ for life and remainder to „B‟. The interest of „B‟ is vested because there is nothing but the prior interest of „A‟ to stand between him and the actual enjoyment of the land. It becomes vested in possession only on the death of „A‟.

(ii) Contingent ownership:

When the title of the ownership is yet imperfect but is capable of becoming perfect on the fulfillment of some condition, it is called contingent ownership. There are three main features of a contingent interest.

(a) It is solely dependent upon the fulfillment of a condition so that in case of non-fulfillment of condition, the interest may fall through.

(b) If the transferee dies before obtaining possession, the contingent interest fails and the property reverts to the transferor.

Example: An estate is bequeathed to „X‟ until he marries to „Z‟ his interest is contingent on his getting married with „Z‟.

Difference between Vested and Contingent Ownership:

(i) As to Title:

In vested ownership the title of the owner is perfect.

In contingent ownership the title of the owner is imperfect.

(ii) Nature:

In vested ownership, the ownership is absolute.

In contingent ownership the ownership is conditional.

(iii) Necessary element:

In vested ownership, the investitive fact form which he derives his right is complete in all its parts.

In contingent ownership the investitive fact is incomplete on account of the absence of some necessary element which is capable of being supplied in the future.

(iv) Transferable right:

The vested ownership or interest is transferable. The contingent interest is not transferable.

(v) Heritable:

Vested interest is heritable as it passes with the legal heirs of the deceased.

Contingent interest is not heritable and if the owner of contingent interest dies before obtaining possession the contingent interests fails and the property reverts to the transferor.

(vi) As to Event:

Vested interest is that which take effect at once or no the happening of a certain event. Contingent interest is that which take effect on the happening or non-happening of an uncertain event.

(vii) As to Right:

Vested ownership creates an immediate right though the enjoyment may be postponed to a future date.

Contingent ownership does not create an immediate right and it is dependent upon the fulfillment of some condition.

(viii) Death of transferee:

A vested interest is not defeated by the death of a transferee before he obtains possession. A contingent interest cannot take effect in the event of the death of the transferee before the fulfillment of the condition.

“Sashi Kartha vs. Pramodchandra” (AIR 1932)

“An estate or interest is vested when there is immediate right of present enjoyment or present right of future enjoyment. An estate or interest is made to depend upon some event or condition which may or may not happen.”

V. Sole Ownership And Co-ownership:

(i) Sole ownership:

If a right owned by one person only at a time, it is called sole ownership.

(ii) Co-ownership:

When to or more person have the same right vested in them it is called co-ownership. The right is an undivided unity. By means of a partition, the co-ownership can be ended, e. g., the members of a partnership are co-owners of the partnership property.

A. Forms Of Co-ownership:

According to salmond co-ownership may assume different forms. Its two chief kinds in England law are distinguished as ownership in common and joint ownership.

(a) Ownership in common:

In common ownership, the rights of a dead man descends to his successors like other inheritable rights

(b) Joint ownership:

In case of joint ownership on the death of one of the two joint owners, the ownership dies with the deceased and it survives to other co-owner by virtue of survivorship.

Illustration: If a property belongs to „X‟ and „Y‟ in equal shares and „X‟ dies, than, if it is ownership in common, half the property passes to the heirs of the „X‟ and if it is joint ownership,

„Y‟ would be entitled to the whole property and the heirs of the „X‟ would get nothing.

VI. Absolute And Limited Ownership:

(i) Absolute ownership:

An absolute owner is one in whom are vested all the rights over a thing to the exclusion of all. This means that excepting the absolute owner, there is no other person who has any claim whatsoever to the thing in question.

(ii) Limited ownership:

When there are limitations, on the user, duration or disposal of rights of ownership, the ownership is limited ownership.

4. CONCLUSION:

To conclusion, I can say, that the concept of ownership is very important. As stated by Holdsworth, the English law reached the concept of ownership, as an absolute right through development in the law of possession. It is vested only in person and can be divided into various kinds.

Q24. Define agreement and differential between void and voidable agreement. Enumerate the factors that render an agreement invalid.

Q. What are various kinds of agreement? Discuss the causes of invalidity of agreement. Q . What are the essentials of a valid legal agreement?

1. INTRODUCTION:

Facts which create, transfer or destroy rights are called vestitive facts of all vestitive fats, in the law are the most important and among them, agreement take the first place. Great importance is attached to agreement between the parties. That is partly due to that agreements are evidence of right and justice and parties their rights and liabilities by their own consent.

2. MEANING OF AGREEMENT:

“Agreement can be defined as the expression by two or more person communicated each to the other (or others) of a common intention to affect the real relation between them.”

3. ESSENTIALS OF AGREEMENT:

An agreement involves the following essential elements.

I. Plurality Of Persons:

There must be at least two parties make an agreement. One person cannot enter into an agreement with himself.

II. Common Intention:

All the parties must have a distinct common intention.

III. Communication:

Each party must communicate his intention to the others concerned. A communication is said to be completed when it comes to the knowledge of the person to whom it is made.

IV. Affecting Legal Relations:

The common intention must be to affect legal relations. Not every promise amounts to agreement. To constitute an agreement in a legal sense, the promise must intend to enter into or legal relations.

Example: A promise to play tennis with another is not an agreement which will be recognized by the law. Such a promise belongs to the social and not to the legal sphere.

V. Relation Between Parties:

The legal relations intended to be affected must be those of the parties.

4. CLASSES OF AGREEMENTS:

Salmond divides agreement into four classes.

I. Contracts:

Contracts create right and obligation among the parties in person am. It creates a legal tie of a personal right and that tie binds the parties. It imposes liabilities upon on one except the thereto Salmond observes to do that to constitute a contract, there must be a promise to do a certain act as a legal duty.

II. Grants:

Grants are agreement by which rights other than contractual rights are created e.g., leases, mortgages etc.

III. Assignments:

Agreements which transfer right are called assignments e.g., sales or gifts etc.

IV. Releases:

There are agreements which extinguish rights and those are known as releases.

5. KINDS OF AGREEMENTS:

Following are two kinds of agreements:

I. Valid

II. Invalid

I. VALID AGREEMENT:

A valid agreement is one which is enforced by the Court of law of the country. It is in accordance with the true intention of the parties. It can enforce by either of the parties.

II. INVALID AGREEMENT:

Invalid agreements are those which have some defect in them and that defect prevents them from being fully operative.

A. Kinds Of Invalid Agreements:

Invalid agreements are of two kinds:

(i) Void

Voidable

(i) Void agreements:

Void agreements are those which are not recognized by law at all. The will of the parties does not matter in such cases. It is unenforceable form the very beginning and can never be enforced.

(ii) Voidable agreement:

A voidable agreement is one which by reason of some defect in its origin is liable to lose its effect at the option of one or more parties. It is not null and void form the very beginning but it can challenged by a party concerned and it that case it becomes void form the date on which it was entered into. The effect of nullification is retrospective and not prospective.

B. Difference Between Void And Voidable Agreement:

(i) As to Recognition:

Void agreements are not recognized by law.

Voidable agreements are recognized and enforceable by law until party concerned challenged it.

(ii) Enforceability:

Void agreements are unenforceable form the very beginning.

Voidable agreement becomes unenforceable when the party repudiates it.

(iii) Option of party:

Void agreement cannot be enforced even if both the parties wish to do so.

Voidable agreements are enforceable at the option of one of the parties thereto but at the option of the other.

6. CAUSES WHICH RENDER AGREEMENT INVALID:

Salmond points out following defects which make an agreement invalid.

I. Incapacity:

Incapacity of the parties may render an agreement invalid. In the eye of law certain person are not competent to enter into contracts and consequently contracts by them are invalid e.g., contracts entered into by minors lunatics.

II. Informalities:

There are certain agreement which require certain legal formalities to be fulfilled and if those formalities are not fulfilled the agreement becomes invalid.

Example: The want of written agreement, the non-registration of an agreement or the omission of the signatures of the parties may make an agreement invalid.

III. Illegality:

Some agreements are declared to be invalid by law as they are immoral or against public policy.

Example: Wagering contracts or agreements in restraint of trade.

IV. Error Or Mistake:

An agreement may become invalid on account of some error or mistake. A mistake may be either essential or unessential.

(a) Essential Mistake:

In an essential mistake, the parties do not in reality mean the same thing in the same sense. Examples: If „X‟ agrees to sell land to „Y‟ and which „X‟ is thinking of one piece of land. „Y‟ things of another piece of land, agreement becomes invalid on account of an essential mistake.

(b) Unessential mistake:

An unessential does not relate to the nature or contents of the agreement, but only to some external circumstances which induced one party to give his consent and which does not make the agreement invalid. It is based on the principle of “Caveat Emptor” (Let the buyer beware) so it is the duty of the buyer to beware and if has failed to do so, he cannot be allowed to take advantage of his own mistake.

V. No Free Consent:

An agreement may become invalid if the consent of any of the parties is not free A consent is not free when it is obtained by means of compulsion, under influence or coercion.

VI. Want Of Consideration:

Want of consideration an agreement invalid.

According to Pollock:

“Consideration is the price for which the promise of the other is bought and the promise thus given for value is enforceable.”

The consideration must be valuable although it may need not be adequate.

According to section 25 of the contract Act, agreement without consideration is void, but there are following exceptions to this general rule.

(i) Agreement on account of natural love and affection.

(ii) Agreement to compensate for past voluntary service.

(iii) Agreemet to pay a time barred debt. (iv)Agreement to give something as gift.

(v) Agreement to act as agent. (vi)Agreement to remit by the promise.

(vii) Agreement to donate.

7. CONCLUSION:

To conclude, I can say, that an agreement is a private declaration of the rights and duties of the parties concerned. Generally they are enforced by the Courts and for this, an agreement has to fulfill certain requirements and if not they are rendered invalid.

Q25. Explain the concept of vicarious liability.

Q. What is the measure of criminal liability?

Q. Discuss the term accident. How is it available as a defence against civil liability?

Q. What are various kinds of liability? Enumerate different elements for determining the measure of criminal liability.

Q. Explain the term mistake of law and mistake of fact.

1. INTRODUCTION:

The responsibility or liability the ultimate purpose of the law because the wrong-doer must make up or suffer for he has already failed in doing what he ought to have done. It is the ultimatum of the law and has its source in the supreme will of the state. It arises from a wrong or the breach of a duty.

2. DEFINITION OF LIABILITY:

I. According To Salmond:

“Liability or responsibility is the bond of necessity that exists between the wrong-doer and the remedy of the wrong.”

II. According To Mark By:

“The word liability is used to describe the condition of a person who was a duty to perform.”

III. Kids Of Liability:

Following are the different kinds of liability.

III. Civil Liability

IV. Criminal liability

V. Remedial liability

VI. Vicarious liability

VII. Strict liability

I. CIVIL LIABILITY:

Civil liability is the enforcement of the right of the plaintiff against the defendant in civil proceedings. Examples of civil proceedings are an action for recovery of a debt, restoration of property, the specific performance of control.

(i)Measurement of civil liability:

Civil liability can only on be measured by the magnitude of the wrong done. The liability of the offender is not measured by the consequences which in doing. The liability consists of the compulsory compensation to be given to the injured person and that is to be considered as a punishment for the offence.

II. CRIMINAL LIABILITY:

Criminal liability is the liability to be punished in a criminal proceeding. The redress for criminal liability is in the form of punishment which may be in the form of imprisonment, fine or death.

A. Conditions Of Criminal Liability:

There must be two conditions before fixing criminal liability.

(i) Actus reus (ii)Mens rea

(i) Actus reus:

The first condition is the Actus Reus or prescribed act. Salmond calls it the physical or material condition of liability. If there is no act, there can be no punishment.

Justice Bryan Stated:

“The thought of a man cannot be tried, for the devil itself knows not the thought of a man.” Example: A man takes an umbrella from a stand at his club with intent to steal it, but finds it is his own, he has committed.

(ii) Mens Rea:

The second condition of criminal 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. If a wrongful act is done intentionally, penal action will serve as a deterrent for the future. If it is done negligently or carelessly, punishment will make the offender more vigilant in future, where the law presumes that there can be no will at all, no penal liability can be imposed e. g., children under the age of seven and insane persons are regarded by law as incapable of having mens rea.

B. Measurement Of Criminal Liability:

According to salmond, following elements should be taken into consideration in determining the measure of criminal liability.

(i) Motive

(ii) Magnitude of the offence

(iii) Character of the offender

(i) Motive:

As regards motives of offence, the greater the temptation to commit the crime, the greater should be the punishment. The object of punishment is to suppress those motives which lead to crimes. The stronger these motives are, the severer must be the punishment in the case. If the profit to be gained from the act is greater, the punishment should also be severe proportionately.

(ii) Magnitude of the offence:

The second rule for the measurement of criminal liability is the magnitude of the offence, the greater the magnitude of the offence, the greater should be its punishment. The greater the mischief of any offence, the greater is the punishment which it is profitable to inflict with the hope of preventing it. If the punishment dose not very with the magnitude of the offence, there will be temptation to commit offences of very serious nature as punishment is the same in both cases. If punishment for burglary and murder were to be the same, the burglar would not stop at a lesser crime.

(iii) Character of offender:

The character of the offender should also be taken into consideration while determining the measure of criminal liability. The worse the character or disposition of the offender, the more serious should be the punishment. The law imposes upon habitual offenders penalties which

bear no relation to the magnitude of the offence. The most degraded criminals are said to exhibit insensibility even to physical pain, many murderers of worst type show indifference to death itself. So it is desirable to punish more severely the more corrupt.

III. REMEDIAL LIABILITY:

The theory of remedial liability may be simple stated as follows viz., that when the law creates a duty, it also enforces the fulfillment of a right, the same can be remedied by compelling the person bound to comply with in.

Exceptions: Salmond enumerates the cases in which duties are not specifically enforced.

(i) Case of Imperfect obligation:

The breach of an imperfect duty does not give rise to a cause of action. A time barred debt creates an imperfect duty and the same cannot be enforced by any Court of law.

(ii) Impossibility of specific performance of duties:

Duties which from their nature cannot be specifically enforced once broken e. g., libel or assault. They are called the transitory once broken they belong service or the irrevocable past.

(iii) Duties inadvisable to enforce:

Duties which the law on grounds of policy deem inadvisable to enforce such as a duty to render personal service or the duty to fulfill a promise of marriage.

IV. VICARIOUS LIABILITY:

Ordinarily a person is liable for a wrong which he has committed himself, but there are cases where on person is made liable for the wrongs committed by another. Such cases are examples of vicarious liability.

A. Vicarious Liability In Criminal Cases:

Vicarious liability is not common in criminal law. A person cannot be punished for a crime committed by another. Vicarious liability for crimes is governed by Sec. 34 and 149 P.P.C which held persons liable for the acts of others.

B. Vicarious Liability In Civil Cases:

Civil law recognizes the principal of vicarious liability. The right of the injured party to receive redress continues against the representatives of the death man.

C. Arisement Of Vicarious Liability:

The liability for wrongs of others may arise by:

(i) Subsequent ratification or previous authority

(ii) Abetment

(iii) Relationship

(i)Liability by Ratification:

A person is liable for the act of another person if that other person has committed that act with the subsequently ratified the act of that other person.

Conditions: Following conditions must be satisfied to hold a person liable for the act of another on the ground of ratification.

(a) Only such act binds the principal, what is done on his behalf.

(b) The person ratifying the act must have knowledge of tortuous character of the act.

(ii) Liability by Abetment:

Liability by abetment is that a person who abets to commit the tort is responsible for that act.

(iii) Liability by Relationship:

Liability for the acts of other may be arising out of existing relationship between them.

(a) Master and Servant:

A master is answerable to every such wrong of the servant as is committed in the course of employment, service or business though no express command be proved. This is based on the maxim.

(b) Principle and Agent:

A principle is liable to third person for tortuous act of his servant if it was done in the scope of his agency, although the principal did not authorize it.

(c) Company and Director:

A company is liable to third persons for torts arising from doing of certain inter vires acts by its directors.

(d) Firm and Partner:

A firm is liable for torts committed by a partner in the ordinary course of the business of the firm.

(e) Guardian and Ward:

Guardians are not personally liable for torts committed by minors under their charge. But guardians can sue for personal injuries to minors under their charge on their behalf.

V. STRICT LIABILITY:

Wrongs which do not require either wrongful intent of negligence are known as the wrong of strict liability. In such cases, a person is punished for committing wrongs even if he has no guilty mind.

A. Reasons For Strict Liability:

Strict liability is imposed chiefly where it will be hard to prove by evidence the intention or negligence of the offender.

B. Strict Liability In Civil Cases:

Mens rea is generally irrelevant in civil proceedings as the object is to compensate the plaintiff for his loss and not to punish the defendant, so the rule of strict liability is generally applied in civil cases.

Exceptions:

In certain civil actions, the object of the law is to punish the defendant and strict liability is not imposed e. g., malicious prosecution, negligence etc.

C. Strict Liability In Criminal Cases:

Generally in criminal cases, there is no criminal liability unless mens rea is present and strict liability is not imposed.

Exceptions:

It is usually said that there were only two exceptions at common law to the rule requiring mens rea or where rule of strict liability is imposed.

(i) Public Nuisance:

In the public nuisance any employer might be held liable for the act of his employee might even though he himself did not know it had taken place.

(ii) Criminal liable:

In criminal liable a newspaper proprietor is liable for liable published by his employees.

D. First Case On Strict Liability:

The case which has been said to be the first to impose strict liability is Woodrow. “Case of Woodrow (1846)”

Facts:

Defendant was found guilty of having in his possession adulterated tobacco, although he did not know it was adulterated.

Held:

Defendant was held liable even if the adulteration was discoverable only by a nice chemical analysis.

E. Categories Of Wrong Of Strict:

The most important wrongs of strict liability fall into three categories.

(i)Mistake of law:

Absolute responsibility in the case of a mistake of law is based on the following maxim. “Igonrantia juris enminen excusat.” (Ignorance of law no excuse)

Even if a person commits an offence on account of a mistake of law, that is no excuse in the eye of law. He is liable to be punished although he had no guilty mind at the time of committing the offence.

Reasons for mistake of law is not considered as defence:

(a) Law is the embodiment and natural justice and hence must be obeyed.

(b) Law both can should and be limited in extent.

(c) According to salmond, the law is in legal theory definite and knowable, it is the duty of every man to know that part of it which concerns him, therefore innocent and inevitable ignorance of law is impossible.

(d) According to Austin, if ignorance of law were a ground of exemption the administration of justice would be arrested. For in almost every case, ignorance of law is alleged. Exceptions:

There are certain exceptions to the general rule that the ignorance of law is no excuse.

(a) Ignorance of special law is excusable. No person can beheld guilty for the violation of the foreign law of any country.

(b) It also does not apply to the rules of equity as developed in England.

(ii) Mistake of fact:

Absolute responsibility of mistake of fact can be discussed under the following heads.

(a) Mistake of fact in criminal cases:

In criminal cases, mistake of fact is a good defence against strict liability. If a person does something under a mistake without intending to do which he actually dose, he is not criminally liable for his action.

Example: A police constable goes to arrest „X‟ but arrest „Y‟ thinking „Y‟ to be „X‟ he is not guilty of any crime.

(b) Mistake of fact in civil cases:

In the case of civil law, a mistake of fact involves absolute liability.

According to Salmond:

“It is the general principle of law that he who intentionally or semi-intentionally interferes with the person, property, reputation or other rightful interest of another, does so at his peril.”

(iii) Inevitable Accident:

Inevitable accident is that, which avoidance requires a degree of care exceeding the standard demanded by law. It is commonly regarded as a ground of exemption from liability in civil and criminal cases. There is no intention because the consequences are not desired in the case of an accident.

Exception:

There is one important exception to the above rule in civil law. There are cases in which the law provides that a man shall act his peril and shall take his chance if an accident happens. “Rylands vs. Flether”:

“It was held that if a person brings or accumulates on his land anything which if escapes and causes damage to his neighbours he is responsible, however careful he may have been and whatever precaution he may have taken to prevent damage.”

4. CONCLUSION:

To conclusion, I can say, that liability arises from a wrong or the breach of a duty. It consists of those things which a person must do or suffer. A person has a choice in fulfilling his duty and his liability arises independly of his choice. Liability is of different kinds and different measures are taken into consideration for determining the liability of a person.

Q26. Explain the sources of obligations. OR Q. Explain the kinds of obligations.

Q. Explain the following: (a) Obligations arising from contract (b) Obligation arising from Torts

(c) Obligations arising Quasi contract

Q. Discuss the nature of obligations. What are solidary obligations?

1. INTRODUCTION:

An obligation is termed as chose in action a chose-in-action means a proprietary right in personam. It includes a duty to pay the debt, the perform a contract or to pay damages for a tort but not duty to refrain from interference with the person, property or reputation of others.

DEFINITION OF OBLIGATION

I. According To Salmond:

“An obligation may be defined as a proprietary right in personam of a duty which corresponds such a right.:

II. According To Paton:

“An obligation is that part the law which creates rights in personam.”

III. According To Kant:

“An obligation is the possession of the will of another as a means of determining it through my own, in accordance with the law of freedom, to a definite act.”

3. NATURE OF OBLIGATION:

A technical synonym for an obligation is a chose-in-action which is opposed to choose-in- possession.

According to Dias and Hugher:

The term obligation is the name not only of a duty but also of a correlative right. Looked at form the point of view of the person entitled, an obligation is a right looked at form entitled, an obligation is a right looked at form the point of view of the person bound, it is a duty. All obligations pertain to the proprietary rights. They form part of the estate of the proprietary who is entitled to them.

Chose-in-action means personal right of property which can only be claimed or enforced by action and not be taking physical possession chose-in-possession means things capable of physical possession and delivery i.e., tangible object.”

4. TYPES OF OBLIGATIONS:

Obligations are of the following types:

I. Ordinary

II. Solidary

I. Ordinary Obligation:

An ordinary obligations is one in which there is only one creditor and one debtor.

Solidary Obligation: According to Salmond:

“A solidary obligation may be defined as one in which two more debtors owe the same thing to the same creditor.”

Examples of solidary obligation are debts owing by a firm of partners, debts owing by a principal debtor and guaranteed by one or more sureties, obligation of this description may be called solidary since each of the debtor in solidum instead of pro parte, which means for the whole and not for a proportionate part.

A.Kinds Of Solidary Obligations:

In English law, following are the different kinds of solidary obligation.

(i)Several obligation:

Solidary obligation is several when there are as many distinct obligation and causes of action as there are debtors. Each debtor is bound to the creditor by a distinct and independent bond

of legal obligation between each of the debtors and the creditor. The only connection between them being that in case the subject matter of the obligation is the same with the result that performance by one of the debtors discharges all others.

(a) Determination of several obligations:

According to Salmond generally such obligation are several when they have the same subject- matter but different sources. They are several in natures if they are distinct in their origin.

Example: When „A‟ has received a loam form „C‟ under a promissory-note executed by him on a particular debt and at a subsequent debt „B‟ guarantees the same debt of „A‟ by executing a surety bond, the liability of both „A‟ and „B‟ is several.

(ii) Joint obligation:

Solidary obligation are joint when though there are two or more debtors there is only one debt to other cause of action as well as only one thing wed. There is only one single legal obligation which binds all the debtors to the same creditor. All debtors are discharged by anything which discharges anyone them.

(a) Determination of Joint obligation:

According to salmond, obligations are joint when they have the same subject-matter and the same source.

Example: “A‟ has received a long form „C‟ on the execution of promissory-note executed by „A and „B‟ on the same date. „B‟ being only a surety, the liability is one of joint solidary obligation.

(iii) Joint and several obligations:

They stand halfway between several and joint obligations. They are product of a compromise between two competing. For some purposes, the law treats them as joint and for other purposes several.

(a) Determination of joint and Several Obligations:

According to salmond, joint and several obligations are those joint obligations, which the law, for several reasons, chooses to treat in special respects as if they were several

Example: If a promise is made by „A‟, „B‟, „C‟, to „X‟. „X‟ may sue at his option, only „A or only

„B‟, only; C; or may two of them or all three of them.

5. SOURCES OR KINDS OF OBLIGATION:

If we classify obligation form the point of view of sources, we have following kinds of obligations.

I. CONTRACTUAL OBLIGATIONS:

Contractual obligations are those which are created by contracts or agreements. These obligations cerate rights in personam between the parties. The rights so created are generally proprietary rights. Sometimes a contract creates rights which are not proprietary though they are in personam e.g., promise of marriage.

II. DELICTAL OBLIGATION:

These obligation arising from torts. A tort is a civil wrong arising through a breach of a duty imposed by law, the remedy for which is an action for damages. Delictal obligations are those duty to take care, he is bound to take that amount of case which is considered reasonable under the circumstances.

2. DEFINITION OF NEGLIGENCE:

I. According To Salomnd:

Negligence is the state of mind of under indifference towards one, s conduct and its consequences.”

II. According To Wiles:

Negligence is the absence of such care as it was the duty of the defendant to use.”

III. According To Austin: “Negligence is the breach by omission of a positive duty.”

IV. According To Clark:

“Negligence is the omission to take such care under the circumstances it is the legal duty of a person to take; it is no sense a positive idea and has nothing to do with a state of mind.”

3. KINDS OF NEGLIGENCE:

Negligence is of two kinds:

I. Advertent Negligence II. Inadvertent Negligence

I. Advertent Negligence:

It is commonly called willful negligence or recklessness. In this case, the harm dose is foreseen as probable but is not willed e.g., rash driving on a road.

II. Inadvertent Negligence:

Inadvertent negligence can be called simple negligence. In this case, the harm done is neither foreseen nor willed e.g., a drunkard is walking along the road and he breaks a shop window as the knocks against the same.

(i)Negligence and Inadvertence:

According to some jurists, all negligence consists in inadvertence. An act is done negligently when the dose did not know that the act was wrong but could have found out if he had tried to do so.

Criticism by Salmond:

Salomnd raises two objections against this view:

(a) All negligence is not inadvertent:

According to salmond all negligence is not inadvertent. Even if a thing is known to be wrong, I may do the same with hope that it will not result in wrong e.g., driving a fact car through a crowded street.

(b) All inadvertence is not negligence:

According to salmond, all inadvertence is not negligence I cannot negligent if I take fall care which can reasonably be expected under the circumstances.

4. CULPABLE NEGLIGENCE:

Carelessness becomes culpable when law imposes culpable while measuring a degree of carelessness two things are taken into consideration two are the degree of the seriousness of the consequences possible and the extent to which those consequences were probable.

I. Duty Of Care:

It was thought at one time that there was no such thing in civil law as a legal duty to take care and therefore no such legal duty to the plaintiff by the defendant.

Salmond, s view:

In general, we may say that whenever an act would be a civil wrong if dose intentionally it is also a civil wrong if done negligently. When there is a legal duty not to do a thing on purpose, there is commonly a legal duty to take care not to do it accidentally. No general principle can be laid down as to the existence of this duty for it is a hybrid compounded of an element of law and an element of fact.

“Donoghue vs. Stevenson”:

Facts: A manufacture of ginger beer to a retailer ginger been in bottle which contained the decomposed remains of dead snail fact was not known to the manufacturer.

Held: It was held that the manufacturer owed a duty to take care that the bottle did not contain noxious matter and he was liable if the duty was broken.

II. Standard Of Care:

According to salmond, English recognizes only one standard of care and only one degree of negligence whenever a person is under a duty to take care to all, he is bound to take that amount of it which is considered reasonable under the circumstances and the absence of which is culpable negligence.

(i)Standard of care which may possibly adopt:

It is possible to adopt either of the two standards of care, want of which amounts to negligence.

(a) Highest degree of care which human natural is capable.

(b) Amount of care which would be reasonable in the circumstances of the particular care. The first standard is rejected and the second standard is accepted in actual practice. Law requires not what is possible but what is reasonable under the circumstances. Theoretically

negligence is the omitting of that which a reasonable man would do or the doing of that which a reasonable man would not do.

(ii) Factors Determining Standard of care:

The standard of care cannot be predetermined. It is a variable thing which varies from care to case and time to time. While determining the amount of care necessary in any particular case, two factors must be taken into consideration.

(a) Magnitude of risk to which others are existed by the act; and

(b) The amount of benefit to be derived from the act

Illustration: If the driver of a car drives it at the speed of 40 miles an hour in the city, he is considered to be guilty of negligence as the danger of accident is much greater than the benefit derived by the car driver. But if a train is run at the speed of 50 miles an hour, it is not considered to be negligence as the benefit enjoyed by the public on account of high speed are much greater than the risk of accident.

5. THEORIES OF NEGLIGENCE: Following are the theories of negligence.

I. AUSTIN‟S THEORY:

Negligence consists essentially in inadvertence. It consists in a failure to be alert or vigilant. A negligence wrong-doer is one who does not know that his act is wrong but who would have known if he had not been mentally indolent.

Criticism: Salmond points out that there may be advertent or willful negligence as where a person sees the consequences of his act and inspite of that recklessly does it without intending those consequences.

II. HOLLAND‟S THEORY:

According to Holland, negligence is of two kinds, gross negligence and simple negligence.

Criticism: These distinctions are based on Roman law and are not recognized by English law.

III. SUBJECTIVE THEORY:

Sir John Salmond has propounded the subjective theory of negligence. According to him, negligence is purely subjective. It relates to the state of mind. It is a mental attitude of undue indifference with respect to one‟s conduct and its consequences. The essence of negligence is not inadvertence which may or may not be due carelessness which may or may not result in inadvertence.

IV. OBJECTIVE THEORY:

According to this view, negligence is not a state of mind but a particular type of conduct. It is a breach of the duty of taking care against the harmful results of one‟s actions, and to refrain from unreasonably dangerous kinds of conduct. This theory finds the support from the fact that in the law of torts, negligence consists in the failure to take such care, which ordinarily prudent man would take in circumstances.

According to Clark and Lindsell:

“Negligence consists in the omission to take such care as under the circumstances it is the legal duty of a person to take.”

Criticism:

Salmond points out that negligence conduct differs from negligence. Negligent conduct is a course of action which is the result of negligence. It is an objective fact which results from a state of mind.

V. RECONCILIATION OF THEORIES:

Neither the objective nor the subjective theory is correct. Negligence is both subjective and objective. They emphasize different aspects of negligence. As contrasted with wrongful intention the negligence is subjective. As contrasted with inevitable accident, negligence is objective.

6. CONTRIBUTORY NEGLIGENCE AS A DEFNCE:

Contributory negligence is negligence in not avoiding the consequences arising from the negligence of some other person, when means and opportunity are afforded to do so. It is the non-exercise by the plaintiff of such ordinary care, diligence and skill as would have avoided the consequences of the negligence of the defendant. Contributory negligence is a complete

defence for the defendant and it rests upon the view that though the defendant has in fact been negligence, yet the plaintiff has by its own carelessness served the casual connection between the defendant‟s negligence and the accident which his occurred, and that the defendant‟s negligence accordingly is not the true proximate cause of the injury one who has by his own negligence contributed to the injury of which he complain cannot maintain an action against another in respect of it.

According to Lord Halsbueg:

The doctrine of contributory negligence is merely a special application of the maxim that where both parties are equal to blame, neither can hold the other liable.

7. CONCLUSION:

To conclusion, I can say that negligence is nothing short of extreme carelessness. Carelessness excludes wrongful intention. A thing which is intended cannot be attributed is carelessness. Negligence dose not necessary consist in thoughtlessness or inadvertence. It is true that it is the commonest from of negligence but it is not the only form.

Q28. Explain the different between substantive law and law of procedure.

1. INTRODUCTION:

Statute law is either substantive or procedural substantive law confers the rights procedural law is the mode by which a legal right is enforced. The distinction between substantive and procedural law is drawn by each system along the lines of expediency and not is the same place for all purposes. The distinction between these two is very important as every lawyer has to get it touch with them in their daily routine.

2. LAW OF PROCEDURE:

I. DEFINITION:

(i)According to Salmond:

“The law of procedure may be defined as that branch of law which governs the process of litigation. It is the law of actions and includes all legal proceedings whether civil or criminal. Criticism:

Salmond has ignored that less spectacular and unattractive said of procedural law, which goes under the name of “conveyancing” such as drawing sale deeds, partnership deeds, cheques and other bills of exchange.

II. ELEMENTS OF PROCEDURAL LAW:

Following are the elements of judicial procedure or procedural law.

(i) Summons:

This is to give opportunity to all the parties interested, to present themselves before the Court and making the case heard.

Pleading:

Pleadings bring to light the matters in-issue between the parties. In civil law, it consists of plaint, written statement and replication. In criminal law, it includes complaint and written statement.

(iii) Proof:

Proof is the process by which the parties supply the Court with data necessary for the decision of the case.

(iv) Judgment:

A judgment is the decision of the Court. It may be in the form of decree or order.

(v) Execution:

It is the use of the physical force of the state in enforcing the judgment when voluntary submission to it is withheld.

3. SUBSTANTIVE LAW:

(i)According to Salmond:

Substantive law relates not to the process of litigation but to its process and subject-matter.

4. DISTINCTION BETWEEN SUBSTANTIVE AND PROCEDURAL LAW:

(i)ACCORDING TO HOLLAND:

Substantive law determines rights and procedural law determines remedies.

Criticism:

Salmond criticizes this view on the grounds:

(a) The whole law of remedies does not belong to procedure as a right to recover damages is a remedial right, but it belongs to substantive law and not to the law of procedure.

(b) According to Holland, there can be no right in the realm of procedure but the law of procedure also creates rights. A right of appeal is both a matter of substance and procedure.

(ii) ACCORDING TO SALMOND:

The difference between substantive law and procedural law is one of form and not substance. A rule belonging to one class may, by a changed form, pass over into the other without materially affecting the practical issue; he refers to three classes of such cases.

(a) Equivalency of exclusive evidential fact:

An exclusive evidential fact is practically equivalent to a constituent element in the title of the right to be proved. The rule of evidence is that a contract can be proved only by a writing. This corresponds to a rule of substantive law that a contract is void unless it is reduced to writing. In one case, the writing is the exclusive evidence of title. In other case the writing is a part of the title itself.

(b) Equivalency of conclusive evidential fact to fact proved:

A conclusive evidential fact is equivalent to and tends to take the place of the fact proved by it. Procedural law says that the child under the age of 8 cannot have a criminal intention and substantive law exempts such a child form punishment.

Equivalency of limitation of actions to prescription of rights:

The limitation of action is the procedural equivalent of the prescription of rights. The legal procedure destroys the bond between right and remedy and substantive law destroy the right itself.

5. OTHER DISTINCTIONS BETWEEN SUBSTANTIVE AND PROCEDURAL LAW:

(i) As to Purpose:

Substantive law is concerned with the ends which the administration of justice seeks. Procedural law deals with the means and instruments by which those ends can be achieved.

(ii) Regulation:

Substantive law determines the conduct and relation of litigants in respect of the matters litigated.

(iii) Subject matter:

Substantive law regulates the affairs controlled by judicial proceedings. Procedural law regulates the conduct of affairs in the judicial proceedings.

(iv) As to facts constitute a wrong:

What facts constitute a wrong is determined by substantive law? Want facts constitute proof of a wrong is a question of procedure.

(v) Nature:

Substantive law deals with the ends which the administration of justice seeks.

Procedural law deals with the means and instruments by which the administration of justice achieves.

(vi) As to connection:

Substantive law is related and connected with public at large. Procedural law is connected with the parties before the Court.

(vii) As to abolition of Punishments:

The abolition of capital punishment is an alteration of the substantive law.

The abolition of imprisonment for debt merely an alteration in the law of procedure as the imprisonment for debt is merely an instrument to enforce payment.

(viii) Scope:

Substantive law relates to matters outside the Court. Procedural law deals with matters inside Courts.

(ix) Appearance:

Substantive law provides substance of law in the shape of statute.

(x) Branch of law:

Procedural law is that branch of the law which governs the process of litigation.

(xi) Supremacy:

Substantive law is substance in nature. Procedural law is subordinate in nature.

6. CONCLUSION:

To conclude, I can say, that the substantive law which defines our rights and duties is of course important to all of us, but unless the adjective law of procedure is a working machine, constantly these obligations in terms of Court orders and actual execution, the substantive law might as well not exist.

Q29. Discus various modes of acquisition of property.

Q. Define property. What are various kinds of property?

1. INTRODUCTION:

The concept of property is very ancient and its definition is different in various ages. The jurists have tried to give a precise and consistent meaning to the word property, but no one is fully succeeded. Today the word property, is used in different senses, and it is been also classified into different kinds.

2. MEANING OF PROPERTY:

The term property is used in different senses.

i. Widest Sense:

In widest sense, property includes all the legal rights of a person of whatever description. All that vests in law is person, s property.

According to Blackstone:

The inferior hath kind of property in the company, can or assistance of the superior, as the superior is held to have in those of the inferior.

According to Locke:

“Every man has a property in his own person. Every man has a right to preserve his property, that is his wife, liberty and estate.”

ii. Narrow Sense:

In narrow sense, property includes the proprietary rights of a person and not his personal rights. Thus one‟s cattle, land etc. are property but not his life, liberty or reputation.

iii. Narrower Sense:

In this sense, the term property includes only those rights which are both proprietary and real. So a patent or copyright is property but not the debt or the benefit of a contract.

iv. Narrowest Sense:

In the narrowest sense, property includes nothing more than corporeal property or the right of ownership in material things.

According to Ahrens:

“Property is a material object subject to the immediate power of the person.”

v. In A Sense Used By Austin:

According to Austin, the term property is used in the following different senses:

a. It denotes the greatest right of enjoyment excluding servitudes.

b. Life interests are also described as property.

Servitudes are also described as property in the sense that there is a legal title is them

d. It also means the whole of the assets of a man including both the rights in rem and personam.

3. KINDS OF PROPERTY:

Property is essentially of 2 kinds:

I. Corporeal

II. Incorporeal

I. CORPOREAL PROPERTY:

It is also called tangible property. It relates to material things. Corporeal property is therefore rights of ownership in material things.

According to salmond:

Corporeal property is of the following kinds:

(i) Moveable and Immoveable (ii) Real and Personal.

(i)Moveable and Immoveable Property: Immoveable Property:

Immoveable property means a certain portion of earth surface and sector below it down to the earth‟s center. All natural objects below and above that surface.

Elements of Immoveable Property;

According to salmond, an immoveable piece of land has many elements.

a) It is a determinate portion of the surface of the earth.

b) It includes the ground beneath the surface down to the center of the world.

c) It also includes the column of spaces above the surface and infinitum.

d) It also includes objects which are on or under the surface in its natural state e. g., minerals and natural vegetation.

e) It also includes all objects placed by human agency on or under the surface with the intention of permanent annexation e. g., buildings, fences etc.

Moveable Property:

Moveable property means property other than immoveable. All material property which can be moved from one place to another e. g., chattels, shares etc.

(ii) Real and Personal property:

This classification is closely connected with immoveable and moveable.

Real Property:

It means all rights over land recognized by law. The law of real property is almost equivalent to the law of the land.

Personal Property:

Personal property means all other proprietary rights whether they are rights in rem or rights in personam. The law of personal property is identical with the law of moveable.

II. INCORPOREAL PROPERTY:

Incorporeal property is intangible property. It is also called intellectual or conventional property. It includes all those valuable interests which are protected by law e. g., shares in limited companies.

A. Kinds Of Incorporeal Property:

It is of two kinds:

(i) Rights in re propria

(ii) Rights in re aliena

(i) Rights in Re propria:

These are those rights of ownership in one‟s property as are not exercised over material objects. The most important of such rights are patents, literary copyrights, artistic copyrights, musical and dramatic copyrights, commercial goodwill, trade-markes, trade names and franchises.

(ii) Rights in re aliena:

It is also known as encumbrances. They are rights in rem over res owned by another. It prevents the owner from exercising some definite rights with regard to his property. The main kinds of encumbrances are leases, servitudes, securities and trusts.

4. MODES OF ACQUISITION OF PROPERTY:

According to salmond, there are four modes of property.

I. BY POSSESSION:

Possession is the objective realization of the ownership. The possession of a material object is a prime facie the ownership of it. If a person is in possession of a thing, he cannot be ousted except by the true owner in accordance with law. A person, who claims a chattel or a piece of land as his own, makes good his claim by way of possession in fact and by way of ownership in law.

II. PRESCRIPTION:

It consists in the acquisition of a positive title to the property through possession for a specified time. The possession must be continuous and bona fide.

According to Salmond:

“Prescription may be defined as the effect of lapse of time creating and destroying rights.”

A. Kinds Of Prescription:

It is of two kinds:

(i) Positive or acquisitive prescription.

(ii) Negative or extinctive prescription.

(i) Positive or acquisitive Prescription:

Lapse of time confers a title on the person who has enjoyed the rights for the prescriptive period.

Example: If „A‟ was enjoying a right of way over his neighbour‟s land for 20 years, then at the end of this period, he not only possess it but also own it by way of easement.

Negative or extinctive Prescription:

A negative prescription extinguish right. It is of two kinds;

(a) Perfect

(b) Imperfect

(a) Perfect negative Prescription:

Perfect prescription is the destruction of the principal right itself e. g., destruction of ownership of land through dispossession for 12 years.

(b) Imperfect negative Prescription:

Imperfect prescription is the destruction of the accessory right of action. The principal right is not destroyed only the remedy or right of action is lost.

Example: A time-barred is an example of imperfect prescription. The right is not destroyed, for a part payment of acknowledgement of the debt will revive the right of action.

AGREEMENT:

According to Paton:

An agreement is the expression by 2 or more persons communicated each to the other of a common intention to affect the legal relations between them.

By agreement between parties the ownership of one may be transferred to another.

III. INHERITANCE:

On the death of a person, some rights die with him and some survive and pass or to his heirs and successors. Those which survive are called heritable or inheritable rights. Proprietary rights are inheritable rights.

5. CONCLUSION:

To conclusion, I can say, that the scope of property is quite wider according to Erle-J “the notion that nothing is property which cannot be earmarked and recovered in detenu to trover, may be true in an early stage of society when property is in its simplest from and the remedies for the violation of it are also simple, but it is not true in a move civilized state when the relation of life and the interests arising there from are complicated.

Q30. Define evidence. What are its various kinds? OR

Q. Discuss various rules of valuation of evidence. OR Q. What is meant by evidence? Explain its kinds with special reference to primary and secondary evidence.

1. Introduction:

Evidence of Evidential facts is adduced by the Court in order to prove the facts in issue. It is the probative force of these evidential facts, which prove the principal facts. Evidence is the most important stage of litigation, where the parties have to prove their assertions and it helps the Court in determining and ascertaining the truth of the facts.

2. DEFINITION OF EVIDENCE:

I. According To Salmond:

“Evidence may be defined as any fact which possesses probative force.”

(i) Meaning of Probative force:

A probative force means the quality by virtue of which the Court presumed that one fact is evidence of another fact.

II. According To Phlpson:

“Evidence, as the term is used in judicial proceedings means the facts testimony and documents which may be legally received in other to prove or disprove the fact under enquiry.”

III. According To Article 3 of Q.S.O 1984”

“Evidence includes all statement which the Court permits to be made before it by witness in relation to matters of fact under enquiry.”

3. KINDS OF EVIDENCE:

Following are the different kinds of evidence.

(i) Judicial Or Extra-Judicial Evidence:

a. Judicial Evidence:

Judicial evidence is that which is produced before the Court. It consists of all facts which are actually brought to the knowledge and observation of the Court. It may be either oral testimony, documents material, produced before the Court.

b. Extra-Judicial Evidence:

Extra-Judicial evidence is that which does not come directly under judicial cognizance and it includes all evidential facts which known to the Court only by way of inference form some form of judicial evidence.

Example: If a document is actually produced before the Court, it is judicial evidence. If it is known to the Court only through a copy or report of the witnesses who has heard it, it is extra- judicial evidence.

(ii) Personal Or Real Evidence:

a. Personal Evidence:

Personal evidence is the testimony of witness. It may be either oral or written and judicial or extra-judicial.

b. Real Evidence:

Anything which is believed for any other reason than that someone has said so, is believed on real evidence.

According to Bentham:

“Real evidence denotes all evidence of which any object belonging to the class of things as the source, person being included in respect of such properties as belong to them in common with things.”

(iii) Primary And Secondary Evidence:

a. Primary Evidence:

Primary evidence is the immediate evidence of the principal fact. A document is the primary evidence of its contents.

Secondary Evidence:

Secondary evidence is evidence which may be given under circumstances in the absence of that better evidence which the law requires to be given first. If may be in the form of a report or an oral account of the original evidence or a copy of a document.

(iv) Direct Or Circumstantial Evidence:

a. Direct Evidence:

Direct evidence is testimony relating immediately to the principal fact. It is a evidence of a fact perceived by witness with his own senses.

b. Circumstantial evidence:

Circumstantial evidence is that evidence which relates to a series of facts others than the fact- in-issue, but which are closely connected with that in such a way that it leads to some definite conclusion. It is more important in criminal law, because it‟s very rare that direct evidence may be found in criminal law.

Example: If „A‟ says that he saw „B‟ committing the murder, the evidence of „A‟ is direct evidence but if he says that he saw „B‟ leaving the place where the murder was committed the evidence of „A‟ is circumstantial evidence.

(v) Original And Hearsay Evidence:

a. Original evidence

Original evidence is that which possesses an independent probative force of its own i.e., witness states want he has seen or heard with his own eyes or ears.

b. Hearsay evidence:

Hearsay evidence is not based on the personal knowledge of the witnesses. He makes the statement on the basis of the statement of another person. As a general rule, it is inadmissible in evidence but is this general rule there are also some exception. In Pakistan, Article 71 of

Q.S.O provides the general rule that hearsay is on evidence.

4. EVALUATION OF EVIDENCE:

The law of evidence deals with the production of evidence and its evaluation. Many rules have been land down to weigh the value of the evidence produced in the Court.

(i) Conclusive Proof:

It consists of fact which such probative force that they cannot be contradicted. When one fact is declared by law to be the conclusive proof of another fact, the Court shall on proof of regard the other as proved.

Example: Article 128 of Q.S.O., provides that if a child is born during wedlock not earlier that expiration of six lunar months form the date of marriage or within 2 years after its dissolution and the mother remains unmarried, is shall be conclusive proof that he is legitimates son of that man.

(ii) Presumptive Proof:

It means such proof which may be considered sufficient if there is no other proved fact to the contrary. In such a case, it raises a conditional or rebuttable presumption.

Example

The presumption of innocence is a rebuttable presumption.

(iii) Insufficient Evidence:

If law prescribes a certain amount of evidence to be absolutely necessary and evidence produced does not come up to the necessary standard, the evidence is considered to be insufficient. It does not raises any presumption conclusive. It does not raises any presumption conclusive or conditional.

Example: In Hudood cases, testimony of one witness in insufficient.

(iv) Exclusive Evidence:

In such case, certain facts alone are recognized as being the only evidence of certain other facts. No other evidence is permitted by law.

Example: A written contract can generally be proved by the production of writing itself.

(v) No Evidence:

There are certain facts which have absolutely no probative force at all. They can neither be produced in the Court nor acted upon.

Example: The bad character of accused is irrelevant in criminal proceeding and it became relevant only if evidence has been given to show that he possesses a good character.

5. CONCLUSION:

To conclude, I can say, that evidence is the source of proving or disproving any fact and it has been classified into many kinds. Many rules have been laid down for the production of evidence and for the valuation of evidence and it just render the task of proof easier.

Measurement Of Criminal Liability

Q31 How criminal liability is measured to determine appropriate punishment. Q What elements are taken into consideration in determining the appropriate punishment?

1. INTRODUCTION:

The responsibility or liability is the ultimate purpose of the law because the wrong-doer must make up or suffer for he has already failed in doing what he ought to have done. It is the ultimatum of the law and has its source in the supreme will of the state. It arises form a wrong or the breach of a duty.

2. DEFINITION OF LIABILITY:

(I) According To Salnond:

“Liability or responsibility is the bond of necessity that exists between the wrong-doer and the remedy of the wrong.

(II) According To Markby:

“The word liability is used to describe the condition of a person who has a duty to perform.

3. CASE LAW

2005 YLR 742

It was held that supreme object with the court is always to administer even handed justice to parties in a criminal case without un-reasonably learning in favour of the party nor depriving the

other party of its due right to offer defence. Court must keep the scale justice even to both sides and conduct of the proceeding must visibly to reflective of its clean and un-biased mind in every sense.

4. KINDS OF LIABILITY:

Following are the different kinds of liability.

(i) Civil liability (ii) Criminal liability (iii) Remedial Liability (iv) Vicarious liability

(v) Strict liability

5. CRIMINAL LIABILITY:

Criminal liability is the liability to be punished in a criminal proceeding. The redress for criminal liability in is the form to punishment which may be in the form of imprisonment, fine or death.

(I) CONDITIONS OF CRIMINAL LIABILITY:

There must be two condition before fixing criminal liability

(i) Actus reus

(ii) Mens rea

(i) Actus Reus:

The first condition is the actus or prescribed act Salmond calls it the physical or material condition of liability. If there is no act there can-be no punishment.

Justice Bryan Stated:

“The thought of a man cannot be tried, for the devil itself knoweth not the thought of a man.” Example: A man take an umbrella form a stand at his club with intent to steal it, but finds it is own, he has committed no offence.

(ii) Mens Rea:

The second condition of criminal 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. If a wrongful act is done intentionally, penal action will serve as a deterrent for the future. If it is doe negligence or carelessly, punishment will make the offender more vigilant in future. Where the law presumes that there can be no will at all, penal liability can be imposed, e. g. children under the age of seven and insane person are regarded by law as incapable of having mens rea.

(II) MEASUREMENT OF CRIMINAL LIABILITY:

According to Salomnd, following elements should be take into consideration in determining the measure of criminal liability.

(i) Motive (ii) Magnitude of the offence (iii) Character of the offender

(i) Motive:

As regards motive of offence, the greater the temptation to commit the crime, the greater should be the punishment. The object of punishment is to suppress those motives which lade to crimes. The stronger these motives are, the severe must be the punishment in the case. If the profit to be gained from the act is great, the punishment should also be severe proportionately

(ii) Magnitude of the Offence:

The second rule for the measurement of criminal liability is the magnitude of the offence the greater the magnitude of the offence, the greater should be its punishment. The greater the mischief of any offence, the greater is the punishment which it is profitable to inflict with the hope of preventing it. If the punishment dose not varies with the magnitude of the offence, there will be temptation to commit offence of very serious nature as punishment is the same in both cases. If punishment for burglary and murder were to be the same, the burglar would not stop at a lesser crime.

(iii) Character of the Offender:

The character of the offender should also be taken into consideration which determining the measure of criminal liability. The worse the character or disposition of the offender, the more serious should be the punishment. The law imposes upon habitual offender penalties which bear no relation to them magnitude of the offence. The most degraded criminals are said to exhibit insensibility even to physical pain, many murderers of worst type show Indifference to death itself. So it is desirable to punish more severely the more corrupt.

6. CONCLUSION:

To conclude, I can say, that In considering the measure of criminal liability, the deterrent purpose of the criminal law should be given exclusive attention. The perfect law is that in which the difference between the good and the evil is at a maximum in favour of the good and the rules as to the measures of criminal liability are the rules for the attainment of this maximum.

Q32: Is law Territorial? If so, what are exceptions to the general ruler?

Q: To what extent law is territorial in nature?

1: INTRODUCTIONS:

The enforcement of law is territorial in the same way as a law is territorial. The territoriality of law flows from the political division of the world. No state allows other states to exercise governmental powers within it. The enforcement of law is confined to the territorial boundaries of the state enforcing it.

2: MEANINGS OF THE TERRITORIAL NATURE OF LAW:

The propositions that system of law belongs to a defined territory means that it applies to all persons, acts things and events within that territory. It does not apply to persons, things acts or events elsewhere.

3: JURISDICATION OF A STATE ACCORDING TO TERRITORIAL NATURE OF LAW:

A state has Jurisdiction over all its persons and thing. Such persons may be natural born subjects or naturalized subjects or domiciled alien. Its jurisdiction also extends over its ownership in its territorial waters and ports and all acts committed over them.

Example: Criminal law o England extends to all offences committed in England and not outside its territory. Similarly the law of marriage, divorce and succession is applied by England courts only to those persons who are connected with the territory of England.

4: REMEDY TO THE TERRITORIAL NATURE OF LAW:

(a): In Case of Crimes:

The remedy lies in the practice of extradition. The states conclude treaties with each by which each agrees to surrender to the other state persons found in its territory who are wanted for crimes committed in the territory of the party to the treaty.

(b): In Civil Cases:

Extradition is not practiced in civil cases. However each country gives a remedy in its own courts for civil wrongs wherever they may be committed.

(c): Case Law:

Mobarik Ali Ahmed Vs State of Bombay(1957)

Held: The offender was a Pakistani but his entire offence of cheating U/S 420 accrued at Bombay. Therefore he was held guilty in Bombay.

Exceptions to the Territorial Nature of Law:

(a): International Law:

International law is and exception to the general ruler that law is territorial. States are allowed to exercise control over their armed forces when passing through a foreign territory.

(b): England Civil Law:

England civil law applies to all British subjects in respect of offenes concerning bigamy, treason or murder wherever they might be committed.

(c): Law of Procedure:

Law of procedure is not territorial in any respects. The England law of procedure is the law of England courts rather than the law of England.

5. EXTRA TERRITORIAL OPERATION OF LAW:

A law is said to have extra territorial operation when it operates also outside the limits of the territory within it is enacted.

By virtue of C.P.C. and Cr.P.C., Pakistan courts are empowered to try an offence committed outside Pakistan on the land and on high seas. The latter is known as Admiralty Jurisdiction which is based on the principle that a ship on the high seas is a floating island belonging to the nation whose flag she flies.

6. CONCLUSION:

The conclusion of Salmond is that as the territory of law is not a logically necessary part of the idea of law, a system of law is conceivable the application of which is limited and determined not by reference to territorial considerations but by reference to the personal qualifications of the individuals over whom jurisdiction is exercised, qualifications such as nationality, race, or religion.

Q33. Jurisprudence in Relations with Other Social Sciences?

1. INTRODUCTION:

It is difficult to give universal and uniform definitions of Jurisprudence. Every jurist has its own notion of the subject matter and the proper limits of Jurisprudence depend upon his ideology and the nature of society. Moreover, the growth and development of law in different countries has been under different social and political conditions. The evolutions of society is a dynamic nature and hence the difficulties in accepting a definitions by all. New problems and new issues demand news solutions and new interpretations under changed circumstances.

However, scientific inventions have brought the people of the world closer to each other which help the universalization of ideas and thoughts and the developments of a common terminology.

2. DEFINITIONS OF JURISPRUDENCE

i. Ulpian: Roman jurist Ulpian defined, “Jurisprudence as the knowledge of things divine and human, the science of the just and unjust.

ii. Bentham: Distinguished between examinations of the “Law as it is (Expository Jurisprudence) and as it ought to be” (Censorial Jurisprudence).

ii. Julius Stone: Describes, Jurisprudence as the lawyer‟s extraversion. It is the lawyer‟s examination of the percepts, ideals and techniques of the law in the light derived from present knowledge in disciplines other than the Law.”

iv. John Austin: The view of Austin is that the science of Jurisprudence is concerned with positive law, with “Laws strictly so-called”; it has nothing to do with the goodness or badness of law. Austin divided the subject into general and particular Jurisprudence.

v. Holland: Sir Thomas Erskine Holland defined, “Jurisprudence as the formal science of positive law.”

vi. John Salmond: Salmond defined, “Jurisprudence as the Science of Law”.

vii. G.W. Paton: Defined, “Jurisprudence is a particular method of study, not of law of one country, but of the general notion of itself. It is a study relating to law.

3. RELATIONS OF JURISPRUDENCE WITH OTHER SOCIAL SCIENCES

Different branches of knowledge are so inter-related that none of them can be studied in isolation. All social sciences stand in close connection with one another. All of them study the actions of human beings living in society, though from different angles and with different ends. In the view of the Paton, “Modern Jurisprudence trenches on the fields of social sciences and of philosophy; it digs into the historical past and attempts to create the symmetry of a garden out of the luxuriant chaos of conflicting legal systems”.

I. Jurisprudence and Sociology

According to Salmond, Jurisprudence is the knowledge of law and in that Sense all law books can be considered as books on jurisprudence. Among the phenomena studied by sociologists is law also and that makes sociology intimately connected with Jurisprudence

Sociological Jurisprudence based on Sociological theories and is essentially concerned with the influence of law on society at large, particularly social welfare. The sociological approach to legal problems is essentially different from that of a lawyer. In the case of crime in society, its causes are to a very great extent sociological and to understand their pros and cons, one must have knowledge of society.

Sociology has helped jurisprudence in its approach to the problem of prison reformed and has suggested ways and means of preventing social wrongs.

Preciously, judges and legislators came to their conclusions regarding the effect of punishment by depending upon popular opinion and personal impressions, but now they have at their disposal precise data through the efforts of criminologists.

Behind all legal aspects, there is something social. The causes of crimes are partly sociological and an understanding of sociology helps the legislators in their task of prison reform and prevention of crimes. Topics like motives, aims and theories of punishment and the efficacy of the various types of punishments are considerably helped by sociology. The birth and growth of sociology has given a new orientation to the study of Jurisprudence.

There is a distinction between sociological Jurisprudence and sociology of law. The latter differs mainly from the former in that it attempts to create a science of social life as a whole and to cover a great part of general sociology and political science”. In the sociology of law, the emphasis is on society but in sociological Jurisprudence emphasis is on the relation between law and society. The sociology of law is a branch of sociology dealing with the law and legal institutions in the light of sociological principles, aims and Methods.

II. Jurisprudence and Psychology

Psychology has been defined as the science of mind and behavior. It is recognized that no human science can be discussed properly without a thorough knowledge of the human mind and hence it‟s close connection with jurisprudence. In the study of criminal jurisprudence, there is a great scope for the study of psychological principles in order to understand the criminal mind behind the crime. Both psychology and jurisprudence are interested in solving such questions as the motive for crime, a criminal personality, whether a criminal gets pleasure in committing a crime why there are more crimes in one society than in another and what punishment should be given in any particular case. In criminology, psychology plays an important part. It is the duty of a lawyer to understand the criminal and the working of a criminal mind.

It is the duty of a law- giver to understand man and not to pass judgments and say what man

ought to do or ought not to do. Psychology can help the law- maker considerably in the approach to the problem of not only making the law but also of executing it.

Jurisprudence is concerned with man‟s external conduct and not his thoughts and mental processes, but penology has benefited from the knowledge made available by psychological researchers.

There is a school of jurists which holds the view that the sanction behind all laws is a psychological one. Study of negligence, intention, motive and other cognate mental conditions forms part of both Jurisprudence

and Psychology.

III. Jurisprudence and Ethics

Ethics has been defined as the science of human conduct. It deals how man behaves and what should be the ideal human behavior. There is the ideal moral code and the positive moral code. The former belongs to the province of natural law, while the latter deals with the rules of positive or actual conduct; Ethics is concerned with good or proper human conduct in the light of public opinion. Public opinion varies from the place to place, from time to time and from people to people.

Jurisprudence is related to positive morality in so far as law is considered as the instrument through which positive ethics ties to assert itself. Positive morality is not dependent upon the good actions of a good man only.

It requires a strong coercive influence for maintaining public conscience. The branches of ethical jurisprudence which tries to examine the existing ethical opinions and standards of conduct in terms of law and makes suggestions for necessary changes so that it can be properly depict the public conscience.

There are many ethical rules of conduct which are not considered as crimes. The law ignores trifles. It may be immoral to tell a lie but it is not a crime. Many acts are unethical but all unethical acts are not necessarily criminal. One has to consider the problem of laws which are considered undesirable by society. All that is prohibited by law is not necessarily immoral. For enforcing certain ethical conduct, ethics depends upon law through the instrumentality of the police, law courts, judges and the system of courts and punishment.

Legislation must be based on ethical principles. It must not be divorced from human values. No Law can be good if it is not based on sound ethical principles.

Ethics lays down the rules for human conduct based upon higher and nobler values of life. Laws are meant for regulating human conduct in the present and subordinating the requirements of the individual to that of society at large. A jurist must be adept at the science of ethics because he cannot critics a law unless he examines that the through the instrumentality of ethics.

IV. Jurisprudence and Economics

Economics studies man‟s efforts in satisfying his wants and producing and distributing wealth. Economics is the science of wealth and Jurisprudence is the science of law. There is a close relationship between the two. Very often, economic factors are responsible for crimes.

Economic problems arise from day to day and it is the duty of the law- giver to tackle those problems. The aim of the economist is to improve the standard of life of the people and also to develop their personality. Jurisprudence teaches legislators how to make laws which will promote social and economic welfare. Both jurisprudence and economics aim at the

betterment of the lives of the people. There are laws relating to workmen‟s compensation, factory legislation, laws relating to labour,

Insurance, maternity welfare, bonus, leave facilities and other concessions given to workmen. There are laws for the benefits of the agriculturists such as the Zamindari Abolition Acts, Agricultural Debtors Relief Acts, Acts preventing the fragmentation and sub-division of agricultural holdings and regulation of agricultural labour.

Both Jurisprudence and economics help each other in furthering the welfare of society. The intimate relation between economics and Jurisprudence was first emphasized by Karl Max.

V. Jurisprudence and History

History studies past events in their different perspectives. The relation between Jurisprudence and history is so close that there is a separate historical school of Jurisprudence. History furnishes the back ground in which a correct idea of Jurisprudence can be realized.

VI. Jurisprudence and Politics

Friedman rightly points out that Jurisprudence is linked at one end with philosophy and at the other end with political theory. Politics deals with the principles governing governmental organization. In a politically organized society, there exist regulations which may be called laws and they lay down authoritatively what men may do and what they may not do.

4. CONCLUSION

If we deal with the subject of property, we should analyses the concepts of property, proprietary rights, personal rights, legal and equitable rights etc., we should make a comparative study of those concepts and examine them historically and critically