Jurisprudence-II

Topic;
Liability,
Meaning, Types
and Theories.

Teacher Sir Dr Tauseef

By Syed Faisal Hayat

R.No 01-177152-049

LLB VI

Bahria University Islamabad

Table of Contents
INTRODUCTION ............................................................................................................................................. 1
According to Salmond; .................................................................................................................................. 1
According to Austin; ...................................................................................................................................... 1
Meaning of Liability....................................................................................................................................... 2
Types of Liability ........................................................................................................................................... 2
Civil Liability and Criminal Liability ....................................................................................................... 2
Remedial liability .................................................................................................................................. 3
Ryland V. Flatcher .................................................................................................................................... 4
Theories of liability ....................................................................................................................................... 4
Theory of Remedial liability ..................................................................................................................... 4
Theory of Penal liability ....................................................................................................................... 5
INTRODUCTION
Whoever commits an act or wrong that breaches certain rights is said to be responsible for that
act or the breach he has committed. Liability is the state of being responsible for an act, wrong or
omission. Responsibility or liability arises from a wrong act, omission or the breach of a duty.
Liability is a relationship between the wrongdoer and the remedy for the wrong committed by
the wrongdoer. According to Salmond, liability is the bond of necessity between the wrong act
done by the wrongdoer and the remedy for the wrong been committed. Liability may be
classified in two way. In the first place it could be civil or criminal and in the second place it
could be remedial or penal. The differences between civil and criminal liability are, crime is an
act against the state a civil wrong is an act against a private individual.

The compensation for crime is punishment while the compensation for civil wrong is damages.
The proceedings in case of crime are criminal proceedings while in case of civil wrong they are
followed by civil proceedings.

Liability in civil wrong is measured by wrong done by the wrongdoer while in the case of crime
the liability is measured by the intention of the wrongdoer. That whether he has committed the
act with bad intentions of causing harm to someone or committed with good intentions.

According to Salmond;
John Salmon defines liability as “Liability or responsibility is the bond of necessity that exists
between the wrongdoer and the remedy of wrong.”1

According to the definition of Salmond; if the remedy is civil one, the victim property has the
right to demand compensation allowed by law and the wrong doer has the duty to comply with
the demands of the victim. If the remedy is criminal one, the purpose of the law is to penalized
the one who has committed the wrong.

According to Austin;
John Austin defines liability as “ those certain forbearances, commissions or acts, together with
such of their consequences, as it was the purpose of the duties avert, are immutable to the

1
Dr.Avtar Sing; Introduction to Jurisprudence, 2nd Edition.

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persons who have forborne, omitted or acted, Or the plight or predicament of the persons who
have forborne, omitted or acted, is style imputabilty.”2

John Austin prefers to call liability as “imputability”. Liability arises from a breach of a duty
which maybe in the form of an act or omission.

Meaning of Liability
Liability means, the responsibility of person for an act or omission he has committed. The
quality or state of being legally obligated or accountable; legal responsibility to another or to
society, enforceable by civil remedy or criminal punishment.3

The term liability gives two different consequences. In one sense it is the synonym of duty,
having mutually related with right, in this sense it is the opposite of privilege or liberty. If a
person is under obligation to perform a duty, the society commands him performance of his duty
with threat to be sanctioned if he does not perform his duty.4

In the second sense the term “liability” is mutually related with the power and the antonym of
immunity.5 Here the society does not demand command performance, but it will when the
possessor of the power does some operative act. If one possesses a power, the other posses
liability.

Types of Liability
Liability can be of many kinds. There are civil and criminal liability, remedial and penal liability,
vicarious and absolute and strict liability.

Civil Liability and Criminal Liability

Civil liability is the enforcement of the right of the plaintiff against the defendant in civil
proceedings. Criminal liability is the liability to be punished in criminal proceeding. A civil
liability gives arise to civil proceedings whose purpose is the enforcement of certain rights
claimed by the plaintiff against the defendant.6 Examples of civil proceedings are an action for

2
Khyber Law Publishers; English Jurisprudence.
3
Black’s Law Dictinoary, Eight Edition.
4
Id.
5
Id.
6
shodhganga.inflibnet.ac.in/bitstream.

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recovery of a debt, restoration of property, the specific performance of a contract, recovery of
damages, the issuing of an injunction against the threatened injury,etc.

Civil liability is the enforcement of the right of the plaintiff against the defendant in civil
proceedings. Criminal liability is the liability to criminal proceeding whose direct purpose is the
punishment of the wrongdoer.

In the case of civil proceedings, the remedy is in the form of damages, a judgment for the
payment of debt, an injunction specific performance, delivery of possession or property, a decree
of divorce, etc. The redress for criminal liability is in the form of punishment which may be in
the form of imprisonment, fine or death. In certain cases, the remedy for both civil and criminal
liability may be the same, the payment of money. In certain cases, imprisonment may be
awarded for both civil and criminal liability.

Remedial liability
If law creates certain duties, it should be seen that whether the same is performed or not. Law
with its force can be used to compel a person to do what he ought to under the law of the
country. If an injury is caused by someone through the violation of a right, the remedy can be
given through compensation by person bound to comply with it. There is no concept of
punishment in remedial liability

Penal liability
This type of liability is concerned with the punishment of wrong doer. It is based on maxim
which means “that act alone does not amount to crime, unless it is accompanied by guilty mind”.

Vicarious Liability
When a person does some wrong he is responsible for his acts only but there are certain
circumstances when the liability of wrong doer is imposed on some other person than the
wrongdoer himself. John Salmond defines it as “ in general a person is responsible only for his
own acts, but there are exceptional cases in which the law imposes on him vicarious
responsibility for the acts of others, however, blameless himself.7

Generally a man is liable for his own wrongful acts. He is not liable for the wrongful acts of
others. But under certain circumstances a man may be half liable for the wrongful acts of others.

7
English Jurisprudence, Khyber Law Publishers.

3
Strict liability
A man is held responsible for the acts committed by himself but there is an exception to this rule
in which a man is responsible irrespective of the existence of either wrongful intent or
negligence. And this is known as wrongs of strict liability.

Ryland V. Flatcher
Facts

Rylands employed contractors to build a reservoir, playing no active role in its construction.
When the contractors discovered a series of old coal shafts improperly filled with debris, they
chose to continue work rather than properly blocking them up. The result was that on 11
December 1860, shortly after being filled for the first time, Rylands' reservoir burst and flooded
a neighboring mine, run by Fletcher, causing £937 worth of damage, equivalent to £102,768 in
2015 terms. Fletcher brought a claim under negligence against Rylands, through which the case
eventually went to the Exchequer of Pleas. The majority ruled in favour of Rylands. Bramwell B,
however, dissenting, argued that the claimant had the right to enjoy his land free of interference
from water, and that as a result the defendant was guilty of trespass and the commissioning of a
nuisance. Bramwell's argument was affirmed, both by the Court of Exchequer Chamber and the
House of Lords.

Held

It was established “ the person who, for his own purposes, brings on his land, and collects and
keeps there anything likely to do mischief, if it escapes, must keep it in his peril and if he does
not do so, is prima facie answerable for all the damage which is natural consequence of its
escape”

Theories of liability
The following are the theories of liability.

Theory of Remedial liability

This theory is based on the maxim “ubi jus ibiremedium” which means that when there is a right,
there must be some remedy. Whenever the law creates a duty, it should enforce the specific
execution of it. But there are certain exceptions where the duty is not specifically enforced.

I. Duties of Imperfect obligation

The duties these obligation are those duties the breach of which gives no cause of action and
creates no liability at all. A time-barred debt is an example of it. Thought the debt exists in law, it
is not enforceable.

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 II. Duties incapable of specific enforcement

Another exception of the rule are duties of such a nature, which once broken cannot be
specifically enforced, for example, in an act done the defendant cannot be made to refrain from
it. Everyone has a right to reputation, and therefore, there is a corresponding duty imposed on
others not to violate such right. But if at a libel, is committed the specific enforcement of
corresponding duty of defendant “i.e. the person who has committed libel’’ is not possible. In
other words, once a mischief has been done, it cannot be undone. In such case damages are
perhaps the only adequate remedy.

III. Specific performance inexpedient

There are cases where though the specific performance of duty is plausible, the law does not
enforce its specific performance but rather awards damages to the plaintiff. For example, law
does not enforce the specific performance of a promise of marriage or painting to picture but
normally award damages in such cases.

Theory of Penal liability

The basic principle underlying penal liability is contained in the maxim - "actunon facit reum,
nisi mens sit rea ” which means that act alone does not amount to crime, unless it is
accompanied by guilty mind. 8

Therefore, two elements i.e.

i) Act; Means
A person who does any act shall be responsible only for the acts done by him and shall not be
responsible for the acts done by others.
ii) Guilty mind; Means
There must be guilty mind or mens rea with which the act has been commited.
These two are essential ts constitute a crime. No person can be punished merely because his act
resulted into some crime unless it was accompanied by “Mens Rea” or guilty mind. Conversely,
mere presence of “mens rea" shall not constitute a crime unless it is accompanied by some act.
Thus "act ” is the physical element of the crime and “mens rea ” is the mental element. Generally

8
Dr, Avtar Singh, Introduction to Jurisprudence.

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a man is hold criminally liable only for those wrongful acts which he does either willfully or
negligently. There are, however, some exceptional cases when law imposes strict liability as in
case of offences under the licensing acts or offences against public health. In such cases, the act
itself becomes punishable even without the presence of guilty mind or negligence. That apart, the
criminal law exempts certain categories of cases from penal liability. These are commonly
known as defenses or general exceptions and include mistake of act, accidents, infancy, minority,
necessity, self-defense, voluntary intoxication, etc. If the offender succeeds in establishing any of
these defenses, he is not punished though his offence may satisfy the two conditions of “actus ”
and “mens rea".