Negligence: Definition, Theories and Kinds

Q. Define 'Negligence'. What are its kinds and theories? [20 marks - 2023]

Definition of Negligence

Negligence is the breach of duty that is caused by the omission to do something, which a reasonable man would do under those circumstances. 

Negligence is conduct that fails to conform to the standard established by law to protect people against risk and unreasonable harm. 

According to Austin, "Negligence is the breach by omission of a positive duty."

According to Salmond, "Negligence is the state of mind of under indifference towards one ‘s conduct andits consequences."

According to Clark, "Negligence is the omission to take such care under the circumstances it is thelegal duty of a person to take it is in a no sense a positive idea and has nothingto do with a state of mind."

Theories of negligence

Subjective theory

According to Austin negligence is a faulty mental condition that is penalized by the award of damages. Negligence according to Salmond essentially consists of the attitude of undue indifference concerning one’s conduct and its consequences. Winfield also supports this theory and says that as a mental element in tortious liability negligence usually signifies a total or partial inadvertence of the defendant to his conduct and for its consequences. In exceptional cases, there may be full advertence to both the conduct and consequences but in any event, there is no desire for the consequences and this is the touchstone for distinguishing it from intention.

Objective theory

According to this theory negligence is not a particular state of mind or form of men’s Rea at all, but a particular kind of conduct. To drive at night without light is negligence because to carry lights is a precaution taken by reasonable and prudent man for the avoidance of accidents.

Essential conditions for liability of negligence

1. There should be breach of some legal duty.

2. The duty should be towards the plaintiff.

3. The breach was on the part of the defendant.

4. There was injury or damage.

Kinds of negligence

Comparative negligence

In a situation where the plaintiff is partially responsible for his injuries is called camparative negligence. As a consequence, the amount of damages to be paid is reduced by the percentage of fault. For example, in a car accident, the plaintiff is to be awarded Rs. 50000 . it has been established that the plaintiff is himself responsible for 40 percent of injuries. The amount to be awarded would be reduced by 40 percent.

Contributory negligence

Contributory negligence depends entirely on the question of whether the plaintiff could reasonably be avoided the consequences of the defendant’s negligence. In this type of negligence it lies to the plaintiff that he was completely unaware of the consequences of the negligence. On the other hand, the defendant has to prove that the plaintiff could have avoided the damage using his knowledge and skills.

Combination of comparative and contributory negligence

This is a modified version of contributory negligence. In such cases, if the plaintiff is not responsible for more than 50% of his injuries, we can recover the damages.

Gross negligence

Cases in which the negligence was so careless that it showed a complete lack of concern for the safety of others, are called gross negligence. Gross negligence is a much serious form of negligence that goes a step further than simple careless actions.

Vicarious negligence

Vicarious negligence is the liability of another person or animal. For example, if a dog causes injuries to some person, the owner of the owner would be held liable for the damages.

Mediate and Immediate Possession

Q. Distinguish between mediate and immediate possessions. [10 marks - 2023]

Q. Distinguish between mediate and immediate possessions. [20 marks - 2022]

Q. Short note on mediate and immediate possessions. [4 marks - 2019]

Mediate and Immediate Possession

Mediate Possession

1. When something is possessed through a mediator, the possession is known as Mediate possession. The mediators may be friends, servant or agents.

2. Also known as indirect possession.

Examples of mediate possession

1. Mr X purchase book through his servant.

2. Mr. Y purchases a house and gives his friend to stay.

Immediate Possession

1. When someone possesses something himself, this is immediate possession.

2. Also known as  direct possession.

Examples of immediate possession

1. Mr. X purchase book himself and keeps with him.

2. Mr. Y purchase a house and stays there.

Legal Rights : Characteristics and Types

Q. Write a short note on positive and negative right. [10 marks - 2023]

Q. Short note on Proprietary and personal right. [4 marks - 2019]

Q. Contingent right [4 marks - 2019]

Q. Explain the characteristics of a legal right. [10 marks - 2019]

Q. Dominant and Servient Right [4 marks - 2018]

Q. Perfect and Imperfect Right [4 marks - 2018]

Q. What are the different kinds of legal rights? Mention the different kinds of legal rights. [20 marks - 2018]

Legal Rights

The term right is defined as any action of a person permitted by law. Legal rights are the rights that are given to the citizens of a country by the government to enjoy certain freedoms.

Characteristic of Legal Rights

1. Legal rights exist only in human society.

2. Since rights are present in a society, these cannot be exercised against the society or against social good of the society.

3. Legal rights gives momentum to the development of the nation.

4. These rights are recognized by the all people in a society.

5. These are rational and moral claims.

6. Rights are equally available to all the people without any kind of discrimination.

7. Legal rights are dynamic. They can be changed according to the situations and conditions prevailing in the society.

8. Rights are not absolute. 

9. These are protected and enforced by the laws of the state. 

Kinds of Legal rights

1. Positive Rights and Negative Rights

A positive right is a right when some action needs to be done by the person who has the corresponding duty. The person on whom the duty lies must perform some positive acts.

The negative rights are the rights which omit the person from performing certain acts. Negative rights correspond to negative duty. The person on whom such duty is imposed is restrained from performing certain acts.

2. Real and personal rights 

Real rights are imposed on persons in general. Personal rights are the rights which are imposed on determinate individuals.

3. Personal and Proprietary Rights

Personal rights are the right to respect the owner of the right. The personal right has no economic value and this right is related to personal status or well being. Example the right to live with dignity, the right to freedom of speech and expression.

The proprietary right is given in respect of the owner of the property. These rights are rights which has some monetary value or economic value and constitute the estate of the person.  Example-patent rights, right to land, debt etc.

4. Perfect and Imperfect right

Perfect rights are protected and recognized by law and the suit can be instituted in the court against the wrongdoer for the breach of it. Example: A has taken the loan from B. B has the duty to pay the loan and A has the perfect right to claim the loan amount. If B fails to pay then A has the right to file the suit in the court.

Imperfect rights are those rights which are neither recognized nor protected by law. Example: if the loan becomes time-barred, then he can claim his money back but it cannot be enforced by law.

5. Vested and Contingent Rights

A vested right is a right which is vested on the person from the very beginning. No events are required to take place for conferring the rights of an individual. It depends on the present situation.

Contingent rights are rights which are conferred on the happening or non-happening of certain acts. This right depends upon future acts. If the act which is prescribed take place then only the right will be conferred on the person.

6. Servient and dominant rights

Servient rights are subjected to encumbrance while the dominant rights are enjoyed by the dominant owner.

Custom as a source of Law

Q. What do you know about "Local Custom" and "General Custom"? [4 marks - 2023]

Q. Why the custom has been accorded the source of law? Explain and illustrate. [10 marks - 2023]

Q. What is conventional custom? When does it become binding? [10 marks - 2019]

Q. What are essentials of valid local custom? [10 marks - 2018]

Custom

Custom can simply be explained as those long-established practices or unwritten rules which have acquired binding or obligatory character. 

There are multiple views on whether custom can be considered as a source of law. Austin opposed custom as a law because it did not originate from the will of the sovereign. However, Jurists like Savigny consider custom as the main source of law. According to him the real source of law is the will of the people and not the will of the sovereign.

In India many customs have been incorporated as law. For example, the customary practice of Saptapadi or sat phera has been incorporated in Section 7 of the Hindu Marriage Act, 1955. 

Customs can be of two types: 

Customs without sanction: These are non-obligatory in nature.

Customs with sanction: These are binding in nature and are enforced by the

State. These customs may further be divided into the following categories:

(1) Legal Custom: Legal custom is a custom whose authority is absolute; it

possesses the force of law. It is recognized and enforced by the courts. Legal

custom may be further classified into General custom and Local custom.

(a) General Customs: Customs that prevail throughout the territory of the State.

(b) Local Customs: Local customs are applicable to a part of the State, or a

particular region of the country.

(2) Conventional Customs: Conventional customs are binding on the parties to an agreement. When two or more persons enter into an agreement related to a trade, it is presumed in law that they make the contract in accordance with established convention or usage of that trade. For instance, an agreement between landlord and the tenant.

Essentials of a valid custom:

The jurists and courts have laid down some essential tests for customs to be recognized as valid sources of law. These tests are summarized as follows:

1. Antiquity: In order to be legally valid customs should have been in existence for a long time, even beyond human memory. 

2. Continuous: A custom to be valid should have been in continuous practice without any kind of interruption. 

3. Exercised as a matter of right: Custom must be enjoyed openly and with the

knowledge of the community. It should not have been practised secretly. 

4. Reasonableness: A custom must conform to the norms of justice and public utility. 

5. Morality: A custom which is immoral or opposed to public policy cannot be a valid custom. 

Legal Person : Definition, Kinds, Examples and Theories

Q. What are the kinds of persons? Explain kind of legal person. [4 marks - 2023]

Q. What do you understand by the term 'Legal Personality'? What are its theories? [20 marks - 2022]

Legal Entity

There are two kinds of legal entities: Human and non-human person

Human person are known as the natural persons in legal terminology.

Non-human persons are known as Legal Persons or Juristic Person in law.

Legal Person

A legal person or a juristic person is a person created by the law for legal purpose. These are not human beings. The legal persons have legal rights, they are represented in the court of law by their authorised representatives.

Examples of Legal Persons

1. Corporations

2. State

3. Deities

4. Animals

5. Rivers

Theories of Legal Person

Fiction Theory 

The Fiction theory identifies only human beings as proper ‘persons'. Certain groups of human beings are regarded as persons, for certain purposes only by a fiction of law and they have no real personality. The prominent jurists Savigny, Salmond and Dicey support this theory. This theory is very popular because it is not based on any metaphysical notion or argument. It is argued on the basis of this theory that as a juristic person has only a fictitious will, it cannot commit crimes.

Concession Theory 

The Concession theory states that the creation of juristic personality is absolutely at the discretion of state. This theory has been used in many cases to suppress autonomous institutions. 

Realist Theory 

Realist theory also called organic theory, says that a group has a real will, real mind, and a real power of action. A corporation has all the characteristics which a natural person has. Therefore, juristic person are real in the same sense in which human beings are. The main exponent of this theory is Gierke. 

Bracket Theory 

Also known as Symbolist Theory: This theory says that the members of the corporation are the only persons who have rights and duties. The granting of juristic personality means putting a bracket around the members in order to treat them as a unit. This is done for purposes of convenience. In other words, juristic personality is only a symbol which helps in effectuating the interest or the purpose of the group. The theory speaks great truth when it says that the groups are only to effectuate the interest of its members, but it has certain weaknesses also.

Vested and Contingent Ownership - Jurisprudence

Q. Explain vested and contingent ownership. [4 marks - 2023]
Q. Define 'Vested' and 'Contingent' ownership and what is the difference between both the kinds of ownership? [20 marks - 2022]

Vested and Contingent Ownership

Ownership is the legal right on a property. Ownership can be of two types Vested and Contingent.

Vested Ownership

Vested ownership is when the title to the property is perfect. There is no condition attached. For example, two persons are sharing ownership of a property. If one of them die the other person gets vested ownership to the property.

Contingent Ownership

In contingent ownership the person does not have a clear title to the property. On fulfilment of certain conditions he may gain the ownership. There may be two types of conditions attached to the claim of ownership. Condition precedent and condition subsequent. On fulfilment of condition precedent, clear title is obtained. On fulfilment of condition precedent the ownership is extinguished.

Difference between Vested and Contingent Ownership

Vested Ownership	Contingent Ownership
There is no condition in Vested Ownership	Contingent Ownersheip is conditional
Ownership is automatically vested	Ownership is transferred on fulfilment of the underlying condition
Ownership can not be destroyed	Ownership is destroyable

Preamble

Q. Short note on Preamble [4 marks - 2019]

Preamble

A preamble is an introductory statement in a document that explains the document's purpose and underlying philosophy. It's often used in the opening paragraphs of a statute, where it may recite historical facts relevant to the subject of the statute.

Codification of Law : Merits and Demerits

Q. Short note on Codification [4 marks - 2019]

Q. What is codification? What are the merits and demerits of codification? [20 marks - 2019]

Codification of Law 

Codification is the process of compiling laws into an orderly formal code. The code is a systematic compilation of existing laws to be included in a legislative statute. It is a compilation of all the laws in force, including the enacted laws and case law, covering a complete legal system or a specific area. A code can make the formulation of legal principles and rules more concise, clear, and thorough, so that people can understand the rules more quickly and comprehensively.

Merits of codification

1) Certainty: By Codification, law becomes certain. It no longer remains vague and uncertain as it generally in precedent and custom.

2) Simplicity: The codification makes law simple and by the way of simplicity it makes it easy and accessible to everybody. By code anyone can know the law on a particular point. This enables the citizens to know their rights and duties and thus greatly helps the administration of justice.

3) Logical arrangement: In code, law is logically arranged in a coherent form. There are little chances of any conflict arising among the different provisions of the law. Thus, the law is coordinated and systematized in the code.

4) Stability: The codification makes the law stable. The law which comes into existence by the way of other sources has not that much of stability. Stability is very essential for law so that the people may have confidence in it and the legal transaction may be made easily and smoothly.

5) Unity: The codification is an instrument of forging unity among the people. Codified laws have uniform and wider application. Thus it helps in creating unity and integration in a country.

6) Planned development: The planned development in a country is possible only through codification. A nation cannot make the desired divergent ways. By codification there comes uniformity and the desired development is speedily achieved.

Demerits of codification:

1) Rigidity: The codification causes rigidity in the law. It is essential that the law must keep up with the time and should change itself to new conditions. When the law once it is codified, there will be a little scope that there maybe a little change. When the law is codified, the only way of changing it is through the way of amendments. Generally, it is not easy and it takes time. Hence, codification gives rigidity to law.

2) Incompleteness: The codes are generally incomplete. It is not possible to expect all the problems that might arise in the future. Therefore, provisions cannot be made for them in code. Thus, by this way the code is incomplete. Thus, in regard with the law, the indefiniteness and uncertainty happens.

3) Hardship: The code generally provides uniform laws, which are applicable to all present within the territory or part of it. The application rarely views on the grounds which say about the customs, convictions and that even includes the habits of the people.

4) Defective codes: Certain defects are bounded in a code. They cannot be removed and it can be removed by the legislative amendment. This causes great delay and inconvenience. Hence, the defects of a code remain for a very long time.

Strict Interpretation of Taxation Statutes

Q. What do you understand by strict interpretation of taxing statutes? Explain with the help of leading cases. [20 marks - 2020] 

Q. What do you understand by the strict interpretation of tax laws? Explain with the help of case laws. [20 marks - 2019]

Q. Why should taxing statutes be strictly construed? [BA-LLB - 4 marks - 2022]

Q. What is strict construction of statutes? [BA-LLB - 4 marks - 2021]

Q. Interpretation of taxing or fiscal statutes. Discuss. [BA-LLB - 10 marks - 2020]

Q. Short note on Strict interpretation [BA-LLB - 4 marks - 2019]

Strict Interpretation of Taxation Statutes

Rule of Strict Interpretation 

Strict rule of interpretation is one of the principles used to interpret financial and penal statutes. According to this rule, plain, clear and direct meaning is given to words which are commonly used by the general public. Court cannot give particular meaning to a word which is not clear by making a presumption that particular meaning is the intention of the legislature. Court cannot under the guise of possible or likely intention of the legislature, give meaning to the words which are not clear and where contextual meaning cannot be made out. 

Rule of Interpretation applicable to Taxation Statute

Taxation statute is a fiscal statute which imposes the pecuniary burden on the taxpayer. So such statutes are construed strictly. Plain, clear and direct grammatical meaning is given. Where there are two possible outcomes then that interpretation is given which is in favour of assessee. 

A tax is imposed for public purpose for raising general revenue of the state. A taxing statute is to be strictly construed. Lord Hasbury and Lord Simonds stated: "The subject is not to be taxed without clear words for that purpose; and also that every Act of Parliament must be read according to the natural construction of its words."

Reasons for Applying of Strict Rule on Taxation Statute

1. Creates financial liability: Taxes creates a financial liability on the taxpayer and thus, is considered as penalty on the taxpayer. Thus, unless the imposition of tax is clearly backed by law, no tax can be imposed. 

2. Eradicate loopholes: It is possible that the assessee might use some shortcomings in the law as a loophole and take advantage of it. As tax results in pecuniary burden so the benefit of doubt is given to assessee in case of any contradictions.

3. No scope of presumptions: Strict rule is applicable to taxation statutes, so courts are bound to give clear and plain meaning to the words. There is no presumption of tax or intendment of the legislature to impose tax unless clearly and specifically provided. 

Case References

1. H. H. Lakshmi Bai vs. CIT - [(1994) 206 ITR 688, 691 (SC)].

2. ACIT vs. Velliappa Textiles Ltd. (2003) 263 ITR 550 (SC)

3. Associated Cement Co. Ltd. vs. Commercial Tax Officer AIR 1981 SC 1887

4. A. V. Fernandez vs. State of Kerala, [AIR 1957 SC 657] 

External Aids to Interpretation of Statutes

External Aids to Interpretation of Statutes

Aids means help for interpretation of statutes. External aids are the helps sourced from outside the statutes. Using external aids for interpreting statutes plays a crucial role in legal analysis. These aids provide valuable insights and guidance to understand the meaning and intent behind legislative provisions. 

The following External Aids are commonly used in Interpretation of Statutes

Case law

Case law is the most widely used external aid. Judicial decisions on related and similar issues based upon interpretation given by courts in previous cases provide a remarkable help in deciding current case. 

Statements of Objects and Reasons

The introducer of any bill would have justified its enactment, known as the Statements of Objects and Reasons, hold significant importance in the process of interpretation.

In the Ashwini Kumar Ghose v. Arabinda Bose case, Chief Justice Patanjali Shastri expressed that the Statements of Objects and Reasons should not be considered an external aid to interpretation. However, in the case of State of West Bengal v. Subodh Gopal Bose, Justice S. R. Das took and opposite view and considered these essential in deciding the case.

Historical Facts

Historical facts play a crucial role in establishing the context in which a statute was enacted, providing background information and aiding in interpretation. 

Scientific Inventions

In the interpretation of statutes, it is essential to consider any subsequent developments related to the statute’s provisions. Society is continuously progressing and rapid advancements are occurring in various domains. Therefore, while interpreting statutes designed to govern these developments, it is important to consider these evolving circumstances.

A notable case illustrating this principle is State v. J. S. Chawdhry.

Other Statutes

When a statute lacks clarity regarding its intended meaning, other statutes in pari materia that deal with the same or similar subjects can be considered for interpretation. It is also an external aid to the interpretation of statutes. 

In the case of State of Madras v. A. Vaidyanath Iyer, the accused, an income-tax officer, was charged with accepting a bribe. The trial court sentenced him to six months of rigorous imprisonment. However, the High Court acquitted the accused upon appeal, suggesting that he may have borrowed money instead of accepting it as a bribe.

Foreign Decisions

Decision by the foreign courts in similar issues are generally considered for as a source of contextual help. However, the decisions of foreign courts do not bind Indian courts and such decisions are merely persuasive. In the case of M. V. Elisabeth v. Harwan Investment and Trading Pvt. Ltd., the Supreme Court took a different stance from the English courts when interpreting the phrase “damage caused by a ship” under Section 443 of the Merchant Shipping Act, 1958. 

Dictionaries and Textbooks

When a word is not defined in the statute itself, it is permissible to refer to dictionaries to find out the general sense in which that word is understood in common parlance. However, in the selection of one out of the various meanings of a word, regard must always be had to the scheme, context and legislative history. 

CCSU LLB / BA-LLB Question Reference

Q. Explain the external aids of construction. [20 marks - 2019]

Q. Explain the value of external aids in the construction of statutes. [20 marks- 2017]

Q. What are the different aids to construction? Enumerate the various external aids employed in interpretating a statute. [BA-LLB - 20 marks - 2022]

Interpretation of Statutes - Meaning, Objectives and Importance

Interpretation of Statutes - Meaning, Objectives and Importance

Meaning

Interpretation is the process to determine the meaning of the statutes or other legal provision. It is also known as statutory construction. A statutory provision may be understood in more than one way depending on the words used to construct the rule. The rules of interpretation provides a framework which ensures that the most suitable meaning is considered for each scenario.

Objectives or Purpose

The main objective or purpose of statutory interpretation:

1. Understanding the intent of the legislators: The main purpose of interpretation is to understand the intent of the legislators. Once this is understood and established, steps to be taken to achieve this intent.

2. Protecting rights: Statutory interpretation should focus on protecting and prioritising the rights and interests of the parties.

Importance

1. Fair resolution of legal disputes: The process of statutory interpretation enable courts and other bodies involved in adjudication to apply the law to specific cases and resolve legal disputes fairly.

2. Prevent misuse of power: Statute worded in ambiguous language may enable government officials to interpret it in ways that allow them to exercise their powers arbitrarily. Statutory interpretation by the courts plays an important role in preventing this misuse.

3. Prevent crime: Narrow interpretation of criminal statutes may not be capable of curbing crimes. Suitable interpretation has the capability to both prevents crime and safeguards individual rights.

4. Swift delivery of justice: The rule so interpretation provides tools to promptly and accurately understand the law. This helps in preventing delays in the delivery of justice.

CCSU LLB / BA_LLB Question References

Q. What do you mean by Interpretation of Statutes? Discuss the purpose and importance of Interpretation. [20 marks- 2017]

Q. What do you mean by interpretation? [4 marks - 2019]

Q. What is the significance of interpretation of statute?

Mention the different methods of interpretation in a nutshell. [BA-LLB - 20 Marks - 2022]

Q. Discuss the meaning, purpose and scope of Interpretation of Statutes. [BA-LLB - 20 marks - 2020]

Q. "Interpretation is said to be the process by which the courts seek to ascertain the true meaning of a legislation". Explain with decided cases. [BA-LLB - 20 marks - 2021]