Law of obligations

The Law of obligation

 

Concept of obligation

It is a proprietary right in personam or a duty, which corresponds to such a right. (Salmond)

Obligation is that part of law which creates right in personam (Paton)

It is the “possession of the will of another, as means of determining it, through my own, in accordance with the law of freedom, to a definite act” (Kant) 

An obligation is a tie whereby one person is bound to perform some act for the benefit of another (Holland).

Senses where obligation is used.

There are three senses in which the term obligation is used.

(1)    It is a synonym for legal duty (in common speech)

(2)    It is restricted to one class of duties, namely, those which correspond to a proprietary right in personam or which are the correlatives of rights in personam ( in narrower sense )

(3)    obligation is a bond of legal necessity between two or more parties, i.e. duty from one point of view and right from another.

Duty-when the person bound

Right-when the person entitled

NB. But in all cases obligation pertain to proprietary rights.

 

Obligation and liability

Obligation: It refers to a duty laid upon a person which he ought to do

Liability: It refers to something, which a person must do because he has failed to do what he ought to have.

 

Kinds of obligation

1. Imperfect and perfect obligation

Imperfect obligation: It is used to describe a moral duty.

Example: A time barred debt.

It is the moral duty of the debtor to pay the time barred debt because under law he cannot be compelled to pay it.

2. Perfect obligation : opposite to imperfect obligation

Again, from the viewpoint of number of persons bound, obligations are of 2 kinds, namely:

(1)    Simple obligations

These relate to single creditor and single debtor.

If there are two or more creditors, they are called co-owners or joint-owners.

(2)    Solidary obligations

These relate to those where two or more debtors owe the same thing to the same creditor/s.

Each debtor is bound for the whole of the obligation and not for a proportionate part.

Obligation is solidary only when each is liable for the whole.

NB. In simple obligations: debtor and creditor→ single or creditors are many

        In solidary obligations: debtors are many and creditor/s are same.

 

Sources of obligation  

Obligations, according to Salmond, are divisible into four classes, namely

(1)     Contractual obligation

(2)     Delictal obligation (violation of law)

(3)     Quasi contractual obligation

(4)     Innominate

1. Contractual Obligations

< These are those obligations which are created by contracts and agreements.

< These create right in personam between the parties.

< The rights so created are generally proprietary rights. But sometimes, a contract creates rights which are not proprietary though they are in personam. The example is, a promise of marriage.

2. Delictal obligation

— Delictal obligations arise from tort acts.

—Tort, according to Salmond, is a civil wrong the remedy of which is an action for damages.

—Delictal obligations are those in which a sum of money is to be paid as compensation for a tort.

—A tort has a penal as well as remedial element and the same act may be a crime and a tort.

Distinction between contractual obligation and delictal obligation

Contractual obligation	Delictal obligation or tort.
1. A contract is based on consent.	1.A tort is inflicted without consent.
2. The rights and duties arise from an agreement between the parties	2. Aliter
3. Duty in a contract is not enforceable by a 3rd party but by parties inter se.	3. Any body suffering from violation of law can file suit.
4. A breach of contract is a violation of a right in personam.	4. A tort is mostly a violation of a right in rem.
5. In breach of a contract the damages awarded are in the nature of compensation.	5. In tort, the damages are exemplary.

3. Quasi-contractual Obligation

— These are those obligations which the law regards as contractual though they are not actually so.

— Salmond calls it “contracts implied in law.”

Example: A money decree.

                 This decree creates an obligation though not contractual. There is no agreement to pay but still then there is a duty to pay by the judgment-debtor.

4. Innominate Obligations

Obligations which do not fall under any of the three heads above.

Examples of such obligations are:

(1)   obligations of trustees towards their beneficiaries

(2)   other similar equitable obligations.

Liability

Liability consists in those things, which a person must do or suffer because he has already failed in doing what he should do.

It is the ultimatum of law and has its source in the supreme will of the State

Liability means a bond of legal necessity that exists between wrongdoer and the remedy of the wrong.

Liability and obligation   

The former refers to some thing which the person must do or suffer because he has already failed to do so.

The latter refers to what a person ought to do on account of some duty cast upon him.

Kinds of Liability

(a)     Civil: It is the enforcement of right of the plaintiff against the defendant in civil proceeding.

(b)     Criminal: It is the liability in criminal proceedings whose direct purpose is the punishment of the wrongdoer.

(c)     Penal: It involves the idea of punishment

(d)    Remedial: It consists in the specific enforcement of plaintiff’s right, the idea of punishment being altogether absent.

Example: The liability to pay a debt is remedial, while the liability to be imprisoned or to pay damages is penal.

NB. Where there is a penal liability in civil law the idea of punishment is only in direct. The main idea is to enforce the plaintiff’s right. But in criminal liability the main purpose is the punishment.

Theories of Liability 

(A) Theory of Remedial liability: Its purpose is to remedy the injury caused by any violation of right by a person bound to comply with it.

— Idea of punishment is absent here.

Exceptions

There are three exceptions to the general rule that a man is made to do so by the force of law what his bound to do by a rule of law:

(1)     Duties of imperfect obligation or imperfect duties

The breach of an imperfect duty gives rise no cause of action. For example,  a time barred debt though a legal debt cannot be enforced by law as the right to sue is destroyed.

(2) Duties which cannot be specifically enforced after a breach has taken place.

When once libel or defamation has been committed its specific enforcement by refraining from its publication is not possible.

The offender once he has published the libel cannot be made to undo what he has already done.

(3) Where the specific enforcement of the duty is inexpedient or inadvisable.

The law, though capable of enforcing, refuses to enforce its specific performance of a promise of marriage and instead allows damages.

(B) Theory of Penal liability   

The theory of Penal liability is to be discussed relating to the following:

(1)     The condition of penal liability:- under what condition penal liability arises;

(2)     The incidence of penal liability:- the persons who are liable;

(3)     The measure of penal liability:- the kind of punishment to be inflicted.

 

1. The condition of penal liability

The condition of penal liability is expressed in the maxim actus non facit reum, nisi mens sit rea i.e. the act does not constitute guilt unless done with guilty intent.

The maxim necessitates consideration of two factors e.g.

(1)    The doing of act by the person to be held liable

(2)    Mens rea i.e. guilty mind of the wrongdoer

 

Kinds of acts

Act, according to Salmond, means an event which is subject to the control of the human will.

 

Kinds

(1) Internal act and external act

Internal acts are the acts of the mind and the external acts are the acts of the body. Jurisprudence always concerns external acts

Example: When I do something the idea is first conceived in my mind and this is internal act. When I move my body to implement my idea it becomes external or outward acts.

(2) Positive Act and Negative Act

The former is acts of commission and the latter is acts of omission or forbearance.

(3) Intentional act and unintentional act

An act is intentional when the result of the act was foreseen and desired by the doer.

An unintentional act is just the aliter of intentional act.

Mens rea

In the words of Lord Kenyon, the intent and act must both concur to constitute a crime.

Before punishing a person the law must be satisfied that the act has been done with the consequent harmful result and the mental attitude of the doer towards the deeds was such as to render punishment effective as a deterrent for the future.

 

Exoneration from mens rea

(a) Permanent or temporary incapability

The persons who are permanently or temporarily incapable of guilty intention are excused from criminal liability.

Example: Drunkenness or insanity.

A person under such circumstances are in capable of knowing the act he is going to do and the consequences thereof.

Similarly nothing is an offence which is done by a child under 7 years of age and he is not supposed to have any mens rea.

A child between 7 and 12 will be held liable only if he has attained sufficient maturity of understanding to know the nature and the consequence of the act he does.

NB. In the case of child under 7 the liability of the child is irrebuttable and in the case of child between 7-12 the presumption is rebuttable.

(b) Doctrine of self preservation    

If a man by the fear of immediate death be compelled to do an act against law he is totally excused because no law can oblige a man to abandon his self preservation.

Mens rea and kinds of wrong

Mens rea requires three kinds of wrongs e.g.

(A) Intentional wrong: where the consequence of the act is foreseen and desired.

— Intention is divisible into immediate and ulterior intent.

— The immediate act is the intention whereas the ulterior object is called motive.

Malice 

It means ill will or spite. Malice is a wish to injure the party rather than to vindicate the law.

— Malicious act is not one, which is done accidentally, thoughtlessly or negligently but designedly, willfully or wantonly.

Wrongs of negligence

Negligence is culpable carelessness.

According to Salmond it is the mental attitude of undue indifference with respect to one’s  conduct and its consequences.

The ingredients of negligence are:

(1)    A legal duty on the part of A towards B

(2)    Breach of that duty and

(3)    Consequential damage to B

— So the plaintiff cannot win his action unless he can prove the above three things.

Duty of care     

A leading case on the duty of care is Donoghue Vs Stevenson (1932) AC 562.

Facts: ‘X’, a manufacturer of ginger beer, had sold to a retailer ginger beer in an opaque bottle, in which there were decomposed remains of a dead snail unknown to anyone.

‘Y’ bought the beer from the retailer and poured some of the contents of the bottle into a tumbler for a lady friend Z, who drank them and fell very ill.

Z sued the manufacturer.

Held: The manufacture X owed her a duty to take care that the bottle did not contain noxious matter and that he was liable if the duty was broken.

Standard of Care  

— Standard care is needed to be taken to avoid the plea of negligence.

— Whenever a person is under a duty to take care, he is bound to take that amount of care, which is deemed reasonable under the circumstances.

Theories of Negligence 

There are two rival theories of negligence viz, subjective theories and objective theories.

Subjective theory: Negligence is a condition of the mind. Salmond was the advocate of this theory.

Objective Theory: According to this theory, negligence is not a state of mind but merely a course of conduct.

Intention, Motive and Negligence, distinguished.

Intention	Motive	Negligence
1. It is a foreknowledge of the act coupled with the desire of it.	1. It is the ulterior intent with which an act is done.	1. Consequences of the act may be known to the wrongdoer but not desired.
2. Intentional wrong desires to do the harm.	2.               X	2. Negligent wrongdoer does not sufficiently desire to avoid it.

Contributory Negligence

— When a person contributes to his own injury when he so acts and when the plaintiff has also role in causing the negligence by the defendant.

NB. Plaintiff’s contributory negligence is no defense to an action for negligence, if the defendant by ordinary care could have avoided injuring the plaintiff.

Wrong of absolute liability

There are circumstances where a person is made responsible irrespective of the existence of either wrongful intention or negligence. They are termed wrongs of absolute liability.

This wrongs of absolute liability fall into three divisions viz.

(1)    Mistake of law: It is no defense to say that the defendant did not know the law. Everyone is supposed to know the law of the land or at least that part of law which concerns him.

(2)    Mistake of fact: Mistake of fact is a good defense to criminal liability. Because mens rea is absent here and also the wrongdoer did not know the act he was going to do and its consequence.

In civil law, it is no excuse.

Example: If I enter into a room believing it to be my friend’s who already shifted his residence elsewhere, I am liable for the trespass, even though it is a mistake of fact.

Accident

Accident is either culpable or inevitable

Culpable: It is caused by negligence.

Inevitable: It is a good defense both in civil and criminal liability. Thus vis major or act of God is a good defense.

            But in the case of dangerous property inevitable accident is no ground of defense in civil liability.

Example: If a person for his own purpose brings on to his land and collects and keeps there anything likely to do mischief if it escapes, he must keep it at his peril ( e.g. ferocious animals).

2. Incidence of Liability

Criminal: Criminal law is never vicarious except in a few extreme cases of statutory liability.

Example: A servant of a licensed vendor of arms and ammunition cannot sell arms to an un authorized person. Here the licensee is liable to punishment under the Arms Act.

Civil: Here one person can be made liable for the wrong done by other. This is called vicarious liability.

The cases are:

(1)   Master and servant: A servant is normally under the control of his master. A wrong done by the servant shall bind his master if the wrong is done within the course of employment.

(2)   Representatives of a dead man: The living representatives of a dead man may be vicariously liable for the acts done by the dead man.

3. Measure of Liability

Penal Liability: Three elements should be considered in determining the appropriate measure of punishment, which are:

(1)   Motive: Motive is a great factor in inflicting punishment.

Example: When a person is compelled to steal to feed his starving children the law generally considers such offence to be an extenuating circumstance for the infliction of punishment.

(2)   Magnitude of offence: The greater the offence, if other factors remaining equal, the severer should be the punishment.

(3)   Character of the offender: Habitual offenders are dealt to with more severely than an occasional or a casual offender.

Civil Liability    

Motive is irrelevant. The amount of loss inflicted is relevant irrespective of the character of the offender.