Duty, obligation and liability, and the sources from which they arise

1. Duty

A duty is an act or forbearance that the law requires, its breach being a wrong. For Austin and Kelsen, duty is defined by the sanction: to be under a duty is to be liable to a sanction on non-compliance. Hart rejected this: a duty is a standard of conduct accepted from the internal point of view, and the sanction is secondary (see Legal Theory, Hart).

• Positive and negative: to act (pay rent) or to forbear (not trespass).
• Primary and secondary (sanctioning): the duty not to injure; the duty to pay compensation after injury.
• Absolute and relative (Austin): relative duties have a correlative right in a determinate person; absolute duties do not, such as duties owed to the sovereign, to the public at large, or self-regarding duties. Salmond denied absolute duties by treating the State or the public as the right-holder. The debate is the correlativity question in Hohfeld.
• Moral and legal: the Directive Principles are fundamental in governance but not enforceable (Article 37); Fundamental Duties (Article 51A) are duties without direct sanction, used by courts as aids to interpretation.

2. Obligation

In Roman law an obligatio was a legal bond (vinculum juris) by which one person is bound to perform something to another. Salmond uses obligation in this narrow sense: a proprietary right in personam, or the correlative duty. It is distinguished from duties in rem (owed to all) and from status duties.

Sources of obligations (Salmond, following the Roman division):

1. Contract (ex contractu): obligations created by agreement.
2. Tort (ex delicto): obligations to compensate for civil wrongs.
3. Quasi-contract (quasi ex contractu): obligations imposed by law to prevent unjust enrichment, as in sections 68 to 72 of the Indian Contract Act, 1872 (necessaries, payment by an interested person, non-gratuitous acts, finder of goods, mistake or coercion).
4. Trust (an equitable obligation of the trustee).
5. Other: obligations imposed directly by statute (maintenance, taxation), judgments, and fiduciary relations.

Modern English law recognises unjust enrichment as an independent source (Lipkin Gorman v. Karpnale Ltd., House of Lords, 1991). Civil codes use the same four-part scheme.

3. Liability: the theory

Liability is the condition of a person who has done a wrong and must answer for it (Salmond: the bond of necessity between the wrongdoer and the remedy). It may be civil (remedial: damages, restitution, injunction) or criminal (penal: punishment), and the same act may produce both.

Conditions of liability. As a general rule, liability requires an act (actus reus) and a guilty mind (mens rea): actus non facit reum nisi mens sit rea. Mens rea takes three forms:

• Intention: the act is done with desire for its consequences, or with knowledge that they are virtually certain.
• Recklessness: conscious taking of an unjustified risk.
• Negligence: failure to take the care a reasonable person would take. Two theories compete. The subjective theory (Salmond) treats negligence as a state of mind, careless indifference. The objective theory (Pollock, and modern law) treats it as conduct falling below a standard, regardless of state of mind.

4. Exceptions to mens rea

• Strict liability: liability without proof of fault, subject to defences. Rylands v. Fletcher (House of Lords, 1868) imposed it for the escape of a dangerous thing brought onto land in the course of non-natural use, with exceptions for act of God, act of a stranger, consent and statutory authority.
• Absolute liability: in M.C. Mehta v. Union of India, 1987 INSC 261, the Supreme Court held that an enterprise engaged in a hazardous or inherently dangerous activity is absolutely liable for harm resulting from it, without the Rylands exceptions, and that damages should be related to the enterprise’s capacity to pay. The rule was applied in Indian Council for Enviro-Legal Action v. Union of India, 1996 INSC 237, and is the basis of no-fault liability under the Public Liability Insurance Act, 1991 and the National Green Tribunal Act, 2010.
• Strict liability offences in regulatory criminal law (food adulteration, pollution, economic offences), justified by the public interest and the difficulty of proof.
• Vicarious liability: liability for another’s wrong because of a relationship, chiefly master and servant (acts in the course of employment), principal and agent, and partners. Its justifications: the employer controls the work, profits from it, can spread the loss by insurance and price, and is better able to pay. Corporations are liable through their agents and, in criminal law, through the directing mind (Tesco Supermarkets v. Nattrass, House of Lords, 1971).

5. Theories of punishment and remedial liability

Penal liability is justified by deterrence (Bentham), retribution (Kant), reformation (the Indian probation and juvenile justice systems) and prevention. Remedial liability aims at restoring the injured party to the position he would have been in (restitutio in integrum). The measure of criminal liability depends on motive, the magnitude of the harm, the temptation and the character of the offender; the measure of civil liability on the loss, subject to remoteness (Hadley v. Baxendale in contract, 1854; The Wagon Mound in tort, Privy Council, 1961).

6. The sources from which rights and duties arise

Legal rights and duties come from three formal sources. Their full treatment belongs to jurisprudence at LL.B. level and to the Judicial and Legislative Process paper; for Legal Concepts the point is their effect on rights.

• Legislation: the deliberate creation of rights and duties by a competent authority. Supreme legislation (Parliament and State Legislatures, within constitutional limits) and subordinate legislation (rules, regulations, by-laws).
• Precedent: under Article 141 the law declared by the Supreme Court binds all courts in India. Rights created by judicial decision (privacy, the right to a speedy trial, absolute liability) are as real as statutory rights. Ratio decidendi binds; obiter is persuasive.
• Custom: a custom creates rights if it is ancient, certain, reasonable, continuous, peaceably enjoyed, and consistent with statute and public policy. Customary easements and local customs of succession are examples; Article 13(3)(a) includes custom and usage in “law”, so custom too must conform to Part III.
• Other: agreement (contract creates rights between the parties), equity and good conscience, juristic writing (persuasive), and international law where incorporated (Vishaka v. State of Rajasthan, 1997 INSC 604, used CEDAW to fill a legislative gap).

How this is examined

As part of an answer on rights and duties: the correlativity debate and kinds of duty (section 1). As short notes: sources of obligation; strict and absolute liability with M.C. Mehta; vicarious liability; mens rea and negligence theories. The sources of rights in section 6 are useful in the opening of any concept answer.