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This article has been written by Niti Shah studying BLS/LLB from Pravin Gandhi College of Law, University of Mumbai. The right to claim Penalty or Liquidated damages is because of ‘Breach of Contract’ which is a legal term. Hence, it is appropriate to understand this term.

What is meant by Breach of Contract?

Breach of contract usually occurs only when a party to the contract violates any of its laws mentioned in the contract such that it infringes on the other party. It may even hamper a party to execute its duties. A violation can be both whole or in part of the agreement. It should satisfy the below mentioned four conditions before a breach of contract can be upheld by a court of law:

The contract should have a valid offer, acceptance. The capacity to enter into a contract must also be present in terms of age and mental ability, intent, and object of the contract.
A plaintiff who is seeking penalty or liquidated damages should satisfy the court that the defendant has infringed the terms of the agreement, and consequently monetary loss has occurred.
The Plaintiff has to full all the duties required of him as per the contract.
The Plaintiff has to notify the defendant in writing of the breach that has been committed.

Some Types of Breaches are:

Material breach: A material breach is the most significant one which is required to destroy the value of the contract. It also includes the right to sue; it also relieves the party from performing his part of the contract.
Partial breach: This is not a significant breach and does not relieve the aggrieved party from executing his share of duties.
Anticipatory breach: When a party suspects from acts undertaken that the other party is willing to do his duties specified under the contract.

Liquidated Damages

‘Liquidated damages’ is an “ amount legally stipulated as an estimation of actual damages to be recovered by one party if the other party breaches the contract; also if the parties to a contract have agreed on Liquidated Damages, the sum fixed is the measure of damages for a breach, whether it exceeds or falls short of the actual damages.”

Liquidated damages are a calculated amount based on expected breaches. Whereas unliquidated damages cannot be calculated, maybe because of unknown factors that cannot be predicted in advance. As the Liquidated damages are assessed, hence the parties to the contract are aware of the consequences that follow a breach of an agreement. The damages are awarded to protect the commercial interest of the parties. They are so quantified so that the economic status of the affected party remains unaffected by the breach.

However, it cannot act as a source of enrichment. On the contrary, it must remain within the confines of what is called reasonable.

The Burden of Proving Monetary Loss

Section 106 of the Indian Evidence Act says that it is binding upon the person to know the fact to prove the same.it means that the burden to prove loss due to breach of contract rests with the affected party. The only exception is when the loss is noticeable but it is impossible to prove.

Can liquidated damages be awarded without proof of breach?

Section 74 of the Indian contract Act contains an expression which says that the parties complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby”

The above expression does not mean that even when actual loss or damage can be ascertained still it will be waived, and the party wrongfully shall be entitled to the estimated Liquidated damages. it is only applicable in cases where it is difficult or nearly impossible to prove the actual loss. Even then, the court shall first ascertain that it is impossible to prove damages in this case.

Penalty

An understanding of Liquidated damages which is a genuine loss that has been computed for breach of a contract. if the certain amount fixed is without any regard to possible loss but is mostly intended to refrain the other party from committing the breach, it is called a penalty. The specified sum is very extravagant and hence does not appropriate with the damage likely to occur. Penalty operates as a punishment and not compensation for loss endured.

Interpretation of S 74 by The Indian Courts

In case the amount is set out by the way of penalty, proof of damages is required. The Court will award to the party aggrieved only reasonable compensation not exceeding the amount named or penalty mentioned. Or absolutely, damages cannot be bestowed beyond really sustained. Contrarily, the penalty is defined as a sum calculated disproportionately to a loss in value.

Important features of Liquidated damages in commercial contracts

It is always drafted with mutual consent.
Breaches are usually listed.
It foresees the loss in advance and protects the parties
It is always legally enforceable.
It is a Simple dispute resolution process.
Fear of liability makes a person’s performance.
Once liability is proven or admitted the clause comes into subsistence.
Liability and compensation are known entities.
Provides stability to the contract.
In any wrongful termination claim, the operator does not need to prove either its entitlement to loss of profits or the value of its loss of profits claim.

Difference Between a Penalty and Liquidated Damages

The penalty is something that is usually used in a contract for securing the performance of the contract. The main purpose of the same is to make sure the money is paid. Also where the loss has been recovered is greater than the pre-estimated loss then it amounts to a penalty. Whereas liquidated damages are always compensatory in nature and are pre-estimated damages. The purpose of liquidated damages is to promote certainty in the commercial field. Liquidated damages are based on the pre-estimate of the loss, whereas the penalty is based on the doctrine of reasonable compensation.

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This article is written by Siddhi P. Nagwekar, a student of Karnataka State Law University’s Law School. This article goes on to entail what Doctrine of Privity is & its exceptions by referring to the relevant case laws and jurisprudence.

INTRODUCTION

As defined by D. M. Walker “ A contract is an agreement between two or more persons intended to generate a legal obligation between them to be legally enforceable.”1 Creating contract means creating rights and obligations for the parties just in case any of the contracting parties fails to perform the contract the opposite party is entitled to the rights for the legal remedy. The law of contract has been a crucial aspect in our everyday life. It has been directed by certain rules and doctrine of privity is also a core rule of it. This particular rule has been established since a long time but is not free from limitations.

P.S. Atiyah observes that, Privity of contact means- ‘a person cannot enforce a right arising under a contract if he was no party to it, even where it was intended that he should have a right. Likewise, a person cannot have any obligation enforced against him/ her where the obligation arises under a contact to which he was no party’.

G.H. Tretel says “The common law doctrine of privity means that a person can’t acquire rights or be subject to liabilities arising under a contract to which he is not a party.

The core of the doctrine of privity is the notion that only such parties related to the contract can have the rights or liabilities under it. It is closely linked to the rule that consideration must move from promise, but can be shown to be distinct from it.

Therefore, the doctrine of privity comprises of two prominent rules:

A person who is not a party to a contract cannot claim the benefit of it even though the contract was entered into with the object of benefiting that third party.
A third party cannot be subjected to a burden by contract to which he is not a party.

Accordingly, a person cannot acquire rights under contract to which s/he is not a party.

In 1861, the seminal case of Tweddle v. Atkinson established the rule privity of contract as a mainstay in English law. Here Where the fathers of a bride and groom agreed with each other to pay certain sums to the groom, adding that the groom should have the power to recover those sums by action if either failed to pay. The bride’s father defaulted and the groom sued, but his action failed on the grounds that he was not a party to the contract. Prior to the Tweddle decision, English law had no clear position regarding whether a third party could enforce a contractual term. The rule of privity of contract set forth by Tweddle was solidified in a case decided in 1915: Dunlop Pneumatic Tyre case. In the case, Viscount Haldane, L.C., viewed the rule of privity of contract as a fundamental principle of English law. He stated that a benefit could be conferred on a third party but not to the point that the third party could enforce the contract in person. Lord Sumner added that “undisclosed principals” to a contract cannot sue on a contract. The court as a whole did not discuss the rule of privity at any length; instead, the court assumed that privity of contract was well established in English law and was therefore uncontroversial. The privity of contract doctrine may be invoked as a matter of substantive or procedural law. In the common-law tradition, the doctrine is fundamental in all contractual relationships. By operation of the doctrine, only parties to an agreement can enforce it. This prevents a party or parties to a contract from imposing an obligation on a third party. A third party is also prevented from enforcing a right in a transaction though it may have an interest.

While applying the rule of privity, English Court has considered these two propositions:

Consideration must move from the promisee and the promisee only. If it is furnished by any other person, the promisee becomes a stranger to the consideration and, therefore, cannot enforce the promise.
A contract cannot be enforced by a person who is not a party to it even though it is made for his benefit. He is a stranger to the contract and can claim no rights under it.

Exceptions/Limitations to the Privity Contract

Acknowledgement or Estoppel: where by the terms of a contract is required to make a payment to a third person and he acknowledges it to that third person, a binding obligation is thereby incurred towards him. Acknowledgement may be expressed or implied. In the case of Khirod Behari Datta vs. Man Gobinda acknowledgement had generated the right to third parties to enforce the contract between the parties. In this case, the tenant and the sub-tenant of a piece of land agreed between themselves that the sub-tenant would pay the tenant’s rent directly to the landlord. Later, the landlord was allowed to get a decree for his rent directly against sub-tenant i.e. the sub-tenant was stopped from denying his liability to pay the tenant’s rent for the reason that there was no such contract between him and the landlord. Moreover, a third party could also be able to seek relief against a promisor on the basis of promissory estoppel principles. To succeed the third party would need to establish the elements of promissory estoppels.

Agency: The contract between the principal and the third party is recognized if an agent enters into an authorized contract with a third party on behalf of his/her principal. When the agent makes a contract with a third party on behalf of his principal, that contract is regarded by law as having been made by the principal himself/herself. Thus, s/he can sue on it and be sued on it.

Beneficiaries under trust or charge or other arrangements: a person in whose favour a charge or interest in some specific property has been created may enforce it though he is not a party to the contract. The beneficiary under the trust can sue the trustees in the situation even if s/he was not a party to the original agreement. It was established founded in the case of Klans Miltelbachert vs. East India Hotels Ltd where a beneficiary was allowed to take action directly against the hotel keeper who was injured by the negligent maintenance of the hotel premises. Similarly, in England, “trust” has been used as a device for holding the promisor to his promise. In case of Gregory & Parker vs. Williams Williams was made liable to the debt to Gregory as the promise he made, to do so with Parker.

Covenants on land: The rule of Privity may also be adapted by the principles concerning the transfer of immovable property. The principle of the famous case of Tulk vs. Moxhay is that a person who purchases a land with notice that the owner of the land is bound by certain duties created by an agreement or covenant affecting the land, shall be obligated by them even though he was not a party to the agreement. For instance, A transfers his land to B who covenants (promises) not to erect a piggery on the land. Subject to proper legal formalities, B’s promise will bind future owners of the land. So, if B sells the land to C, C is bound by B’s promise. A or A’s successors in title can legally enforce the covenant.

Insurance: according to the doctrine of privity no one except the parties to contract can claim for rights and be burdened with liabilities. However, in case of insurance contract, though the person who has insured one’s life, if dies then his /her relatives can claim the insured amount though they were not the party to contract. In the case of Tattersall v Drysdale it was decided that the driver of a motor vehicle is granted the benefit of an insurance policy made with an insurance company by the owner of the vehicle and which seems to cover the driver. Thus, this implies that insurance is another exception of the Privity of contract.

Marriage settlements, partition or other family arrangements: In the cases where a contract is made relating to the marriage, partition or other family arrangement and a provision is made in the interest of the person, such person may/can take advantage of the agreement though s/he is not the party to it. In the case of Daropti v Jaspat Rai the defendant’s wife was permitted to get benefit from the promise made between her husband and her father. Similarly, in another case of Veeramma vs. Appayya the mother was allowed to maintain a suit for the specific performance even though the contract was made among the father, daughter and daughter’s husband to keep the mother safe if the father’s property was inherited by the daughter.

Conclusion

The doctrine, whose main theme is preventing any rights or obligations to the third parties arising from the contract is now accepted as one of the foundations of the law of contracts. It was also held that ‘no stranger to the consideration can take advantage of a contract, although made for his benefit’. Entering into a contract creates interest in each party that the contract will be performed. The parties are bound to fulfil the promises done in the contract. However, the promises are only for the parties and any other person apart from them are exempted from the duties and rights conferred by the contract. This very principle which is one of the pillars of the law of contract is ensured by the doctrine of privity which is also accepted in our legal system.

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This article is written by Akshat Mehta, a student of the Institute of Law, Nirma University, Ahmedabad. In this research article, he tried to explain the validity of sting operations in India in the context of Constitutional Morality. He also expressed his ideas on negative outcomes of sting operations when it violates the Fundamental Rights of the citizens.

GENERAL INTRODUCTION

The credibility of sting operations has always been in question since its inception, not because of its end result but because of its means to reach the ultimate end. The word ‘Sting’ literally means “a carefully planned operation, typically one involving deception”. A sting operation is an informal gathering exercise which could also be called ‘Investigative Journalism’ and ‘Undercover Journalism’. A sting operation is often organized to expose or uncover the unreachable truth but the way it is being carried out is often termed as unscrupulous and unethical. In the Indian context, earlier it was being done only to expose the corruption cases and political mishaps but now is often organized by journalists and normal citizens to uncover the curtains from the so-called morality of public authorities and to expose them before the mainstream media.

Sting Operations in Indian Context

In Indian context ‘Sting Operations’ are sometimes regarded as unethical and unscrupulous because of two main reasons:

1) Sting operations have not been defined in any of our legislations and statutes nor it has been explicitly mentioned in any provisions of CrPC and IPC. Even after some cases being upheld by the Court of Law, none of the judges have given any guidelines in any of the judgments which could be used as a precedent in regard to ‘Sting Operations’.

2) It is mostly done by the journalists and high profile media personalities and such acts ultimately pose questions on the very credibility of media houses and journalists. How far is it justified to use any method of getting the information? Is it ethical for the journalists to use hidden cameras while reporting any story or case? Can media persons use false identities to access anywhere? Up to what extent the media can go and what is the ambit of covering and serving the information?

Although we don’t have any specific law to govern the ‘Sting Operations’ but an individual can freely approach the Court in seek of protection of his rights and freedom in existing laws. For example, wire trapping which is one of the vital parts during the string operation and provisions regulating it could be found in the Telegraph Act, 1885.

Violation of Rights

In regards to the Constitution of India, ‘Sting Operations’ violates two Fundamental Rights enshrined in the Constitution. These are:

1) Violation of Right to Freedom of Speech and Expression under Article 19(1) (a): The perpetrators of Sting Operations often claimed that ‘Sting Operations’ are covered under Reasonable Restriction of ‘Decency and Morality’ under Article 19(2) of the Constitution. On the contrary victims of the ‘Sting Operations’ call it violation of their basic Fundamental Right of free speech and expression. They also seemed to claim it as opposed to ‘Public Morality’ because it is not a legally defined and legally supported manner of accessing any information and exposing anyone.

In the case of ‘Romesh Thappar v. Union of India’ and ‘Brij Bhushan v. State of Delhi’, Honorable Court firmly affirmed that except the ‘restrictions’ mentioned under Article 19(2) of the Constitution, there could not be any other restrictions on the ‘Freedom of speech and expression’. The Court also cleared that no new restrictions could be added in the already existing category of ‘reasonable Restrictions’ under Article 19(2) because clause (2) was added after the enforcement of the Constitution by bringing the 1^st amendment which already imposes certain reasonable restrictions on this freedom.

2) Violation of Right to Privacy under Article 21: ‘Sting Operations’ were also criticized for violating the most crucial Fundamental Right of ‘Right to Privacy’ covered under ‘Right to Life and Personal Liberty’ under Article 21. As held in the case of ‘R. Rajagopal v. State of Tamil Nadu’, “the Right to Privacy is covered under the ambit of Right to personal liberty guaranteed under the Constitution of India.” It was also recognized that the right to privacy can be both an actionable claim and also a fundamental right.”

Types of Sting Operations

‘Sting operation’ and its types were as such not defined explicitly anywhere but over the period of time, based on the end result and outcome; it is divided into two types:

1) Positive Sting Operation: These are the operations undertaken keeping in mind, the benefit of society. Such cases were brought into the public domain to protect the interest of the society, which if not exposed could prove detrimental for the well being of society.

2) Negative Sting Operation: These are the operations that are in contravention to the rights and freedom of individuals and organizations. These operations don’t serve the interest of the society and are harmful to the person who was being exposed in the mainstream media.

Incidents Related to Sting Operations in India

Let’s have a look upon some of the cases of ‘Sting Operations’ in India:

1) Bangru Laxman Case: This was the first sting operation done in India by Tehelka in 2001. In this incident, the former president of BJP Bangru Laxman was caught taking bribes from the journalists who impersonated as the officials of Arm Dealer UK based West end International company. In this case, the court sentenced him to jail for four years.

2) Babu Bajarangi Case: Babu Bajarangi was one of the main accused of the Gujarat riots in 2002. He was caught on camera saying that he was proud of killings on 28 February 2002, which occurred a day after Godhra train carnage in which 97 Muslims were dead. The Court used the testimony of sting operation while convicting him.

3) Jessica Lal murder case: This case was again exposed by Tehelka, in which three witnesses by the name Shayan Munshi, Karan Rajput, and Shiv Dass were turned hostile and were later found to be bribed to change their statements in the Court of law.

CONCLUSION

All the claims related to validity or inadequacy of ‘Sting Operations’ are claimed using two arguments. One is totally supported by the Constitutional mechanism but the other one is claimed with the backing of ‘Public Morality’ and principles of Justice, Equality, Fairness, and good Conscience. Recently the chief minister of Delhi announced and appealed to the people of Delhi to carry out ‘Sting Operations’ for exposing corrupt government officials.

His decision was widely criticized by some people and appreciated by some. This is so because all of us have subjective notions when it comes to the ‘Morality and Ethics’. What might be morally justified for one individual might not necessarily be justified for another. So in my opinion there is a need to have a proper Law or Statute to legally justify the credibility of ‘Sting operations’ in India.

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This article is written by Joyita Mukhopadhyay, a student of Amity university Kolkata.

INTRODUCTION

Strict starting points and conventions in law have been subjects of examination in numerous nations among scholars, law specialists, and students of history. This has prompted a rich assortment of near lawful writing, enlightening juristic ideas and giving some huge experiences into the establishments of current lawful frameworks. Donald Davis Jr’s. The Spirit of Hindu Law is a near second to the works of art on Indology in analyzing the job of Dharma in Hindu lawful and strict customs. He has embraced a between disciplinary methodology and similar strategy which is both invigorating and uncovering. For Davis, “law is the religious philosophy of common life” and the European thought of law, as rules supported by sanctions implemented by the state, is an unnatural thought created at a specific crossroads in history to serve certain provincial destinations. Among the benefits he recognizes in the idea is that it recognizes and clarifies the hole among ‘rule’ and ‘conduct’ in regular day to day existence and features the higher reason included at whatever point law is conjured.

The genuine idea of law lies in its fundamental relationship with religion, however the two are various elements and have various tasks to carry out in the public eye. Regardless of a few centuries of purposeful secularization, the state couldn’t expel components of religion from the law even in countries that are generally common, liberal, and just. The approach he receives is to examine some select key ideas drawing support from definitive Sanskrit messages, relate them to the all out Hindu legitimate custom, and lastly draw out their importance to contemporary equity framework in similar circumstances. Hindu law is believed to be the most ancient legal system which is approximately 6000 years of.Hindu law is based on immemorial custom and secular law which is called Dharma. Dharma played an essential role in forming Indian law.

Provenance of Hindu Law

There are two type of provenance in Hindu law ,they are

Modern source of Hindu law and ancient source of Hindu law.

Ancient Sources of Hindu Law

Sources of hindu law are divided under

Shruti
Smriti
Digest and commentaries
Customs

Shruti

It is derived from shru which means to hear ,it signifies what is heard and it is considered as primary source of hindu law The shrutis consist of four vedas and upanishads dealing with the religious right that contained the meaning attaining true knowledge and moksha . There are four Vedas to be specific, Rig Veda (containing psalms in Sanskrit to be discussed by the main cleric), Yajurva Veda (containing recipes to be presented by the directing minister), Sama Veda (containing sections to be recited by diviners) and Atharva Veda (containing an assortment of spells and chants, stories, forecasts, apotropaic charms and some theoretical songs).

Every Veda has three sections viz. Sanhita (which comprises for the most part of the songs), Brahmin (discloses to us our obligations and methods for performing them) and Upanishad (containing the quintessence of these obligations). The shrutis incorporate the Vedas alongside their parts.

Smriti

The word smriti derived from smri which has significance to remember, They are utterance and precepts of almighty which have been heard and remembered by rishis from generation to generation. The smrities are divided into Dharma sutra (prose)and Dharmashatras ,the exact number of smritis is not defined but Manusmriti is the earliest one. The rules laid down in Smritis can be divided into three categories viz. Achar (relating to morality), Vyavahar (signifying procedural and substantive rules which the King or the State applied for settling disputes in the adjudication of justice) and Prayaschit (signifying the penal provision for commission of a wrong).

Digest and Commentaries

After smriti’s the next step in the development of Hindu law was the number of commentaries and digest based upon smritis. The commentaries is to interpret the law as laid down in the smriti’s. So a writing of a particular smriti is called commentaries while writing on different smrities is called Digest

They are number of commentaries but main commentaries are Daya Bhaga by jimutavahana and Mitakshara by Vijanamshwara

Custom

Custom is viewed as the third wellspring of Hindu law. From the soonest period custom (‘achara’) is viewed as the most noteworthy ‘dharma’. As characterized by the Judicial Committee custom connotes a standard which in a specific family or in a specific class or region has from long use gotten the power of law.

Custom is a rule source and its position is close to the Shrutis and Smritis yet utilization of custom beats the Smritis. It is better than composed law. There are sure qualities which should be satisfied for announcing custom to be a legitimate one. They are:-

The custom must be antiquated. The specific utilization more likely than not been drilled for quite a while and acknowledged by basic assent as an administering rule of a specific culture.

(ii) The custom must be sure and ought to be liberated from such an uncertainty. It should likewise be liberated from details.

(iii) The custom must be sensible and not against any current law. It must not be corrupt or against any open strategy and

(iv) The custom more likely than not has been constantly and consistently followed for quite a while.

Indian Courts perceive three kinds of customs viz: (a) Local custom – these are customs perceived by Courts to have been pervasive in a specific district or territory. (b) Class custom – these are customs which are followed up on by a specific class. Eg. There is a custom among a class of Vaishyas such that departure or deserting of the spouse by the husband repeals the marriage and the wife is allowed to wed again during the life-time of the husband. (c) Family custom – these are customs which are official upon the individuals from a family. Eg. There is a custom in groups of antiquated India that the oldest male individual from the family will acquire the bequests.

Modern Sources of Hindu Law

(I) Justice, Equity – Equity and Good Conscience

Once in a while it may happen that a question precedes a Court which can’t be settled by the utilization of any current principle in any of the sources accessible. Such a circumstance might be uncommon however it is conceivable on the grounds that few out of every odd sort of certainty circumstance which emerges can have a comparing law administering it.

The Courts can’t decline to settle the debate without law and they are under a commitment to choose such a case moreover. For deciding such cases, the Courts depend upon the essential qualities, standards and guidelines of fairplay and respectability.

In phrasing, this is known as standards of equity, value and great heart. They may likewise be named as Natural law. This guideline in our nation has delighted in the status of a wellspring of law since the eighteenth century when the British organization clarified that without a standard, the above rule will be applied.

(ii) Legislations

Enactments are Acts of Parliament which have been assuming a significant job in the development of Hindu law. After India accomplished freedom, some significant parts of Hindu Law have been arranged. Not many instances of significant Statutes are The Hindu Marriage Act, 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act, 1956, The Hindu Minority and Guardianship Act, 1956, and so on.

After codification, any point managed by the arranged law is conclusive. The institution abrogates all earlier law, regardless of whether dependent on custom or in any case except if an express sparing is accommodated in the order itself. In issues not explicitly secured by the classified law, the old printed law contains an application.

(iii) Precedents

After the foundation of British principle, the chain of importance of Courts was built up. The tenet of point of reference dependent on the standard of rewarding like cases the same was set up. Today, the choices of Privy Council are official on all the lower Courts in India aside from where they have been changed or adjusted by the Supreme Court whose choices are authoritative on all the Courts with the exception of itself.

Schools of Hindu Law

Schools of Hindu law are viewed as the essential wellspring of Hindu law which comprised in the advancement of the Hindu law from its underlying foundations. It is otherwise called the discourses and the digestives of the smritis. These schools have enlarged the extent of Hindu law and unequivocally contributed in its turn of events. These schools have enlarged the extent of Hindu law and unequivocally added to its turn of events.

The two significant schools of Hindu law are as per the following-

Mitakshara

Daya Bhaga

Mitakshara School

Mitakshara is one of the most significant schools of Hindu law. It is a running analysis of the Smriti composed by Yajnvalkya. This school is pertinent in the entire piece of India with the exception of in West Bengal and Assam. The Mitakshara has an extremely wide purview. Anyway various pieces of the nation provide legal counsel contrastingly in view of the distinctive standard principles followed by them.

Mitakshara is additionally separated into five sub-schools to be specific

Banaras Hindu graduate school

Mithila graduate school

Maharashtra graduate school

Punjab graduate school

Dravida or Madras Graduate School

These graduate schools go under the ambit of Mitakshara graduate school. They appreciate a similar essential rule yet contrast in specific conditions.

Benaras Graduate School

This graduate school goes under the authority of the Mitakshara graduate school and covers Northern India including Orissa. Viramitrodaya Nirnyasindhu vivada are a portion of its significant critiques.

Mithila Graduate School

This graduate school practices its clout in the regional pieces of tirhoot and north Bihar. The standards of the graduate school win in the north. The significant discourses of this school are Vivadaratnakar, Vivadachintamani, smritsara.

Maharashtra or Bombay Graduate School

The Maharashtra graduate school has the power to practice its locale over the regional parts including Gujarat Karana and the parts where there is the Marathi language is capably spoken. The primary specialists of these schools are Vyavhara Mayukha, Virmitrodaya, and so on.

Madras Graduate School

This graduate school will in general spread the entire southern piece of India. It likewise practices its specialists under Mitakshara graduate school. The fundamental specialists of this school are Smriti Chandrika, Vaijayanti, and so on.

Punjab Graduate School

This graduate school was dominatingly settled in east Punjab. It had set up its own traditions and customs. The primary discourses of this school are viramitrodaya and its built up customs.

Dayabhaga School

Dayabhaga school transcendently won in Assam and West Bengal. This is additionally one of the most significant schools of Hindu laws. It is viewed as a review for the main smritis. Its essential centre was to manage parcels, legacy and joint family. As indicated by Kane, it was fused in the middle of 1090-1130 A.D.

Dayabhaga school was detailed with the end goal of destroying the various ridiculous and counterfeit standards of legacy. The quick advantage of this new condensation is that it will in general expel all the deficiencies and impediments of the recently settled standards and incorporation of numerous cognates in the rundown of beneficiaries, which was confined by the Mitakshara school.

In Dayabhaga school different discourses were followed, for example,

Dayatatya

Dayakram-sangrah

Virmitrodaya

Dattaka chandrika

Mitakshara and Dayabhagha schools are differed on important issues as regard to inheritance

Mitakshara the standard of blood relationship or association is followed if there should arise an occurrence of legacy though in the event of Dayabhaga school the legacy is represented by the standard of the contribution of pinda.

Mitakshara school the cognates are delayed to agnates or not favored upon agnates while if there should arise an occurrence of Dayabhaga cognates are favored upon the agnates.

Mitakshara school extended its acknowledgement to a restricted degree with respect to the acknowledgment of the precept of factum valet however Dayabhaga, then again, has extended it acknowledgement to the full degree.

Under the Hindu law the contrast between the Mitakshara school and the Dayabhaga school isn’t perceived as in the current situation there exists one uniform law of progression for all the Hindus.

Muslim Law

Muslim law is derived from divine the primary source of Muslim lw is sharia. Sharia law is Islam’s legitimate framework. It is gotten from both the Koran, Islam’s focal content, and fatwas – the decisions of Islamic researchers.

Sharia actually signifies “the unmistakable, very much trodden way to water”.

Sharia law goes about as a code for living that all Muslims ought to cling to, including petitions, fasting and gifts to poor people.

It plans to assist Muslims with seeing how they should lead each part of their lives as indicated by God’s desires. The divine communicate to Mohammad prophet who prescribe Quran, so the Quran is the foremost primary source of Muslim.

Features of Quran are

They are divine origin, first source, verse form, admixture of religion law morality , unchangeable &authoritative

Other than Quran another primary sources of Muslim laws are

Sunna

The word sunna implies the trodden way and as this significance shows it indicates a practice and point of reference. It is conviction of Muslim that disclosures were two sorts show (zahir) and inward (batin). Show disclosure is correspondence which is made by holy messenger Gabriel under the course of god to Mohammad in the very expressions of god. Quran is made out of show disclosures.

Interior disclosure is assessments of the prophet which is conveyed now and again on questions that happened to be raised before him. Sunna implies the model conduct of the prophet. The portrayals of what the prophet stated, did or implicitly permitted is called hadis or customs. The conventions, nonetheless, were not decreased to composing during the lifetime of Mohammad. They have been saved as customs passed on from age to age by approved people. The significance of hadith as a significant wellspring of Muslim law has been set down in the Quran itself.

Sorts Of Traditions: The Traditions Are Of Two Kinds:

1. Sunnat

2. Ahadis

These two have been characterized into the accompanying three classes based on mode or way in which it has really begun:

Sunnat-ul-come up short i.e., Traditions about which prophet did himself.

Sunnat-ul-qaul i.e., Traditions about which he urged by words.

Sunnat â€”ul-tuqrir i.e., The things done in his quality without his objection.

The three class of Ahadisare:

Alhadis – I-mutwair i.e., Traditions that are of open and general legitimacy and are held as totally legitimate. In such hadis the chain is finished.

Ahadis – I-mashhoor i.eTraditions which are known to a dominant part of individuals, don’t have the character of all inclusive appropriateness.

Ahadis-I-wahid i.e., Traditions which rely upon secluded people.

In this way two sources, in particular, the Quran and Sunna may hence be said to frame the crucial underlying foundations of Islamic law.

3. Ijma

It was similarly authoritative on the individuals to follow up on a rule (not as opposed to the Quran or hadis ) which had been built up by understanding among exceptionally qualified lawful researchers of any ages.

Ijma has been characterized by Sir Abdul Rahim as understanding of the legal scholars among the supporters of Prophet Mohammad in a specific inquiry of law. The legitimacy of ijma, as containing a coupling point of reference, depends on a hadis of the prophet which says that god won’t permit His kin to concur on a blunder. Ijma hence becomes a wellspring of law. As indicated by the old style hypothesis, bombing Quran and customs, and accord among the associates of the prophet is perceived as the best guide of law. In this way it is the third wellspring of law, both in purpose of time and significance.

The authority of ijma as a wellspring of Muslim law is additionally established on Quranand Hadith. The law is something living and evolving. The point of law is to satisfy the necessities of the general public. The rule of ijma depends on the content for example god won’t permit His kin to concede to a mistake and whatever Muslims hold to be acceptable is acceptable before god. Muslims religion doesn’t concede the chance of further disclosure after the passing of the prophet, the standard of ijma is the main expert for enactment in the current Muslims framework.

Sorts Of Ijma

Ijma is of three sorts:

Ijma of the allies of the prophet â€” is the consensual assessment of partner which is generally adequate, all through the Muslim world and is unrepealable.

Ijma of legal scholars is the consensual assessment of legal scholars which is accepted as its best ijma after ijma of sidekicks. All the legal scholars ought to sit together and talk about the thinking, and a larger part of the legal advisers is of the view that unanimity to shape ijma.

Ijma of the individuals â€” is the assessment of Muslim populace in general may have any significance however in genuine practice ijma of Muslim open had no an incentive with respect to lawful issues yet in issues identified with religion, petition and different observances have more worth connected to it.

Ijma can’t be limited to a specific period or nation. It is finished when the legal advisers, after due consultation, go to a discovering .it can’t be addressed or tested by any individual law specialist. Ijma of one age might be switched or altered by the ijma of the equivalent or ensuing age.

4) Qiyas

This is a last essential wellspring of Muslim law. Qiyas implies thinking by similarity from over 3 sources i.e., Quran, Sunna and Ijma. In Qiyas rules are concluded by the activity of reason.

Qiyas might be characterized as a procedure of finding by which the law of the content is applied to cases, which however not secured by the dialects are administered by reason of text. Consequently, it ought to be noticed that Qiyas doesn’t indicate to make another law, yet just to apply old built up standards to new conditions.

Like Hindu law secondary sources or modern sources of Muslims laws are

Judicial decisions

Legislation

Justice equity and good conscience

Schools of Muslim law

Schools have no territory or regional like Hindu law. The schools of Muslim law can be extensively ordered into two classifications:

Sunni Schools

Shia Schools

Sunni Schools

In Sunni group, there are four significant schools of Muslim law which are as per the following;

A. Hanafi School

Hanafi School is the first and the most well known schools in Muslim law. Before being named Hanafi, this school was known as Koofa School which depended on the name of the city of Koofa in Iraq. Afterward, this school was renamed as Hanafi School dependent on the name of its organizer Abu Hanafee.

The Prophet had not permitted his words and conventions from being composed, the Hanafi School depended on the traditions and choices of the Muslim people group. In this way, Hanafi School classified the point of reference which in predominance during that time among the Muslim people group.

The originator of this school Abu Hanafee had not recorded any book for laying the standards of this school and hence this school had developed through his two supporters Imam Muhammed and Imam Abu Yousuf. Them two provided for the Juristic inclination (Isthi Hasan) and arranged the Ijma’s of that period.

This school turned out to be generally spread in different regions, thus, most of Muslims in nations, for example, India, Pakistan, Syria, and Turkey have a place with Hanafi School. In India, since most of Muslims are from Hanafi School, the Courts choose the instance of a Sunni Muslim according to the Hanafi School except if it is indicated that they have a place with different schools.

In Hanafi School, Hedaya is the most significant and definitive book which was made over a time of 13 years by Ali receptacle Abu Baker al Marghinani. This book gives laws on different angles aside from the law of legacy. Ruler Warren Hasting attempts to make an interpretation of the Hedaya to English. He named numerous Muslim Scholars to interpret the book.

In any case, the Sirajiyya is considered as the legitimate book of the Hanafi Law of Inheritance. The book is composed by Sheik Sirajddin, and the principal English interpretation is composed by Sir William Jones.

B. Maliki School

This school gets its name from Malik-receptacle Anas, he was the Mufti of Madeena. During his period the Khoofa was considered as the capital of Muslim Khaleefa where Imam Abu Haneefa and his devotees prospered with Hanafi Schools. He found around 8000 customs of the Prophet however went along just around 2000 of them. At the point when the supporters of Imam Abu Haneefa classified their law dependent on Ijma’a and Isthihsan.

The maliki school gives the significance to the Sunna and Hadis while the Hanafi school gives the significance to the individuals and Isthihsan. According to Maliki School and Law, they infrequently acknowledge the Ijma’a. According to the Law, the individual gave Fatwa testing the sovereign authority of Khaleefa, he confronted ill will and of absence of help from Muslim governments. Accordingly, this Maliki school didn’t get a lot of prevalence.

In India, there are no adherents of this school however when the Dissolution of Muslim marriage act 1939 came in the image, a portion of the laws and arrangement of this school was considered as they are giving a bigger number of rights to the ladies than some other school. In Hanafi School, if the ladies do not get any updates on her better half, she needs to hang tight work 7 years for Dissolution of the marriage, while in Maliki School the ladies need to sit tight 2 years for Dissolution of the Marriage.

Mu-atha of Imam Malik is considered as the most definitive book of the Maliki School. This book is additionally the main book composed on the Hadis in Islam and this book is considered as the authority over all Muslims in the World.

C. Shaffie School

The Shaffie School gets its name on the name of Muhammad canister Idris Shaffie, his period was between 767 AD to 820 AD. He was the understudy of Imam Malik of Madeena. At that point he began working with the supporters of Imam Abu Haneefa and went to Khoofa.

He finishes up the thought’s and the hypotheses of Hanafi School and Maliki School in an amicable way. The Imam Shaffie was considered as one of the best legal scholar of Islam. He made the old style hypothesis of the Shaffie Islamic Jurisprudence.

As indicated by this school, they considered Ijma’a as the significant wellspring of the Muslim law and give legitimacy to the traditions of the Islamic individuals and follows more techniques for Hanafi School. The fundamental commitment of Shaffie School is the Quiyas or Analogy.

The Al-Risala of Imam Shaffie was considered as the main definitive book of Islamic Jurisprudence. In that book they talk about and decipher the Ijma’a (Consensus), Quiyas (Analogy), Ijthihad (Personal thinking) Isthihsan (Juristic inclination) and Ikhthilaf (Disagreement) in isolated part in his book Risala. His other book Al-Umm is the expert on Fiqh (study of lifestyle).

The devotees of Shafie School are spread in Egypt, Southern Arabia, South East Asia, Indonesia and Malaysia.

D. Hanbali School

The Ahmad receptacle Hanbal is the author of the Hanbali School. He found the Hanbali school in 241 (AD 855). He is the pupil of Imam Shaffie and supports Hadis. He unequivocally restricted the Ijthihad strategies. He presented the hypothesis of following the foundation of Sunna and Hadis and attempt to find the solution all his inquiry. His hypothesis was to come back to the Sunna of the Prophet. At the point when the Imam Shafie left for Baghdad, he proclaimed that the Ahmad container Hanbal was the just one after him who is the better law specialist after him. The adherents of Hanbali school found in Syria, Phalastine and Saudi Arabia.

Shia Schools

According to Shia Sect, there are three schools of law. Shia Sect is considered as the minority in the Muslim world. They appreciate the political force just in Iran however they don’t have the larger part in that state moreover.

A. Ithna-Asharis

These schools depend on the accompanying of Ithna-Ashari laws. The supporters of these schools are for the most part found in Iraq and Iran. In India likewise there is most of the shia muslim who follows the standards of the Ithna-Asharis School. They are viewed as political quietists. This school is considered as the most predominant school of the shia muslims. the ja’fari fiqh of the shias much of the time indistinct from at least one of the four sunni madhahib, with the exception of mutah is considered as the legitimate marriage. The individuals who follow the Ithna Asharis school accept that the remainder of the Imams vanished and to be returning as Mehdi(Messiah).

B. The Ismailis

As per Ismailis school, in India there are two gatherings, the Khojas or Western Ismailis speaks to the adherents of the current Aga Khan, who they considered as the 49th Imam in this line of Prophet, and the Bohoras for example the Western Ismailis are isolated into Daudis and Sulaymanis.

The Bohoras and Khojas of Mumbai are considered as the devotees of this school. It is viewed as that the supporters of these schools have unique information on strict tenet.

C. Zaidy

The adherents of this school are not found in India however are most extreme in number in South Arabia. This faction. of the Shia school is the most predominant among all in Yemen. The devotees of these schools are considered as political activism. They regularly dismiss the twelve Shia school ways of thinking.

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This article is written by Nazar Nawaz Abbasi pursuing LLB from Faculty of Law, University of Delhi.

Numerous laws are there which are having the provisions for the appointment of auditors. The law under which we appoint auditors lays down the procedure of their appointment and also the rights, duties and the functions of the auditor. Sections 138 to 148 of the Companies Act, 2013 concerned with accounts, audit and auditors. These provisions will have far-reaching impacts on the audit profession. Here we discuss the appointment and their role as an auditor under Companies act, 2013.

Who the Auditor is?

An Auditor is an independent person who is qualified to perform audit. In accounting, an auditor is the person who is responsible for evaluating the validity and reliability of a company or organization’s financial statements.

Appointment of Auditor under Companies Act, 2013

Chapter X, section 139 of Companies Act, 2013 deals with the appointment of an Auditor. Section 139(1) tells about when the appointment of an auditor can be done.

Section 139 clause (1) states that –“Subject to the provisions of this Chapter of the Act, each and every company shall, at the first annual general meeting, appoint a person or a firm as an auditor who shall hold the office from the conclusion of that meeting till the conclusion of its sixth annual general meeting and thereafter till the conclusion of every sixth meeting….”

As per section 139, it is a prime requirement for every company that it shall at the first Annual General Meeting appoint an auditor who is either an individual or a firm. It is important to note that the term Appointment includes reappointment.

The manner and procedure of selection of auditors by the members of the company will be such as prescribed. It is compulsory that before such appointment of the auditor is made, the written consent from him to such appointment, and also a certificate from him stating that the appointment, if made, shall be on par with the conditions/norms as may be prescribed, shall be obtained.

Tenure

An individual can be appointed as an auditor for more than a term of 5 consecutive years and if an audit firm is appointed as auditor then for more than two terms of 5 consecutive years.

Section 139(2) states that- “No listed company or a company belonging to such class or classes of companies as may be prescribed, shall appoint or re-appoint—

(a) An individual as an auditor for more than one term of five consecutive years; and

(b) An audit firm as an auditor for more than two terms of five consecutive years

Provided that—

(i) An individual auditor who has completed his term under section 139(2) (a) shall not be eligible for re-appointment as auditor in the same company for five years from the completion of his term;

(ii) An audit firm which has completed its term under section 139(2) (b), shall not be eligible for re-appointment as auditor in the same company for five years from the completion of such term.”

In a Government company, within a period of 180 days from the commencement of the financial year, the auditor shall be appointed who shall hold office until the conclusion of the annual general meeting.

Section 139(5) states that-“Notwithstanding anything contained in sub-section (1), in the case of a Government company or any other company owned or controlled, directly or indirectly, by the Central Government, or by any State Government , or partly by the Central Government and partly by one or more State Government, the Comptroller and Auditor-General of India shall, in respect of a financial year, appoint an auditor who is qualified to be appointed as an auditor of companies under Companies Act, 1963, within a period of one hundred and eighty days from the starting of the financial year, who shall hold office till the conclusion of the annual general meeting.”

Eligibility, Qualification and Disqualification of an auditor

A person shall be eligible for appointment as an auditor only if he is a Chartered Accountant.

Following are the disqualifications of an appointment to auditor of a company as per mentioned in Section 141(3) of Companies Act, 2013.

(a) An officer or employee of the company cannot be appointed as an auditor.

(c) A person who is a partner, or who is in the employment, of an officer or employee of the company cannot be appointed.

(d) A person who or his relative or partner-

(i) is holding any security of or interest in the company or its subordinate, or of its holding or an associate company or a subordinate of such holding company.

(ii) is obliged to the company, or its subsidiary, or its holding or associate company or a subsidiary of such holding company, in excess of such amount as may be prescribed.

(iii) has given a guarantee or provided any security in connection with the beholden of any third person to the company, or its subsidiary, or its holding or associate company or a subordinate of such holding company, for such amount as may be prescribed.

(e) a person or a firm who, either directly or indirectly, has business relationship with the company, or company’s subsidiary, or its holding or associate company or subordinate of such holding company or associate company of such nature as may be prescribed.

(f) a person whose relative is a director or is the employer of the company as a director or key managerial personnel.

(g) a person who is in employment elsewhere or a person or a partner of a firm holding appointment as its auditor, if such persons or partner is at the date of such appointment or reappointment holds appointment as auditor of more than twenty companies;

(h) a person who has been convicted by a court for an offence involving fraud and a period of ten years has not been completed from the date of such conviction;

(i) any person whose subordinate or associate company or any other form of entity, is engaged as on the date of appointment in consulting and specialized services as provided in section 144.

Powers of an Auditor

1. Right to access

Auditors of a company shall have the right to access books of accounts and vouchers of the company. The Auditor is entitled to require from officers of the company such information and explanation as he may consider necessary for performance of his duties.

There is an incorporating list of matters for which the auditor shall seek information and explanation. This list helps auditors to take care of serious issues. The list includes:

(a) Proper security for Loan and advances,

(b) Transaction by book entries

(c) Sale of assets in securities in loss

(d) Loan and advances made shown as deposits,

(e) Personal expenses charged to revenue account

(f) Case received for share allotted for cash

The auditor of the holding company also has the same right.

2. Auditor to sign audit reports

The auditor of the company shall sign the report or sign or certify any other document of the company and financial transactions or matters, which have any unfavorable effect on the functioning of the company mentioned in the report shall be read before the company in general meeting and shall be open to inspection by any member of the company.

3. Auditor in general meeting

It is a major requirement under section 146, that the company must send all notices and communication to the auditor, relating to any general meeting, and an auditor shall attend the meeting either through himself or through his agent, who shall also be an auditor. Such an auditor must be given a fair and sensible opportunity to speak at the meeting on any part of the business which concerns him as the auditor.

As per section 101 of the Companies Act,2013, notice of general meeting must be given before 21 days either in writing or through electronic mode to the auditor in such a form as may be prescribed. Every notice of a meeting specifies the place, date, day and the hour of the meeting and shall contain a statement of the business to be transacted at such meeting.

4. Right to remuneration

The payment of the auditor of a company shall be fixed in its general meeting or in such manner as may be determined therein. It must include the cost incurred, if any, incurred by the auditor in connection with the audit of the company and any facility extended to him but does not include any payment paid to him for any other service rendered by him at the request of the company.

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This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. The author seeks to explain briefly the role of the present case in the growth of the concept of nervous shock in one branch of Law i.e. Law of Torts.

Equivalent Citation

(1901) 2 KB 669

Bench

Justice Kennedy

Justice Phillimore

Relevant Concepts of Law

Nervous Shock and Negligence under the Law of Torts.

Brief Facts of the Case

The plaintiff, in the present case, was standing behind the bar of a public house at the Bonner Arms in Bethnal Green from the roadway. She was pregnant at the time when the incident happened. Then the defendant’s servant negligently drove horse-drawn carriage into the building of the public house. The horse-drawn carriage did not hit the plaintiff because the defendant stopped it just before the carriage was about to hit her. As consequents to such incident, the plaintiff suffered from a shock and gave birth after nine days of the incident prematurely to a baby who was said to be an idiot by the plaintiff. The plaintiff then claimed damages for the tort of negligence against White and sons. The plaintiff further sought damages for the shock which was caused to her by the incident. The defendants contended that the tort of negligence requires physical injury which was, in the present case, too remote. The defendants further claimed that the psychiatric harm suffered by the plaintiff, due to the fear of getting hit, was not foreseeable and thus, they are not liable to pay any damages to her.

Issues Before the Court

Whether fear alone was enough to create a mental injury claim in the present case?

Ratio of the Case

The court was of the opinion that although the plaintiff had not suffered any physical injury, the traumatic incident, of the driver losing control over the horses and thereby driving them into the building where the plaintiff was working behind her husband’s bar, led to nervous shock and the premature birth of her child. In this case, mental illness was escorted by a physical injury i.e. miscarriage. Moreover, the plaintiff had established that the ‘nervous shock’ which was caused by the accident, resulted from her fear for her own safety.

In other words, the ‘terror wrongfully induced and inducing physical mischief gives a cause of action.’ The plaintiff could recover in respect of the physical consequences of ‘nervous shock’ caused by reason of ‘reasonable fear of immediate personal injury to oneself’.

In the words of Kennedy, J:

“If impact be not necessary, and if, as must be assumed here, the fear is proved to have naturally and directly produced physical effects, so that the ill results of the negligence which caused the fear are as measurable in damages as the same results would be if they arose from an actual impact, why should not an action for those damages lie just as well as it lies where there has been an actual impact ? It is not, however, to be taken that in my view every nervous shock occasioned by negligence and producing physical injury to the sufferer gives a cause of action. There is, I am inclined to think, at least one limitation. The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself.”

Kennedy, J. considered the argument that fear, where physical injury is directly produced by it, cannot be a ground of action merely because of the absence of any accompanying impact, to be ‘both unreasonable and contrary to the weight of authority.’

The argument was unreasonable and contrary to the weight of authority, but Justice Kennedy limited the type of shock for which damages were recoverable to that suffered from fear for oneself only: “The shock, where it operates through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to oneself.”

Justice Kennedy further extrapolated, “Mere fright not followed by consequent physical damage will not support an action, but if it is followed by consequent physical damage, then, if the fright was the natural result of the defendants’ negligence, an action lies, and the physical damage is not too remote to support it.”

Justice Phillimore said, “Where there is a legal duty on the defendant not to frighten the plaintiff by his negligence, then fright with consequent physical damage will support an action.”

Decision of the Court

It was held that an action could lie in negligence for nervous shock which had arisen from a reasonable fear for one’s own (in the present case, plaintiff’s) immediate safety. Such an injury could be compensated.

In obiter, Kennedy, J. suggested this rule might also cover cases where the shock is produced, “by horror or vexation arising from the sight of mischief being threatened or done either to some other person, or to her own or her husband’s property.”

CONCLUSION

Thus, this case established that a claimant may recover damages in the tort of negligence for psychiatric harm caused to him or her due to the reasonable fear induced by a negligent act of the defendant.

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This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. The author seeks to explain briefly the role of the present case in the growth of the concepts of primary and secondary victim in the case of tort of negligence under the Law of Torts.

Case Number

HL/PO/JU/18/255

Equivalent Citations

[1995] 2 WLR 644; [1995] UKHL 7; (1995) 2 ALL ER 736

Bench

Dissenting opinion: Lord Keith of Kinkel; Lord Jauncey of Tullichettle

Concurring judgment: Lord Ackner; Lord Browne-Wilkinson; Lord Lloyd of Berwick

Decided on

11 May 1995

Relevant concepts of Law

Negligence in the Law of Torts

Brief Facts of the Case and Procedural History

Mr. Page was the plaintiff in the present case. He was involved in a minor car accident and did not suffer any physical harm or hurt in the collision with the defendant. But the crash did result in the reappearance of Magic Encephalomyelitis also called Chronic Fatigue Syndrome. The plaintiff suffered from that disease for nearly twenty years but his disease was, at the time of accident, in remission. The plaintiff was in the hope to join his job again as a full-time teacher. Due to the collision, the disease of the plaintiff reappeared. This rendered the plaintiff’s condition to become chronic and permanent. As a result of it, he was incapable to return to his job as a teacher and take up any full-time employment. The plaintiff, therefore, claimed damages from the defendant because due to the negligent driving of the defendant, the plaintiff had suffered psychiatric harm. The defendant admitted that he had driven the car negligently and the collision was his fault. At the same time, he also contended that he cannot be made liable for the psychiatric harm caused to the plaintiff because the same was unforeseeable and cannot be claimed as damages. The defendant claimed that an ordinary person would not have suffered the injury which was incurred by the plaintiff.

The Court of Appeal ruled in favour of defendant and the present appeal was filed before the House of Lords by the plaintiff.

Issues Before the House of Lords

Whether, where a claim is brought in negligence by the plaintiff for any psychiatric damage caused by the defendant, it was necessary to establish that this particular type of harm was a foreseeable consequence of the defendant’s negligence, or whether it would be sufficient that some form of compensable harm was foreseeable, such as a physical injury.

Or, in simple words, whether the claimant was competent to recover for such extreme and unforeseeable mental injury caused by the negligent driving of the defendant.

Or, in other words, whether a duty of care was owed and, if it did, whether the loss was too remote to be claimed by the plaintiff.

Ratio of the Decision

The reasoning given by Lord Lloyd, with whom Lords Ackner and Browne-Wilkinson concurred, was that where the claimant is a primary victim, then it was “unnecessary to ask whether [the defendant] was under a separate duty of care not to cause foreseeable psychiatric injury.” They further said, “It would be inappropriate to separate physical and psychiatric harm into different ‘kinds’ of loss with separate tests.”

Thus, the only requirement was that the defendant owed a duty of care towards the claimant to avoid causing them ‘personal injuries.’ This includes both physical and psychiatric harm.

Lord Lloyd then went on to explain it simply and also avoided drawing difficult distinctions in the law:

“Suppose, in the present case, the plaintiff had been accompanied by his wife, just recovering from a depressive illness, and that she had suffered a cracked rib, followed by an onset of psychiatric illness. Clearly, she would have recovered damages, including damages for her illness, since it is conceded that the defendant owed the occupants of the car a duty not to cause physical harm. Why should it be necessary to ask a different question, or apply a different test, in the case of the plaintiff? Why should it make any difference that the physical illness that the plaintiff undoubtedly suffered as a result of the accident operated through the medium of the mind, or of the nervous system, without physical injury?”

The House of Lords, therefore, considered the aspect that the plaintiff was a primary victim in the incident and there was a risk of injury involved to him due to the collision. Hence, there was no need to consider if the psychiatric shock was foreseeable or not.

Though the plaintiff did not suffer any mental harm, the crash resulted in reappearance of his disease which was, prior to the collision, in a state of remission. Thus, the psychiatric harm, that too to a primary victim, was to be treated as a direct personal harm.

Furthermore, Lord Lloyd held that in the case of primary victims there arises no question of the victim’s proximity to the defendant’s act and thus, he rejected the ‘floodgates’ argument.

Decision of the House of Lords

The House of Lords gave their decision in favour of the plaintiff, albeit by a bare majority as Lords Keith and Jauncey were having a dissenting opinion. Thus, it was held that if any sort of personal injury was foreseeable then it did not matter it to have been physical or psychiatric.
the primary victim also need not establish that any psychiatric harm was foreseeable.

Moreover, the Court rejected defendant’s contention that an ordinary person would not have suffered the injury which was incurred by the plaintiff. The Court held that it is well established law that ‘the defendant must take his victim as he finds him under the thin skull rule.’

The plaintiff was successful and he was awarded £162,000 in damages from the defendant.

CONCLUSION

The Page v. Smith case is significant in the branch of Law of Torts because it enhanced the distinction between primary and secondary victims. The House of Lords held there was no difference between physical and psychiatric harm for the purposes of the duty of care in the tort of negligence.

The distinction between primary and secondary victims was not there prior to this case. And it was assumed that reasonable foreseeability of psychiatric illness was a requirement in all cases of tort of negligence where psychiatric illness was involved. Further, it was also assumed, prior to this case, that all the plaintiffs must be persons of normal disposition. The House of Lords by a majority in Page v. Smith improved the claim of damages of the primary victims over the secondary victims.

From this case onwards, a primary victim can recover for psychiatric illness even when the same will not be reasonably foreseeable, if the physical injury (which now is not a need to actually occur) is foreseeable. Per contra, in the case of a claim by a secondary victim, it is restricted to a larger extent than the primary victim.

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This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. The author seeks to explain briefly the role of the present case in the growth of the concept of nervous shock in one branch of Law i.e. Law of Torts.

Case Number

[1953] 1 All E.R. 617.

Equivalent Citation

[1953] 1 QB 429

Bench

Lord Justice Denning

Relevant Concepts of Law

Nervous Shock and Negligence under the Law of Torts.

Facts of the Case

In the present case, a taxi driver negligently backed his taxi. Owing to this act of the driver, a child behind his taxi, on a tricycle, got slightly injured. The mother of the child saw the taxi running into the tricycle of his child from seventy to eighty yards away but she did not see her child at that time. Consequently, the mother suffered shock due to the incident. Thus, the mother filed a claim for seeking damages from the driver claiming that she suffered a shock owing to the driver’s negligent driving and claiming him to be held liable for the same.

Issues Before the Court

Whether an action will lie for nervous shock, where the shock results, not from apprehension of injury to himself, but from fear of another’s safety?

In other words, whether the taxi-driver could reasonably have FORESEEN the risk of damage to her and thus is liable to pay the same?

Ratio of the Case

The taxi driver could have contemplated the injury has been inflicted on the child as his tricycle was behind his taxi while he was reversing the same but he could not have contemplated that the mother of the child could have suffered shock as she was seventy to eighty yards away from the place of incident. She suffered the shock merely at the sight of the tricycle being hit by the taxi. The child was the primary victim and if any sort of nervous shock could have been caused to or suffered by him, the taxi driver would have been liable. But the mother, who was not the victim in the case and was merely a spectator, cannot hold the driver liable for any damages caused to her because the driver could not have foreseen any damage to her. The Lord Justice Denning applied the principles laid down in Bourhill v. Young and held that “the driver could not have reasonably foreseen, that to back a cab in the way in which he did, would cause the injury complained of or any injury to the child’s mother, and that therefore owed no duty of care to her.”

Lord Justice Denning further said, “‘there can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock.’ A person ‘who suffers shock on being told of an accident to a loved one’ cannot recover damages from the negligent party on that account.”

Decision of the Court

As the taxi driver did not have any duty to care towards the mother of the child, she did not succeed in her claim to hold the taxi driver liable. Thus, the case of the mother was dismissed. The taxi driver was not held liable. The taxi driver was held liable only to the extent that the negligent driving resulted in a slight injury to the child and was held liable to pay damages to the child only.

CONCLUSION

Therefore, this case acknowledged that the test for liability of mental injury is based on the foreseeability of the injury caused. There cannot arise an action if a mere spectator who suffers the injury or nervous shock owing to the incident of negligence but is so distant that the negligent party could not foresee any damage being caused to such party.

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This article is written by Sambavi Marwah, a fourth-year law student, from Delhi Metropolitan Education, GGISPU.

INTRODUCTION

This article explains the main differences between the laws made for the juvenile and the adult. It emphasizes on the legal system dealing with both the age groups of the country and how they are treated by the laws or legislations laid down.

Who is a Juvenile?

A child is said to be the country’s future. The age between 0 to 18 years is the period in which children grow and learn about life. They are full of positive energy, zeal and skills, which guide them towards a bright future for themselves, as well as the nation. Thus it is the duty of the nation to protect the children and provide them with extra care under

As per the Indian law, a juvenile is any person who is below eighteen years of age. However, the Indian Penal Code states that a child of seven years of age and below cannot be tried in the court of law.
There are various legislations which provide an umbrella to the juveniles to protect and guide them to leave the path of criminal activities. Laws such as:

Article 15 (3), 21A, 24, 39, 39 (e) and 47 of The Indian Constitution protect the children from various illegal practices or traditions.
Juvenile Justice Act, 2015 (with amendments)

Juvenile Justice (Care and Protection of Children) Act, 2015

After the incidence of the “Delhi Gang Rape case, 2012”, a few amendments were made to the juvenile legal system, which led to the introduction of The Juvenile Justice (Care and Protection of children) Act in the year 2015. The Juvenile Justice Act came into force on 15^th January 2016, thus replacing the acts of 2000 and 2006.

The said act introduced various new provisions in the area of care and protection of children who are involved in unlawful activities.
It aims to adjudicate the cases by keeping in mind all the possible solutions to guide the juvenile towards a crime-free world.

Prime Amendments Made

Children between 16 to 18 years of age can be tried as adults if a heinous crime like rape, murder, etc. is involved, only after the approval of the Juvenile Justice Board (JJB).
Penalties for committing offences such as buying or selling of the children, any kind of cruelty against them or kidnapping of children have been introduced by the said act.
Opening and registration of various rehabilitation centres or child care institutions in all the states to safeguard the children and provide them with good education and skills to live a normal life.

Who is an Adult?

A person who attains the age of 18 years of age is known as an adult in the eyes of law. He or she attains the legal age of majority and is thus bound by various laws of the country.
When a person attains the age of majority, he/she can apply for a driving license, vote to elect their choice of government, enter into a contract with another person and so on.

Laws for the Adult

The Indian Constitution being the supreme law of the country provides the citizens with certain fundamental rights to enjoy and fundamental duties to abide by. Like we know all the citizens are equal in the eyes of the law, so no person can be discriminated on the basis of caste, sex, creed or age.

Laws such as:

Indian Penal Code, 1860
Indian Contract Act, 1872
Hindu Marriage Act, 1955
Motor Vehicle Act, 1988
Sales of Goods Act, 1930, etc. are few of the examples of those legislations which make it mandate for a person to attain the age of majority, or become an adult before entering into a contract with the other party.

Though a minor can also be a part of a contract or any transaction, but it is followed by certain restrictions which the minor and his guardian have to follow in a strict sense.

Therefore, an adult has the obligation to abide by all the rules, laws and regulations set by the nation in order to prevent the happening of crimes or any illegal activities and promote harmony, security and peace around the globe.

Juvenile vs. Adult Criminal System

The key difference between a juvenile and an adult is the age group. Juvenile is the one who is below the age of 18, while an adult is the one who falls in the age group of 18 and above.

Differences

Juveniles are tried in the juvenile court system, while the adults are tried in the normal court systems such as the district court, session’s court, etc. After the Nirbhaya case, if a child of 16 to 18 years of age commits a serious offence, in that case, he or she can be tried as an adult in the Indian legal system.
The crimes committed by the juvenile are known as ‘Delinquent acts’ instead of ‘crimes’, which is used in the case of an adult.
Juveniles get the bonus of extra care and protection in the juvenile court system, whereas no such advantage is given to an adult.
The juvenile court system is informal as compared to the courts in the adult criminal system as the children are in their tender age and are still growing and learning the difference between right and wrong.
Last but not the least, while giving the decision in the matter of a juvenile, a judge has to act in the best interest of the juvenile and must follow certain guidelines and rules which are easy on him/her.

CONCLUSION

India’s constitution is known to be one of the best constitutions of the world. It protects all the citizens, despite their gender, caste or creed. Our legal system not only guarantees equal treatment to all the people, but also assures that all the individuals get justice in the court of law. It is essential for every law system to keep a close check on the activities of the juveniles as well because of the increasing rate in the number of crimes committed by the teens.
In India, juveniles get separate treatment in respect to the treatment given to the adults as they are in their growing age, where they are yet to learn the difference between right and wrong and explore a lot of things about life.
Hence, it gives a second chance to the children to learn from their mistakes and grow up as a better individual as nobody is born a criminal.

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This article is written by Anushka Singh, a second-year student, pursuing BBA-LLB at Unitedworld School of Law, Karnavati University. This article aims to explain the doctrine of remoteness of damage in tort law with the help of relevant case laws.

INTRODUCTION

When a person commits a tort, it has consequences, these consequences in return may have more consequence therefore further leading to a chain of such events. The doctrine of the remoteness of damages is a method or test used to calculate the losses caused due to wrongdoing or breach or to what extent the previously mentioned chain consequences is the defendant responsible for. By this method, the liability of the defendant within reasonable bounds is decided through certain tests.

The General Principle

The general principle behind the doctrine of the remoteness of damage was laid down in the Court of Exchequer, in the case of Hadley v. Baxendale, the plaintiff’s mill had come to a stop because of a break in their crankshaft. The defendant failed to deliver the broken crankshaft to the manufacturer within the agreed time, which in turn led to delay in restarting the mill. The plaintiff bought a case against the defendant to recover the profits lost because of the delay in restarting the mill. The profits of the mills should be stopped by an unreasonable delay in the delivery of the broken crankshaft to the third person held by the court while rejecting the claim.

The rule guiding the judges in such cases is when a contract between two parties is breached by one of them, the other party is entitled to receive damages but only if the breach of contract has arisen naturally, fairly and reasonably.

For example- A drunk driver crashed into a truck, which then in turn collided with the side of a small building, leading to the collapse of the building and death of 50 people. The collapse of the building and debris fell onto its surroundings killing more people.

Now in the above example, one can see how one accident had multiple consequences, even though they were not intended nor comprehended beforehand by the defendant. Now in such scenarios on whom does the blame of so many deaths fall? The answer to this question was given by Lord Wright in the case of Liesbosch Dredger v. S.S. Edison-

“The Law cannot take responsibility for all the consequences of a wrongful act; some acts fall outside the scope of its selection, because it was infinite of the law to judge the causes of causes, or consequences of consequences. In the varied web of affairs, the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons.”

It was ultimately held by the jurists that the defendants will be liable only for the consequences which were proximate and not remote consequences of his wrongdoing.

Test of Remoteness

Now that we’re aware of, a defendant is held liable for only the proximate consequences of his wrongdoing. Let us look at how it is decided that what consequences are proximate and which remote-

1. All Direct Consequences Test

An individual is held liable for all his direct consequences, even if one could not foresee them beforehand as all consequences which directly come after the wrongdoing are not remote and come under proximate. Further under this test, if one could foresee the damages, one is held liable for all the direct consequences.

Re Polemis Case (1921)

This case was a landmark judgement in the test of directness. The court of appeal found the test of reasonable foresight to be relevant whereas later the privy council upheld the test of directness. Facts of this case are- Defendant was employed by the charterers of a ship to unload it. A plank was negligently dropped into a hold which caused sparks with chemicals and petrol they were supposed to be unloading. The sparks, in turn, lead to chemicals and petrol catching fire and burning the entire ship. It was ultimately held that even though they could not have foreseen that the ship would be destroyed by the negligently dropping of a plank they were found to be liable as the fire was a direct consequence.

2. The Foreseeability Test

Today this test is preferred over the directness test. Sir Frederick Pollock also advocated for this test, He opined, in cases Rigby v. Hewitt and Greenland v. Chaplin, that the “liability of the defendant is only for those consequences which could have been foreseen by a reasonable man placed in the circumstances of the wrongdoer.” In this test, an individual is held liable only for the reasonably foreseeable consequences of his wrongdoings. It is to be decided by the court if the consequence was foreseeable beforehand or not.

Wagon Mound Case

For a while, the test of foreseeability lost its popularity to test of directness but it was the case of Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd., also popularly known as the Wagon Mound Case that bought it back in the limelight for jurists.

Facts– The Wagon Mound was moored at a wharf in Sydney Harbour. Due to the negligence, oil spilt into the water and was mixed with the flotsam and floated around to another wharf where a ship was being repaired by welding. Because of the oil the flotsam caught fire and ignited the wharf. The owner of the wharf claimed damage caused to him.

The Supreme Court held the appellants liable on the precedent of Re Polemis case, but when the matter reached the Privy Council the judgement of the SC was reversed and Re Polemis case declared an unfit for further rulings. It was held that appellants could not have reasonably foreseen the damage to the respondent’s wharf. Therefore, forty years later the Privy Council rejected the test of directness that was upheld in the Re Polemis case.

CONCLUSION

The doctrine of the remoteness of damage is used to decide the compensation to be given when after a breach or wrongdoing. The wrongdoing may have multiple consequences arising from it which are divided into two categories- proximate and remote. Only the consequences that fall in the proximate are the ones the defendant will be held liable for. They’re divided into these categories by the test of directness and test of foreseeability. Today the test of foreseeability is considered to be more relevant than the test of directness, as an individual should be held liable only for probable consequences of his wrongdoing.

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