Actio Personalis Moritur Cum Persona

The legal maxim "actio personalis moritur cum persona" means A personal right to action dies with person.

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This maxim was very first time used in a case in 1496 where an old woman died before paying damages. The old woman was liable for a case of defamation. It was the principal of early law that the death of either party to a personal duty takes away or remedy and destroys the duty. 

In England under the common law there was a general rule that on the death of any party in matter of tort it stands disposed off automatically. However in due course of time the rule was reversed by the Law Reform (Miscellaneous Provisions) Act, 1934 on the death of any person all causes of action vested in him shall survive for the benefit of his estate. Thus all causes of action in tort suit for defamation and the claim for damages for bereavement survive the deceased. 

Exceptions to the legal maxim Actio personalis moritur cum persona: 

• Defamation 
• Attack or assault
• Personal damages 

Thus right of action arising tinder the court the contract act cannot be quashed on the death of any party. Wherein the person had illegally acquired the property belonging to the other person, even on death of that person who possessed property unlawfully, right of action can be initiated against such person through his legal representatives. 

It has been described by Viscount Simon as “not in fact the source from which a body of law has been deduced, but a confusing expression, framed in the solemnity of the Latin tongue, in which the effect of death upon certain personal torts was inaccurately generalised”  

The doctrine is embodied and not peculiar to common law system. The idea belongs to primary strata in universal law. In modern times it has been gradually limited by judicial decisions and is now being still further restricted by legislation. 

A maxim stating that actions of tort or contract are destroyed by the death of either the injured or the injuring party. Modern statutes mean that this is rarely the case. However, before the passing of the Fatal Accidents Act 1846 acceptance of this notion meant that in actions in negligence it was better for a doctor to kill his patient outright than to injure him. This situation arose because it was originally believed that the primary function of tort was to punish and not to compensate for damage caused. The maxim still survives in the law of defamation (“you cannot defame the dead”).

In India under the Fatal Accident Act 1855 death caused on account of negligence, rashness and due to wrongful act the legal representatives of the deceased can sue. 

Even cases involving determination of liabilities of the parties arising as a result of breach of contractual duties, a personal right to action does not die with person. Their legal representatives or authorised attorney can file a suit for specific performance and claim damages. 

e.g. 1) If P commits battery on Q and either party dies the right of action which accrued to Q by the reason of the battery is taken away. 

e.g. 2) If P commits battery on Q or do other injury to him, any right of action which accrues to third person say wife a legal heir of Q, will not be affected by the death of Q so far as the application of the maxim is concerned. 

Case Laws:

1) In Gujarat State Road Transport Corporation Ahmedabad versus Ramanbhai Prabhatbhai, wherein due to negligence on the part of the petitioner's driver, a boy aged 14 years was crushed to death. Brothers of the deceased boy file suit claiming compensation. The motor accident claim tribunal passed award of compensation which was affirmed by the High Court and by the Apex Court. The Court held that contention of the compensation that right of personal action dies with the person is no more recognised rule of law. Hence, corporation is liable to pay compensation to the deceased brother. 

2) In Nurani Jamal And Others vs Naram Srinivasa Rao And Others [AIR 1996 AP 6] the maxim actio personalis moritur cum persona has applicable in respect of all personal wrongs but there is an exception where a tortfeasor is benefited by the wrong done and action would lie against the representatives of a wrongdoer. 

3) Baker vs. Bolton [KBD 8 Dec 1808] case arose : The defendants were the proprietors of a stage coach , on the top of which the plaintiff and his wife were travelling from Portsmouth to London. The coach was overturned and the plaintiff’s wife was so badly hurt that she died a month later. The plaintiff brought an action for negligence and sought to recover for the loss of service and consortium. It will be noted that the maxim actio personalis did not apply and there was nothing to show that the defendant’s conduct was felonious. Hence, the doctrine of merger was not applicable.

4) M. Veerappa vs Evelyn Sequeira & Ors: During the pendency of the suit the plaintiff died and his legal representatives, who are the respondents herein, filed a petition under order XXII Rule 3(1) of the Code of Civil Procedure seeking their substitution in the suit for prosecuting the suit further. The appellant opposed the application and contended that as the suit was one for damages for personal injuries alleged to have been sustained by the plaintiff, the suit abated on his death as per the maxim Actio Personalis cum moritur persona. The District Munsif upheld the objection and dismissed the suit as having abated but the High Court held otherwise and declared the legal representatives to be entitled to get impleaded and continue the suit.

5) In Girja Nandini Devi v. Bijendra Narain Choudhury observed as under: "The maxim 'actio personalis moritur cum persona' a personal action dies with the person has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory."

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Neighbour Principle and other tests to determine the tort

The essential elements of a tort are already discussed. In this article the landmark judgments stating various tests for determining an act to be a tort are discussed.

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Donoghue v Stevenson established the “neighbour principle” which is used to determine whether or not the defendant owes a duty of care. The application of this test is based on whether or not a particular situation may be construed as one requiring a duty of care.

Caparo v Dickman provided a clearer application of the neighbour principle.

It defined the principle as requiring three elements in establishing duty of care:

a) reasonable foresight of harm;

b) sufficient proximity of relationship; and

c) that it needs to be fair, just and reasonable to impose a duty.

Caparo test will only be applied in situations where it may not be clear whether there is an established duty of care.

In order to determine whether the breach of duty of care exists, the courts will apply a two-part test:

a) the court will consider how the defendant should have behaved in that particular situation, and,

b) whether the defendant’s behaviour fulfilled the required standard of care.

In the case of Blyth v Birmingham Waterworks [1856] 11 Exch 781 it was established that the defendant must meet the standard of “the reasonable person”. This is an objective test that questions what a reasonable person would have done in that particular situation.

Any damages suffered by the claimant need to be a direct result of the breach of duty of care. If the defendant’s breach of duty has caused the loss to the claimant, then the causation is present. The principle of causation was considered in the case of Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 where it was held that although the defendant had breached a duty of care, this breach had not caused the death of the deceased.

In order to establish whether causation is present in the case, the courts will apply the “but for” test. This test asks “but for the defendant’s breach of duty, would the harm to the claimant have occurred?”:

a) If the answer is yes, then the claimant has failed to establish causation.

b) However, if the answer is no then causation is satisfied.

However, the case of Bonnington Castings Ltd v Wardlaw [1956] AC 613 established that where there is more than one possible cause of the injury to the claimant, causation can be established if it can be shown that the defendant’s action is the likely cause of the harm. This case established that it is enough to show that the defendant’s negligence “materially contributed to the harm” to the claimant.

McGhee v National Coal Board [1973] 1 WLR 1 further modified the “but for” test by adding that the claimant only needs to establish the defendant’s negligence by proving that the defendant “materially contributed to the risk of harm” to the claimant.

The case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The Wagon Mound (No. 1) [1961] AC 388 established the commonly applied test of remoteness which determines whether the damages suffered by the claimant are too remote. It considers whether the damage suffered is of such kind that the reasonable person would have foreseen it.

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Right in personum

Hello my reader friends, in this blog I am sharing notes. These notes are related to law study only. Underlined group of words are minimum necessary things you must incorporate in your answers. There may be a question to write a short note on this subject. 

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Right in personum or jus in personum is opposite to right in rem. 
This is derived from the Roman term "action in personum"
Right in personum gives the person rights against one person or party to the contract. 
A right in personum corresponds to a duty imposed upon determinate persons. It generally will correspond with a duty imposed on the said person or party. The Indian Contract Act grands right in personum to the parties of a contract. So the parties of a contract have this contractual rights only against each other. 

Rights under a contract are rights in personum for only the parties thereto are bound.

Right in personam binds only a particular person or persons.

Rights in personum are usually positive. It is acquired because the subject stands in some special relationship towards another person as in the case of a contract.

Rights in personum may also be negative as in the case of sale of goodwill when the seller undertakes not to set up a rival business within the prescribed area and period of time.

Right in personum is spoken of as personal rights because persons bound being determinate, personal relation are stressed.

For example 1) Person P sold his car to Q. Thus P has the right to receive the sale proceeds. This right to receive the money only belongs to P, so it is a right in personum, no other party is involved. 
Example 2) B loan money to C. The right to recover money belongs to only B not the world in general.
Example 3) My right to receive rent from tenant is right in personum.
Example 4) my right to receive compensation for false imprisonment or defamation is right in personum.
Example 5) The right of A after signing the contract for the purchase of land is a right in personum against B that B shall execute a deed of sale in his favour and transfer the property. After the execution of the sale deed the right of A is a right in rem available against the whole world that nobody shall interfere with his ownership.

You can read the following judgment also for more understanding of this legal maxim.
Daljit Singh And Anr. vs Yogeshwar Prasad: Delhi High Court

Note: If you write atleast one example while writing your answer then it will be beneficial to you to get more marks. In every article I am trying to write relevant examples as well as judgments and case laws will also be shared if needed.
Also you can read the judgment one-liners by clicking on the case name.
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Human being & Crime

Hello my reader friends. This is one more blog in the series of "Criminal law" blogs. This blog is intended only for study purpose hence if you need a legal help please message us using the contact form at the bottom of this page.

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The first essential of Crime is that it must have been committed by a human being. There are two parties involved in every crime:

i) The wrong doer – the wrong doer must be a human being.

ii) aggrieved/injured/deceased – the victim who may be considered as aggrieved or injured or deceased must also be a human being.

In order to establish an act as a crime against a person, the involvement of certain parties is essential.

The Perpetrator is the person who actually commits the crime/ offence. If there are more than one person involved then it is known as “co-perpetrators.” To be involved in a crime it is not necessary to be directly being involved in the crime. There can be other, non-participating “parties to a crime.”

The victim is the one against whom the crime actually took place. There can be multiple victims for an act by one or more perpetrators.

e.g. (i) If a person uses the internet to commit crimes is considered as cyber-crimes. For example hacking into other’s accounts or systems, identity theft, sharing or downloading pirated data, pornography etc. all are considered as cyber-crime. Anyone using the internet can be a victim to an act of cyber-crime.

e.g. (ii) If a person is involved in taking the life of some other person willingly with a guilty intent then it is a crime as it is covered under the definition of Murder or Culpable Homicide under.

e.g. (iii) In a case where X person shoots another person Y, resulting in his death, such a situation cannot be covered under the definition of crime as the action of the X are not criminal but necessary as per the circumstances for self-defence.

Also the nature of the world or of human beings underlies the standards of morality or constructs them. Thomas Aquinas wrote in the 13th century: "the rule and measure of human acts is the reason, which is the first principle of human acts". He regarded people as by nature rational beings, concluding that it becomes morally appropriate that they should behave in a way that conforms to their rational nature. Thus this is we the human beings who can commit a crime and make punishments for it no other animal can do this.

You can read this book for more knowledge.

Exceptions: In ancient world animals were also punished for committing crimes by throwing stones on them or beating them. Now a days for any act committed by an animal, the owner of such animal is held liable as the owner is subject to civil/tortious liability as per Scienter Rule.

If a person is committing a crime against animals specifically wild animals, then such person is punished under the provisions of the Wild Life (Protection) Act, 1972; because the wild animals are protected under the Act and they form part and parcel of the environment. This Act is exception to this element of the crime because it is deemed that crime with animals is crime with environment.

The Elements of a Tort

Hello friends, this is one more article for your study about "Law of Tort". This blog is only foe study purpose. In this blog I am sharing notes for the "The essentials of a tort". The question on this subject may come for atleast 5 marks as Write short notes of for 8 to 10 marks to explain it in detail. Here you have to remember atleast highlighted part so that you can write minimum required points in your exams.


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A “tort” is a legal wrong, and persons who suffer injury caused by someone else may be able to pursue compensation from the person or persons responsible through a civil lawsuit. In order to prove a personal injury case in court, the plaintiff’s attorneys will typically need to prove that the following essential elements of a tort are present.

Lets see what are essential elements to constitute tort.

1) A Duty Of Care

Demonstrating that the defendant had a duty to observe or protect the safety of the plaintiff.

A duty of care must always be present in any tort law claim if it’s to be successful. This is basically stating that there is a duty of care on part of the person or the manufacturer of some product that must be upheld.

When there is a legal duty to do some act and person fails to perform that duty, he can be make liable for such omission.

The wrongful act or wrongful omission must be recognized by law. Therefore a mere social or moral wrong is not enforceable, e.g. if somebody fails to help a starving man or save a drowning child is only a moral wrong hence not liable.

For example, drivers of cars have a duty of care to drive safely and not intoxicated or under the influence of drugs. Going with the example above, let’s say you have Gopal who can legally drive in the India and has his own car. Well, Gopal has a certain duty of care that he must adhere to at all times as a responsible driver and not engage in behaviors that could endanger others. Examples of this duty of care he has are not getting behind the wheel drunk or affected by drugs. This is a duty of care Gopal has that is enforceable by law so he must adhere to it at all times.

2) Breaching Duty Of Care

The defendant breached that duty and endangered the health and safety of the plaintiff. It can also be stated as “Wrongful act committed by defendant”.

In order to make person liable for tort, he must have done an act which he was not expected to do, or he must have omitted to do something which he was supposed to do. Wrongful act is an act which is contrary to the provisions of law, thereby causing injury to the legal rights of another.

Examples in general: A commits the act of trespass is liable for trespass, or publishes a statement defaming another person is liable for defamation or wrongfully detains another person is liable for false imprisonment.

For Example We’ve established in the previous section that Gopal has a certain duty of care and legal responsibility he must adhere to. If he were to breach this care, whether it’s intentional or unintentional, he could be liable for a tort. For example, if he was to drive his car drunk and then run a red light, which resulted in an accident then he would be found guilty of breaching his duty of care. Therefore, he’d be liable for a tort.

3) Causation Which Results In Suffering

The plaintiff suffered injury in some form.

This part is crucial for a tort case because there needs to be the action that has caused suffering to the victim. In the absence of the cause, there is no case for a tort.

A key aspect of causation that a court will explore is whether or not the victim’s injuries would have occurred had the offender not committed the specific action that resulted in the injury to the victim.

Example Let’s return to the case of Gopal being drunk and running a red light. If while running a red light, he crashed into another car, which resulted in the other driver becoming permanently brain damaged from the crash, then this would be sufficient causation for a tort.

4) Damage Or Injury?

The plaintiff’s injuries were caused by the negligence of the defendant.

This is a crucial part of the puzzle because without the damage or injury sustained then there is no basis for a tort lawsuit.

It’s also important that these damages are proven for there to be a legitimate case. To prove mental and emotional damages, you’d need to get expert proof from professionals in this area. To prove physical damages, advice from medical professionals would be required.

A plaintiff has to prove that there has been a legal damage caused to him it is nothing but an injury to the legal right of the plaintiff thus plaintiff has to prove that there was a wrongful act or omission on the part of defendant, causing thereby breach of legal duty or violation of legal right of the plaintiff vested in him and recognized by law. Therefore, there can be no action under the law of tort unless there has been violation of legal right or plaintiff. Hence violation of legal right is actionable. It is immaterial whether plaintiff suffered by any loss in terms of money or not.

This provision expressed by the maxim "injuria sine damno" means injury to the legal right off plaintiff caused by defendant without any loss in term of money to the plaintiff.

Since what is actionable is the violation of legal right, it therefore follows that when there is no violation of legal right, no action can lie in the court of law even though defendants act has caused some loss of harm or damage to plaintiff.

Let’s roll with the case of Gopal above. The other driver he crashed into must have sustained some sort of injury from his negligent actions. If there is an absence of physical, mental, or emotional damage then Gopal cannot be liable for a tort.

5) Legal remedy –

The wrongful act of the defendant must come under category of wrongs for which the remedy is civil action for damages.

The essential remedy for tort is an action. For damages but there are other remedies also, e.g. injunction obtained in addition to damages in certain cases of wrong.

The law of tort is said to be a development of maxim "ubi jus ibi remedium" that there is no writ  without a remedy.

If a man has a right he must of necessity have a means to vindicate and maintain it and a remedy it is injured in exercise or enjoyment of it.

It is in vain to imagine right without remedy.  Thus where there is no legal remedy, there is no legal wrong.

What Happens If A Tort Is Proved

Injured parties may be able to pursue legal action to gain compensation for present and future medical expenses, lost wages, and mental and emotional trauma.

If all the four elements of tort law above are present then a tort has been committed. In this circumstance, there is going to be a court case where either damages or an injunction occurs.

There are various damages that can be awarded in this instance such as full compensation where the victim must be fully compensated monetarily for his/her suffering.

However, there are various subcategories of damages that can be awarded like nominal damages, special damages, aggravated damages, and more. Victims will pursue any of the damages most applicable to their specific situation in order to get the compensation they deserve.

Ultimately, it’s up to the court to decide what damages will be awarded.

Torts can be a complex part of the law to understand because there are many specifics to each individual case that must be examined.

However, the most important thing to point out is that unless the four elements of tort law mentioned in this post are present, then there can be no case for a tort.

Cases

i) Glasgow coronary V. Taylor, 1992: In this case a corporation fails to put proper fencing to keep the Children away from a poisonous tree and a child plucks and eat the fruits orchestra the poisonous tree and  dies, the corporation be liable for such omission.

ii) General cleaning corporation Ltd V. Christmas 1953: In this case employer failed to provide a safety belt for safe system off work liable for consequence of such omission.

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Definition, Nature, Scope and Objects of Torts

Hello my reader friend. This is a blog related to "Law of Tort" series. This Blog is intended for study purpose only. If you need a legal advice then please contact nearest lawyer at your place.

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While many people understand that they may be able to take legal action if they are injured due to the negligent or reckless actions of another person, they often do not know what exactly a “tort” is and how it applies to civil law.

Meaning and Definition:

In general Tort denotes an act, which is not a right act but a twisted act or crooked act, which causes injury to a person or persons. 

Tort is a French word having English meaning "Wrong". Tort is derived from Latin word Tortum, which means twisted or crooked. More specifically tort is civil wrong independent of contact. Tort is an infringement of a private common law right in rem. 

An act or breaking or failing to observe a law, agreement or code of conduct is tortious act.

A “tort” is a legal wrong, and persons who suffer injury caused by someone else may be able to pursue compensation from the person or persons responsible through a civil lawsuit. 

Every civil lawsuit except for contractual disputes falls under the category of tort law. Essentially, any civil lawsuit is tort law. The premise behind these laws is to provide compensation to victims of wrongdoings. However, not every tort case is successful.

An act which, prima facie, appears to be innocent may become tortuous, if it invades the legal right of another person. 

Definition by Alderson, B.: Tort is the gist of the action is “doing or omitting to do something” and that “something” may be anything which a reasonable man would do or omit to do.

Prof. Winfield's explanations: 

1) The common feature of the torts seems to be that they all place a certain responsibility upon a person who is in control of property which, without being dangerous as such, causes injury to a member of the public, whether by its static condition (house) or by the way it is used and operated (factory products, business). 

There are many different definitions of tort. But the definition given by Winfield is one of the most appropriate one. As per Winfield, "tortious liability arises from the breach of the duty primary fixed by a law these duties towards persons generally and its breach is redressible by an action for unliquidated damages." 

Following are the ingredients of Winfield's definition: - 

Duties and Rights: –  The law primary fixes certain duties on every person. At the same time, it confers certain rights to every person. This duties and rights are in rem. 

e.g. It is right of everyone to use public Road. But at the same time, there is a legal duty fixed on the public not to cause any harm or injury to other persons who are using the same road, otherwise the person who is not following his duty will be held responsible. 

The duties implied by law are general and everyone has to follow them without any exceptions. 

Unliquidated damages: – If any person breaches his duty and causes any harm or loss to other another person, it means tortious liability has arisen on that person that is tortfeasor. Thus the tortfeasor is liable to pay compensation to the victim. The court decides the quantum of the damages and compensation. The compensation in such cases is not fixed before the tortious liability arises. Compensation shall be fixed on the quantum of injury or harm. In cases of breach of trust or breach of contract, the quantum of damages can be pre-assessed at the time of enter earring the trust or contract itself. As in the case of breach of trust or contract can be pre-assessed previously they are called liquidated damages. As the damages of the tortious act can be calculated after the liability arises they are called unliquidated damages.

Nature and Scope:

Nature of tort law is thus essentially concerned with the compensation for damages for civil wrongs suffered as a result of another's act or omissions. Liability in tort arises from breach of duty primarily fixed by law. The conduct of the plaintiff may or may not be material, but the gist of the action is interference with a certain right, not unlawful conduct. 

injury or damage must be proved in all these torts; but such injury may be of any kind, whether personal, property or pecuniary damage in general.

The law of torts is fashioned as “an instrument to make people adhere to a conduct of reasonable behaviour and respect the rights and interests of one another.”

This it does by protecting interests and by providing for situations when a person whose protected interest is violated can recover compensation for the loss suffered by him from the person who has violated the same.

To every right there corresponds an obligation or duty. 

• If the right is legal, so is the duty. 
• If the right is contingent, so is the obligation. 
• If the right is moral, so is the duty. 

A right in its main aspect consists in doing something, or receiving and accepting something. Consequently, a duty in its main aspect consists in doing something or refraining from doing or performing an act.

Examples of tort:

1) A simple example is that of erecting a structure on one’s own land. It is completely lawful to enjoy one’s own property by erecting whatever one wants to, on his land. But, if there is a law which gives a right to unobstructed transmission of sunlight to a person’s house if he had been enjoying that sunlight for more than 20 years, then any structure on anybody’s land which may block sunlight to his house is violation of his right and he is entitled to file a suit.

2) In the cases of accidents by motor vehicles, where decision making is very difficult, the victims get statutory compensation under the Motor Vehicles act, 1988 which provides for compulsory insurance in order to give compensation to the victims as a measure of social security.