THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

Project Report On

OBLIGATION AND LIABILITY : RIGHT DISCOURSE

JURISPRUDENCE-II

B.A.LL.B.(Hons.)

XII TRIMESTER

SUBMITTED TO : - SUBMITTED BY : -

PROF.(Dr.) V.K. DIXIT KULDEEP SINGH

MR. RANJAN RAI 2015 BALLB 133

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 ACKNOWLEDGEMENT

This project would have absolutely not have been possible without the expert and patience
guidance of Prof. (Dr.) V.K.Dixit and Mr. Ranjan Kumar Sir . I thank them sincerely for their
advice and considerable amount of time they gave me. Also, I want to thank my parents and my
friends for all their support and patience. I also want to thank them for being so helpful whenever
I needed them.

Sincerely

Kuldeep Singh

(2015BALLB133)

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 Table of Contents

ACKNOWLEDGEMENT .............................................................................................................. 2
INTRODUCTION .......................................................................................................................... 4
MEANING OF LIABILITY ........................................................................................................... 5
MEANING OF OBLIGATION ...................................................................................................... 7
HOHFELD’S THEORY ................................................................................................................. 8
EXPLANATION OF RELATIONS ........................................................................................... 9
SOURCES OF HOHFELD'S TERMS ........................................................................................ 9
RIGHT DISCOURSE ................................................................................................................... 12
Subject of Rights: ................................................................Error! Bookmark not defined.
Scope or Object of Rights: .........................................................Error! Bookmark not defined.
Relation Between Subject and Object: ...................................................................................... 16
Place or Importance of Rights Discourse in the Lives of the People: ....................................... 17
Conclusion .................................................................................................................................... 18

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 INTRODUCTION

The two terms liability and obligation are connected to each other. Obligation shows duty of a
person and tells about that someone is obliged to do something for someone and liability arises
from breach of duty which may be arises inform of act or omission. In distributive method of right
discourse these terms are inter connected to each other and it is equally distributed rights and duties
i.e. benefits and works.

The principal object of Wesley Newcomb Hohfeld's project was to clarify juridical relationships
between the relevant parties. Hohfeld gives us with an analytical scheme which devides rights into
four different categories of jural relationships and exemplifies a number of analytical distinctions
between different legal positions. Importantly, Hohfeld's analysis of rights lies in the descriptive
exercise of the legal positions which are connected by means of logical relations of entailment and
negation. Hohfeld's analysis is engaged in an analytical & definitional enterprise and does not
concern itself with substantive or empirical enquiry into the concept of a right. It follows that
Hohfeld's ambition was to provide a conceptual understanding of right, duty etc in practice, thus
facilitating a better understanding of the nature of our rights and duties. It was not, however, to
inform us what rights, duties etc are or should be or what their moral foundation is or what is
necessary for something to count as a right, duty etc. He doesn't, subsequently, say anything
regarding the legitimization of rights. Hohfeld's table exhibits a qualification between four unique
arrangements of juridical connections. This technique for part the thought of a directly into its
constituent components has numerous essential advantages. It is this unmistakable and exact
strategy that makes Hohfeld's examination of rights exquisite and alluring as well as basic to
anybody wishing to make an educated and understandable evaluation of the legitimate position
between the gatherings included.

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 MEANING OF LIABILITY

Liability is the result of a infringement of the law. Law lays down is down the right and duties
on the person. The law grants legal rights to one and iforces the duty upon another person. A person
should not encroach the legal right of others. If anybody violates the legal right of another, he is
said to have committed a wrong. If there is a wrong there is a liability.

Definition of Liability - It is hard to define the term 'liability' Some Eminent Jurists made attempt
to define the term 'liability'.

Austin - Austin likes to use the term 'imputability' to 'liability'. According to him, Those certain
forbearances, Commissions or acts, together with such of their consequences, as it was the purpose
of the duties to avert, are imputable to the persons who have forborne omitted or acted.

Different types of Liability are as follows -

1) Civil liability - Civil liability is the enforcement of the right of the plaintiff against the
defendent in civil proceedings. Civil liability gives rise to Civil Procedure whose purpose is to the
enforcement of certain rights claimed by the plaintiff against the defendant. Examples of civil
proceedings are action for recovery of the Debt, Restoration of properties, the specific performance
of a contract, recovery of damage, the issuance of an injunction against the threatened injury etc.

2) Criminal Liability - Criminal liability is the liability to be punished in a criminal proceeding. in

criminal liability, punishment is awarded to a wrongdoer. If the person is guilty of committing the
offense with criminal intension then he is liable for punishment. Criminal liability is based on the
Maxim "actus non facit reum nisi mens sit rea" it means the offender is guilty only when it is
done with the guilty mind.

3) Penal liability -The theory of penal liability is concerned with the punishment of wrong. There
are different kinds of punishment, Deterrent, preventive, retributive, reformative etc.A penal
liability can arise either from a criminal or a civil wrong. There are three aspects of penal liability

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those are the conditions, incidence, and measure of a liability. As regards the conditions of penal
liability, it is expressed in the maxim "actus non facit reum nisi mens sit rea" This means that the
Act does not constitute guilt unless it is done with guilty intention. Two things are required to be
considered in this connection and those are the act and the mens rea requires the consideration of
imitation and negligence. The act is called the material condition of penal liability and the mens
rea is called the formal condition of penal liability.

4) Remedial Liability - Remedial risk depends on the Maxim "Ubi jus ibi remedium" it implies
when there is right there must be some cure. The power of law can be utilized to constrain an
individual to do what he should do under the law of the nation. on the off chance that damage is
brought about by the infringement of a right, the equivalent can be helped by convincing the
individual bound to agree to it.The first special case is a blemished obligation or duty, Second
exemption unenforceable obligations and the third exemption is the inconceivability of execution
by law.

5) Vicarious liability - Vicarious liability denotes a liability which is incurred for or instead of
another.Generally, a person becomes liable for tort committed by him. But there are certain
circumstances in which one individual becomes liable for the tort committed by another. Such
liability is called vicarious liability. There are three exceptions to the general rule that man must
be forced to do by the force of law what he is bound to do by a rule of law.

6) Absolute or strict liability Both in Civil and criminal law mens rea or guilty mind is
considered necessary to hold a person responsible/liable. However, there are some exceptions to
the general rule. In those cases, a person is held responsible irrespective of the existence of either
wrongful intent or negligence. Such cases are known as the wrongs of absolute liability/ strict
liability

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 MEANING OF OBLIGATION

The term 'obligation' is generally utilized. Contingent upon the specific circumstance, the
utilization of the word prompts a univocal importance or to equivocal implications. For example,
the term 'obligation' in the solitary or 'obligations' in the plural is univocal when it alludes to what
one gathering has consented to perform under the terms of an understanding. In this sense, the
positive partner of the obligation is the right ('rights and obligations'), in other words what the
lender is qualified for get from the indebted person. This is a traditional perspective on the term
'obligation' seen as 'a tie which exists between somewhere around two individual people which
empowers one individual to demand something from the other. The obligation ought to along these
lines be seen as including a lawful tie, a lawful tie between something like two people and a
coercitive power empowering the requirement of the obligation. It ought to be recognized from the
picked in real life which is 'the expectation of the goal monetary outcome anticipated from the
execution of the obligations. In this unique situation, it would appear to be desirable over spotlight
on the term 'obligation' only.

As per Sir John Salmond" An obligation might be characterized as an exclusive right which is in
personam or a corresponding duty which compares to such a given right." Obligations are across
the board class of obligations, to be specific to those which are co-relatives of such rights in
personam.

Savigny stated that an obligation is a type of command over other person yet not over his or her
individual in all regards yet over single demonstrations of his which must be thought about
subtracted from his unrestrained choice and exposed to our will

There are two major kinds of obligation which are as follows – Sole obligation and Solidary
obligation.

I) Sole obligation - A sole obligation is an obligation where there is one individual on each side.
This is an ordinary sort of obligation in which there is one loan boss and one account holder.

II) Solidary obligation – In case of single obligation, there are at least two account holders owe
something very similar to a similar bank. that implies there are at least two banks qualified for a
similar obligation or at least two account holders under a similar risk.

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 HOHFELD’S THEORY

Hohfeldian investigation upgrades lawful thinking by enabling one to reason one legitimate idea
from another. Educator Hohfeld recognized eight nuclear particles by part the iota of lawful
dishearten which he called "the most minimal shared variables of the law." He characterized these
eight fundamental jural relations to clear up lawful reasoning and comprehension, Hohfeld
separated the eight into sets which can't exist together (opposites), and those which must exist
together (correlatives).

Types of Jural Opposites

RIGHT PRIVILEGE POWER IMMUNITY

NO RIGHT DUTY DISABILITY LIABILITY

Types of Jural Correlatives

RIGHT PRIVILEGE POWER IMMUNITY

DUTY NO RIGHT LIABILITY DISABILITY

Jural Opposites are the type of legal relations which are reciprocal in nature to each other such as

Right ↔ No- Right & Power ↔ Disability

Whereas Jural Correlatives are subordinate to each other, for instance

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 Right ↔ Duty & Power ↔ Liability

EXPLANATION OF RELATIONS

Hohfeld's relations can be best appreciated through points of reference. Following are the different
occurrences of different legitimate relations. Hohfeld cleared up the connections as "if X has a
right against Y that he will stay off the formers (X) land, the correlative is that Y is under a duty
toward X to stay off his place". As needs be, a right is taken pleasure in by an individual as against
another individual is that the second will do or swear off achieving something for the first. In like
manner X has a right against Y concerning act An, if and just if Y has a duty to X as to act A.

Hohfeld has moreover elucidated "no-right" and "benefit" thoughts too. They are, separately, the
alternate extremes of "right" and "duty." The articulations "benefit" and "no-right" are similarly
correlatives. X has a benefit against Y concerning act An, if and just if Y has a no-right against X
as to A.

A "hazard" is the correlative of a "control". An individual X is under an obligation, if there is a

showing another person can play out that will impact the legitimate relations of X. "Impediment"
and "invulnerabilities" are the contrary energies of "powers" and "liabilities". In case X does not
have a power as to solitary Y, by then X is under a powerlessness as for Y. Also, in case Y isn't
under a hazard as to X, by then Y has an invulnerability as for X.

While "Impairments" and "protections" are in like manner correlatives of each other. In case X has
a debilitation as to Y, that is, X has no ability to impact Y's legal relations, by then Y is sheltered
from having his or her legitimate relations affected by X. Furthermore, if Y is resistant as to X, by
then X is under a failure as to Y.

In case rights and obligations ought to reliably be coordinated, by then no-rights and benefits ought
to in like manner constantly be consolidated. Subsequently, an individual has a no-right against
someone else as to a particular exhibit if and just if that individual does not have a right against
the second individual worried that show. So likewise, an individual has a benefit against a second

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individual as to a particular showing if and just if the individual completes not have a duty toward
the second individual as for that exhibition.

SOURCES OF HOHFELD'S TERMS

Hohfeld unequivocally diminishes to give a specific definitions to his eight starts. They are sui
generis. Or maybe, he concurs significance to these beginnings by articulating their relations, by
displaying their instantiation in case law and genuine allow, and by demonstrating how they can
be used to reveal untidy thinking and damaged examinations. Before observing further about the
Hohfeld's relations let us at first fathom what he suggested by the articulations "right", "duty",
"benefit", "resistance". The primary concern that needs clarifying is what kind of rights,
obligations, etc., Hohfeld was talking about and where do they begun from? Hohfeld's rights,
obligations, benefits, and no-rights are simply shorthand terms for saying what liabilities the law
underwrites between two people for the doing or not doing of an exhibit. Hohfeld's "duty" rises up
out of fundamentals of positive law. The articulation "DUTY" is for the most part confused by
others as Hohfeld used it. By "duty" he didn't mean the moralist obligations or obligations of a
tyke towards his father; Hohfeld was talking about real obligations, while powers, protections,
liabilities and impediment incorporate changes in legitimate relations they exist in conditions in
which the potential change in legal relations is liable to the volitional showing of some person.

A "RIGHT" through hohfeld's eyes, is just a "duty" from the other person's viewpoint. Rights and
Duties, Hohfeld expressed, are jural correlatives. At whatever point there is a duty there must in
like manner be a correlative right, and the a different way.

Hohfeld's structure is normally misconceived, and likely the most a significant part of the time
confused of his terms is his "Benefit." To various people when someone has a "benefit" it infers
that he is permitted to act or not as he sees fit. Along these lines, one of Hohfeld's pundits formed:
[F]or me to have a benefit of finishing a thing, infers . . . (1) to have no duty of doing the thing,
(2) to have no body of evidence or right against others that they ought to abstain from intruding
with my doing the thing, and (3) to be under no duty not to do the thing.

For example, under standard conditions An owes B neither a duty to paint A's home nor a duty not
to paint it. As it were, An is regularly supported as against B to paint A's home or not as he sees

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fit. In neither one of the cases would the fundamentals of law make him subject to B. In any case,
accept A goes into a coupling contract with B whereby An agrees to paint the house. Under these
conditions A would owe B a duty to paint the house since the law would make him in danger to B
(in contract) if he fail to paint it as he ensured. A would not have a benefit as against B not to paint
the house, yet he would have a benefit to paint the house. On the other hand, if A concurrences
with B not to paint the house, by then he would have no benefit to paint the house, anyway he
would be favored not to paint it. These portrayals exhibit that it is possible, under fitting conditions,
for A to have the two benefits (to do the thing or not to do it), or to have just a solitary one of them
(conceivably one). Clearly it isn't doable for A to have neither benefit, for that would mean A
possible in danger to B whether he painted the house or not.19 "POWER" is one's ability to change
legitimate (or moral) relations.

"IMMUNITY": If X has an immunity against Y, it implies that Y has no power to change X's
lawful position regarding any qualifications secured by the immunity. For example, if the state has
no power to put me under a duty to wear a cap when I go out, I have immunity in that regard, and
the express an inability (a correlative to immunity).

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 RIGHT DISCOURSE

There are two imperative techniques for circulating benefits and weights in the general public:

1. Rights talk If a lawful framework gives legitimate inclusion to a case. On the off chance that a
case is acknowledged, at that point the right over it and the others have a duty not to contact it. To
the extent legitimate right is concerned, it essentially says that if a lawful case has been
acknowledged by a lawful framework, regardless of whether this case is disadvantageous to other
individuals, the State will secure this case. (Emmanuel Kant)

2. Utility-Related to Bentham-It existed before Bentham and was made conspicuous by him. He
said that points of interest and detriments ought to be appropriated in the people groups not based
on legitimate cases but rather satisfaction. Whatever offers joy to individuals.

In this venture the analyst talked about strategy for right talk for dispersion of benefits and weights
in the public arena, which spins around liberal law based custom and most essential thought in a
general public are freedom and balance.

• Rights talk gained its full talk in the advanced society and in Europe as well as in rest of
the world too.

• With the advancement of the modern, right talk procured full dimensio. Ruler Parikh
partitions this in 4 perspectives:

1. Subjects of rights

2. Objects of rights

3. Relation among subjects and items

4. Place of rights talk in the lives of the general population

• Subject of Rights: Who is the carrier of rights

In the advanced society, the procedure of Individuation is predominant for example how an
individual creates.

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An individual is an ethically self-governing being and the person can take his or her very own
choices and an individual presently has attested his character outside his gathering.

In, pre-current one was fundamental piece of the gathering and the nature. Furthermore, Nature
was not a ware. What's more, identity, was considered additionally with instruments, for example,
rancher must have furrow, bullocks, and so forth yet in present day time, an individual is
considered in a restricted term for example in natural term.

Errick: Jew Scholar. Society was changing from primitive to modern culture and businesses
required work and serfs couldn't emerge out of town without the consent of the Lords. Along these
lines, ideological weapon of Liberty was utilized by Capitalists to demolish medieval society.
Thus, when serfs moved from towns to urban communities they didn't have something besides
their physical body.

Thus, Karl Marx said that, work has turned into a product.

Along these lines, in present day society natural person implies an independent unit. What's more,
everything outside body wound up outer.

Along these lines, Lord Bhiku Parekh says that his body has procured a phenomenal
epistemological (information of being), ontological (association with my conviction), moral and
political hugeness.

Life and freedom and free developments have turned out to be most astounding good qualities.

Savagery has likewise been characterized as far as physical damage and not coercion. Present day
framework does not characterize savagery regarding pressure in light of the monetary imbalance
in the entrepreneur society.

Extension or Object of Rights:

In medieval period, there were properties who were under limitations as they used to fulfill
necessities of the gatherings and such things couldn't be sold or obtained

But in, seventeenth and eighteenth century, two things occurred:

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1. People disjoined from the gathering

2. Prior, nature was considered as semi reasonable living being. So it was not topic of offer and
buy.

Like, amid British routine, cutting of trees and slaughtering of creatures was precluded and nature
was ensured.

But now, Nature has turned out to be decentralized, for example from semi balanced
substance it has turned into a material element and man currently has turned into an ace of the
nature subsequently making nature subservient.

In pre-present day society, farming area was most vital and there were a few confinements
on such land available to be purchased and buy on the grounds that everything was associated with
some duty.

In any case, each horticultural land after seventeenth century wound up topic of offer and buy since
relationship of individual reliance, military administration, has shriveled away in mechanical
society.

In medieval society, a vast no. of land was collective property and nobody could have
asserted an elite utilization of the property (for example of Pond, Pasture Land, Wells) as then no
people existed and bunches existed.

In any case, later gatherings, perplexed and individualization came to presence and all the
collective property shriveled away.

• Evolution of Intellectual Property:

In medieval society, the woodworker, or weaver played out their obligations for one
another however when they moved to industrial facilities they sold their abilities (the piece of their
identity) it so it sort of progressed toward becoming subjugation wherein they need to offer
themselves.

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In this way, to escape this trouble man was characterized once more. In this way, to defeat the
trouble, it was thought to make a partition between the individual and his aptitudes and abilities
and his aptitudes and capacities will be treated as his property which now he will pitch to plants.

New definition for characterizing a man was that his mankind comprises of 2 things:

1. Decision

2. Will (He can take his very own choices since he is ethically independent being) or self-
assurance.

3. He is ethically free

This definition spared us from the charge of turning into a slave as now individual is exchanging
his protected innovation and not himself for a thought.

Now an individual remain in Sovereign disengagement. In this way, he has turned into an
island or little Gods in himself (Lord Bhiku Parekh).

What can't be the topic of offer presently is, power, capacities, mental capacity, and so on.

• Right can be arranged as:

1. Right identifying with life

2. Right identifying with freedom

3. Right identifying with property

Life has another significance it currently implies opportunity from physical mischief and
does exclude material which continues life, (for example, sustenance, water). It likewise does not
imply that one has opportunity from discretionary will of another. Wages, Hours of works, and so
forth., are incorporated.

Right to property in the new lawful request implies, on the off chance that you have the
property it will be secured.

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Under this classification of right to life and property, right to improvement, right to confidence,
right to instruction, and so on., are excluded.

These rights can additionally be partitioned into

1) Some right need insurance (to secure individual and property) and

2) Some right need arrangement (in the event that you don't have property, state is required to give
you property). Giving is a public issue for example bigger network needs to co-work might be in
type of assessments.

Relation Between Subject and Object:

1. Right is a claim
If law recognizes a claim, it becomes right. On persistent demands a moral or social claim
became a legal right.
2. Right is in the nature of title and holder of such right is Right Holder
I.e. his claim is based on some legal procedure and premises and is not arbitrary
3. A title becomes title because this title has been conferred by a legal authority
You will have to show a law. So, in Pre- modern society, custom was the main source of
law but now it is law even if it is a custom it has to be recognized as law.
4. Right means I can do anything with the right but in accordance or conformity with the
conditions of grant of the right.
5. If I have a right, I alone can enjoy it and others are excluded from access to it except with
my permission.
6. Right to enjoy my right does not merely exclude others but it may also put hardship on
others because others re refrained from interfering with the exercise of my right.
It put direct hardship, indirect hardship and it also affects the dignity, pride and self-respect
of a person.

All these 6 points imply that equality of rights is a myth and it is misleading.

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Place or Importance of Rights Discourse in the Lives of the People:

 Morality i.e. what we ought to do was not only derived from law but also from customs,
social solidarity, traditions,
 It was duty oriented society.
 What one ought to do and what not ought to do is decided by rights discourse and
obligations and morality has been replaced by civil morality.
 Civil Morality: Apart from state who protects our rights everyone fights for his own rights
and respect others rights.
 We do not interact with each other without rights discourse unlike primitive society.
Earlier Samaritan helped stranger not because of right and duty but because of interaction.
 Right is only alternative to charity. So, now if law does not provide for feeding a hungry
person he then has a moral rights and we on the other side have a duty. And we use, rights
and duties even in case of nature and we have, moral rights, legal rights, human rights, and
therefore, we have developed a human rights discourse.
 Lord Bhiku Parekh says, right discourse under modern period has taken a strange term.
i.e., children have right to be maintained by their parents, and being it a legal right if parents
fail to maintain then state will interfere (particularly in Europe).

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 Conclusion

The two terms liability and obligation are connected to each other. Obligation shows duty of a
person and tells about that someone is obliged to do something for someone and liability arises
from breach of duty which may be arises inform of act or omission. In distributive method of right
discourse these terms are inter connected to each other and it is equally distributed rights and duties
i.e. benefits and works.

Rights discourse is a form of distributive method in order to provide benefits and duties. It is an
important source of understanding the correlation between obligations and rights as well as
liabilities.

This is a traditional perspective on the term 'obligation' seen as 'a tie which exists between
somewhere around two individual people which empowers one individual to demand something
from the other. The obligation ought to along these lines be seen as including a lawful tie, a lawful
tie between something like two people and a coercitive power empowering the requirement of the
obligation.

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 Bibloiography

BOOKS:

 Studies in Jurisprudence and Legal theory by Paranjepe, N.V., Central Law Agency,
2012.
 Salmond: Jurisprudence, 12th Edition, 2009.
Newspaper Reports and other Online Database:

 http://www.allradiantlaw.com/?p=74.
 https://www.srdlawnotes.com/2018/02/what-is-obligation-meaning-definition.html

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