JURISPRUDENCE

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Q.NO.

3 ADMINISTRATION OF JUSTICE
1) INTRODUCTION:
Administration of justice is the maintenance of right within a political
community by means of physical force of state (‫)ملُک‬.
2) MEANING:
It means “Fair and Proper management of law”.
3) DEFINITION:
“Protection of individual from the unjust and unlawful deeds of others”.
4) ORIGIN:
The origin of administration of justice is identical with origin of mankind.
As humans
became more and more civilized, administration of justice also
developed gradually
5) STAGES OF GROWTH:
There are three main stages of growth of administration of justice. These
are:
i. PRIMITIVE STAGE: It is the first stage and is also called ‘stage of self-
help’ because
there was concept of private system of punishment and revenge ( ‫) بدل‬.
ii. TRANSITIONAL STAGE: In this stage, political systems and social forces
started to emerge. Fights started to be settled by the elder men of
position in society. But violence and self-help still prevailed (‫) ونا موجود‬.
iii. FINAL STAGE: This is also called modern stage, people became more
civilized and state became more powerful, proper departments started
to establish for justice and self-help was uprooted (‫)کرنا ختم سے جڑ‬.
6) IMPORTANCE:
Administration of justice is important due to the following reasons:
i. Uniformity (‫)یکسانیت‬
ii. Protection of Rights
iii. Peace
iv. Stability
v. Avoidance of Anarchy (‫)بچنا سے انتشار‬
vi. Avoidance of Lawlessness (‫)بچنا سے القانونیت‬
vii.Promote Justice
viii. Educate People
7) KINDS OF JUSTICE:
Discussed below are some important kinds of justice:
i. MORAL JUSTICE: It is also called natural justice and is based on maxims
(‫ )اقوال‬of

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morality.
ii. LEGAL JUSTICE: According to this kind of justice, the law declares what
is right and what is wrong and also the law decides and declares
punishments.
iii. PRIVATE JUSTICE: It consists of all those rules that parties decide
between them.
iv. PUBLIC JUSTICE: It consists all rules and regulations about the
relations between courts and individual.
v. CIVIL JUSTICE: It consists enforcement of such rights that violation of
which leads to a civil action.
vi. CRIMINAL JUSTICE: It consists enforcement of such rights that
violation of which leads to a criminal action.
8) CONCLUSION:
Administration of justice is very important for the peace and harmony in
society. Thus a proper system of justice is necessary for a state to
function properly

Q.NO.5 LEGISLATION & KINDS


1) INTRODUCTION:
Legislation means process of making of law. In wider sense the term
legislation is used to include all the methods which are used in the
process of law making.
2) MEANING:
Legislation means to exercise the power and function of making laws
and other rules binding on those for whom they are made.
3) DEFINITION:
“Legislation is that source of law which consists the declaration of legal
rules by a competent authority”.
4) LEGISLATION AS SOURCE OF LAW:
Legislation is a source of law and this can be discussed by the analysis of
the following various approaches.
i. ANALYTICAL APPROACH: Legislation is the only source of law and
there is no importance of custom and precedent.
ii. HISTORICAL APPROACH: According to this approach, legislation is not
a source of law and does not has an independent role. The only purpose
of legislation is to make the customs more effective.
5) KINDS OF LEGISLATION: The kinds of legislation are discussed below:

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20 i. SUPREME LEGISLATION: It is the legislation done by the supreme
authority of the state and it cannot be declared void by any other
authority.
ii. SUBORDINATE LEGISLATION: It is the legislation done by any
authority other than supreme authority and it can be challenged.
iii. JUDICIAL LEGISLATION: It is the legislation done by the judiciary for
the regulation of their own procedures.
iv. MUNICIPAL LEGISLATION: It is the legislation done by the municipal
authorities for limited purposes of a specific area. E.g. WAPDA
v. AUTONOMOUS LEGISLATION: It is the legislation done by the private
person authorized by the state. E.g. University laws
vi. ADMINISTRATIVE LEGISLATION LEGISLATION: It is the legislation
done by the administrative body
of the state for administrative purposes. E.g. Health and Education
6) ADVANTAGES OF LEGISLATION:
i. SOURCE OF NEW LAW
ii. ABROGATION OF OLD LAWS
iii. BRINGS EFFICIENCY
iv. BRINGS PEACE
v. BRINGS ORDER
vi. BRINGS EQUITY
vii. REDUCES VAGUENESS
viii. BRINGS UNIFORMITY
ix. PROVIDES LEGAL DEFINITIONS
x. SELF-CRITISM OF LAWS
xi. SELF-REVISION OF LAWS
7) DISADVANTAGES:
i. BIASNESS
ii. PARTIALITY
iii. INCOMPLETE
iv. COMPLICATED LAWS
v. RIGID LAWS
8) CONCLUSION:
From all the above discussion, we can conclude that the role of
legislation is very important in the proper functioning of the state

QNO6: Precedent in Jurisprudence


In simple words, judicial precedent refers to previously decided
judgments of the superior courts, such as the High Courts and the

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Supreme Court, which judges are bound to follow. This binding
character of the previously decided cases is important, considering
the hierarchy of the courts established by the legal systems of a
particular country. Judicial precedent is an important source of law,
but it is neither as modern as legislation nor is it as old as custom.
It is an important feature of the English legal system as well as of
other common law countries which follow the English legal system.
In most of the developed legal systems, judiciary is considered to
be an important organ of the State. In modern societies, rights are
generally conferred on the citizens by legislation and the main
function of the judiciary is to adjudicate upon these rights. The
judges decide those matters on the basis of the legislations and
prevailing custom but while doing so, they also play a creative role
by interpreting the law. By this exercise, they lay down new
principles and rules which are generally binding on lower courts
within a legal system. It is important to understand the extent to
which the courts are guided by precedents. It is equally important
to understand what really constitutes the judicial decision in a case
and which part of the decision is actually binding on the lower
courts.

Judicial decisions can be divided into following two parts:

Ratio decidendi (Reason of Decision):


Ratio decidendi’ refers to the binding part of a judgment. ‘Ratio
decidendi’ literally means reasons for the decision. It is considered
as the general principle which is deduced by the courts from the
facts of a particular case. It becomes generally binding on the
lower courts in future cases involving similar questions of law.
Obiter dicta (Said by the way):
An ‘obiter dictum’ refers to parts of judicial decisions which are
general observations of the judge and do not have any binding
authority. However, obiter of a higher judiciary is given due
consideration by lower courts and has persuasive value.

Q.NO.7CUSTOM & ITS KINDS


1) INTRODUCTION:

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In times of early societies there were not any established laws, courts or
precedents. So, disputes were resolved according to customs.
2) MEANING:
Custom means, “A tradition adopted by a society”.
3) DEFINITION:
Custom is defined as “A common practice adopted by a society as an
unwritten law”.
4) KINDS OF CUSTOMS:
Discussed below are the kinds of customs:
i. LEGAL CUSTOMS: These are prevailing (‫ )جانا پایا‬in a society and have a
force of law
in them.
ii. LOCAL CUSTOMS: These customs are adopted by a specific locality (
‫) عالق‬.
iii. GENERAL CUSTOMS: These customs are generally prevailing within a
country.
5) ESSENTIALS OF VALID CUSTOM:
For a custom to be valid, it is necessary that it must have the following
essentials:
i. IMMEMORIAL ANTIQUITY: The custom must be so old that no one
knows from when it has been being practiced.
ii. UNINTERRUPTED CONTINUITY: A custom is considered valid if it has
been practiced
iii. POSITIVE MORALITY: A custom should have positivity in it and it
should not be against the moral values of that society.
iv. REASONABLE: The custom must be reasonable to adopt and practice
and should not involve any injury in its practice.
v. PEACE: The custom must not destroy public peace.
vi. NOT AGAINST LAW: A custom should not be against a written law.
vii. NOT AGAINST NATURAL JUSTICE: The custom must not be against
the principles of natural justice.
viii. CONSISTENT WITH PUBLIC POLICY: The custom must not be against
the public policy.
ix. MASSIVE SUPPORT: There must be a support of majority of people
for the custom.
6) CONCLUSION:
Custom played an important role before the formation of proper laws
but now law is more
followed as compared to customs. In modern world, a custom is
considered valid only if

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it fulfills the above discussed essentials

Q.NO.8 LEGAL RIGHTS


1) INTRODUCTION:
Legal rights are rights awarded to the people by the law and these can
be claimed if violated. To maintain justice and equality in the society law
provides some rights and duties to every member of the society.
2) MEANING:
Legal right means “A right created by law”.
3) DEFINITION:
“A right is an interest recognized and protected by law. It is any interest,
respect for which
is a duty and its disregard is a wrong”.
4) PARTIES OF LEGAL RIGHT:
Following are the parties in a legal right:
i. State
ii. Person on whom right is conferred
iii. Person on whom duty is imposed
5) EXAMPLES:
Following are some examples of enforcement of legal right:
i. Suit for damages (‫)دوبارہ اصلی حالت میں النا‬
ii. Suit for restitution
iii. Suit for specific performance of contract
iv. Suit for injunction (‫)حکم‬
6) KINDS OF RIGHTS:
Following are some kinds of rights:
i. DIVINE RIGHTS: These are the human rights which are recognized by
the CREATOR of the universe.
ii. MORAL RIGHTS: These are the rights which are recognized by the
public or society. E.g. respect as an elder
iii. LEGAL RIGHTS: These are the rights which are expressly recognized by
the law. E.g. right to own property
7) INGREDIENTS OF LEGAL RIGHTS:
There are five ingredients of legal rights. These are discussed below:
i. OWNER OF THE RIGHT: There must be a distinguished owner of the
right.
ii. AGAINST ANOTHER PERSON: The right of a person is always against
another person, because right of one person is the duty of the other
person.

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iii. SUBJECT MATTER: There must be a subject matter or object relevant
to the right of a person.
iv. CONTENT: There must be content of the right i.e. some act or
omission relevant to the subject matter of the right.
v. TITLE: For having a legal right, a person should have the title to the
subject matter of the right because without title there is no right.
8) KINDS OF LEGAL RIGHTS:
i. PERFECT RIGHTS: “A right that is recognized by law and is fully
enforceable by law is called perfect right”. E.g. suit filed for recovery of
debt (‫)قرض‬.
ii. IMPERFECT RIGHTS: “A right that is recognized by law but is not
enforceable is called imperfect right”. E.g. Time barred debt.
iii. POSITIVE RIGHT: It is a right of a person that obligates the other
person to do some act. E.g. right of creditor to receive money from the
debtor.
iv. NEGATIVE RIGHT: It is a right of a person that obligates the other
person to refrain from doing some act. E.g. No one is entitled to take
money out of someone’s pocket.
v. RIGHT IN REM: It is a right of a person exercisable against whole
world. E.g. right of a person to not to be assaulted
vi. RIGHT IN PERSONAM: It is the right of a person against some specific
person aroused due to personal condition or legal status. E.g. right to
receive rent of a property
vii. PROPRIETARY RIGHTS: The rights which can be measured in terms of
money.
viii. PERSONAL RIGHTS: These are rights which contribute to a person’s
honour or wellbeing. E.g. liberty rights
9) MODES OF LOSING LEGAL RIGHT:
i. By sale
ii. By lease
iii. Mortgage
iv. Pledge
v. Gift
vi. Death
vii. By insolvency
viii. By operation of law
10) CONCLUSION:
A legal right helps to differentiate between rights and duties of people to
maintain equity and justice.

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Q.NO.9 OWNERSHIP
1) INTRODUCTION:
The rights of a person which enables him to exclusively use and dispose
a property are
generally regarded as ownership rights. Ownership is always of a
property that may be
tangible e.g. house or intangible e.g. software etc.
2) MEANING:
Ownership means “to own some property of value”.
3) DEFINITION:
“A relation between a person and a property which provides that person
the sole right to
enjoy, dispose, destroy, consume or transfer that property for an
indefinite time period
.(‫)غیر معینہ مّدت‬
4) INGREDIENTS OF OWNERSHIP:
The ingredients of ownership are discussed below. These are:
i. RIGHT TO POSSESS: For ownership, a person must have a legal right to
possess (‫ )قبضہ‬that property.
ii. RIGHT TO USE: The person must have an exclusive right to use and
take benefit from the property.
iii. RIGHT TO DISPOSE: For ownership, there must be a legal right to
dispose-off that property.
iv. RIGHT TO TRANSFER: The owner must be able to transfer the
property by any method of his preference. E.g. gift, sale etc.
v. RIGHT TO UNINTERRUPTIBLE USE: The owner must have the right to
own that property for an unlimited time period and the ownership must
be continuous and uninterruptible.
5) KINDS OF OWNERSHIP:
The kinds of ownership are discussed below:
i. ORIGINAL OWNERSHIP: It is the ownership for the first time of a
property and there is not any previous owner. E.g. fish caught from river
ii. DERIVATIVE OWNERSHIP: This ownership is derived from a previous
owner e.g. ownership by purchase
iii. ABSOLUTE OWNERSHIP: It is vested in someone’s right and is
unconditional and undisturbed. E.g. ownership by inheritance
iv. EXTINCTIVE OWNERSHIP: It is the kind of ownership which has an
immemorial time period.

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v. ASSESSORY OWNERSHIP: It results from ownership of another
property. E.g. Fruits owned as a result of owning the tree
vi. SOLE OWNERSHIP: In this ownership there is only one owner of the
property.
vii. JOINT OWNERSHIP: In this ownership there are more than one
owners of the property.
viii. TRUST OWNERSHIP: It is the ownership in which the apparent ( ‫)ظاہری‬
owner has possession of property by way of trust.
ix. CONTINGENT OWNERSHIP: It is created only when a said condition is
satisfied, also called conditional ownership.
6) CONCLUSION:
Ownership is the relation of a person with a property. Law provides the
concept of ownership to differentiate between the rights and duties of
people relating the property.
Q.NO.10 POSSESSION
1) INTRODUCTION:
Possession is the 9/10th part of ownership i.e. if ownership is divided into
ten parts, nine
parts of ownership are considered possession. It shows the physical
relationship between the property and the person.
2) MEANING: “Physical control of a person over a property”.
3) DEFINITION:
“Possession shows the physical relationship of a person over a property
in such a way that he has the intention to use that property in an
exclusive (only by himself) way”.
4) COMPONENTS OF POSSESSION:
There are two main components of possession. These are:
i. CORPUS: It means that the person should have physical control over
property.
ii. ANIMUS: It means that the person having possession of the property
must have the intention to not to share the possession with anyone i.e.
exclusive use.
5) MODES OF ACQUISITION:
A property can be acquired (‫ )کرنا حاصل‬in the following ways:
i. BY TAKING: Taking means to take possession of the property without
the consent (‫ )اجازت‬and cooperation of the previous possessor. Taking
can be wrongful i.e. stealing OR it can be rightful i.e. through legal
procedure.
ii. BY DELIVERY: It means that possession is acquired with the consent
and cooperation of the previous owner. Delivery can be by operation of

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law i.e. transfer of possession to legal heirs ( ‫ )وارثان قانونی‬OR by delivery of
property to the new possessor e.g. delivery of soap to the customer by
the shopkeeper OR delivery may be symbolic e.g. handing over the keys
of the car to the buyer.
6) KINDS OF POSSESSION:
The kinds of possession are discussed below:
i. IMMEDIATE POSSESSION: Property is immediately ( ‫ )فورا‬transferred
and no third party is involved.
ii. MEDIATE POSSESSION: Possession of property is acquired through a
third person or middle man.
iii. CORPOREAL POSSESSION: It is the possession acquired of a tangible
property e.g. house, bike etc.
iv. INCORPOREAL POSSESSION: It is the possession acquired of an
intangible property e.g. software, app etc.
7) CONCLUSION:
Possession is the basic source of transfer of ownership in the legal way.
It is also an
apparent proof of ownership.

11. Persons in Jurisprudence Notes


In an ordinary meaning any living human being either male or
female is person. In old Roman law slaves were not supposed to
be person because they were not possessed rights.
In legal term a being who is capable to possess rights and
obligation and liabilities is person. All human being are person.
Any being whom law regards as capable of rights and duties.
Kinds of persons
There are two kinds of person in law

 Natural persons
 Legal person
Natural persons
All the human beings are natural persons. The entire male and
female are persons. All the living beings which are recognized as
person by state, they are persons in law and persons in fact.
Legal persons
Legal persons are created artificially and law regards them as legal
person. They are persons only in the eyes of law. They are also
created by legal fiction so called as fictitious also. They are also
called juridical, conventional, imaginary, and they have rights and

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obligations as natural person. They can sue and be sued.
Animals
They are no persons because they do not possess rights and
obligations. Some people say that they are persons because law
prohibits cruelty to them. They should be treated sympathetically
and kindly. But this is our cultural heritage and the duty of society
and not the duty of animals. Rights always correlate with duties.
Since they do not have any duty so no rights and are not persons
although in ancient Roman law a rooster was prosecuted and
punished but in modern law master of animals can be sued and
punished and not the animals itself.
Dead human beings
They cease their rights and obligation at the moment they go away
from this world and their connection is cut down. They are immune
from duties and not subject of rights. Law recognize the
compliance of will, burial ceremony, no defamation, no desecration
of graves, but despite of this fact they are not persons and these
duties lie to their legal heirs or living society members.
Statues of unborn babies
In civil law they can sue after they are born through their next
friends or at attaining the age of majority. A child in womb has
certain rights and inherits property. These all things are subject to
his living birth.
Following are important points

 He can claim damages after birth, for the injuries he received


before birth.
 He can claim compensation for the death of his father or mother in
fatal accidents.
 He inherits even his father is died before his birth. He is natural
person even his birth is only for a moment.
 A woman cannot be punished after conviction if she is pregnant, till
birth of baby.
Kinds of legal persons They are three kinds of Legal Person are
as follows

 Institutions are not personified or group of persons but institutions


itself are legal persons, such as, mosque, library, hospital etc.
 CorporationsCorporations are a group or series of persons and
natural persons are its members.
 Funds or estatesFunds or estates are used for specific purpose.
Property or fund of deceased person for trust or charity is kind of
legal person.

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Kinds of Corporation

 Corporation aggregate
Corporation aggregate is a group or collection of persons who
become joint to accomplish a task. Even all members of this
corporation die, it will remain live and continue until death by law.
Common example of this corporation is Municipal Corporation or
registered company.
 Corporation sole
Corporation sole is series of successive persons or individuals. It
consists of only one person at a time like king, postmaster general,
Assistant Commissioner, or Prime Minister. When a person dies,
second one comes, fills in vacancy and performs functions. After
death of office holder, for the time being, office becomes dormant
or inactive or goes in sleeping position and as well as other person
fills in the position, it become active.

Q. NO. 12 Title in Jurisprudence Notes


Title is a link between a person and an object to establish
ownership of property. A title is the de facto antecedent of which
the right is the de jure consequent. Right of possession on
ownership comes in term of de facto first and later de jure. For
example, I have a watch on my hand. How it can be said that it is
my, or I have title over it. I have either purchased it, or someone
has gifted me, or I have inherited it from elsewhere. Title is created
even of stolen objects. It is right of ownership in fact and in law
over property.

Kinds of Title

There are two kinds of title are as follow

 Investitive facts
Investitive facts create rights. This right is created first time on the
objects, which are ownerless. When I catch fish it is my original title
and if I purchase it from elsewhere then it is called derivative title.
Derivative right is second right, which is created after gone away of
original right.
 Divestitive facts
Divestitive facts are those, which loss or keep away of right is termed
as divestitive facts.

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 Alienative right
Alienative right is right which is separated or transferable.
 Extinctive right:
Extinctive right is right which is kept away or destroyed.
Q.NO.13 What is Liability -

Liability is the result of a violation of the law. Law lays down is down the right and duties
on the individual. The law awards legal rights to one individual and imposes the duty upon
another person. A person should not infringe is 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 difficult to define the term 'liability' Some Eminent Jurists made attempt to define the
term 'liability'.

Salmond -

According to Sir John Salmond, "liability or responsibility is the bond of necessity that
exists between the wrongdoer and the remedy of the wrong."

Markby -

According to Markby, the word 'liability' is used to describe the condition of a person who
has a duty to perform whether that duty is primary one or secondary or sanctioning one.

Austin -

Austin prefers 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 Kinds / Types of Liability -

Different Kinds of Liability are as follows -

1) Civil liability -

Civil liability is the enforcement of the right of the plaintiff against the dependent 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 an action for recovery of the Debt, Restoration of property, the specific performance of a
contract, recovery of damages, the issuing 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

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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 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.

See... Theories of Negligence

4) Remedial Liability -

Remedial liability is based on the Maxim "Ubi jus ibi remedium" it means when
there is right there must be some remedy. The force of law can be used to compel a
person to do what he ought to do under the law of the country. if an injury is caused by
the violation of a right, the same can be remedied by compelling the person bound to
comply with it.The first exception is an imperfect obligation or duty, Second exception
unenforceable duties and the third exception is the impossibility of performance by law.
5) Vicarious liability -

Vicarious liability means a liability which is incurred for or instead of another.


Generally, a person becomes liable for a tort committed by him. But there are certain
circumstances in which one person 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.

Example-

Master and servant

Firm and partners

Employer and independent contractor

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.

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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.

Intention
Intention is the highest level of mens rea, and it refers to the state of
mind where a person acts with the purpose or knowledge of causing a
particular result. For example, if a person shoots and kills another
person with the intention of causing death, the person can be charged
with murder

Negligence
Negligence is a lower level of mens rea, and it refers to the failure to
exercise reasonable care in one's actions or omissions. It involves a
lack of foresight or carelessness, which results in harm or injury to
another person. For example, if a person causes a car accident while
driving under the influence of alcohol, the person can be charged with
negligence.

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