Liability

10 Key excerpts on "Liability"

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  AS Law

  • Mary Charman, Bobby Vanstone, Liz Sherratt(Authors)
  • 2012(Publication Date)
  • Willan

    (Publisher)

  Part 4 The Concept of Liability

  So far this book has investigated the way in which the English legal system operates, including the way in which the law is formed, the courts and the people who work in them, the role played by the police, etc. The next part of the book provides an introduction to aspects of three areas of substantive law (specific areas of practical law which create rights and obligations):

  • criminal law
  • the law of tort and
  • contract law

  It then considers the sanctions and remedies which may flow from these.

  The material studied in this part of the book will be useful not only for the purposes of the second ‘half’ of AS law for AQA students, but also in providing you with illustrations and examples to support your previous studies, as well as introducing you to particular rules of law.

  Central to this part of the book is the concept of Liability. The term ‘Liability’ means responsibility for a person's actions towards others in society, whether in civil or criminal law. A wrongful act that breaches the criminal law creates a criminal Liability and an offender may then be found guilty. A wrongful act that breaches the law of tort or contract creates a civil Liability and the person carrying out that act may be found liable to compensate in some way the person to whom the harm was caused. The distinction between civil and criminal is discussed in the following chapters, although some differences have already arisen in Chapter 7 (the court system). In general the criminal law is concerned with upholding a standard of behaviour by punishing those who offend, whilst the civil law is concerned with compensating the victim.

  This part of the book is only an introduction to these areas of substantive law. For students continuing to A2 level, the topics are developed further in the relevant modules of the A2 specification. AQA candidates should be able to explain the rules of law covered here, and apply them to a factual problem situation. The topics will then be developed further at A2. OCR candidates continuing to A2 will choose to study, in greater depth, only one

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  An Introduction to Law

  • Phil Harris(Author)
  • 2015(Publication Date)
  • Cambridge University Press

    (Publisher)

  Third, there is within social science a line of thought and reasoning among some writ- ers (notably Talcott Parsons 5 ) which posits ideas about crime and the criminal legal code resting on these notions of consensus. Some of the consequences and doubts about such assumptions, especially when held by those involved in the administration of the criminal justice system, are discussed later in this chapter, but to begin with it is necessary to examine some of the fundamental principles and conditions of Liability in criminal law. Liability in criminal law The element of fault, which we have already discussed in the context of tort law, has similar prominence in criminal law as regards the general conditions 1 J. Stephen, A History of the Criminal Law of England (1883, Macmillan). 2 Lord Denning, in Report of the Royal Commission on Capital Punishment (1953, Cmd 8932, HMSO), p. 18. 3 E. Durkheim, The Division of Labour in Society (1964, Free Press, New York; Macmillan, London), p. 79. 4 Ibid., p. 80. 5 See, e.g., T. Parsons, The Social System (1951, Routledge and Kegan Paul). 352 Liability in English law: crime and criminal justice of Liability, except in specific circumstances. Consideration of the distinction between criminal law and tort may reveal why fault continues to be defined by legislators and judges as of fundamental importance to the criminal justice system. Tort claims, and other civil proceedings, are instituted by individuals or bodies in order to obtain compensation from, or some other private remedy against, other individuals or bodies. Criminal proceedings are generally (though not invariably: see chapter 5) brought under public authority – nominally the Crown – against the wrongdoer.

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  Obligations

  Law and Language

  • Martin Hogg(Author)
  • 2017(Publication Date)
  • Cambridge University Press

    (Publisher)

  This Hohfeldian sense of ‘Liability’ denotes vulnerability to another exercising a power, and so (in a somewhat specific sense) denotes accountability. The overall impression conveyed by the academic treatment of ‘liabil- ities’ is that it is a wide concept, broadly based around the idea of accountability in (or subjection to) law. (2) Judicial Understandings of the Core Meaning of Liability Many of the discussions of the basic concept of Liability appear within judgments in which the term has been used in statutes or contracts alongside other terms such as ‘power’, ‘obligation’, and ‘debt’. Some of these cases are discussed in Section G below. Unsurprisingly, the parti- cular meaning ascribed to the usage of the word ‘Liability’ in legislation is heavily affected by the context of the term and the purpose of the legislative provision. 111 109 P. 184. 110 Ibid. 111 ‘The word takes its particular significance, however, from the context in which it appears and the subject matter and evident policy of the legislation in which it is found’ (Barwick CJ in Tickle Industries Pty Ltd v. Hann (1974) 130 CLR 321 (1974) 2 ALR 281). There are many decisions applying this context-based approach: see, for instance, in Canadian f Liability 49 Consistent with the wide conception of Liability displayed by some writers, many judges have recognised that ‘Liability’ is a term capable of bearing a number of meanings. 112 In the minds of some courts, ‘Liability’ is a term of almost unbounded breadth: In common speech, in contracts, and in judicial decisions, it is very frequently used, and has been referred to as of the most comprehensive legal significance, including almost every character of hazard or respon- sibility, absolute, contingent, or likely, and has been defined as the con- dition of being responsible for a possible or actual loss, penalty, evil, expense, or burden.

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  Directors' and Officers' Liability Insurance

  • Adolfo Paolini, Deepak Nambisan(Authors)
  • 2020(Publication Date)
  • Informa Law from Routledge

    (Publisher)

  In other words, anybody who causes damage is obliged to make that damage good. That obligation may arise from two different sources: first, as a result of a breach of contract (“contractual Liability”); and secondly, as a result of a failure to comply with the general duty of care not to cause damage to third parties (the resulting Liability being termed “delictual” or “quasidelictual”). 2 We consider those two sources in turn. II.  CONTRACTUAL Liability 7.04 Where a contractual relationship exists between the parties, one can ascertain the extent of the wrong and measure the damage thereby caused by assessing what the parties promised to each other and were, therefore, entitled to expect. In civil law a number of principles of contractual Liability have developed as follows: (a) Good faith 7.05 Contracts must be executed in good faith. 3 This abstract concept, difficult to define with clarity, imposes upon the parties the duty to act fairly and reasonable in performing their contractual obligations, from the early stages and throughout the execution of the agreement. The duty, therefore, embraces the process of contract formation, seeking to ensure that anybody who has given their consent to enter into a contract, in so doing, has proceeded with absolute freedom and willingness and with knowledge of the subject-matter of the contract. The concept may have a further role to play in that there is “good faith” when due care is exercised while performing a contract

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  An Introduction to the Philosophy of Law

  • Yehuda Bauer(Author)
  • 1987(Publication Date)
  • Yale University Press

    (Publisher)

  The legal precept was mum cuique tribuere. Thus Liability seemed to flow from intentional action—whether in the form of aggression or in Liability 79 the form of agreement. The natural sources of Liability were delict and contract. Everything else was assimilated to one or the other of them. Liability without fault was quasi-delictal. Liability imposed by good faith to prevent unjust enrichment was quasi-contractual. The central idea had be-come one of the demands of good faith in view of inten-tional action. In the nineteenth century the conception of Liability as resting on intention was put in metaphysical rather than ethical form. Law was a realization of the idea of liberty, and existed to bring about the widest possible individual liberty. Liberty was the free will in action. Hence it was the business of the legal order to give the widest effect to the declared will and to impose no duties except in order to effectuate the will or to reconcile the will of one with the will of others by a universal law. What had been a positive, creative theory of developing Liability on the basis of intention became a negative, restraining, one might say pruning, theory of no Liability except on the basis of intention. Liability could flow only from culpable conduct or from assumed duties. The abstract individual will was the central point in the theory of Liability. If one was not actually culpable and yet established legal precepts which were not to be denied held him answerable, it was because he was deemed culpable, the historical legal Liability being the proof of culpability. If he had not actually assumed a duty, and yet established legal precepts which were not to be denied held him to an-swer for it, this must be because he had assumed some rela-tion or professed some calling in which an undertaking to that effect was implied or had participated in some situa-tion in which it was implied—the implication being a de-duction from the Liability.

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  Professional Indemnity Claims

  An Architect's Guide

  • N P G Thomas(Author)
  • 2016(Publication Date)
  • Architectural Press

    (Publisher)

  5 The Concept of Liability Basis of Liability Period of Liability Limitation of Liability Exclusion of Liability This page intentionally left blank The Concept of Liability Basis of Liability An architect may be sued either in contract or in tort. These are complicated topics which have merited the attention of a considerable number of learned authors and it is not the purpose of this book to do more than give a very general outline of their meaning before applying them to the particular case of an architect. Contract A contract is an agreement which can be enforced by law between persons, who may be legal persons How a contract is formed such as incorporated companies. Present-day society is such that people regularly enter into agreements with each other. Indeed, although people do not give any great thought to the legal effect of their everyday transactions, most of them, such as shopping or taking a train, give rise to legally binding agreements, which are in fact contracts. For an agreement to be a contract and thus enforceable at law it must comply with the following eight prerequisites. Certainty A contract is created by one party making an offer and another accepting it. There must be certainty as to what was in the minds of the offerer and of the accepter, and unless evidence to the contrary is produced, the law will presume that they were of one mind. If a contract document is signed and it is unambiguous the law will treat it as conclusive evidence of the terms of the agreement. Agreement It must have been agreed by the parties that they were legally bound to carry out the mutual obligations envisaged by the contract, as opposed to being morally bound alone. There must be evidence that this agreement exists, although in most cases oral evidence will suffice. 51

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  Atiyah's Accidents, Compensation and the Law

  • Peter Cane, James Goudkamp(Authors)
  • 2018(Publication Date)
  • Cambridge University Press

    (Publisher)

  In the criminal law, it is seen as a basic requirement of justice that ‘the punishment fit the crime’ in terms of the seriousness of both the offender’s conduct and the consequences of that conduct. In tort law, on the other hand, there is no such idea that the compensation payable should be proportional to the tortfeasor’s fault. 1 Fault is like a magic talisman: once it is established, all shall be given to the injured party. It is generally immaterial whether the fault was gross or trivial, 2 or whether the consequences of the fault 1 This contrast between the criminal law and tort law is explored in P. Cane, ‘Retribution, Proportionality, and Moral Luck in Tort Law’ in P. Cane and J. Stapleton (eds), The Law of Obligations: Essays in Celebration of John Fleming (Oxford, 1998) 141. 2 There are some exceptions. For example, people are expected to take more care for the safety of others than for their own safety, and adults are expected to take more care of their own interests than children. In some cases, too, a defendant will be held liable for negligence only if their 164 An Appraisal of the Fault Principle were catastrophic or minor. A degree of fault on the part of someone results in the injured person being compensated for all the losses suffered, provided the claimant was in no way personally at fault. Yet the seriousness of the consequences of a negligent action often bears no relation to the degree of fault which gave rise to it. A piece of momentary thoughtlessness on the road may cost someone their life and cause great loss to their family; but similar acts of thoughtlessness – or much more serious acts of negligence – may be committed by scores of others every day with only minor or even no adverse consequences.

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  Business and Company Law, 2nd Edition

  • Nickolas James, Ellie (Larelle) Chapple, Alex Wong, Richard Baumfield, Richard Copp, Robert Cunningham, Akshaya Kamalnath, Katherine Watson, Paul Harpur(Authors)
  • 2019(Publication Date)
  • Wiley

    (Publisher)

  2 Note that an employer is not vicariously liable for the conduct of an independent contractor. 3 Vicarious Liability also arises in other contexts, including: • the Liability of a principal for the actions of their agent, and • the Liability of one partner for the actions of the other partners. ACTIVITY — REFLECT Refer to ‘Johnny and Ash’ at the beginning of this chapter. Is Johnny liable for Cathy’s conduct? ....................................................................................................................................................................................... REVISION QUESTIONS Before proceeding, ensure that you can answer the following questions. 3.1 What is criminal Liability? 3.2 What is tortious Liability? 3.3 What is contractual Liability? 3.4 What is statutory Liability? 3.5 What are the similarities and differences between these four forms of legal Liability? 3.6 When is an employer liable for the conduct of an employee? ....................................................................................................................................................................................... 3.2 Deliberately causing harm to person or property LEARNING OBJECTIVE 3.2 Determine when a person will be legally responsible for deliberately harming the person or property of another. In this part of the chapter we focus on the legal consequences of deliberately causing harm to the person or property of another. Later in the chapter we consider the consequences of deliberately causing fnancial harm, and in the next chapter we consider the consequences of carelessly causing harm to the person or property of another, and of carelessly causing fnancial harm (see fgure 3.2). Deliberately causing harm to the person or property of another may give rise to criminal Liability and/or tortious Liability. Criminal Liability Some (but not all) forms of harmful conduct will give rise to criminal Liability.

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  Unravelling Tort and Crime

  • Matthew Dyson(Author)
  • 2014(Publication Date)
  • Cambridge University Press

    (Publisher)

  But, overall, the winners are more likely to be the insurance companies, because more people will need more insurance cover, and lawyers, because there will be more fee-generating disputes between insurance companies as to how much which insured party has to pay. Overall, a clearer and more precise rule would surely on balance be better. 4. Conclusion In this chapter, three distinct but related aspects of the relationship between criminal and tortious Liability were examined. As regards the first, the offender’s tortious Liability for his own breaches of the criminal law, the rules appear to be a total muddle – and this area has recently been worsened by some ill-considered legislation, aiming to contract this form of Liability. In the second, civil claims against others for the conse- quences to oneself of the crimes one has oneself committed, the current rules are clear and sensible, and (happily) there is no move afoot to alter them. In the third, tortious Liability for damage suffered by reason of crimes committed by third parties, the law is complicated, and in broad terms the scope of possible Liability is currently expanding – in some respects, to the point where the current limits of Liability have become worryingly uncertain. civil Liability for crimes 329

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  Relating to Responsibility

  Essays in Honour of Tony Honoré on his 80th Birthday

  • Peter Cane, John Gardner, Peter Cane, John Gardner(Authors)
  • 2001(Publication Date)
  • Hart Publishing

    (Publisher)

  6 OBLIGATIONS AND OUTCOMES IN THE LAW OF TORTS John Gardner * I “Under strict Liability”, according to Alan Brudner, “one has no right to act in ways that happen to injure another. Since, however, all action carries the risk of such injury, strict Liability means that I have a right that you be governed in all your actions by concern for my welfare, and you have the same right over me. No doubt there is a mutuality of care here; but it is the mutual care of extreme altruists who, because they claim no worth as independent selves, can neither give nor receive effective confirmation of worth and hence can require no valid right to care. By contrast a fault [i.e. negligence] requirement establishes a reciprocity of care between selves”. 1 Brudner casts his argument in terms of the potential plaintiff’s rights, but (to avoid some distractions further down the line) I am going to reframe it in terms of the potential defendant’s obligations. True enough, P’s rights against D are not the same thing as D’s obligations towards P. A right is not an oblig-ation; rather, it is the ground of (one or more) obligations. 2 All the same, there is nothing that counts as the violation of a right other than a failure to per-form (one or more of ) the obligations that it grounds. Thus the conditions under which D violates P’s rights—the conditions under which D wrongs P— are identical to the conditions under which D fails to perform (one or more of ) his obligations towards P. It follows that, if our interest is in what it takes for D to wrong P, and in the Liability to which such wrongs may give rise in * I am grateful to the participants in the Columbia Law School workshop on Tony Honoré’s Responsibility and Fault for a fascinating discussion of my first attempt at the topic, from the ashes of which this rather different paper arose. Special thanks go to my commentator Niki Lacey and to Tony Honoré for giving me the benefit of his first reactions.

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