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LEGAL RIGHT
- Definition by Blacklaw dictionary
- Austin;
a faculty which resides in a determinate party or parties by virtue of
given law, and which avails against a party other than the party or parties
in whom it resides
Generally, rights are of two kinds;
PUBLIC RIGHTS (BLD)
PRIVATE RIGHTS (BLD)
Private rights are rights relative to the mind, body and property,
personal rights that a person has to the exclusion of the World.
Public rights are the one belonging to the members of state generally.
Rights and duties are reciprocal in nature. The nature of right
determines the nature of duty.
Liability for tort arises, when the wrongful act complained of amounts either to
an infringement of legal private right or violation of a legal duty.
2) LEGAL DAMAGE
-Definition Blackslaw dictionary
Winfield says that
Injury must be of the kind which the statue intended to
prevent
Again it brings us to the nature of the right involved
- DIFFERENCE BETWEEN DAMAGE AND DAMAGES
Rights as regards to legal damage can be classified into;
Absolute Right
Qualified Rights
-Violation of absolute rights is actionable per se
- Violation of a qualified right is not actionable per se
MAXIMS RELATED TO LEGAL DAMAGE
INJURIA SINE DAMNO
DAMNUM SINE INJURIA
INJURIRA SINE DAMNO
- MEANING
DAMNUM means proof of loss or damage, Sine means without and
INJURIA means violation of some legal right.
Privy Council observed
There may be, a where a right is interfered with,
injuria sine damno sufficient to found an action; but no action can be
maintained where there is neither demnum nor injuria
Ashby v White
Marzette v William
There may be where a right is interfered with, injuria sine
damnum sufficient to found an action; but no action can be
maintained where there is neither damnum nor injuria (sKali
Kissen Tagore v Jadoo lal Mullick(1879)
DAMNUM SINE INJURIA
MEANING
When a statue confers upon a power to be exercised for the public good, the
exercise of power is not generally discretionary but imperative. No action lies
against district Board for the planting of trees by the side of a road even if a tree
through unknown causes falls and damages the house of plaintiff, unless it is
proved that the district Board did not use due care and diligence. [AIR 1955 pat
432]
-Gloucester Grammar School Case (1410)
3) LEGAL REMEDY
The maxim Ubi jus ibi remedium, there is
1) Where there is a right, there is a remedy
2) There is no wrong without a remedy
-REMEDIES
There are two kinds of remedies;
-Judicial Remedies
-Extra-Judicial Remedies
MENTAL ELEMENTS IN TORT
Usually mental elements are not relevant in action for tort but they are taken
into consideration;
a) INTENTION
b) MOTIVE
c) MALICE
CONCLUSION: