Useful Notes on the Theory of Remedial Liability

Liability is the vinculum juris, i.e., the bond of legal necessity that exists between the wrongdoer and the remedy of the wrong.

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As Salmond observes, a man’s liability consists in those things which he must do or suffer, because he has already failed in doing what he ought. It is the ultimatum of the law, and has its source in the supreme will of the State.

Civil and Criminal Liability:

Liability may be civil or crim­inal. Civil liability is the enforcement of the right of the plaintiff against the defendant in civil proceedings. Criminal liability is the liability to the criminal proceedings whose direct purpose is the pun­ishment of the wrongdoer

Penal and Remedial Liability:

Liability may also be consid­ered as penal or remedial, the former involving the ideas of punishment and the latter consisting in the specific enforcement of the plaintiff’s rights without any idea of punishment.

The liability to repay a debt is remedial, while the liability lo is imprisoned or to pay damages is penal. Criminal liability is essentially and always penal; civil liability is mostly remedial though in some cases it includes the penal element, in eases where penalty is imposed.

Even where there is a penal liability in civil law, the idea of punishment is only indirect, the idea being to enforce the plaintiff’s right, unlike the criminal liability where the entire purpose is the punishment of the defendant or the wrongdoer.

Theory of Remedial Liability:

Remedial liability is that in which the sole intention of the law is the enforcement of the plaintiff’s right. Whenever the law imposes a duty, it enforces its specific per­formance. What a man ought to do under a rule of law he will be made to do by the force of law. Its purpose is to remedy the injury caused by any violation of rights by compelling the person bound to comply with it. The idea of punishment is, however, absent in this theory.

Its Exceptions:

There are three exceptions to the general rule that a man is made to do so by the force of law what he is bound to do by a rule of law. They are as under:

1. Duties of imperfect obligation or imperfect duties:

The breach of an imperfect duly gives no cause of action. A time-barred debt, though a legal debt, cannot be enforced by law as the right to sue is destroyed.

2. Duties which cannot be specifically enforced after a breach has taken place:

When once libel or defamation has been commit­ted, its specific enforcement is not possible. The miscreant once he has published the libel cannot be made to undo that which he has already done.

3. Where the specific enforcement of the duty is inexpedient or inadvisable:

The law, though capable of enforcing, refuses to enforce specific performance of a promise of marriage and instead allows damages.