The article has been written by Mr. Rajdeep Hembram, a 1st year LLM student from University Law College, Hazaribagh, Jharkhand
Introduction
Qui facit per alium facit per se is a maxim which means “He who acts through another does the act himself”, is a fundamental legal maxim of the law of agency. It is a maxim often stated in discussing the liability of employer for the act of employee in terms of vicarious liability.”
The maxim is shortened form of the complete formation from the 18thcentury :
“qui facit per aluim, est perinde uc si facit per se ipsum”
In a general sense, a person is liable only for his own acts and does not incur any liability for the acts of the others, but in the cases of Vicarious Liability, liability may arise of one person for the act done by another. For the liability purpose, there must be a certain kind of relationship between both persons, and the guilty act must be in certain ways connected to the relationship. When one person authorizes another to commit an act, the liability of that would not be only of that doer but also of the person who authorized it.
Vicarious Liability
Vicarious liability, or imputed liability, is a legal rule that holds a person or company responsible for actions committed by others or by their employees. Typically, it applies to those who are in control of people who cause harm to victims.
For example, a company (called the principal) is in control of its employees. So, if an employee (called the agent) injures someone while on the job, vicarious liability rules could apply to hold the company accountable.
Vicarious liability gives victims more potential defendants in a personal injury case. In many situations, plaintiffs will pursue a case against the person directly responsible for hurting them and others who are vicariously liable for the losses that occurred.
Elements Of Vicarious Liability
So the Elements of vicarious liability are:
(1) There must be a relationship of a certain kind.
(2) The wrongful act must be related to the relationship in a certain way.
(3) The wrong has been done within the course of employment.
Concept of vicarious liability
sometimes called “imputed liability,” attachment of responsibility to a person for harm or damages caused by another person in either a negligence lawsuit or criminal prosecution. Thus, an employer of an employee who injures someone through negligence while in the scope of employment (doing work for the employer) is vicariously liable for damages to the injured person.
Examples of qui facit alium facit per se
A, the owner of a car, asked her friend B to take her car and drive the same to her office. As the car was near her office, it hit a pedestrian C on account of B’s negligent driving and injured him seriously. Now C files a suit for damages against A.
A will be held liable in the above situation as B was driving under her authority.
Types of Vicarious Liability
When some person is liable for damages caused by the other person because there was certain control, ownership, or direction involved, then the liability is known as vicarious liability.
Principal Liability
When a person allows another person to use his vehicle to perform a task for the owner and while doing the task, the person causes damages or injury through negligence, in this case, the owner is liable for the damages through vicarious liability.
For example, A has a recent surgery and was on complete bed rest, he asked B to complete his insurance work by sending the papers to the company, A lends his car to B, during the drive, B had an accident because of recklessness, in this case, A is liable for B’s accident.
Parental Liability
In any case, when a child creates damage by taking advantage of the situation created by their parents, the parents are liable for the damages. The situations can be allowing a child to drive, or leaving a loaded weapon in a child’s reach. In the lack of parental supervision, the parents are vicariously liable for their child’s negligence.
For example, A is the mother of 10-year-old B, while performing the daily chores she was not able to keep an eye on B and B damaged the car of C. In this case, A is vicariously liable for B’s actions as B is the son of A and she has to keep an eye on B’s actions
the maxim is subject to the nexus between the act and the relationship, or in simple words, a person is liable for the act done by another if there is a certain relationship amongst them and the act must be connected with the relationship. Some of the most common examples of such liability are-
- Liability of a principal for the act of his agent.
- Liability of partners of each other’s act.
- Liability of a master for the act of his servant.
The examples in details
- Principal and Agent
When an agent commits an act in the course of employment of his duty as an agent, the liability of the principal arises for such an act. The agent will be liable for his own act, but the principal would be held liable vicariously because of the principal-agent relationship amongst them. The principal generally does not expressly ask the agent to do any wrongful act, but when the agent works in the ordinary course of employment, the principal becomes liable for the same.
In the case of State bank of India v. Shayama devi, the plaintiff hand over some cash and cheques to his friend, who is an employee in the defendant bank, for being deposited in the plaintiff’s account. No deposit receipts were issued to the plaintiffs. The employee had misappropriated the plaintiff’s amount. The Hon’ble Supreme Court held that the Bank is not liable for the fraud, as the employee when committing fraud was not acting in the course of employment but did it in his private capacity.
- Partners
The rules of the law of agency apply in the case of partners also, as their relationship is that of Principal and Agent. If an act has been committed by any one of the several partners in the course of their business, all the rest partners would be held liable for the act as that of the doer.
In the case of Hamlyn v. Houston & Co., one out of the two partners of the defendant’s business, acting within the ambit of their business transactions, bribed the plaintiff’s clerk and induced him to make a breach of contract with the plaintiff’s employer. It was held that both the partners would be held liable for this wrongful act.
- Master and Servant
A master would be liable for the actions of his servant if the act was done in the course of employment. The servant would indeed be held liable. The principle of holding liable the master for the act of his servant is based on the legal Doctrine of Respondeat Superior
, meaning ‘let the principal be liable. As per the doctrine, it puts the master in the same position as he would have committed the act himself. For the purpose to arise the liability of the master, the following two sine qua non must be fulfilled-
- The act must be committed by the servant.
- The act must be committed in the course of employment.
Respondeat Superior meaning: This means ‘let the principle be liable’ or ‘the superior must be responsible’ or ‘a principal must answer for the acts of his subordinates’. In such cases. Not only the one who obeys but also the one who command becomes equally liable. This principle puts the master in the same position as if he had done the act himself. The master is answerable as well as liable for every such wrong act of the servant as is committed in the course of his service. Similarly, a principal and agent are jointly and severally liable as joint wrongdoers for any tort authorized by principal and committed by agent.
Exceptions
- When the servant is under a statutory duty which he cannot delegate, the master is not liable.
- When there is a case where the servant is involved with the withdrawal of support from the neighboring land, the master is not liable.
- When situations involve very hazardous acts, the master is not liable.
- When situations involve escaping from the fire, the master is not liable.
- When situations using the highways, the master is not liable.
Case law
- H E Nasser Abdulla Hussain Vs Dy. City:
Facts: In this situation, the assessee was involved in the training of racehorses as well as their racing in horse races. As a result, the facility was provided for by those who had agreed to pay. Much of this should not be done by the assessor alone. The assessee suffered a loss in the activity of keeping and maintaining racehorses during the assessment period. He filed a lawsuit for his loss as a result of his participation in head running. The allegation was disallowed by the assessing judge, and the commissioner upheld the decision.
Judgment: The Assessee was given the Bin Hussein Stud Farm for horse upkeep, it was determined. The assessee paid the necessary sum for maintenance. As a result, the assessee may be said to have kept the horses in good condition and complied with the requirements of section 74A(3) of the Income Tax Act of 1995. The sense of the word “maintained by him” as it appeared in the section was misinterpreted by the revenue authorities. As a result, the Bombay High court ordered the assessment officer to apply section 74A of the Act to the assessee.
Reasoning: In this case the principle ‘qui facit per alium facit per se is applicable’ was applied. [18] As there was payment done to the assessor by the assessee and the actions were under the scope of employment, this maxim was found relevant and thus applied.
- Deo Narain a Rai and Anr. Vs Kukur bind and Ors.
Facts: This appeal arises from a complaint filed by the appellants following the respondent Mr. Kukur Bind’s recovery in their favor for the amount of Rs 381 of the possession of three odd Biswas as the estate’s mortgage by the simple mortgage deed of August 25, 1896. He did not sign the act, and his signature is not visible. However, a patwari named Shiunaudan Lal wrote about his signature. It was discovered that Kukur Bind was illiterate, unable to write his name, and he allowed the patwari Shiunandan Lal, the text’s author, to sign it.
Judgment: The Allahabad High Court ruled that Section 59 of the Property Transfer Act would not refer to the mortgage owner’s signature since, if the signature is on an instrument of mortgage applied by another entity, it is in effect his signature, which is required to form a valid mortgage. It further stated that the case must be referred to the Court of First Instance for judgment and that the subsequent court decrees must be set aside.
Reasoning: In this case, it was believed that “whoever performs an act in the eyes of another person does so himself, as per the maximum qui facit per alium facit per se. A signature of a mortgage agent is appropriate. In common law, where a person allows a person to sign for him, his signature is the signature of the person who authorizes it. Thus, the maxim was applied.
Conclusion
From the above discussion, I come to know the principle of qui facit per alium facit per se and essential ingredient of this principle.
References
Qui facit per alium facit per se meaning
vicarious liability