In other words, there must be a gain of unfair advantage and/or a relationship that is abused by the one party who is dominating the other, innocent, weaker party. Moreover, the doctrine of duress requires the intentional use of force, or threats by one party in order to coerce the other party to enter into a contract with him. But in undue influence, the use of force, or the threatening of the use of force is not required. The more significant element under the concept of undue influence is that there must be pressure exerted on the other party and/or a well-established relationship between the parties to a contract and that relationship had been abused by one dominating party to force the weaker party to enter into an agreement. Overall, the doctrine of undue influence can only be applied when there is pressure exerted by one party, who has a relationship with the other, weaker party, and has been abusing the said relationship through the said pressure to
Just like other intentional torts, intention is required in false imprisonment and is a very important element. Carelessness is not enough, the defendant may have acted with a purpose to cause the confinement, or with substantial certainty that his acts will cause it. Second, the defendant’s intention must cause confinement of the plaintiff. The essence of the tort is restraint of the plaintiff’s freedom of movement, so they must establish confinement. It must be noted that blocking the plaintiff’s way will not amount to false imprisonment, as long as a reasonable alternate route is available.
The defendant may be criminally liable for omitting to act provided that the crime is one which may be committed by omission and the defendant is in breach of some legal duty to act. It is generally believed by some theorists that omission liability plays an insignificant role in the criminal law and there are others who suggest that the scope of omission liability should be widened to include a wide range of conduct that are subject to criminal sanctions. Also, there is concerns that how should such liability be constructed, for example, would it unfairly penalized an innocent passer-by? The modern legal system tends to adopt the concept of ‘duty to act’, whereby it is an offence if a person who has a duty to act failed to act in a required state. One can debate whether (and to what degree) duties of compassion and solidarity exist between citizens, and whether the state should punish their violation.
Judge Haugh declared that “One is not entitled to seek damages for mere bad manners or mere sensitivity, but there is however an action known to the law of tort that entitles a person to compensation when they suffer a recognized psychiatric consequence of harassment ,that is inexcusable conduct intentionally or recklessly handed out. Before he can succeed in an action for the wilful or reckless infliction or emotional harm there must be a form of harassment or a form of misconduct formed on the part of the defendant that any right-minded right-thinking person would consider to be gratuitous or reprehensible. It must be done either with the intention of humiliating or embarrassing the butt of the harassment ,or it must be done where there is a risk of such an adverse reaction and that risk is unjustifiably
However, the relevance of confession in criminal trial as a species of an admissions against the interest of the maker by virtue of Section 21 of the Evidence Act. The sum and substance of the difference is that the confession rule aims to exclude self-criminality statements which are false, 30 while the privilege rule gives the opinion of excluding those which are true. The two or complimentary to each other in that respect and therefore cannot be coincident.
Decency or morality is a ground on which freedom of speech and expression may be reasonably restricted. Decency is the same as lack of obscenity. The right to freedom of speech cannot be permitted to deprave and corrupt the community, and therefore, the writings or other objects, if obscene, may be suppressed and punished because such action would be to promote public decency and morality. Thus, obscenity becomes a subject of constitutional interest since it illustrates well the clash between the right of the individual to freely express his opinions and the duty of the State to safeguard morals. Further the scope of obscenity under the existing law is illustrated in Sections 292 to 296 IPC.
The Harm Principle does not permit compelling counteractive action of physical mischief and good or social offense, if the impacts of the physical damage or good or social offense are constrained to the actor himself. In spite of the fact that many have translated Mill 's guideline as hostile to paternalistic, Mill 's contention in On Liberty (1859) has gotten scholarly consideration for being tolerant to paternalism, creating hopeless inconsistency. This article attempts to accommodate the seemingly conflicting principles of liberalism (characterized as the conviction that individual unrestrained choice is inalienably profitable and
The plaintiff must furthermore employ this standard to establish that the defamatory material relates to his reputation and not that of another. A presumption of wrongfulness ensues. In refutation of this presumption, the defendant may assert justifications similar to those listed in the context of criminal defamation. Intention on the part of the defendant, alleged but not proven by the plaintiff, requires both deliberate action and cognizance of the wrongfulness thereof. Publication of defamatory material leads to a presumption of deliberate action by the defendant which the defendant may refute by establishing mistake or jest.
1 Introduction In respect of criminal capacity there is an ongoing dispute about the defence of criminal incapacity due to provocation or emotional stress. This debate revolves around the application of logic and legal principles versus that of policy considerations. 2 Criminal capacity This element of the crime is a purely subjective inquiry into the state of mind of the accused at the time of the commission of the crime and is based on the principle of individual autonomy. The state bears the onus of proving criminal capacity beyond reasonable doubt. It consists of two legs, namely the conative capacity and the cognitive capacity.