Qui Facit Per Alium Facit Per Se
(‘Qui facit per alium facit per se’:- He who acts through another, is acting himself.)
By- Astha Satsangi
(Student of Faculty of Law, Delhi University)
In general, a person is responsible for his own acts, but there are certain circumstances in which a person is liable for the wrong committed by others, that is, there are exceptional cases in which the law imposes on him vicarious liability for the acts of another, however, blameless he is. In other words, When the law holds one person responsible for the misconduct of another although he is himself free from personal blameworthiness or fault, then this unique legal position is referred to as ‘Vicarious Liability’, i.e., liability incurred for another. The most common example is the liability of the master for the wrong committed by his servants. In such cases the liability is joint as well as several. The plaintiff can sue actual wrong-doer himself, be he a servant or agent, as well as his principal.
This rule of vicarious liability originates from the English Doctrine in the legal presumption which gradually becomes conclusive that- all acts done by the servant in and about his master’s business are done by his master’s express or implied authority and are therefore in truth the acts of his master for which he may be justly held responsible.
Basis and Reasons
The doctrine of vicarious liability is based on principles which can be summed up in following two maxims-
1) Qui facit per alium facit per se: This maxim means that “he who does an act through another is deemed in law as doing it himself”. The responsibility of the master in for the act of his servant has its origin from this principle. The reason being, a person who puts another in his position to do a set of acts in his absence, necessarily leaves to determine, according to the circumstances that arise, when such act is to be done and trust him in the manner in which it has to be done, therefore, he is answerable for the wrong of the person so entrusted either in the manner of doing such act, or in doing such an act under circumstances in which it should not to have been done: provided what is done is not done from any whim of the servant but in the course of the employment.
2) Respondeat Superior: 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.
By taking these two maxims together, the master is placed in the same position as if he had committed the wrong by himself and made him answerable for his servant’s wrongs on account of his sound financial position compared with that of his servant. The answers as to why a master should be held responsible for his servant’s acts, is that by doing so-
He advances his economic interests;
He is a more promising source for recompense;
He sets the ball rolling;
He can control the servant;
He benefits from his servant’s acts; and
He has the deepest pocket.
Liability arising out of special relationship
The liability for other’s wrongful acts or omissions may arise in a situation when a person stands, towards the wrong-doer, in a relationship which makes the former answerable for wrongs committed by the other, though not specifically authorized. Liability for wrongful act arises from the relation existing between:
I. Principal and Agent
In the case when a person has the authority to perform some specific act, and he authorizes such act to some other person who is working under him, the relationship thus formed, is known to be as a principal-agent relationship. A principal is vicariously liable for the wrongful act of the agent in the course of performance of his duty as agent. The famous latin maxim Qui facit per alium facit per se is the general principle for the relationship between principal and agent (which means he who acts through another is acting himself). This means that the acts of the agent are the acts of the principal provided the agent acts in the ordinary course of the performance of his duties as an agent. That is, if an agent commits a tort in the ordinary course of his agency, or by authority of the principal, the principal will be liable for the tort of the agent.
But if the tort is being committed by the agent outside the ordinary course of the agency and without his authority, or if the agent is not acting on behalf of the principal when he commits a tort, the principal will not be liable. But the agent will always be liable personally for a tort committed by him whether or not liability also attaches to the principal.
The authority allotted by the principal to his agent for performing certain act can be expressed as well as implied but he is also liable where he did not expressly or impliedly authorize a person to do some act on his behalf, but he later on gives formal consent to the latter’s act making it officially valid.
Like in the case of Lloyd v Grace, Smith And Co.(1912) A.C.716, where Mrs. Lloyd was owner of two cottages, which she wanted to sell out and invest the proceeded money in some nice place, so she went to the office of Grace, Smith & Co. which was a firm of solicitors. Here, the managing clerk of the company fraudulently made Mrs. Grace to sign on the gift deed of the cottages in the name of the clerk instead of the sale deed. The clerk then sold the property and misused the proceeds. The clerk had done the act, without taking permission from his principal, solely for his own personal profit. It was held that the clerk was acting in the course of his principal’s employment under his authority, even though he has done the act only for his personal benefits, then also the principal was held liable for the fraudulent act of his agent.
Also in the case of SBI v Shyama Devi(AIR 1978 SC 1263), it was held that without giving any proper receipts, if a bank employee receives some cash and cheque for depositing them with the bank in his personal capacity, the bank cannot be held liable if the employee misappropriates the cash and cheques.
II. Master And Servant
The relationship of master and servant is as same as that of a principal and agent. The master is liable for the wrongful act of his servant, committed by him in the course of his employment just like as a principal is liable for the tort of his agent. The servant is also liable along with the employer, i.e., their liability is joint and several. The plaintiff has a choice to file a suit against the servant or the master or both. The maxim Qui facit per alium facit per se (he who does an act through another is deemed in law to be done by himself) applies in the case of master and servant relationship also. It is because of the fact that master seems to be in a better position as compared to his servant to meet the claim because of his sound financial condition and also he has the ability to pass on the burden of the liability through insurance. Here also the master’s doctrine of liability for the act of his servant is based on the maxim Respondeat superior which means that let the principal be liable and puts the master in the same situation as if he done the act by himself.
Accordingly, a servant can be defined as a person who acts under the direct control and supervision of his master and employer and also he is bound to follow all the reasonable order of his master given to him in the course of his employment. A servant is employed by an employer to perform certain services in connection with the affairs of the employer.
Therefore, the essentials, for the master to be held liable are:
· The tort should have been committed by his Servant;
· The servant committed the tort while acting in the course of the employment.
Vicarious Liability is distinguished from an independent contractor in the sense that even though an independent contractor is employed to act for another but he does not work under the employer’s control or interference rather he works independently. He undertakes to produce a given result but in the actual performing of his work, he is not under the order or the control of the person for whom he is performing such work. He can use his discretion in things which was not specified earlier. As a general rule, an employer is liable for the torts of his servant but he is not liable for the torts of an independent contractor. For example:
a) A engages an electrician to repair his fan. The stair on which X, the electrician’s man, was standing slipped and X got seriously injured. A is not liable to X as the electrician is an independent contractor and not his servant.
b) A hires a taxi to go to his office. On way, an accident takes place and is knocked down B. A is not liable because taxi driver is an independent contractor .
In the case of Morgan v Incorporated Central Council [(1936) 1 All ER 404], M was on a lawful visit to N’s premises. He fell down from an open lift shaft and was seriously injured. The lift has been entrusted to the care of P, an independent contractor. It was held that , N was not liable for the negligence of P.
The law regarding the partnership is a part of the law of principal and agent. The liability of a partner for the wrongful acts of his other partners is truly the liability of a principal for the acts of his agents. Any tort committed by a partner in the ordinary course of the business of the firm will held all the partners (including the guilty partner) liable for the wrong committed by one of the partner. Section 26 of The Indian Partnership Act,1932 also provides that “where, by the wrongful act or omission of a partner acting in the ordinary course of the business of the firm, or with the authority of the partners, loss or injury is caused to any third party, or any penalty is incurred, the firm is liable therefore to the same extent as the partners.”
Like in the case of A Rapp v Latham, (1819) 21 RR 49, A appointed a firm in which two partners were their, B and C, to buy and sell wine for A on commission. A has given certain amount of money to the firm for the said purpose. The active partner, B, rendered false accounts of the purchase and sell to A, and misused the money for his own personal benefits. It was held that the firm was held liable for the misconduct of B to A.
Also in the case of Hamyln v Houston and Co. (1903) 1 KB 81, H, a partner in a firm gave bribe to a clerk of a rival firm to give some information about his customers and prices of his master. Therefore, the rival lost business of 750 pounds. Held, the firm was liable for the misconduct of H.
In Mellors v Shaw, (1861) B&S 437, A workman fell into pit and got injured by the default of a managing partner of a coal mine, where he negligently omitted to have the shaft of the mine properly guarded as required by law. Held, the firm was liable for the misconduct of his managing director.
Position of Vicarious liability in India
In India, there is no statutory provision mentioning the liability of the state for the wrongful act (tort) done by its public servants in the course of their ordinary employment. Prior to the Independence i.e., 1947, there was somewhat a little mention for the liability of the state of India under Section 65 of The Government of India Act, 1858. Therefore, the state liability for a particular act is not clearly mentioned in it. Similarly The Government Of India Act,1935 did not clear the position of the state’s liability but it clearly acknowledged the position predominant before the passing of this act.
Even today in our Constitution i.e., The Constitution of India, 1950, Section 300 clearly mention about the liability of the government for the acts done by its servants, but there is still a doubt till now regarding the acts of the Government for which it can be held liable. It varies from cases to cases. However from the past judgments of the various Indian Courts, we can draw a conclusion that the government’s liability in such cases arises on the cases of sovereign nature and in the cases of non-sovereign nature, there is no liability on the government.
1. The Constitution of India, 1949
2. The Government of India Act, 1858
3. The Government Of India Act,1935
4. Case material of Law of Torts of Delhi University
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