WHAT IS CIVIL LAW

 

 

WHAT IS CIVIL LAW   

A.      Civil law 

1.                 The law deals with rights and duties. The breach of duty is a wrong. The loss damage caused by breach is the liability. The redressal of wrongs is the remedy. 

2.                 The common law which creates the duties in public interest and imposes punishment for breach of that duty, falls under the branch of criminal law. However, the common law which creates rights and obligations in a person or his things is classed as civil law.

B.      Property  

3.                 Firstly, in a broad sense, all rights in a person or his things are property rights. Even rights of master over the servant or father over his children are property right. However, this broad concept is absolete.  Now, the property rights are classified  into proprietary rights and personal rights. The former relates to the individual’s estate and latter concerns his status or personal condition. The proprietary rights has become synonymous with property rights in common law. 

4.                 Secondly, the proprietary rights are  classified into (a) proprietary rights in rem and (b) proprietary rights in personam. 

5.                 Thirdly, its only the rights which are in rem and which relate to corporeal property, namely land (immovable) and chattel (immovable) are strictly the property rights in common law. The rights in incorporeal property like intellectual property, leases and mortagages are not property law in a strict sense in common law. 

C.      Obligations 

6.                 The he proprietary rights in personam are the part of law of obligation in common law.  The obligations in common law may arise from: breach of contracts; breach of duty known as torts; breach of quasi contracts or implied contracts; and in-nominate or residual obligations. 

7.                 The personal rights are the rights of an individual which pertain to his or her status or standing. The rights of spouses among married couple and rights between parents and children are personal rights. 

D.      Titles 

8.                 The rights have source which is known as title. The title in property is derived from four sources - possession, prescription, agreement and inheritance.

E.      Remedies 

9.                 The violation of right in civil law is remedied by enforcing primary right by restitution, injunction etc or by enforcing the sanctioning right by payment of compensation. The Specific Relief Act of 1963 and Civil Procedure Code of 1908 regulate these remedial rights.

F.      Transfer of Property 

10.            The right of ownership of property is bundle of rights which includes right to enjoy the property exclusively and pass it on to descendants. The ownership of property can be sole and co-ownership (ownership in common and joint ownership); can be fragmented on time basis; can be divided between trust ownership and beneficial ownership; can be classified as legal and equitable ownership; can vested and contingent ownership. Three concepts of possession are: possession in law and possession in fact; immediate and mediate possession; and concurrent possession. 

11.            The law of property as codified under the Transfer of Property Act of 1882 regulates contractual transfer of interest in property. In includes both transfer of proprietary rights in rem and in personam, since deals with not only sale but also leases and securities or mortagage.   The Sale of Goods Act of 1930 regulates transfer of movables. However, the law of Torts regulates injury to caused to rights which may be proprietary rights or personal rights.

 12.            The TP Act codifies the law regulating the transfer of interest in the property. The concepts are - Who can transfer ? What interest can be transferred ? Are conditional and restrictive transfers permissible? Who can be transferee ? 

13.            What interest is transferable ? The transferable interest in the movable and immovable property can be both vested interest (Sec 19 and 20) and contingent interest (Sec 21 and 22). 

14.            The transfer ought to be absolute except in case of lease (Secs 10, 11 and 12). 

15.            The transfer operates forthwith (Sec 8) unless a different intention is expressed or necessarily implied. 

16.            The conditional transfer (Sec 25) is permitted in certain circumstances: condition precedent (Sec 26); conditional transfer to X and on failover to Y (Sec 27); on happening or not happening (Secs 28 and 31); and condition subsequent (Sec 29). 

G.    Persons 

17. The subject of law could be individual or group of   human beings and legal artificial persons created by law namely company, corporations, societies, trusts, etc.  The dead or unborn are not persons in law. The  animals are not persons in law.

H.      Inheritance

 

18. The inheritance law is a complex subject since, its not only governed by common law. Its governed by personal law of customs and practices, which is different for each religion. These personal laws are treated as laws under Art 13 of the Constitution and therefore, are not subject the constitutional rights or restrictions under Part III of the Constitution.      

I.       Public law 

19.     The constitutional relationship between the State and private property is usually tense in any liberal democracy, because the industrialisation, development and removal of poverty and historical injustices require redistribution of property particularly the land resources in the egalitarian manner. 

20.     The State is vested with power of eminent domain to acquire property as an incident of sovereign power. However, it’s subject to payment of compensation. 

21.     The property in this constitutional context of eminent domain includes all properties. It’s not confined to what is narrowly defined as property in property law for transfer purpose. 

22.     While recognising impliedly the power of eminent domain to acquire property, original Art 31(2) imposed two obligations on the State namely payment of compensation for requisition or acquisition and necessity of legislation. However, this Art 31 was deleted by 44th amendment. In its place, Art 300A is enacted. 

23.     At present, the right to compensation at market value is guaranteed as fundamental right only against acquisition of property in land which is in personal cultivation - See 2nd proviso to Art 31A (1). In other cases, it’s open to the State to acquire on payment of some reasonable compensation - not necessarily market value compensation. However, under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the Parliament has extended market value compensation to all properties. 

24.     With regard to the laws touching acquisition of five items of property mentioned in clauses (a) to (e) of Art 31A, a constitutional immunity is granted from the rigours of Art 14 and Art 19 (except laws in respect of acquisition of land under personal cultivation). 

25.     With regard to the laws listed in Ninth Schedule, Art 31B grants specific immunity from Arts 14 and 19 and validates against the judgements if any. 

26.     Art 31C grants immunity to laws made for implementing clauses (b) or (c) of Art 39. 

27.     The laws made by reference to Art 31A and Art 31C have to be tested whether they really have any nexus to the said provision or not. However, with regard to laws included in the Ninth Schedule and protected by Art 31B, no such test is applied. But, these laws should be tested on the touchstone of basic structure [see conclusion (iv) in IR Coelho case - (2007) SCC 1 at 111.