Delhi Judicial Services Exam Property, Transfer & Tort Law Flashcards

24 sample cards from the Property, Transfer & Tort Law deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What is a "charge" under Section 100 of the TPA, and how does it differ from a mortgage?

   Where immovable property of one person is, by act of parties or operation of law, made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property. Difference: a mortgage is a transfer of an interest in the specific property, whereas a charge creates only a right to payment out of the property (no transfer of interest); a charge generally cannot be enforced against a bona fide transferee for value without notice.

2. Define "actionable claim" under Section 3 of the TPA, 1882.

   An actionable claim means a claim to any debt (other than a debt secured by mortgage of immovable property or by hypothecation/pledge of movable property), or to any beneficial interest in movable property not in the claimant's possession (actual or constructive), which the civil courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent.

3. How is an actionable claim transferred under Section 130 of the TPA?

   The transfer of an actionable claim, whether with or without consideration, can be effected only by execution of an instrument in writing signed by the transferor or his agent. On such execution all the rights and remedies of the transferor vest in the transferee, who may sue or proceed in his own name without the transferor's consent. (Notice of transfer to the debtor is required to bind the debtor / for priority among transferees.)

4. Define "tort" and state its essential elements.

   A tort is a civil wrong, independent of contract, for which the remedy is an action for unliquidated damages. Salmond's definition: a civil wrong for which the remedy is a common-law action for unliquidated damages and which is not exclusively the breach of contract, breach of trust, or other merely equitable obligation. Essentials: (1) a wrongful act or omission, (2) a legal duty owed to the plaintiff, (3) breach causing legal damage (injuria), and (4) a legal remedy in the form of unliquidated damages.

5. Explain the maxims "injuria sine damno" and "damnum sine injuria".

   Injuria sine damno = violation of a legal right without actual damage; it is actionable (e.g., Ashby v. White -- denial of voting right). Damnum sine injuria = actual loss/damage without violation of any legal right; it is NOT actionable (e.g., Gloucester Grammar School case; Mogul Steamship Co. v. McGregor). A legal right's infringement, not mere loss, founds a tort.

6. List the general defences available in an action for tort.

   (1) Volenti non fit injuria (consent), (2) Plaintiff the wrongdoer (ex turpi causa), (3) Inevitable accident, (4) Act of God (vis major), (5) Private defence, (6) Mistake (generally not a defence), (7) Necessity, (8) Statutory authority. These can defeat or reduce liability even where a prima facie tort is made out.

7. Explain the defence of "volenti non fit injuria" and its limits.

   It means that one who voluntarily consents to a risk cannot later complain of harm resulting from it; consent may be express or implied and must be free and to the specific risk known (scienti non fit injuria is not enough -- mere knowledge of risk is not consent). Limits: it does not apply to rescue cases (Haynes v. Harwood), to illegal acts, or where consent is obtained by fraud/coercion or is contrary to statute.

8. What is "vicarious liability" and what is the principal relationship in which it arises?

   Vicarious liability is the liability of one person for the wrongful act of another, arising out of a special relationship between them. The chief relationship is master and servant: a master is liable for torts committed by his servant in the course of employment, based on the maxims respondeat superior (let the master answer) and qui facit per alium facit per se (he who acts through another acts himself).

9. State the test for an employer's vicarious liability for a servant's tort and the "course of employment" rule.

   An employer is liable for a tort committed by his servant if it is done (a) in the course of employment, i.e., either a wrongful act authorised by the master, or a wrongful and unauthorised mode of doing an authorised act. The master is generally NOT liable where the servant goes on a "frolic of his own" outside the scope of employment. He can be liable even for an act expressly prohibited if the prohibition relates only to the mode of doing authorised work.

10. State the rule in Rylands v. Fletcher (strict liability) and its essentials.

    A person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if it escapes and causes damage, he is prima facie answerable for all the natural consequences, even without negligence. Essentials: (1) dangerous thing, (2) escape from the defendant's land/control, (3) non-natural use of land. Exceptions: plaintiff's own fault, act of God, act of third party, consent of plaintiff, statutory authority.

11. State the rule of absolute liability laid down in M.C. Mehta v. Union of India and how it differs from strict liability.

    An enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non-delegable duty to the community; if harm results from the activity, the enterprise is absolutely liable to compensate, irrespective of negligence or escape. Unlike Rylands v. Fletcher, absolute liability admits NO exceptions (no act-of-God, third-party, escape, or non-natural-use defences) and damages are correlated to the magnitude and capacity of the enterprise (deterrent/exemplary).

12. Define negligence as a tort and state its three essential ingredients.

    Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. Three essentials: (1) the defendant owed a legal duty of care to the plaintiff, (2) breach of that duty (failure to meet the standard of a reasonable man), and (3) the breach caused legal damage to the plaintiff (causation and remoteness). The neighbour principle was laid down in Donoghue v. Stevenson.

13. Explain the maxim "res ipsa loquitur" in the law of negligence.

    "The thing speaks for itself." Where the accident is of a kind that does not ordinarily happen without negligence, the thing causing harm was under the exclusive control of the defendant, and there is no explanation by the defendant, the very occurrence raises a presumption of negligence and shifts the burden onto the defendant to disprove negligence. (Origin: Byrne v. Boadle.)

14. What is "contributory negligence" and what is its effect?

    Contributory negligence is the failure of the plaintiff to take reasonable care for his own safety which contributes to the harm he suffers. Under the modern apportionment rule (and the Indian approach), damages are reduced in proportion to the plaintiff's share of fault rather than the claim being wholly defeated. The "last opportunity rule" (Davies v. Mann) historically determined liability where one party had the last chance to avoid the accident.

15. Define "nuisance" and distinguish public nuisance from private nuisance.

    Nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it. Private nuisance is interference with an individual's use/enjoyment of his land or a right connected with it (remedy: damages/injunction by the affected person). Public (common) nuisance is an act/omission that materially affects the reasonable comfort and convenience of the public or a class (a crime under S.268 IPC); a private person can sue only on proof of special/particular damage beyond that suffered by the public.

16. Define the tort of "trespass to land" and its essentials.

    Trespass to land is the unjustifiable, direct and intentional (or negligent) interference with another person's possession of land -- by entering upon it, remaining there, or placing/projecting any object upon it -- without lawful justification. It is actionable per se (without proof of damage). The interference must be direct; consequential interference is nuisance, not trespass. Possession, not ownership, is protected.

17. Define "defamation" and distinguish libel from slander.

    Defamation is the publication of a false statement which tends to lower a person in the estimation of right-thinking members of society, or which causes him to be shunned/avoided, or exposes him to hatred, contempt or ridicule. Libel is defamation in a permanent form (writing, print, picture) and is actionable per se (and also a crime). Slander is defamation in a transient/spoken form and is generally actionable only on proof of special damage, except in certain cases.

18. Name the cases (exceptions) in which slander is actionable per se (without proof of special damage).

    (1) Imputation of a criminal offence punishable with imprisonment; (2) imputation of a contagious/infectious disease tending to exclude the person from society; (3) imputation of unchastity or adultery to a woman/girl; and (4) words calculated to disparage the person in his office, profession, calling, trade or business held at the time of publication.

19. State the essentials of defamation and the chief defences available.

    Essentials: (1) the statement must be defamatory, (2) it must refer to / be "of and concerning" the plaintiff, and (3) it must be published to a third person. Defences: (1) Justification or truth (truth is a complete defence in civil law), (2) Fair and bona fide comment on a matter of public interest, and (3) Privilege -- absolute (e.g., parliamentary, judicial proceedings) or qualified (statements made in performance of a duty or to protect an interest, without malice).

20. Under the Consumer Protection Act, 2019, how is a "consumer" defined?

    A consumer is any person who buys goods or hires/avails of services for a consideration (paid, promised, partly paid/promised, or under deferred payment), and includes any user of such goods or beneficiary of such services with the buyer's approval, but does NOT include a person who obtains goods for resale or for any commercial purpose. The definition expressly includes online/e-commerce and offline transactions.

21. What is the pecuniary jurisdiction of the District, State and National Consumer Commissions under the Consumer Protection Act, 2019 (post-2021 amendment)?

    District Commission: complaints where the value of goods/services paid as consideration does not exceed Rs. 50 lakh. State Commission: exceeds Rs. 50 lakh but does not exceed Rs. 2 crore. National Commission: exceeds Rs. 2 crore. (Jurisdiction under the 2019 Act is based on the value of consideration paid, not the value of goods/compensation.)

22. What key new concepts and bodies were introduced by the Consumer Protection Act, 2019 compared to the 1986 Act?

    Key additions: the Central Consumer Protection Authority (CCPA) to regulate matters of consumer rights, unfair trade practices and misleading advertisements; provisions on product liability (manufacturer, service provider and seller); mediation as an alternative dispute resolution mechanism; specific regulation of e-commerce and direct selling; rules against misleading advertisements and celebrity-endorser liability; and the right to file complaints electronically and from the place of the complainant's residence.

23. What is "product liability" under the Consumer Protection Act, 2019?

    Product liability is the responsibility of a product manufacturer, product service provider or product seller to compensate for any harm caused to a consumer by a defective product or deficient service. A product liability action can be brought against the manufacturer (for manufacturing/design defect, deviation from specifications, non-conformance with express warranty, or inadequate instructions/warnings), the service provider (for faulty/imperfect/deficient service), or the seller (in specified circumstances).

24. Define "unfair trade practice" and "deficiency" under the Consumer Protection Act, 2019.

    Unfair trade practice means a trade practice that, for promoting the sale, use or supply of goods or services, adopts any unfair method or deceptive practice -- e.g., false representation about quality/standard, false guarantees, misleading advertisements, hoarding, non-issuance of bills, or disclosure of personal information given in confidence. Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by law or undertaken to be performed under a contract or otherwise (includes negligent act/omission and withholding of relevant information).

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