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Qui Facit Per Alium Facit Per Se

Meaning And Explanation
In general, an individual is responsible for his actions, but in few cases, the law holds him vicariously liable for the actions of another, regardless of whether or not he is at fault. Because of their relationship, this obligation exists. Qui facit per alium facit per se is an essential principle that tells us about "liability by relation."

The Latin legal maxim "Qui facit per alium facit per se" means "he who does an act through another is deemed in law to be have done it himself."[1] However, for liability to arise, two parties must have a certain kind of relation. Liability of the principal for the act of his agent, liability of spouses for each other's torts, and liability of the master for the tort of his servant are all typical forms of such liability.

Such indirect responsibility is an exception to the general rule that an individual is responsible for his or her actions or omissions. Without a doubt, if a servant or agent commits a tort beyond the jurisdiction of his organization or job and unrelated to it, the principal will not be responsible until he first approved or subsequently ratified the act. [2] He is as much a stranger to his master as any third party beyond the scope of his work.[3]

Background Of The Maxim
The maxim is a simple version of the longer 18th-century phrase: qui facit per alium, est perinde ac si facit per se ipsum:
"whoever acts through others acts as if he were doing it himself."

According to Salmond, it stems from the legal assumption that all actions performed by a servant in and about his master's business are undertaken with his master's direct or implicit authority, and therefore are the master's acts for which he can be kept liable. An individual who is capable of making compensation for the negative consequences of his actions should not be able to avoid doing so by delegating certain acts to servants or officials from which no redress can be sought. [4]

This doctrine, however, is not new to the Indian political and legal system. Chanakya, in Chanakya Niti, conceptualized the philosophy even before the Greeks and Romans did, and propounded it as follows: राजा राष्ट्रकृतं पापं राज्ञः पापं पुरोहित: [5] which means that the king is responsible for the wrongs done by his subjects. This philosophy is somewhat similar to the maxim that is being discussed.

Application Of The Maxim

The maxim is a standard basis for vicarious liability where one party is held liable for wrongful actions of the other. [6] The law of vicarious liability, embodied in the principle 'qui facit per alium facit per se,' is a rule of evidence. A master[7] and corporation[8] are responsible for their servants' wilful conduct and torts that inflict injury to others when performing their duties. The same law extends to partners, with both members in a partnership being found liable for each other's wrongful acts committed in the ordinary course of business. They're all referred to as joint tortfeasors, and they all have joint and multiple obligations.

The maxim is often considered the fundamental premise of the law of agency, meaning that an agent's authorized actions are the same as the principal's acts in judicial contemplation; and that a principal's tort responsibility is founded, not on an agency arrangement, but the relationship of master and servant, as expressed by the maxim.[9] respondent superior. The maxim applies to everything the agent does under his ostensible scope of authority. It does not include the actions of an agent's agent. [10][11] The master's or principal's liability is determined not by the necessity of the act or the purpose of which it was performed, but rather by unlawfulness and scope of the employment or agency.

In India, Article 300 of the Constitution states that the Government of India or a State can be sued for the tortious actions of its employees.[12] We may conclude from previous decisions of different Indian courts that the government's responsibility in such cases exists only in cases of sovereign nature.

This maxim, however, does not extend to criminal law. [13]

Why Should Be A Master Held Liable?

Why should a master be held responsible for the torts committed by his servant in the course of his business?
The law has several justifications, one of awhich is historical. A servant's status bears many traces of his previous life as a slave. The idea that a servant's identity was combined with that of his master lasted through the emancipation period. In the legal grounds of the owner's authority over him and the fact that the worker had no standing under the law, this maxim was applied. [14]

Another argument is that there has to be a remedy against those who can afford the damages, [15] and the owner is supposed to be in a greater financial condition than the servant to pay the damages. [16]

Also, the master must choose his servants with discretion and prudence, and he must choose people who are capable of performing the duties he would impose under threat of his liability for their wrongdoings. [17]

Cases Referred
The Indian judiciary has also adopted this maxim in the following cases:
  1. 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.

  2. 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. [19]

    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.

Maxims are well-established rules that serve as interpretive guides for jurists. The theory of vicarious responsibility arose out of social convenience and rough justice rather than a legal philosophy. The lord, having hired the servant and being best prepared to make good any harm that might sometimes occur from the contract, is responsible to the rest of the world for all of his servant's torts performed within its reach.

These maxims have been employed in resolving questions, assisting good judgment, and enhancing the argument.

  1. R.K Bangia, 'Law of Torts', India, Allahabad Law Agency, 24th edition, 2019
  2. Ramsden v. R. R. Co., 1870, 104 Mass. I I7.
  3. McGowan v. Dyer, 1873, L. R., 8 Q. B. 14I.
  4. Salmond on Jurisprudence, p 402.
  5. Chanakya, Chapter 6, Chanakya Neeti Shastra,
  6. 35 Am J1st M & S � 543
  7. Higgins v. Turnpike Co., 46 N. Y. 23.
  8. Express Co. v. Patterson, 1881, 73 Ind. 430.
  9. In Butler v Bunge Corporation 1971, 329 F. Supp. 47
  10. EH Jackson, ' Latin for Lawyers', Lawbook Exchange, Ltd.; Abridged edition, 2015
  11. P R Aiyar, 'The Major Law Lexicon, 2017
  12. Article 300, Indian constitution, 1949.
  13. Maung Nwe and Anr. vs. Maung Po Hla , AIR 1937 Rang. 117
  14. O H Holmes, 'Common Law', Blackstone Audio Inc. 2012, pp 179.
  15. Holmes, 'Common Law', p 9.
  16. Imperial Chemical Industries Ltd. v Shatwell, 1965 AC 656.
  17. M M. Bigelow, B H. Lowry, A D Lauer and Patrick, C. B. O'Donovan, 'Department of Torts', The American Law Register and Review, Vol. 42, No. 6, 1894, p. 448-456. Available from JSTOR, (accessed 17 April 2021).
  18. H E Nasser Abdulla Hussain Vs Dy. City, (2002) 77 TTJ Mumbai 878
  19. Deo Narain a Rai and Anr. Vs Kukur bind and Ors, ,1902, ILR 24 All 319

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