22 The Concept of Duties

Nizamuddin Ahmad Siddiqui

LEARNING OUTCOMES

• To understand various classifications of duties and relationship between duty and rights.
• To understand the duties in contracts, torts and criminal law and relate with the duties of public bodies and State in protecting the rights of the citizen.
• To appreciate the growth of positive duties in protecting right to life and eliminating gender violence.

UNDERSTANDING DUTIES

The legal duty is understandable as that which the law requires being done or forborne to a determinate person or the public at large, correlative to a vested and coextensive right in such person or the public, and the breach of which constitutes negligence. These are duties imposed by formal legal rules. Legal duties are distinct from moral or implied duties, since when a legal duty is violated, there may be consequences under the law. A legal duty is usually imposed by some type of formal written law, whether it is judge made case law, or statutes, or laws made by state or federal legislatures.

When a person breaches a legal duty or falls short of fulfilling the duties that the law imposes, there are usually some types of consequences. There may be criminal sanctions associated with violating legal duties. There may also be civil penalties assessed if someone sues for theviolation of a legal duty. For example, certain legal duties carry with them the potential to be subject to criminal sanctions if a person fails to fulfill the duty. If a person violates a legal duty not to kill another person, he will be prosecuted and potentially imprisoned or even put to death for the breach of the legal duty. The government must prove he violated this legal duty, and the legal duty must be constitutional, in order for the government to subject him to these types of sanctions.

If a person violates a legal duty, he may also face civil penalties. For example, when one party invites another into his home, the invited guest has a special status under the law as an invitee. The property owner has a legal duty to take care in ensuring the health and safety of invitees. If there is a hazardous situation at on the property, and breaches that legal duty of care, the person who is injured as a result of the breach of legal duty can sue in civil court, and the homeowner may have to pay a monetary penalty to the injured guest as a result of the breach of legal duties.

1.1 Classification of duties

Duties can be classified as:

(1)Natural and acquired duties: Natural duties bind all of us without any specification by any institution or body. For example: not to harm others. Acquired duties are duties undertaken by individuals by virtue of something they have done, or as a particular relationship, which they might have with others.

(2)Positive and negative duties: According to another legal jurist John Rawls, positive duties require us to do good. On the other hand, negative duties impose restrictions on doing bad or refraining from acting.

(3)Perfect and imperfect duties: According to Prof Immanuel Kant, Perfect duties expect individuals to discharge the incurred obligations as per the goal that is set at all times without any deviation. Imperfect duties have no rigidity.

(4)Prima facie and all things considered as duties: According to W. D. Ross, people mostly discharge their duties to live up to their promises as a goodwill. This means many times people perform their duties based on the advantages and disadvantages. This being the primary concept of duty, Ross calls individuals to be rational in discharging their duties in a proper manner without harming the interests of others.

1.2 Inter Relationship between Rights and Duties

The two phrases `rights’ and `duties’ co-exist with each other. In other words, rights and duties are two sides of the same coin that regulate the values and behavioral patterns of an individual. On one side, rights are important in developing the human personality and behavior. The duties, on the other hand, direct the individual’s importance of contribution for the promotion of social good.9 In a way duty targets at the realization of rights guaranteed by various laws and regulations both nationally and internationally. The same philosophy applies to states also to discharge their duties towards their citizens. The increasing number of violations of states in protecting the rights of the individuals10 across the world has led the United Nations and other organs of the world community including the civil societies to focus more on the duties than on the rights in the contemporary era. According to Prof Harold J. Laski, every right of an individual automatically impose a duty on others. For example, the right to freedom to move freely or privacy impose a duty on others not to interfere with the right of movement or privacy of any body, except regulated by law. This implies that every exercise of theright is subject to restrictions. For example, one has freedom of speech and expression. However, at the same time, everyone has to bear in mind that the exercise of free speech and expression in no way affects the rights of others or their life, liberty or dignity of others.

2. DUTIES IN LAW OF CONTRACT, TORTS, AND CRIME

2.1 Duties in Contract

The contract is a voluntary binding agreement between two or more competent parties. They are usually written but can be also spoken or implied contracts. In earlier times, the concept of the contract was evolved from the contractual theory of Thomas Hobbes, but in present times, contract sees its use in Tenancy contracts, employment contracts are some common example of contracts.

Duty as a concept has its role in every sphere of law. Since, every law gives a right to the people, hence duty becomes attached to every right that is given by law. In the law of contracts, there are two different theories that have been argued by jurists. First is the power principle and second is the obligation principle. On the power conferring picture, contracting is a sort of legislative action in which persons determine what law will apply to their transaction. On the duty-imposing picture, contract law places duties on persons entering into agreements for consideration, whether they want them or not.

Some lawyers like Patrick Atiyah argue that contract law ought to correct the harms done by unfulfilled promises in the contract and prevent the promisor’s unjust enrichment by following remedial principles. Similarly, Fried’s commitment to the principle, “respect for others as free and rational requires taking seriously their capacity to determine their own values”, explains his account of contract law as enforcing the moral obligation to perform one’s promises.

A contract between A and B creates a duty for A to deliver the car to B in honest faith and creates a duty for B to pay the promised consideration in return. These duties have in turn created respective rights for the parties concerned. So, by entering into a legally enforceable agreement, the parties create new duties for themselves or modify or extinguish old ones. According to the expanded- antecedent argument, legal powers are not a distinct category of laws but are terms in the antecedents of conditional duties.

Joseph Raz observes that the fundamental difference between power conferring and duty-imposing rules lies in their different functions. While the purpose of a duty-imposing law is to give persons subject to it a new reason to act in compliance with it, the purpose of a power conferring law is to enable persons to determine, within bounds, what the law is or requires. In the latter case, the law attaches legal consequences to certain acts because “it is desirable to enable people to affect norms and their application in such a way if they desire to do so for this purpose.” According to H.L.A Hart, the point of a duty-imposing rule is to require persons “to do or abstain from certain actions, whether they wish to or not,” while the function of a power conferring rule is, in Raz’s words, “to provide individuals with facilities for realizing their wishes.”

In the example mentioned above, A and B by entering into a contract have subjected themselves to such obligations which they cannot manipulate if they wish to. They owe an obligation to each other which if breached, would cause harm to one of the parties.

This explains that the natural explanation of the more relaxed conditions of contractual validity is that contract law does not only function to confer powers. It also imposes legal duties on those who enter into agreements for consideration simply because they have entered into an agreement for consideration, not because the parties want those legal duties. This is not yet to say just what those duties are—whether, for example, contract law imposes a duty to perform, a duty to perform if efficient, or a duty to compensate for the harms caused by thebreach. But the relatively forgiving conditions of contractual validity are prima facie evidence that we should attribute some duty- imposing function to contract law.

But even if we reject the power-conferring reading of the consideration requirement and allow that contract law functions to impose duties, it is difficult to ignore the fact that many parties expect and want their agreements to be legally enforceable, if for no other reason than that legal enforcement enables mutually beneficial transactions that would otherwise fail for a lack of trust. And many contract doctrines are structured in ways that anticipate, or even enable, such purposive uses of contract law.

Implied duties are created by judges based on public policy and contractual relationships, a reasonable supplement deemed necessary by interpreting the contract that was made. So if you hire a contractor to build a house, the contractor has an implied duty to build it in a good and workmanlike manner even if the contract is silent on the point. This standard is understood in the trade and promotes confidence in the construction industry.

Often contracts allocate tasks to the parties but fail to spell out how the tasks are to be accomplished. So one party might be responsible for finding office space; another party might be responsible for manufacturing and a third party might be responsible for sales. The implied duty of good faith governs how each party’s discretionary tasks are accomplished: it requires a party with discretion, for example, to exercise that discretion reasonably and in accordance with the reasonable expectations of the parties. So if the party responsible for getting office space rented space from a building it owned at above-market rates, the other party or parties could complain that the party making the rental agreement has violated the obligation of good faith and fair dealing.

Good Faith in Contract Law

The concept of good faith (also called bona fide or bonne foi) has existed at least since the development of Roman law and is believed by some to have even preceded natural law. Bona fides contracts were originally distinguished from strictures (formal) contracts, which were enforceable only by satisfying certain legal requirements. Good faith has been given an even more fundamental basis in natural law, which enlarged the narrow, pragmatic rule, otherwise known as pactasuntservanda, that promises and agreements must be kept. Cicero, in his treatise On Duties, attributed to “promises” such force that he called good faith the foundation of justice. Law of thecontract is based upon the idea of good faith that also confers a duty upon the parties not to act against the doctrine of good faith.

2.2 Duties in tort law

Torts are wrongdoings that are done by one party against another. As a result of the wrongdoing, the injured person may take civil action against the other party.For eg, trespassing, defamation or slander.

a. Role of duty in tort law

An inherent sense of duty is also inherent in thelaw of torts. But lawyers at least must be careful to distinguish between a “duty” which is better characterized as a social obligation and true legal duties or responsibilities which are enforceable by claims for damages. When A drives her car, for example, A is under a legal duty of care to any other motorist or pedestrian. But (here’s a thought) imagine X was the gamine presenter of television weather forecasts, to be delivered in the modern, risk-averse, state-of-the-art-vacuous and inclusive style that is so popular. Whilst X may feel a social or contractual obligation to take some care over what X foresees for that those who are “planning to be out and about” or “on the journey to work in the rush hour” tomorrow, so that Xcan usually urge his viewers not to forget to “take that umbrella”, to “wrap up warm” or just “take extra care” in the face of the weather warning of a “snow event”, no one can sue X even if they have they relied on my fundamentally inaccurate and incompetent description of what to expect and skid on an icy road or catch a nasty chill. Similarly, a road accident victim cannot bring an action against me if I stood beside him at the roadside as he prepared to cross and failed to suggest he look to his right before crossing the busy road and was flattened by the approaching lorry. Nor, do I have any legal liability if I fail to shout a warning to the absently minded wanderer who is striding along with head in theair, oblivious to the approaching cliff’s edge. Why not? After all, the driver might have taken more care had I warned of the icy roads. The coatless walker might have avoided his sniffles had I reminded him to take his coat. The pedestrian would have escaped injury if I had spoken out. My cliff walker would have looked up and saved himself. So why have I no responsibility for them in law? All I had to do was be neighborly and/or careful: is that too much to ask? The explanation can only be that in all those cases the law imposes no duty of care. But why should that be? The classical answer is to be found in the three part test identified in Caparo Industries v Dickman (and elsewhere) which is now very well known. The application of that means that a duty of care will depend on (i) foreseeability (ii) proximity and (iii) it being fair, just and reasonable that such a duty should be imposed (i.e policy).

b. The development of a common law duty

The development of the common law has seen a gradual (or incremental) extension of those categories in which a true legal duty can be shown to exist. In Bishara v Sheffield Teaching Hospitals, at paragraph 11, Sedley LJ said that “assumption of responsibility is simply one of the ways in which the necessary degree of proximity may arise”. In some types of case, the existence of the duty is so well established as to be entirely uncontroversial. In the case of an employer, for example, there can be no doubt that, regardless of any contractual obligation, the employer owes a duty to his employer to take reasonable care for the safety of his employees. Clearly, the important features of assumption of responsibility and reliance are present in all those cases.

c. Physical harm and economic loss

Historically, a distinction was drawn by the law between the existence of a duty to prevent physical harm and a duty not to expose someone to adverse economic consequences. But as the law of negligence developed to allow claims for purely economic loss to be pursued in each case, and it was necessary for the courts to reconsider the limits of and preconditions for such liability, of one of the key factors has been the assumption of responsibility by A towards B and B’s reliance upon A to conduct himself carefully. The history of the duty in relation to purely economic loss can conveniently be traced from cases such as Hedley Byrne v Heller to the very much more recent case (and, to some, the locus classicus for the true test) of Caparo Industries v Dickman. Although Caparo itself was a case of economic loss, the principles for the existence of a duty of care in all tort actions are clearly expressed within it and are the foundation for any analysis in the case of both economic and physical damage. The validity of this parallel was confirmed in Mitchell v Glasgow, where it was argued unsuccessfully that, as Caparo was concerned only with economic loss, it had no or little application to personal injury claims.

d. Public Bodies

There are, of course, countless authorities in which the duty of care of a public authority has been debated and established or rejected. Highways cases are one such category where questions have arisen as to the scope, existence, and nature of any statutory or common law duty that may be owed. In Stovin v Wise, a majority of the House of Lords held that the highway authority owed no duty to the member of the public who suffered aninjury at a crossroads where visibility was restricted. The failure to exercise its power to require the removal of the obstruction (which was on someone else’s land) was an omission only and that was not actionable. The Highway Authority had done nothing positive, it was a case of “simple omission and therefore excluded as a matter of policy from the arena of tort liability”. The situation may be different where a public authority takes an active step such as where it issues a license without which the activity in question would be impermissible – that is where the Judge rejected the contention that there had been any assumption of responsibility and Gorringe v Calderdale where the House of Lords rejected the argument that the local authority owed a duty of care to paint markings on the road or put up signs warning motorists to slow down.

But, again, no single test will apply to thevery situation. So one can find any number of cases in which the courts have considered the possible duties of care that might be owed by local authorities and their building inspectors, the emergency services, an NHS hospital, the Secretary of State for Work and Pensions, the Police, prosecuting authorities and a body like the National Environment Research Council. There are many other examples in an area particularly rich with authority. Much of it shows the considerable influence played by considerations of public policy in applying the tests and principles discussed above.

e. Responsibility for contractors

Another example of the duty which attaches to the organizer of events arises where the occupier engages independent contractors. He will have a duty to take steps to ensure that they are competent which, in the case of Gwilliam v West Herts Hospital NHS Trust might, in certain circumstances, extend to ascertaining whether the independent contractor had satisfactory insurance in position. But whatever may be the standard of care in the circumstances, there can be no question but that a duty is owed, probably both at common law and under the Occupiers Liability Act 1957.

2.3 Duties in crime

Criminal law, one of two broad categories of law, deals with acts of intentional harm to individuals which, in a larger sense, are offenses against us all. It is a crime to break into a home because the act not only violates the privacy and safety of the home’s occupants – it shatters the collective sense that we are secure in our own homes. A crime is a deliberate or reckless act that causes harm to another person or another person’s property, and it is also a crime to neglect a duty to protect others from harm.

2.3.1 Concept of duties in criminal law

a. Right to life and positive duties

In a variety of jurisdictions, the right to life gives rise to positive duties that the State must fulfill in order to protect life. In Osman v United Kingdom, the Court developed a wide- ranging general duty out of the right to life, which set aside the exclusionary rule in the UK preventing the police from being held liable for negligence claims for failure to investigate thecrime. According to the ECHR, a State has a general duty to individuals to protect the right to life. It is required to legislate effective criminal law provisions to deter the commission of offenses against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions’.

However, states are only under a specific obligation ‘in certain well-defined circumstances’ to take proactive ‘preventive operational measures to protect an individual whose life is at risk from the criminal acts of another’. This specific obligation only arises where ‘the authorities knew or ought to have known of the existence of a real and immediate risk to the life of an identified individual, and that they failed to take measures within their powers which, judged reasonably, might have been expected to avoid that risk. This delimited specific duty is clearly framed and informed by tortious notions of causation and responsibility.

After this landmark judgment on duty towards theright to life of people, a number of cases have been brought up in different courts regarding positive duty arising under the right to life, and the question of whether the State has fulfilled the general positive duty. The cases where a breach of the general duty has been found have mostly centered on the State’s failure to properly investigate a death. This constitutes a breach of an ancillary procedural obligation under Article 21 of the Indian Constitution (right to life) to ‘conduct an effective investigation into the death and instigate criminal proceedings where necessary’.

b. Gender violence and positive duties

Since the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted by the UN General Assembly, gender violence has been the subject of extensive international law activity. This includes the 19th General Recommendation of the CEDAW Committee, which notes that States should ‘take appropriate and effective measures to overcome all forms of gender-based violence, whether by public or private act and ensure that laws against family violence and abuse, rape, sexual assault, and other gender-based violence give adequate protection to all women, and respect their integrity and dignity. Similarly, the General Assembly Declaration on the Elimination of Violence Against Women (DEVW) enshrines a ‘due diligence’ standard and enjoins States to ‘pursue by all appropriate means and without delay a policy of eliminating violence against women including exercising due diligence to prevent, investigate and in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons. The international duty of due diligence with respect to the treatment of violence against women is also supported by the Committee of Ministers of the Council of Europe in their Recommendation (2002) which obliges states to penalize all non- consensual sexual acts, including where the victim does not show resistance.

Much of this international activity is directed towards systemic reform of the treatment of victims of gender violence and could not be said to establish positive duties directed at the coercion of perpetrators of gender violence. Nevertheless, there is little question that the activities have led to an extension of the criminal law, and a strong intensification of the policing and prosecution of acts of gender violence.

India has continuously adopted such principles to protect women from various judgments and laws. This imposes a duty on the state and also on the people to prevent any such acts against the law and also to act positively in order to ensure that such rights are enforced.

c. Domestic Violence and Violence Against Children

A number of decisions by the ECHR have developed protective duties with respect to domestic violence and violence against children. Opuz v Turkey dealt with a pattern of domestic violence culminating in a murder. The authorities repeatedly failed to take special measures to protect the victims, on the grounds that they were limited by the applicable domestic law. Here the ECHR incorporated a broader view of the discriminatory nature of violence against women. The decision, which was heavily influenced by the CEDAW committee’s work and the Recommendations of the Committee of Ministers of the Council of Europe, declared that the ineffectiveness of domestic remedies and the failure to take preemptive protective measures in relation to domestic violence constituted a violation of Article 14 as well as Articles 2 and 3 (prohibition on torture, inhuman and degrading treatment) in this context. The Court was highly critical of the authorities failed to properly consider the risks and threats that the offender posed. It rejected the Government’s arguments that there was no ‘tangible evidence’ that the life of the victim was in danger.

The Court noted that no attempt had been made to balance the risks and consider the proportionality of particular protective measures.

Reference

• Klass G, ‘Three Pictures of Contract: Duty, Power And Compound Rule’ (2007) 83 N.Y.U.L. Review <http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1410&context=facpub> accessed 20 September 2015
• Sastry T, Introduction to Human Rights and Duties (University of Pune 2012)
• Henry T. Terry, ‘The correspondence of Duties and Rights’(1916) 25The Yale Law Journal<http://www.jstor.org/stable/786397> accessed 20 September 2015
• Arthur L.Colbin, ‘Rights and Duties (1924) Yale Law Journal<http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3968&context=fss_papers> accessed 18 September 2015
• Henry T. Terry, ‘Legal Duties and Rights’ (1903) 12 Yale Law Journal, <http://www.jstor.org/stable/781938?seq=1#page_scan_tab_contents>accessed 19 September 2015
• John C. P. Goldberg, ‘Tort Law and Responsibility’ <http://www.law.harvard.edu/programs/about/privatelaw/related-content/2013-working-paper-series/goldberg_tort-law-and-responsibility_5-24-13.pdf>accessed 20 September 2015