This article is a follow up to the previous one here (a must read called, ‘Legal Reasoning for CLAT’).

So, it’s been quite some time since the previous article. Sorr…whether an apology is due or not, we will leave that to you – which you can definitely let us know in the comments or e-mail.

But, as a justification to the rather long gap, we believe that a follow up is something that should not only be done, but done properly. If we are allowed to throw in some legal jargon, it is what we call due diligence.

Understanding the nuances of Legal Reasoning is critical.

What the first article essentially does, amongst other things, is give you an idea of what those nuances are and how to go about them, methods to be used and mistakes (not) to be made, and a couple of caveats (look it up RIGHT NOW if you don’t know what it means). What we’ll do here is explore those using examples, which we will connect them with some of the main pointers.

lawyer

There are several varieties of questions that you’ll come across in the articles here throughout the course of your preparation.

Since we need a starting point, we have picked three sample problems, using which we’ve tried to show you the application of the pointers that you have read in the first article. We have numbered the pointers from 1-5.

 

Principle: In a civil action for defamation, truth of the defamatory matter is an absolute defence. However, the burden of proving the truth is on the defendant; and he is liable if he does not successfully discharge this burden.

Facts: ‘D’ who was the editor of a local weekly, published a series of articles mentioning that ‘P’ , who was a government servant, issued false certificates, accepted bribe, adopted corrupt and illegal means to mint money and was a ‘mischief monger’. ‘P’ brought a civil suit against ‘D’, who could not prove the facts published by him.

Under the circumstances, which of the following derivations is correct?

a. D would be liable, since he could not prove the facts published by him.
b. D would not be liable, as such an action could curtail the right of expression and speech of press.
c. D would not be liable, as media could publish anything.
d. None of the above.

(Answer: a)

Explanation: Firstly, what is defamation? Defamation is the causing of wrongful injury to a person’s reputation (and not emotional hurt only) by words or other means of communication. Now, one’s reputation is determined by the people around him. So, it necessitates that the defamatory matter needs to be communicated to people other than the person defamed, i.e., to a third person.

Also, as the principle has already laid out, truth alone is a defence, meaning that such a communication must be false in nature. Since ‘P’ did not manage to prove the veracity of his facts, he will be liable.

Since that is settled, let’s revisit the pointers from the first article.

 

The Principle is always right/ the statement is king:

This means, you do not question the veracity of the facts or the principle, just like a subject does not question his king.

Whatever is given in the paper is final, and your answer should be based on that. This is because, just adding or removing a couple of words to or from either the principle or facts can alter your answer.

For example, if the words, “who could not prove the facts published by him” are omitted from the last sentence in the facts, you do not know whether he has defended himself successfully or not.

In the absence of those facts, you really cannot make a call or take the law into in your own hands (see pointer no. 3); and, because there is no possible answer, your safest bet would be ‘d’. Also, say, if one were to add that, “publication of defamatory material must be intentional” to the principle, and the facts were to suggest that all the requisites of defamation were fulfilled except that of intentional publication, then the person may not be liable for defamation.

So, do not mix up what you’ve come across in your practice papers, and read those things into the exam paper. More often than not, these ‘mistakes’ are intentionally made to check how you apply the principle to the facts when they are tweaked a little bit; and, why not? This is an exam! They ARE supposed to test you.

  1. Elimination:

In other words, smart guessing. In the above questions, out of the options given option, ‘c’ on the face of it, will not be the smartest choice since it suggests something preposterous – like the media can publish defence plans of the country, since that clearly qualifies under ‘anything’. But they cannot.

Also, most importantly, the primary test to eliminate an option is to see whether it uses the principle in any way to answer the question.

This is because the principle is essentially the reason using which the question is to be answered. If it talks about ‘freedom of speech’ like in option ‘b’, whereas the principle has nothing to do with it, there is a good chance that it is not the answer.

  1. Emotional reasoning:

This is an oxymoron. Just because you think that Ajmal Kasab is the most heinous criminal the subcontinent has seen since Bin Laden, doesn’t mean he should have been lynched. And, so on and so forth.

There’s no way to explain this, but that it is the most unreasonable thing you can do in Legal Reasoning.

A lawyer is supposed to be level-headed, and not make rash decisions based on mere emotions. So, emotional reasoning is something that you do not do, an exception to the other pointers here.

The heart knows no reason, as the saying goes, and who are we to differ?

 

II.

  1. There might be more than one correct answer/picking the best answer:

Principle: When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal.

Fact: Ramanuj telegrammed to Shyamsundar, writing: “Will you sell me your Rolls-Royce car? Telegram the lowest cash price.” Shyamsundar replied by telegram, “Lowest cash price for car is Rs. 20 Lakhs”. Ramanuj immediately sends his consent through telegram stating: “I agree to buy the car for Rs. 20 lakhs”. Shaymsundar refused to sell the car.

Options:

a . He cannot refuse to sell the car because the contract has already been made.
b. He can refuse to sell the car because it was only an invitation to offer and not a real offer.
c. It was not a valid offer because willingness to enter into a contract was absent.
d. None of the above.

(Answer: b)

Explanation: To answer the question you first need to know the difference between an offer and an invitation to offer under the Law of Contracts. The formation of a contract starts with the making of an offer/proposal, which, when accepted, forms a valid contract. An invitation to offer is not an offer, but rather a call out for offers to be made by other people. In this situation, Shyamsundar has merely stated the lowest price for the car, which in no way signifies that that is the value which he is prepared to sell it for. Moreover, he has nowhere indicated that he wants to sell the car in the first place. Construing the lowest price to be the selling price is a misinterpretation on behalf of Ramanuj, and Shyamsundar is in no way bound by it.

Now, that we know that Shyamsundar has not entered into a contract, and is not legally bound to sell the car, we look for the possible answer(s). Options ‘b’ and ‘c’ propose that he does not have to sell the car. Option ‘c’ lays out the reason in a gist, i.e., the absence of intention to enter into a contract. But, how do we gauge that absence of intention? Option ‘b’ shows us why that intention was absent – because it was merely an invitation to offer from Shyamsundar, which does not bind him in any way. It gives us a more specific, to the point answer to the question, and hence is the best pick.

 

III.

  1. Questions with multiple principles:

Principle 1: Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law; provided that the thing which intoxicated him was without his knowledge or against his will.

Principle 2: Voluntary drunkenness is no excuse.

Principle 3: Self defence is not an excuse to private defence.

Facts: Wustafa and Kartik go to a dhaba for lunch. Kartik orders for a couple of drinks for himself. He makes two drinks for himself and excuses himself to attend a call. While away, Wustafa doubles the alcohol content in both his drinks. Kartik does not realize the difference and continues drinking. After a couple of shots, Kartik is extremely intoxicated. He picks up a knife and attempts to stab a fellow customer, Tanmay. Tanmay in order to protect himself brandishes his own knife. In the ensuing fight, Tanmay hurts Kartik. This makes Kartik put his knife down, but Tanmay suspecting some additional threat, inflicts another wound on Kartik’s wrist.

  1. Based on Principle 1:
    a. Kartik is not liable for attempting to stab Tanmay as he was too drunk to realize the consequences of what he was doing.
    b. Kartik is not liable for attempting to stab Tanmay since he was intoxicated beyond his capacity without his knowledge or consent.
    c. Kartik would be liable for attempting to stab Tanmay since he was willingly consuming the alcohol.
    d. Kartik would not be liable since he did not accomplish what he set out to do.
  2. Based on Principle 2:
    Kartik is not liable for attempting to stab Tanmay since he was too intoxicated to realize the consequences of his act.
    b. Kartik is not liable for attempting to stab Tanmay since he was intoxicated beyong his capacity without his knowledge or consent.
    c. Kartik would be liable for attempting to stab Tanmay as he was willingly consuming the alcohol.
    d. Kartik would not be liable since he did not accomplish what he set out to do.
  3. Applying principles 1, 2 & 3:
    Kartik was intoxicated and hence did not know the consequences of his act. Tanmay would be liable for inflicting the wrist injury.
    b. Kartik cannot claim for compensation since Tanmay was merely protecting himself from the inflicted injury.
    c. Kartik can claim compensation for the second injury, but not for the first since it was an act of private defence.
    d. Tanmay merely took precautions to ensure that he would not be attacked again, and hence he is not liable for either of the wounds.

(Answer: b, b, c)

Explanation: The rule of thumb here is to apply only the principle which you have been asked to apply. Principle 1 says that a person will not be liable for acts done in an intoxicated state, as long as the person was incapable of knowing the nature and consequences of his act, as long as the intoxication was unknown or unwilling.

Principle 2 is an exception to Principle 1. Principle 2 speaks about self defence, which can only be exercised when the threat is immediate, and the force exercised has to be proportional to the threat. In the facts, it is clear that Kartik’s intoxication was not voluntary, since the intoxication probably happened because the alcohol content was doubled, both without his knowledge or will.

In A, Kartik was firstly not in the capacity to understand his actions, nor was he aware that he was getting intoxicated. ‘b’ best fits the facts, since ‘a’ does not answer it properly, and ‘d’ is vague. In B, the answer remains the same, since it something which was without his knowledge or consent is another way of saying that it was non-voluntary. In C, the hurt inflicted on Kartik in the first instance was an act of self defence by Tanmay since the former was armed. But, in the second instance when Kartik had already dropped the knife, there was no reason for Tanmay to see any threat in the situation (so, options ‘b’ and ‘d’ cannot be the answer), so Kartik can claim for the second wound inflicted by Tanmay. It is not ‘a’ since logic says that a man is entitled to defend himself from physical hurt, irrespective of the mental or physical condition of the perpetrator.

1 Response Comment

  • AkshayAugust 31, 2016 at 11:47 pm

    There’s an anomaly in the explanation provided for the first problem. It is stated that “P” could not manage to prove the veracity of his facts, making him liable for Defamation. It should’ve been “D” instead of “P”. I understand it’s merely a typo as all other parts of the explanation ( including the chosen option) contradict the error. Ciao!

    Reply

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