Report No. 89
37.31.Need for change in the law.- Taking note of the case law as well as current thinking on the subject, we have come to the conclusion that there are two special aspects that necessitate a change in Article 77. In the first place, the element of "loss of service" is emphasised in the article, but, in India, as a matter of substantive law there is some uncertainty in this regard. This is apparent from the Allahabad decision mentioned above.1
How far the English common law rule which stresses the element of loss of service applies in India thus itself becomes doubtful. Secondly, in Article 77, the laying of stress on loss of service amounts to lending prominence to an aspect that is totally out of tune with the views of society. No right thinking member of society seeking compensation for seduction would attribute any relevance to the economic factor represented by "loss of service" of the female.
1. Para. 37.27, (supra).
37.32.Need for change.- In this situation, the present wording of Article 77 needs change, as it accentuates an unjust rule of the common law which, even if it is applicable at all, should not be given prominence in the law of limitation. We would, therefore, re-word the article as one applicable to a suit for compensation for seduction, thereby removing the objectionable part.
By way of anticipating a possible objection to such an amendment, we may state that if, as a matter of substantive law, any High Court still takes the view that an action for seduction on the common law pattern is still permissible in India, there will not be any casus omissus in the Limitation Act. If Article 77 as sought to be amended is regarded as in applicable to such an action, the residuary article would still apply.
37.33.Recommendation.- In the light of the above discussion, we recommend that Article 77 should be revised as unde.-
|"75.||For compensation for seduction.||One year.||When the seduction occurs"|
37.34.Article 78.- This takes us to Article 78 Article 78 prescribes a period of limitation of one year "for compensation for inducing a person to break a contract with the plaintiff". The period is computed from the date of the breach. The article is identical with Article 27 of the Acts of 1908 and 1877, and with Article 28 of the Act of 1871.
In this article also, having regard to the position in substantive law, there appears to be need for a small change. This need arises from the fact that the concept of inducement of breach of contract as an actionable wrong is, as a matter of substantive law, subject to certain limitations. We deal with this aspect in the succeeding paragraphs.
37.35.The tort and its limitations.- Inducement of breach of contract is actionable as a tort if certain conditions are satisfied. But this is subject to two important limitations. In the first place, by legislation, certain inroads have been made into the common law doctrine, legalising conduct that would otherwise be tortous under this head. Secondly, in some cases, even at common law, special circumstances supply a justification for conduct that would be otherwise actionable under this head.
These circumstances constitute an exception to the general rule that the direct inducement of breach of contract is a tort, and that where "the intervener, assuming he knows of the contract and acts with the aim and object of procuring its breach (he) will be liable if he directly intervenes by persuading A to break it."1
To this general rule, however, there arise exceptions in specific circumstances.2 It is enough to cite the classic test of what constitute the essential ingredients of this tort as formulated by Romer, L.J.3 namely," regard might be had to the nature of the contract broken: the position of the parties to the contract; the grounds for the breach; the means employed to procure the breach; the relation of the person procuring the breach to the person, who breaks the contract; and to the object of the person in procuring the breach."
1. Thomson v. Deakin, 1952 Ch 646 (670) (Lord Evershed).
2. Smithies v. National Association of Operative Plasterers, (1901) 1 KB 310 (337).
3. South Wales Miners Federation v. Glamorgan Coal Ltd., (1903) 2 KB 545.
37.36 Cases where inducing breach of contract is not wrongful.- It is not every inducement of breach of contract that is actionable. Sometimes, the justification constituting a legal defence is said to be analogous to privilege in defamation.1-2 At other times, it is described as "acting in exercise of equal or superior right."3 It is the latter test that has been more current as the accepted one in recent years.4-5
The more serious difficulties have arisen in regard to bona fide advice given to a person to withdraw from a contract, particularly in the performance of a duty to give the advice that is given to a person to with draw from a contract.
This situation arises particularly in the case of advice to terminate a contract of marriage which the person giving the advice regards as harmful to the interests of the parties concerned.'6 Similarly, in modern times, many cases concern the use of unlawful means such as violence, restrictions on liberty, intimidation, defamation and so on.7 The substantive law on the subject has thus developed extensively, and it is desirable that Article 78 should be revised in the light thereof.
1. Cf. section 768, Restatement of Tort (Second) (1970).
2. See note in (1902-1903) 16 Harvard Law Review 299.
3. Read v. Friendly Society, (1902) 1 KB 96.
4. Sayre Inducing Breach of Contract, (1923) 36 Harvard Law Review 663, 687, 696.
5. Carpenter Interference with Contract Relations, (1928) 41 Harvard Law Review 728.
6. J.D. Heydon Justification in International Economic Torts Laws, (1970) 20 University Toronto LJ 139, 161, 163, 163 and 182.
7. J.D. Heydon Justification in International Economic Torts Laws, (1970) 20 University of Toronto LJ 139, 161, 163, 168 and 182.
37.37.Recommendation.- Having regard to the above considerations, it appears to us that the language of the article is capable of improvement, so as to make it conform to the substantive law without, at the same time, making it too cumbersome. We, therefore, recommend that Article 78, first column, should be revised to read as unde.-
|For compensation wrongfully inducing person to break a contract with the plaintiff.||(Rest of the columns as at present).|
37.38.Articles 79 and 80.- (a) Article 79 reads as under:
|For compensation for an illegal, irregular excessive distress.||One year.||The date of the distress."|
It is identical with Article 28 of the Acts of 1908 and 1877.
Article 29 of the Act of 1871 was as under:
|For an illegal, irregular or excessive distress.||One year.||The date of the distress."|
(b) Article 80 reads as under:
|For compensation for wrongful seizure of movable property under legal process.||One year.||The date of the seizure."|
It is identical with Article 29 of the Acts of 1908 and 1877.
Article 30 of the Act of 1871 was as under:
|For wrongful seizure of movable property under legal process.||One year.||The date of the seizure."|
Articles 79 and 80 are taken together, since they represent one group of articles dealing with the subject to distraint of property under legal process or seizure by extra-legal methods. The Law Commission1 in its Report on the Act of 1908 had suggested their inclusion in one general article, dealing with torts, with a period of three years.
"there is no reason why they should not be brought under the general category of torts and the period of three years applied to them. The dates in column three coincide with the dates of accrual of the causes of action".
1. Law Commission of India, 3rd Report, (Limitation Act, 1908), para. 118.
37.39.Expression "legal process" in Article 80.- The expression 'legal process' occurring in Article 80 had given rise to certain conflict. The Allahabad High Court1 ruled that it included all processes issued under any law. In regard to the seizure of crops under tenancy law by the landlord, the High Court observe.-
"In my opinion, a distraint effected under the local tenancy Act (No. 11 of 1901) is a seizure of movable property under legal process, because it is done under the special provisions of the local act and subject to the due observance of the procedure therein laid down."
A contrary view was taken by the Bombay High Court,2 to the effect that the "legal process" envisaged by this article necessarily implied some process through the Court and accordingly a direction from the Collector, acting under the Bombay Land Revenue Code, was outside the scope of this article. Beamount, C.J. observed thu.-
"The learned Government Pleader has argued that the words 'under legal process' in Article 29 means 'according to law is legal process'. In my opinion, that is not the meaning of the words. I think 'legal process' denotes procedure by some sort of Court, and the Collector acting under section 154, Bombay Land Revenue Code, is not acting as a creditor. He, as the officer entitled to recover arrears of land revenue, is given power to seize the defaulter's goods.
He is in a position analogous to that of a creditor who is given power under the contract to seize his debtor's goods, if his moneys are not paid. If legal process merely means process according to law, it seems to me that seizure under a valid contract would be just as much seizure according to law as seizure under a statute. In my opinion, Article 29 applies to seizure under a process issued by a Court. Possibly a revenue Court may issue legal process, but in my view the Collector was not acting in any sense as a Court when he seized these goods."
However, in a later judgment of the Bombay High Court,3 the meaning of the expression "legal proceedings" was considered and the following observations mad.-
"It must be remembered in this context that the expression 'legal proceedings' is not synonymous with 'judicial proceedings'. Proceedings may be legal even if they are not judicial proceedings, if they are not authorised by law; and Mr. Palkhiwala, by his argument undoubtedly requires us to equate the expression 'legal proceedings' in section 48, sub¬section (2)(ii) with judicial proceedings, for which, in our opinion, there is no warrant in law."
1. Man Singh v. Ram Nath, AIR 1924 All 828.
2. Shivrao Shsgiri v. Secretary of State, AIR 1942 Born 300; also see Pahart v. Surai, 1948 ILR 27 Pat 680.
3. Abdul Aziz v. State of Bombay, AIR 1958 Born 279 (282).
37.40.No change as to legal process.- It is likely that the expression "legal process" would also be held to encompass all processes issued under any law, as has been held by the Allahabad High Court.1 As the matter has not been specifically raised after 1958 in reported cases, we would not recommend any amendment of the article on that score.
1. Man Singh v. Ram Nath, AIR 1924 All 828.