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Law is any rule of human conduct accepted by the society and enforced by the state for the betterment of human life. In a wider sense it includes any rule of human action for example, religious, social, political and moral rules of conduct. However only those rules of conduct of persons which are protected and enforced by the state do really constitute the law of the land in its strict sense. According to Salmond the law consists of rules recognized and acted on by courts of justice. The entire body of law in a state (corpus juris) may be divided into two, viz, civil and criminal.
Civil law: The term may be used in two senses. In one sense it indicates the law of a particular state as distinct from its external law such as international law. On the other side, in a restricted sense civil law indicates the proceedings before civil courts where civil liability of individuals for wrongs committed by them and other disputes of a civil nature among them are adjudicated upon and decided. Civil wrong is the one which gives rise to civil proceedings, i.e., proceedings which have for their purpose the enforcement of some right claimed by the plaintiff as against the defendant. For example, an action for the recovery of debt, restitution of property, specific performance of a contract etc. he who proceeds civilly is a claimant or plaintiff demanding the enforcement of some right vested in him and the remedy he seeks is compensatory or preventive in nature.
Criminal Law: Criminal laws indicate the proceedings before the criminal courts where the criminal liability of persons who have committed wrongs against the state and other prohibited acts are determined. Criminal proceedings on the other hand are those which have for their object the punishment of the wrong doer for some act of which he is accused. He who proceeds criminally is an accuser or prosecutor demanding nothing for him but merely the punishment of the accused for the offence committed by him.
Definition of TortThe term tort is the French equivalent of the English word ‘wrong’ and of the Roman law term ‘delict’. The word tort is derived from the Latin word tortum which means twisted or crooked or wrong and is in contrast to the word rectum which means straight. Everyone is expected to behave in a straightforward manner and when one deviates from this straight path into crooked ways he has committed a tort. Hence tort is a conduct which is twisted or crooked and not straight. As a technical term of English law, tort has acquired a special meaning as a species of civil injury or wrong. It was introduced into the English law by the Norman jurists.
Tort now means a breach of some duty independent of contract giving rise to a civil cause of action and for which compensation is recoverable. In spite of various attempts an entirely satisfactory definition of tort still awaits its master. In general terms, a tort may be defined as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated damages. Some other definitions for tort are given below:
Winfield and Jolowicz- Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.
Salmond and Hueston- A tort is a civil wrong for which the remedy is a common action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other mere equitable obligation.
Sir Frederick Pollock- Every tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related in one of the following ways to harm (including reference with an absolute right, whether there be measurable actual damage or not), suffered by a determinate person:-
a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal duty, which causes harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession or property), and treated as wrongful without regard to the actor’s intention or knowledge. This, as we have seen is an artificial extension of the general conceptions which are common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting or omitting to act did not intend to cause, but might and should with due diligence have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound absolutely or within limits, to avoid or prevent.
The Law of Torts In IndiaUnder the Hindu law and the Muslim law tort had a much narrower conception than the tort of the English law. The punishment of crimes in these systems occupied a more prominent place than compensation for wrongs. The law of torts in India is mainly the English law of torts which itself is based on the principles of the common law of England. This was made suitable to the Indian conditions appeasing to the principles of justice, equity and good conscience and as amended by the Acts of the legislature. Its origin is linked with the establishment of British courts in India.
The expression justice, equity and good conscience was interpreted by the Privy Council to mean the rules of English Law if found applicable to Indian society and circumstances. The Indian courts before applying any rule of English law can see whether it is suited to the Indian society and circumstances. The application of the English law in India has therefore been a selective application. On this the Privy Council has observed that the ability of the common law to adapt itself to the differing circumstances of the countries where it has taken roots is not a weakness but one of its strengths. Further, in applying the English law on a particular point, the Indian courts are not restricted to common law. If the new rules of English statute law replacing or modifying the common law are more in consonance with justice, equity and good conscience, it is open o the courts in India to reject the outmoded rules of common law and to apply the new rules. For example, the principles of English statute, the Law Reform (Contributory Negligence) Act, 1945, have been applied in India although there is still no corresponding Act enacted by Parliament in India.
The development in Indian law need not be on the same lines as in England. In M.C. Mehta v. Union of India , Justice Bhagwati said, we have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialized economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any foreign country. We are certainly prepared to receive light from whatever source it comes but we have to build our own jurisprudence.
It has also been held that section 9 of The Code of Civil Procedure, which enables the civil court to try all suits of a civil nature, impliedly confers jurisdiction to apply the Law of Torts as principles of justice, equity and good conscience. Thus the court can draw upon its inherent powers under section 9 for developing this field of liability.
In a more recent judgement of Jay Laxmi Salt Works (p) ltd. v. State of Gujarat, Sahai, J., observed: truly speaking the entire law of torts is founded and structured on morality. Therefore, it would be primitive to close strictly or close finally the ever expanding and growing horizon of tortuous liability. Even for social development, orderly growth of the society and cultural refineness the liberal approach to tortious liability by court would be conducive.
Nature of Torts
A. Tort and crimeHistorically tort had its roots in criminal procedure. Even today there is a punitive element in some aspects of the rules on damages. However tort is a species if civil injury or wrong. The distinction between civil and criminal wrongs depends on the nature of the remedy provided by law. A civil wrong is one which gives rise to civil proceedings. A civil proceeding concerns with the enforcement of some right claimed by the plaintiff as against the defendant whereas criminal proceedings have for their object the punishment of the defendant for some act of which he is accused. Sometimes the same wrong is capable of being made the subject of proceedings of both kinds. For example assault, libel, theft, malicious injury to property etc. in such cases the wrong doer may be punished criminally and also compelled in a civil action to make compensation or restitution.
Not every civil wrong is a tort. A civil wrong may be labeled as a tort only where the appropriate remedy for it is an action for unliquidated damages. Thus for example, public nuisance is not a tort merely because the civil remedy of injunction may be available at the suit of the attorney general, but only in those exceptional cases in which a private person may recover damages for loss sustained by him in consequence thereof. However it has to be born in mind that a person is liable in tort irrespective of whether or not an action for damages has been given against him. The party is liable from the moment he commits the tort. Although an action fro damages is an essential mark of tort and its characteristic remedy, there may be and often other remedies also.
A. Difference between crime and tortBeing a civil injury, tort differs from crime in all respects in which a civil remedy differs from a criminal one. There are certain essential marks of difference between crime and tort they are:
# Tort is an infringement or privation of private or civil rights belongigng to individuals, whereas crime is a breach of public rights and duties which affect the whole community.
# In tort the wrong doer has to compensate the injured party whereas in crime, he is punished by the state in the interest of the society.
# In tort the action is brought about by the injured party whereas in crime the proceedings are conducted in the name of the state.
# In tort damages are paid for compensating the injured and in crime it is paid out of the fine which is paid as a part of punishment. Thus the primary purpose of awrding compensation in a criminal prosecution is punitive rather than compensatory.
# The damages in tort are unliquidated and in crime they are liquidated.
A. Resemblance between crime and tortThere is however a similarity between tort and crime at a primary level. In criminal law the primary duty, not to commit an offence, for example murder, like any primary duty in tort is in rem and is imposed by law. The same set of circumstances will in fact, from one point of view, constitute a crime and, from another point of view, a tort. For example every man has the right that his bodily safety shall be respected. Hence in an assault, the sufferer is entitled to get damages. Also, the act of assault is a menace to the society and hence will be punished by the state. However where the same wrong is both a crime and a tort its two aspects are not identical. Firstly, its definition as a crime and a tort may differ and secondly, the defences available for both crime and tort may differ.
The wrong doer may be ordered in a civil action to pay compensation and be also punished criminally by imprisonment or fine. If a person publishes a defamatory article about another in a newspaper, both a criminal prosecution for libel as well as a civil action claiming damages for the defamatory publication may be taken against him. In P.Rathinam. v. Union of India, the Supreme Court observed, In a way there is no distinction between crime and a tort, inasmuch as a tort harms an individual whereas a crime is supposed to harm a society. But then, a society is made of individuals. Harm to an individual is ultimately the harm to the society.
There was a common law rule that when the tort was also a felony, the offender would not be sued in tort unless he has been prosecuted in felony, or else a reasonable excuse had to be shown for his non prosecution. This rule has not been followed in India and has been abolished in England.
B. Tort and contractThe definition given by P.H. Winfield clearly brings about the distinction between tort and contract. It says, Tortuous liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages. A contract is that species of agreement whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, content and consequence of which are determined and defined by the agreement between the parties. According to Salmond, a contract arises out of the exercise of the autonomous legislative authority entrusted by the law to private persons to declare and define the nature of mutual rights and obligations.
At the present day, tort and contract are distinguished from one another in that, the duties in the former are primarily fixed by law while in the latter they are fixed by the parties themselves. Agreement is the basis for all contractual obligations. “People cannot create tortious liability by agreement. Thus I am under a duty not to assault you, not to slander you, not to trespass upon your land because the law says that I am under such duty and not because I have agreed with you to undertake such duty.
Some of the distinctions between tort and contract are given below:
# A tort is inflicted against or without consent; a contract is founded upon consent.
# In tort no privity is needed, but it is necessarily implied in a contract.
# A tort is a violation in rem (right vested in some person and available against the world at large.); a breach of contract is an infringement of a right in personam( right available against some determinate person or body).
# Motive is often taken into consideration in tort, but it is immaterial in a breach of contract.
# In tort the measure of damages is not strictly limited nor is it capable of being indicated with precision; in a breach of contract the measure of damages is generally more or less nearly determined by the stipulations of the parties.
In certain cases the same incident may give rise to liability both in contract and in tort. For example, when a passenger whilst traveling with a ticket is injured owing to the negligence of the railway company, the company is liable for a wrong which is both a tort and a breach of a contract.
The contractual duty may be owed to one person and the duty independent of that contract to another. The surgeon who is called by a father to operate his daughter owes a contractual duty to the father to take care. If he fails in that duty he is also liable for a tort against the daughter. In Austin v. G.W. Railway, a woman and her child were traveling in the defendant’s train and the child was injured by defendant’s negligence. The child was held entitled to recover damages, for it had been accepted as passenger.
There is a well established doctrine of Privity of Contract under which no one except the parties to it can sue for a breach of it. Formerly it was thought that this principle of law of contract also prevented any action being brought under tortuous liability. But this fallacy was exploded by the House of Lords in the celebrated case of Donoghue v. Stevenson. In that case a manufacturer of ginger beer had sold to a retailer, ginger beer in a bottle of dark glass. The bottle, unknown to anyone, contained the decomposed remains of a snail which had found its way to the bottle at the factory. X purchased the bottle from the retailer and treated the plaintiff, a lady friend (the ultimate consumer), to its contents. In consequence partly of what she saw and partly of what she had drunk, she became very ill. She sued the manufacturer for negligence. This was, of course, no contractual duty on the part of the manufacturer towards her, but a majority of the House of Lords held that he owed a duty to take care that the bottle did not contain noxious matter and that he was liable if that duty was broken.
The judicial committee of the Privy Council affirmed the principle of Donoghue’s case in Grant v. Australian Knitting Mills Ltd. Thus contractual liability is completely irrelevant to the existence of liability in tort. The same facts may give rise to both.
Another discrepancy between contracts and torts is seen in the nature of damages under each. In contracts the plaintiff will be claiming liquidated damages whereas in torts he will be claiming unliquidated damages. When a person has filed a suit or put a claim for the recovery of a predetermined and fixed sum of money he is said to have claimed liquidated damages. On the other hand when he has filed a suit for the realization of such amount as the court in its discretion may award, he is deemed to have claimed unliquidated damages.
C. Tort and Quasi-ContractQuasi contract cover those situations where a person is held liable to another without any agreement, for money or benefit received by him to which the other person is better entitled. According to the Orthodox view the judicial basis for the obligation under a quasi contract is the existence of a hypothetical contract which is implied by law. But the Radical view is that the obligation in a quasi contract is sui generis and its basis is prevention of unjust enrichment.
Quasi contract differs from tort in that:
# There is no duty owed to persons for the duty to repay money or benefit received unlike tort, where there is a duty imposed.
# In quasi contract the damages recoverable are liquidated damages, and not unliquidated damages as in tort.
Quasi contracts resembles tort and differs from contracts in one aspect. The obligation in quasi contract and in tort is imposed by law and not under any agreement. In yet another dimension quasi contract differs from both tort and contract. If, for example, A pays a sum of money by mistake to B. in Quasi contract, B is under no duty not to accept the money and there is only a secondary duty to return it. While in both tort and contract, there is a primary duty the breach of which gives rise to remedial duty to pay compensation.
Constituents of TortThe law of torts is fashioned as an instrument for making people adhere to the standards of reasonable behaviour and respect the rights and interests of one another. This it does by protecting interests and by providing for situations when a person whose protected interest is violated can recover compensation for the loss suffered by him from the person who has violated the same. By interest here is meant a claim, want or desire of a human being or group of human beings seeks to satisfy, and of which, therefore the ordering of human relations in civilized society must take account. It is however, obvious that every want or desire of a person cannot be protected nor can a person claim that whenever he suffers loss he should be compensated by the person who is the author of the loss. The law, therefore, determines what interests need protection and it also holds the balance when there is a conflict of protected interests.
Every wrongful act is not a tort. To constitute a tort,
# There must be a wrongful act committed by a person;
# The wrongful act must be of such a nature as to give rise to a legal remedy and
# Such legal remedy must be in the form of an action for unliquidated damages.
I. Wrongful Act
An act which prima facie looks innocent may becomes tortious, if it invades the legal right of another person. In Rogers v. Ranjendro Dutt , the court held that, the act complained of should, under the circumstances, be legally wrongful, as regards the party complaining. That is, it must prejudicially affect him in some legal right; merely that it will however directly, do him harm in his interest is not enough.
A legal right, as defined by Austin, is a faculty which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answers to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are very numerous. They may be divided again into public rights and private rights. To every right, corresponds a legal duty or obligation. This obligation consists in performing some act or refraining from performing an act.
Liability for tort arises, therefore when the wrongful act complained of amounts either to an infringement of a legal private right or a breach or violation of a legal duty.
In general, a tort consists of some act done by a person who causes injury to another, for which damages are claimed by the latter against the former. In this connection we must have a clear notion with regard to the words damage and damages. The word damage is used in the ordinary sense of injury or loss or deprivation of some kind, whereas damages mean the compensation claimed by the injured party and awarded by the court. Damages are claimed and awarded by the court to the parties. The word injury is strictly limited to an actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or not.
The real significance of a legal damage is illustrated by two maxims, namely, Damnum Sine Injuria and Injuria Sine Damno.
(i) Damnum Sine Injuria (Damage Without Injury)
There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or damage without injury. Damage without breach of a legal right will not constitute a tort. They are instances of damage suffered from justifiable acts. An act or omission committed with lawful justification or excuse will not be a cause of action though it results in harm to another as a combination in furtherance of trade interest or lawful user of one’s own premises. In Gloucester Grammar School Master Case , it had been held that the plaintiff school master had no right to complain of the opening of a new school. The damage suffered was mere damnum absque injuria or damage without injury. Acton v. Blundell, in which a mill owner drained off underground water running into the plaintiff’s well, fully illustrate that no action lies fro mere damage, however substantial, caused without the violation of some right.
There are moral wrongs for which the law gives no remedy, though they cause great loss or detriment. Los or detriment is not a good ground of action unless it is the result of a species of wrong of which the law takes no cognizance.
(ii) Injuria Sine Damno ( injury without damage)
This means an infringement of a legal private right without any actual loss or damage. In such a case the person whose right has been infringed has a good cause of action. It is not necessary for him to prove any special damage because every injury imports a damage when a man in hindered of his right. Every person has an absolute right to property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. actual perceptible damage is not, therefore, essential as the foundation of an action. It is sufficient to show the violation of a right in which case the law will presume damage. Thus in cases of assault, battery, false imprisonment, libel, trespass on land, etc., the mere wrongful act is actionable without proof of special damage. The court is bound to award to the plaintiff at least nominal damages if no actual damage is proved. This principle was firmly established by the election case of Ashby v. White, in which the plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in parliamentary election. The candidate fro whom the plaintiff wanted to give his vote had come out successful in the election. Still the plaintiff brought an action claiming damages against the defendants for maliciously preventing him from exercising his statutory right of voting in that election. The plaintiff was allowed damages by Lord Holt saying that there was the infringement of a legal right vested in the plaintiff.
The law of torts is said to be a development of the maxim ‘ubi jus ibi remedium’ or ‘there is no wrong without a remedy’. If a man has a right, he must of necessity have a means to vindicate and maintain it and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without remedy; want of right and want of remedy are reciprocal.
Where there is no legal remedy there is no wrong. But even so the absence of a remedy is evidence but is not conclusive that no right exists.
Some General Conditions In Torts
1. Act And Omission- To constitute a tort there must be a wrongful act, whether of omission or commission, but not such acts as are beyond human control and as are entertained only in thoughts. An omission is generally not actionable but it is so exceptionally. Where there is a duty to act an omission may create liability. A failure to rescue a drowning child is not actionable, but it is so where the child is one’s own. A person who voluntarily commences rescue cannot leave it half the way. A person may be under duty to control natural happenings to his own land so as to prevent them from encroaching others’ land.
2. Voluntary and Involuntary Acts- a voluntary act has to be distinguished from an involuntary act because the former may involve liability and the latter may not. A self willed act like an encroachment fro business, is voluntary, but an encroachment for survival may be involuntary. The wrongfulness of the act and the liability for it depends upon legal appreciation of the surrounding circumstances.
3. Malice- malice is not essential to the maintenance of an action for tort. It is of two kinds, ‘express malice’ (or malice in fact or actual malice) and ‘malice in law’ (or implied malice). The first is what is called malice in common acceptance and means ill will against a person; the second means a wrongful act done intentionally without just cause or excuse. Where a man has a right to do an act, it is not possible to make his exercise of such right actionable by alleging or proving that his motive in the exercise was spite or malice in the popular sense. An act, not otherwise unlawful, cannot generally be made actionable by an averment that it was done with evil motive. A malicious motive per se does not amount to injuria or legal wrong.
Wrongful acts of which malice is an essential element are:
# Malicious prosecution,
# Willful and malicious damage to property,
# Maintenance, and
# Slander of title.
4. Intention, motive, negligence and recklessness- The obligation to make reparation for damage caused by a wrongful act arises from the fault and not from the intention. Any invasion of the civil rights of another person is in itself a legal wrong, carrying with it liability to repair it necessary or natural consequences, in so far as these are injurious to the person whose right is infringed, whether the motive which prompted it be good, bad or indifferent. A thing which is not a legal injury or wrong is not made actionable by being done with a bad intent. It is no defence to an action in tort for the wrong doer to plead that he did not intend to cause damage, if damage has resulted owing to an act or omission on his part which is actively or passively the effect of his volition. A want of knowledge of the illegality of his act or omission affords no excuse, except where fraud or malice is the essence of that act or omission. For every man is presumed to intend and to know the natural and ordinary consequences of his acts. This presumption is not rebutted merely by proof that he did not think of the consequences or hoped or expected that they would not follow. The defendant will be liable for the natural and necessary consequences of his act, whether he in fact contemplated them or not.
5. Malfeasance, misfeasance and nonfeasance- the term ‘malfeasance’ applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of negligence or malice. The term ‘misfeasance’ is applicable to improper performance of some lawful act. The term ‘non-feasance’ applies to the failure or omission to perform some act which there is an obligation to perform.
6. Fault- liability for tort generally depends upon something done by a man which can be regarded as a fault fro the reason that it violates another man’s right. But liability may also arise without fault. Such liability is known as absolute or strict liability. An important example is the rule in Rylands v. Fletcher thus the two extremes of the law of tort are of non liability even where there is fault or liability without fault. Between these two extremes is the variety of intentional and negligent wrongs to the question whether there is any consistent theory of liability, all that can be said is that it wholly depends upon flexible public policy, which in turn is a reflection of the compelling social needs of the time.
General Principles of LiabilityThere are two theories with regard to the basic principle of liability in the law of torts or tort. They are:
# Wider and narrower theory- all injuries done by one person to another are torts, unless there is some justification recognized by law.
# Pigeon-hole theory- there is a definite number of torts outside which liability in tort does not exist.
The first theory was propounded by Professor Winfield. According to this, if I injure my neighbour, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification. This leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendants liable irrespective of any defect in the pleading of the plaintiff. This theory resembles the saying, my duty is to hurt nobody by word or deed. This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example, negligence became a new specific tort only by the 19th century AD. Similarly the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case if Rylands v. Fletcher.
The second theory was proposed by Salmond. It resembles the Ten Commandments given to Moses in the bible. According to this theory, I can injure my neighbour as much as I like without fear of his suing me in tort provided my conduct does not fall under the rubric of assault, deceit, slander or any other nominate tort. The law of tort consists of a neat set of pigeon holes, each containing a labeled tort. If the defendant’s wrong does not fit any of these pigeon holes he has not committed any tort.
The advocates of the first theory argue that decisions such as Donoghue v. Stevenson shows that the law of tort is steadily expanding and that the idea of its being cribbed, cabined and confined in a set of pigeon holes in untenable. However salmond argues in favour of his theory that just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in the one case nor in the other is there any general principle of liability. Whether I am prosecuted fro an alleged offence or sued fro an alleged tort it is for my adversary to prove that the case falls within some specific and established rule of liability and not fro for me to defend myself by proving that it is within some specific and established rule of justification or excuse. For salmond the law must be called The Law of Torts rather that The Law of Tort.
There is, however, no recognition of either theory. It would seem more realistic fro the student to approach the tortious liability from a middle ground. In an Indian decision, Lala Punnalal v. Kasthurichand Ramaji, it was pointed out that there is nothing like an exhaustive classification of torts beyond which courts should not proceed, that new invasion of rights devised by human ingenuity might give rise to new classes of torts. On the whole if we are asked to express our preference between the two theories, in the light of recent decisions of competent courts we will have to choose the first theory of liability that the subsequent one. Thus it is a matter of interpretation of courts so as to select between the two theories. The law of torts has in the main been developed by courts proceeding from the simple problems of primitive society to those of our present complex civilization.
Thus to conclude, law of torts is a branch of law which resembles most of the other branches in certain aspects, but is essentially different from them in other respects. Although there are differences in opinion among the different jurists regarding the liability in torts, the law has been developed and has made firm roots in the legal showground. There are well defined elements and conditions of liability in tort law.
This bough of law enables the citizens of a state to claim redressal for the minor or major damage caused to them. Thus the law has gained much confidence among the laymen.
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