The Latin phrase, "Qui facit per alium facit per se" essentially translates to
"One who acts through another, acts oneself". Far from just being ancient
legal jargon, it is a principle that's frequently used in agency law. To put it
more simply, when someone (known as the agent) takes action on behalf of
another person (known as the principal), it's as though the principal person is
performing the action themselves.
Consider yourself as a homeowner who has hired a real estate agent to sell
your house. The agent is acting on your behalf to complete the sale. In this
situation, "Qui facit per alium facit per se" is relevant. Here's how it
Listing the Property: Your real estate agent lists your house on the market, including its features and the selling price. When the agent does this, it is as if you, the homeowner, are personally listing your property for sale. The agent's actions are considered your actions in this context.
Negotiating Offers: When potential buyers make offers on your house, your agent negotiates with them to arrive at a mutually acceptable price and conditions. Again, it is as if you are directly negotiating these terms. The agent's negotiations are legally binding on you as the homeowner.
Accepting an Offer: Now, let's say, the agent gets an offer that you find agreeable. In this case, the agent can accept the offer on your behalf. Essentially, what this means is that, from a legal standpoint, when the agent accepts the offer, it's as though you've accepted it yourself. You are bound by the terms of the accepted offer.
Completing the Sale: The agent performs various things like working with the buyer's agent, title insurance company, and the signatures of the necessary documents. These are tasks that the agent handles while it seems like you are doing them yourself.
According to this principle, the legal consequence of an act undertaken on
behalf of another is attached to the principal. In this example, the actions and
decisions of the real estate agent are attributed to the homeowner as if he had
personally performed those actions. The legal doctrine provides a basis for
determining the agent's and principal's liabilities and responsibilities in
different contractual and legal relationships.
Let's illustrate the principle "Qui facit per alium facit per se" with a
real-life example involving a power of attorney:
Not applicable in Criminal Cases
Scenario: For some reason, you cannot make it to an important business meeting due to an emergency. In your absence you authorize Sarah to represent you and act for you at the meeting by granting her a power of attorney.
Decision-Making at the Meeting: As your representative, Sarah goes for the meeting. In the meeting, a crucial decision has to be taken concerning a business contract. Sarah, acting on your behalf, takes the decision that you would have made if you were there. In this sense, the legal precept of "Qui facit per alium facit per se" is relevant. This is equivalent to you making the decision yourself because Sarah, as your agent, decides on your behalf.
Signing Agreements: This is as a result of the meeting, and a contract must be signed. Sarah signs the contract on your behalf using a power of attorney. You should know that Sarah's contract is legally binding. This translates to you being liable for fulfilling the terms and obligations of the contract as if you had put your signature on the contract.
Legal Consequences: If any legal issues or liabilities arise from the decisions or actions made during the meeting, you'll be held responsible for them. It would appear that you attended the meeting and made those decisions yourself. The Latin phrase "Qui facit per alium facit per se" implies that when Sarah acts on your behalf as your agent through the power of attorney, her act amounts to a personal act by you since it is you who empowered her. This principle is central to agency law and provides that persons are liable for actions of their authorized agents, which they took within their authority.
The maxim of "qui facit per alium facit per se" does not apply to criminal
cases. The legal principle is commonly associated with civil liability and
vicarious liability where one party is responsible for another's wrongful act.
According to this rule, if the agent or the servant performs the act on behalf
of the principal or the master, then the principal or the master is liable.
Nevertheless, principles of individual criminal responsibility and the
obligation to prove intention or "mens rea" are applied in criminal cases. The
principle of "qui facit per alium facit per se" does not apply here as in
criminal cases generally each and every person is responsible for their own
crime. In criminal law, the liability is based on personal involvement rather
than vicarious relationship.
Master liable for torts of their servants
There are several reasons why a master should be held liable for the torts
committed by their servants while in the course of their business.
One of the historical reasons behind the maxim "quid facit per alium facit per
se" comes from the servant's status whose origins often included servitude or
slavery. When the emancipation period came, the idea of being identified with
the master by the servant, still existed. The owner's power over the servant and
the servant's limited legal status were the legal reasons for making the master
liable. The maxim was applied in this historical context.
Another claim is that there should be a remedy available to those who can afford
the damages. The master being at a higher financial level compared to the
servant is regarded better placed to bear the responsibility and compensate the
Additionally, making the boss answerable for their employees' encourages sound judgement and caution. It's crucial that those in charge select individuals who
discharge their duties honestly and responsibly because they could be held
accountable for any wrongdoings of their staff. This contributes to the
responsibility and answerability in the masters' position.
The saying "qui facit per alium facit per se" means if you get someone else
to do something, it's like you did it yourself. This idea is backed by some
reasons. History, money matters, and the need to pick and watch over workers
well all play a part. These reasons explain why a boss should answer for
wrongs done by their worker.
Application of the Maxim
Vicarious liability arises from the maxim "qui facit per alium facit per se". It
is a guiding principle for a rule of evidence in a legal case. Masters and
corporations are liable for torts by their employees for wilful misconduct or
harm to others in the process of performance of duties.
Similarly, when partners enter into a partnership, the two individuals are
jointly answerable for each other's wrongful doings while acting in the ordinary
course of business. These parties are called joint tortfeasors and are joint and
In a law of agency, the maxim qui facit per alium facit per se is of paramount
importance, as it means that any action executed by the agent is considered a
deed of the principal. In this case, liability is based on the principle of
"respondeat superior," meaning that the boss is accountable. It's like saying,
'the boss should answer for the actions of his team.'
Under the legal principle of "respondeat superior," employers or principals
can be held legally responsible for their employees' or agents' actions. This
applies when the employees or agents commit careless or wrongful acts that
cause harm while performing their duties for the employer or principal.
- Independent Contractors: Employers aren't liable for the acts of independent contractors.
- Outside Scope of Employment: Liability does not apply when actions are outside an employee's job scope.
- Frolic and Detour: Employers aren't liable if an employee goes off-task for personal reasons, but they are if the deviation is minor.
- Criminal Acts: Employers aren't typically liable for employees' criminal actions unless it benefits the employer.
- Intentional Torts: In some areas, employers aren't liable for intentional torts by employees.
- Dual-Purpose Doctrine: Liability can be complex when an employee's actions serve both personal and work interests.
- Inadequate Control: Limited employer control weakens respondeat superior application.
- Negligent Hiring, Supervision, or Retention: Employers can be liable if they negligently hire, supervise, or retain problematic employees.
According to Article 300 of the Indian Constitution, either the Indian
Government or a state can be sued for any harmful action by its employees.
However, past court cases have shown that a state can only be held accountable
for these kinds of actions if they are sovereign acts.
A sovereign act, or actions undertaken by a government or sovereign state,
refers to the use of its governing power, whether within its own territory or
in international relations. These actions can include a wide range of
activities, such as enacting domestic laws, negotiating international
agreements, implementing national defence measures, taking private property
for public purposes, and controlling borders and immigration. Sovereign acts
are typically protected by the principle of sovereign immunity, which protects
governments and their agents from foreign legal actions, although there are
exceptions limitations in international law and diplomacy.
- In SBI v. Shyama Devi (AIR 1978 SC 1263), the verdict stated that if a bank worker accepts money or cheques for deposit without providing valid receipts personally, the bank isn't responsible if the employee misuses the money or cheques.
- In the court case, Mannasingh and Anr. v. State, the Madhya Pradesh High Court ruled that criminal laws don't enforce the 'vicarious liability' concept. The superior isn't punished for what their subordinate did, unless the superior encouraged it or there's a law that says otherwise. The saying, 'who acts through another, acts personally', isn't a criminal law principle, but a civil law doctrine."
- Morgan v. Incorporated Central Council [(1936) 1 All ER 404] was a case where M was legally at N's property. He fell from an open elevator shaft and was severely hurt. The responsibility of the elevator belonged to P, an independent contractor. The decision was that N wasn't at fault for P's carelessness.
- In the case of Mellors v. Shaw, from 1861 (B&S 437), an accident took place. A worker fell into a pit resulting in injuries. The incident happened due to the neglectful actions of a managing partner at a coal mine. This partner did not provide the necessary safeguards for the mine shaft as mandated by the law. The court's decision was that the company had to take responsibility for their managing partner's negligent actions.
- In Trilok Singh v. Kailash Bharti, the vehicle's owner was abroad. His younger brother, without his knowledge, took the car and had an accident. Since the younger brother wasn't acting for his elder brother, the owner wasn't considered responsible.
- In Ormrod v. Crosville Motor Service Ltd., the car owner had a friend drive his vehicle, which ended up colliding with a bus. The car owner was found liable.
The concept of "qui facit per alium facit per se" is crucial because it
highlights how actions and accountability are intertwined. It makes clear that
people cannot simply brush off their responsibility when they use others to
act on their behalf, whether in legal matters, moral issues, or leadership
This idea promotes a culture where people are held accountable and are
mindful of their decisions. It serves as a reminder that even if we delegate
tasks or make decisions through other people, we're still fundamentally
linked to the results and moral consequences that follow.