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Qui Facit Per Alium Facit Per Se and Respondeat Superior

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 applies:
  • 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:
  • 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.

Not applicable in Criminal Cases
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 injured party.

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 several liable.

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.'

Respondent Superior
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.

Court Judgments:
  • 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 roles.

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.


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