Extinction of liability

In one minute

A person who has committed a tort does not remain liable for ever. The right to sue can come to an end in several ways. The main ways are death, waiver and acquiescence, release, accord and satisfaction, a judgment, and lapse of time under the law of limitation.

This note gives the whole picture. Waiver and acquiescence, release, accord and satisfaction, and death each have their own notes with more detail. In exams, expect a short note listing the modes.

Legal provision

• Section 306, Indian Succession Act, 1925: on the death of a person, all rights of action vest in his executor or administrator. The exceptions are causes of action for defamation, assault or other personal injuries not causing death, and cases where the relief could not be enjoyed if the person died.
• Section 11, Code of Civil Procedure, 1908: res judicata. A matter decided between the same parties by a competent court cannot be tried again.
• Limitation Act, 1963: section 3 bars a suit filed after the period. Articles 73 and 74 give one year for false imprisonment and malicious prosecution, and Article 113 gives three years where no other period is stated. Section 22 gives a fresh period for each day of a continuing wrong.
• Indian Contract Act, 1872, sections 62 to 63: novation, alteration, remission and accord and satisfaction. They apply by analogy to claims in tort.

Meaning and definition

The extinction of liability means the ending of the wrongdoer's duty to compensate for a tort, and of the claimant's right to sue. The tort remains a wrong in history, but the law no longer lets the claimant enforce it.

The modes fall in two groups. In the first group the claimant gives up his right, by choice. In the second group the law ends the right, by operation of law, without his choice.

Detailed explanation

Step 1: death of a party, the maxim actio personalis moritur cum persona

The maxim actio personalis moritur cum persona says that a personal action dies with the person. At common law, a claim in tort ended when either the wrongdoer or the injured person died. India has softened the rule by section 306 of the Indian Succession Act, 1925. Most claims survive, but defamation, assault and personal injuries not causing death do not survive the deceased claimant. The Fatal Accidents Act, 1855 gives dependants a fresh right to sue. The note on death explains this in full.

Step 2: waiver and acquiescence

The claimant may give up his right by waiver, which is a knowing and voluntary giving up, or lose it by acquiescence, which is standing by while the wrong is done and showing no objection. The two are explained in separate notes.

Step 3: release

A release is a formal giving up of the claim, usually for a payment. A release of one joint tortfeasor frees the others. It is explained in its own note.

Step 4: accord and satisfaction

The parties agree that the claimant will accept something different from what he claims (the accord), and he accepts it (the satisfaction). The claim then ends. A promise to accept alone is not enough. The note on accord and satisfaction gives the details.

Step 5: judgment and res judicata

Once a court gives judgment on a claim, the claim merges in the judgment. The same matter cannot be tried again between the same parties (section 11 CPC, res judicata). If a claimant sues for part of his claim and leaves out the rest, he may not be able to sue for the rest later (Order II, rule 2 CPC). Where the claim is against joint tortfeasors, an unsatisfied judgment against one does not bar a claim against the others, but full satisfaction ends the claim.

Step 6: lapse of time

The Limitation Act, 1963 bars a suit that is filed after the allowed period. The right may be said to exist, but the remedy is gone.

• False imprisonment and malicious prosecution: one year (Articles 73 and 74).
• Torts for which no other period is stated: three years (Article 113).
• For a continuing wrong, such as a continuing nuisance, a fresh period starts every day the wrong continues (section 22).
• Fraud and mistake: the period starts when the claimant discovers the fraud or mistake (section 17).

Step 7: other modes

• Payment or satisfaction in full. If the wrongdoer pays full compensation, the claim ends.
• Statute. An Act may take away the right to sue or give a limited remedy instead, as in the Employees' Compensation Act, 1923.
• Insolvency. A discharge in insolvency may free the wrongdoer from some debts, but not from a debt for fraud.

• Extinction of liability
  • By act of the claimant
    • WaiverKnowingly gives up the right.
    • AcquiescenceStands by and does not object.
    • ReleaseFormal discharge, usually for payment.
    • Accord and satisfactionAccepts something else and gets it.
  • By operation of law
    • DeathSome claims die with the person (section 306, Succession Act).
    • JudgmentRes judicata. The claim merges in the judgment.
    • LimitationThe suit is barred after the period.

Don't confuse: modes of ending liability

The modes look alike. The table separates them.

Mode	What ends the claim	Needs the claimant's consent?
Waiver	A knowing giving up of the right	Yes
Acquiescence	Standing by while the wrong is done	Implied from silence
Release	A formal discharge	Yes
Accord and satisfaction	An agreement followed by performance	Yes
Death	The death of the claimant or the wrongdoer	No
Judgment	The court's decision	No
Limitation	Lapse of the period	No

Common mistakes

• Writing that every claim in tort dies with the person. Section 306 of the Succession Act saves most claims.
• Treating waiver and release as the same. Release is a formal discharge.
• Saying limitation destroys the tort. It bars the remedy.
• Forgetting that a claim in tort can be ended by an accord that is carried out, and not by a bare promise.
• Forgetting that a continuing wrong gives a fresh period each day.

Apply it

Leading case laws

• Rudul Sah v. State of Bihar (1983)

  Facts. Rudul Sah stayed in jail for fourteen years after his acquittal.

  Principle. The Supreme Court awarded compensation under Article 32, as a public law remedy.

  Why it matters. It shows a remedy that does not depend on the limitation rules for a tort suit.

• Ashby v. White (1703)

  Facts. A voter was refused his vote and the jury gave him damages.

  Principle. A violated right has a remedy. The remedy ends only by recognised modes.

  Why it matters. The background principle of ubi jus ibi remedium for the modes of extinction.

How to write this answer in the exam

Key points to remember

• Modes: death, waiver, acquiescence, release, accord and satisfaction, judgment, limitation.
• Section 306 of the Indian Succession Act saves most claims on death, but not defamation, assault or personal injury not causing death.
• Release is a formal discharge. Accord needs satisfaction (performance).
• Res judicata bars a second suit on the same matter.
• Limitation bars the remedy: one year for false imprisonment and malicious prosecution, three years for most other torts.
• A continuing wrong gives a fresh period each day.

Quick self-test

Related topics

• Waiver and Acquiescence
• Release
• Accord and Satisfaction
• Death