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Tag: define Pledge

Retributive Theory

Retributivism finds its roots in the ancient Code of Hammurabi, particularly in the principle of lex talionis, which embodies the concept of ‘an eye for an eye and a tooth for a tooth.’ This classic form of retributivism asserts that a guilty individual should experience pain as a consequence of their actions. Herbert Hart succinctly defined retributivism as the imposition of punishment on morally culpable offenders. Retributivism is often perceived as appealing to moral desirability. For instance, if a thief intends to steal money from someone, they bear moral responsibility for their actions and, consequently, deserve punishment.

The retributive theory of punishment posits that crimes should have consequences, and these consequences should be proportionate to the severity of the offense committed by the individual. Immanuel Kant, a prominent advocate of retributive punishment, extensively discussed its practical applications, making him one of the most influential figures in this field. Central to retributivism is the belief that punishment is warranted simply because the offender deserves it, irrespective of other potential objectives such as deterrence or rehabilitation. The concept of retributive theory in Indian jurisprudence is deeply rooted in ancient legal philosophies, particularly in Dharmashastra and Arthashastra. However, in modern times, the retributive theory gained prominence through legal scholars and jurists who interpreted and applied it within the framework of Indian law.

Founder:
The retributive theory, which suggests that punishment is justified as a form of retribution for the wrongdoing committed, doesn’t have a single founder in India’s legal tradition. Instead, it finds its roots in various ancient Indian legal texts, philosophical teachings, and later interpretations by legal scholars.

Impact:
The retributive theory has significantly influenced the Indian legal system, particularly in shaping the principles of criminal law and sentencing. It emphasizes the idea that punishment should be proportionate to the offense committed, serving as a deterrent to future wrongdoing while also satisfying the societal need for justice.

Origin and Basis:

Retribution, an ancient concept in moral philosophy, has roots in various religious texts such as the Old Testament and Hindu doctrines like ‘Karma’. The principle of retribution is illustrated in ancient epics like the Mahabharata, where Lord Krishna justifies the necessity of war when all other options are exhausted. Similarly, Islamic law, introduced by rulers in India, prescribes severe punishments for crimes like theft and adultery, rooted in the idea of delivering justice to the aggrieved.

The Code of Hammurabi, one of the oldest legal codes, exemplifies the early application of retributive principles. It advocated for equal retribution, such as shattering the limbs of offenders who caused harm to others. Cesare Beccaria, an Italian criminologist, contributed significantly to the retributive theory, focusing on the concept of revenge as a form of justice.

Principles of Retributive Theory:

  1. Principle of Responsibility: This principle asserts that punishment is justified only when the individual has voluntarily committed a wrongful act. It emphasizes the importance of guilt and moral culpability in determining eligibility for punishment.
  2. Principle of Proportionality: According to this principle, the severity of punishment should correspond to the gravity of the offense committed. Retributive punishment aims to ‘pay back’ the wrongdoer in a manner that mirrors the harm inflicted upon the victim.
  3. Principle of Just Requital: This principle provides a rationale for punishment by asserting that it rectifies moral wrongs and satisfies the demands of justice. It emphasizes the entitlement of victims to see wrongdoers punished and highlights the moral necessity of retribution.

Critique of Retributive Theory:

While retributivism has its strengths, it also faces criticism on several fronts. One primary critique is that punishment, in itself, does not remedy the harm caused by the offense and may perpetuate cycles of violence and vengeance. Critics argue that retribution often fails to consider the specific circumstances surrounding a crime and may lead to disproportionate or unjust punishments.

Moreover, retributive punishment may instill feelings of vengeance in society, undermining the pursuit of justice within a civil framework. Critics also raise ethical concerns about the motivations behind punishment, suggesting that revenge-driven justice may not align with principles of fairness and equity.

Consequences of a Retributive Approach:

Countries that adhere to retributive principles in their legal systems often face challenges related to incarceration rates, racial disparities in sentencing, and overcrowded prisons. The emphasis on punitive measures may overshadow efforts towards rehabilitation and social reintegration, leading to high rates of recidivism and a strain on prison facilities.

In contrast, countries that adopt rehabilitative approaches tend to focus on the social and moral rehabilitation of offenders, resulting in lower rates of recidivism and more humane treatment of prisoners. The comparative study of Tihar Jail in India and Halden Prison in Norway highlights the effectiveness of rehabilitative measures in reducing reoffending rates and promoting social reintegration.

The retributive theory of punishment has influenced various laws and legal principles across different jurisdictions, including in India. While it may not be explicitly mentioned in statutes, its principles often underlie sentencing guidelines and judicial decisions. Here are some laws and legal principles in India that reflect the influence of retributive theory of punishment:

  1. Indian Penal Code (IPC): Enacted in 1860, the IPC provides a comprehensive list of criminal offenses and their corresponding punishments. The principle of proportionality, a key tenet of retributive justice, is evident in the gradation of punishments prescribed for different offenses. For example, more severe crimes such as murder or rape are punishable by more stringent penalties, reflecting the idea of ‘an eye for an eye.’
  2. Criminal Procedure Code (CrPC): The CrPC governs the procedural aspects of criminal trials and the administration of justice in India. While it primarily focuses on the procedural aspects of criminal proceedings, it ensures that the accused are afforded due process rights while also facilitating the imposition of retributive punishments in accordance with the law.
  3. Landmark Judicial Decisions: Indian courts, including the Supreme Court of India, often interpret and apply the principles of retributive justice in their judgments. Landmark cases such as Bachan Singh v. State of Punjab and Machhi Singh v. State of Punjab have shaped the jurisprudence surrounding capital punishment, emphasizing the retributive aspect of sentencing in cases involving the most heinous crimes.
  4. Death Penalty Laws: The imposition of the death penalty in India is often discussed in the context of retributive justice. While it remains a contentious issue, with arguments both for and against its abolition, the retention of the death penalty for certain offenses reflects the principle of just requital and proportionate punishment.
  5. Criminal Justice System: The overall structure and functioning of the criminal justice system in India, including the roles of law enforcement agencies, prosecutors, judges, and correctional facilities, are influenced by retributive principles. The system aims to hold offenders accountable for their actions and provide justice to victims through the imposition of proportionate punishments.

These laws and legal principles, among others, reflect the application and influence of the retributive theory of punishment in the Indian legal system. While the system also incorporates elements of deterrence, rehabilitation, and restorative justice, the principles of retributive justice continue to play a significant role in shaping criminal laws and sentencing practices.

Case Laws:


Several landmark judgments in India reflect the application and interpretation of the retributive theory. Here are a few examples:

  1. Bachan Singh v. State of Punjab (1980): This case is significant as it introduced the concept of the “rarest of rare” doctrine regarding the imposition of the death penalty in India. The court held that the death penalty should be reserved for the most heinous crimes, reflecting a retributive approach to punishment.
  2. Machhi Singh v. State of Punjab (1983): In this case, the Supreme Court of India further elaborated on the “rarest of rare” doctrine, emphasizing the retributive aspect of punishment while considering aggravating and mitigating circumstances in capital sentencing.
  3. State of Gujarat v. Kishanbhai (2014): This case highlighted the importance of retributive justice in sentencing while also considering the principles of rehabilitation and reformation. The court reiterated that punishment should be proportionate to the gravity of the offense, reflecting the retributive theory.

These cases, among others, demonstrate the influence of the retributive theory on Indian jurisprudence, guiding courts in determining appropriate punishments based on the principles of justice and proportionality.

Conclusion:

While the retributive theory of punishment has a long history and continues to influence legal systems worldwide, it is not without its flaws and criticisms. The principles of responsibility, proportionality, and just requital form the foundation of retributive justice, but their application must be carefully considered to avoid disproportionate or unjust outcomes.

In light of evolving societal norms and advancements in criminological research, there is a growing recognition of the need for a balanced approach to punishment that incorporates elements of deterrence, rehabilitation, and restorative justice. Ultimately, the goal of any punishment should be to promote accountability, deter future wrongdoing, and uphold the principles of fairness and justice in society.

Pledge brief notes

Pawn or Pledge is a special kind of bailment where a movable thing is bailed as security for the repayment of a debt or for the performance of a promise. As per section 172 of the Indian Contract Act, 1872, a Pledge is a contract where a person deposits an article or good with a lender of money as security for the repayment of a loan or performance of a promise. Pledge is also known as a pawn. The depositor or the bailor is the Pawnor and the bailee or the depositee is the Pawnee. The Pawnee is under the duty to take reasonable care of the goods pledged to him. Let us learn about the Rights of the Pawnee and Pawnor.

Ownership of the pledged goods does not pass to the pledgee. The general property remains with the pledger but a “special property” in it passes to the pledgee. The special property is a right to the possession of the articles along with the power of sale on default. Delivery of the goods pawned is a necessary element in the making of a pawn. The property pledged should be delivered to the Pawnee.

Essential Features of a Pledge

Since a Pledge is a special kind of bailment, all the essentials of bailment are also the essentials of the pledge. Apart from that, the other essentials of the pledge are:

• There shall be a bailment for security against payment or performance of the promise.

• The subject matter of the pledge is goods, • Goods pledged for shall be in existence.

• There shall be the delivery of goods from pledger to pledgee.

• There is no transfer of ownership in the case of the pledge.

Exception: In exceptional circumstances, the pledgee has the right to sell the movable goods or property that have been pledged.

Who may pledge?

Any of the following persons may make a valid pledge:

i. The owner, or his authorized agent, or

ii. One of the several co-owners, who is in the sole possession of goods with the consent of other owners, or

iii. A mercantile agent, who is in possession of the goods with the consent of the real owner, or

iv. A person in possession under a voidable contract before the contract is rescinded, or

v. A seller who is in possession of goods after the sale or a buyer who has obtained possession of the goods before the sale, or

vi. A person who has a limited interest in the property. In such a case, the pawn is valid only to the extent of such interest.

Rights of Pawnor and Pawnee:

I. Rights of Pawnor

The following are the rights of Pawnor:

1. Right to receive back the goods: The pawnor has the right to receive the goods back after he has paid the loan or interest or performed his promise.

2. Right to the redemption of debt: If the pawnor fails to perform the promise of repayment of time, debt within the time, the pawnor still has the right to redeem his goods before their sale. However, he needs to pay the expenses that arise due to him.

3. Right to maintenance and preservation of goods: The pledgor has the right to see whether the pawnee is preserving and maintaining the goods properly or not.

4. Rights of the ordinary debtor. He will have all the rights similar to those of the ordinary debtor provided by various Indian laws.

II. Rights of Pawnee:

The following are the rights of the Pawnee, to whom the goods are pledged.

1. Right to Retain Goods: According to Section 173, he has a right to retain the goods pledged until the loan is repaid. He can also retain them for the interest of the debt and all expenses incurred while preserving the goods. He has only the right to a particular lien on goods.

2. Right to retain subsequent advance: The Pawnee has the right to retain the pledged goods, including money lent by him, after the date of the pledge if there is no agreement contrary to it.

3. Right to Unordinary Expense: According to section 175, the pawnee has a right to claim the extraordinary expenses incurred by him in preserving the goods. He does not have the right to lien over these goods but can approach the court for recovery.

4. Right against true owner: According to Section 178A, if there is any defect in the title of pledgor to the pledged goods that makes the contract voidable, the pawnor still has the right to acquire good title to the goods if it is in good faith.

Duties Of the Pawnor

The duties of a pawnor in the case of the contract for the pledge are explained below.

  • To compensate for the expenses, – The pawnor must compensate all the ordinary and extraordinary expenses incurred by the pawnee for maintaining the well-being of the pledged goods.
  • To repay the entire amount along with interest, – It is the responsibility of the pawnor to repay the amount due to the pawnee. This amount could be the principal amount or the interest that has occurred during the contract.
  • To disclose the faults in the goods: Before entering into the contract, the pawnor must state all the material facts and faults in the goods to the pawnee. If the pawnor does not disclose the faults and the pawnee suffers losses, the pawnor must cover all the damages.

Duties of the Pawnee

A few of the important duties of the pawnee are stated below.

  • To take reasonable care of the goods under consideration, the pawnee must take reasonable care of them and pledge them as his own. He should take care of the goods as his personal belongings. If any losses are incurred due to irresponsibility or negligence in the case of the pawnee, then he is liable to cover all the damages.
  • To use the goods only for the authorized purpose, the pawnee must use the goods only for the purpose that has been stated in the contract. If the pawnee uses the goods for unauthorized purposes, the pawnee must compensate for the damages.
  • Return the goods: When the purpose of the contract of the pledge is fulfilled, the pawnee must return the goods to the pawnor. The goods should be returned to the pawner as per his instructions.
  • Return the profits arising from the goods. During the contract of pledge, if any profits have been incurred on the pledged goods, then the pawnee must return the profits to the pawner.
  • To keep the goods separate, the pawnee must keep the pledged goods separate from the pawnor’s goods. If the pawnee mixes his goods with the pawnor’s goods, then the pawnee is liable for the expenses of the separation of goods.

PLEDGE BY NON-OWNERS 

  1. Pledge by a Mercantile Agent: A mercantile agent is one who, in the usual course of business, has the authority as such an agent either to sell or consign goods for the purpose of sale, to buy goods, or to raise money on the security of the goods. A mercantile agent can create a valid pledge of the goods if such goods are already in his possession (that too with the consent of the real owner) or even by the endorsement of the relative document to the title to the goods, but only while acting as a mercantile agent in the ordinary course of business, despite the fact that he is not the true owner of the business. Pledgee accepts the pledge in good faith, having no knowledge about the agent and having no authority of the real owner. 
  2. Pledge by seller or buyer in possession of the goods after the sale: A seller who has possession of the goods after the sale and a buyer who obtains possession of the goods with the consent of the seller before the sale thereof can create a valid charge of pledge on such goods.
  3. Pledge by a person in possession of the goods under a voidable contract: A person who has obtained possession of the goods under a voidable contract can also create a valid pledge, provided the following two conditions are fulfilled: 1. The contract had not been rescinded by the person who had the option to do so before the creation of such a pledge; and 2. The pledgee had acted in good faith and without notice of any defect in the title of the pledgor in respect of the pledged goods.
  4. Pledge by a co-owner in possession of the goods: Even one of the co-owners of the goods, by virtue of being in sole possession thereof, can create a valid pledge of these goods, but only with the consent of all the remaining co-owners. 
  5. Pledge by a person having limited interest (sec. 179): in case a person having only limited interest in the goods pledges them, such a pledge is valid, though only to the extent of his own interest therein. Accordingly, a pledgee may create a further charge of pledge in regard to the same goods to the extent of the amount he has advanced against them. Example: A finds a cycle on the road, gets it repaired for Rs. 500, and pledges it with B for Rs. 1000. The real owner can get the cycle with a payment of Rs. 500

Difference Between The Contract Of Bailment And Pledge

A few of the common differences between the bailment contract and the pledge are discussed below.

BasisContract of BailmentContract of pledge
MeaningWhen goods are transferred from one party to the other for a specific purpose, this is regarded as a contract of bailment.When goods are transferred from the pawnor to the pawnee as a security against a debt, this is called a contract of pledge.
PurposeThe main purpose of transferring the goods is to keep them in safe custody and for repairs.The purpose is to create security against a claim.
PartiesThe party who transfers the goods is the bailor. The party who receives the goods is the bailee.The pawnor is the party who pledges the goods. The pawnee is the party who receives the goods.
ConsiderationConsideration is mandatory in the case of a contract of bailment.The presence of consideration is mandatory.
Right to sellThe bailee cannot sell the pledged goods.The pawnee has the right to sell the goods.
Right to UseThe goods can only be used by the parties for the purposes mentioned in the contract.The goods cannot be used by the pawnee.
SectionsThe Indian Contract Act 1872 covers the contract of bailment in sections 148–171.Sections 172 to 179 cover the contract of pledge.
 BASIS OF DISTINCTION, PLEDGE AND MORTGAGE 

1. Subject matter Movable property is the subject matter. Immovable property is the subject matter. 

2. Use of goods A pledgee is not allowed to use the goods pledged. The mortgagee has the right to use the property.

 3. Delivery of possession Delivery of possession is essential. The property in goods passes to the mortgagee, though possession remains with the mortgagor.

 4.loan Only one loan can be taken at a time on the pledge of the same goods. On a mortgage of an asset, more than one loan can be taken.

5. Right of foreclosure A pledgee cannot impose the right of foreclosure on the goods pledged, with the exception of exercising his right to sell upon giving notice to the pledgor. In mortgages, that can happen under certain circumstances

PLEDGE

A pawn or pledge is a special kind of bailment where a movable thing is bailed as security for the repayment of a debt or for the performance of a promise. As per Section 172 of the Indian Contract Act, 1872, a pledge is a contract where a person deposits an article or good with a lender of money as security for the repayment of a loan or performance of a promise. A pledge is also known as a pawn. The depositor, or bailor, is the pawnor, and the bailee, or depositee, is the pawnee. The pawnee is under a duty to take reasonable care of the goods pledged to him. Let us learn about the rights of the pawnee and the pawnor.

Ownership of the pledged goods does not pass to the pledgee. The general property remains with the pledger, but a “special property” in it passes to the pledgee. The special property is a right to the possession of the articles, along with the power of sale on default. Delivery of the goods pawned is a necessary element in the making of a pawn. The property pledged should be delivered to the pawnee.

Essential Features of a Pledge

Since a pledge is a special kind of bailment, all the essentials of bailment are also the essentials of the pledge. Apart from that, the other essentials of the pledge are:

• There shall be a bailment for security against payment or performance of the promise,

• The subject matter of the pledge is goods, • Goods pledged for shall be in existence,

• There shall be the delivery of goods from pledger to pledgee.

• There is no transfer of ownership in the case of the pledge.

Exception: In exceptional circumstances, the pledgee has the right to sell the movable goods or property that have been pledged.

Who may pledge?

Any of the following persons may make a valid pledge:

i. The owner, his authorized agent, or

ii. One of the several co-owners who is in the sole possession of goods, with the consent of other owners, or

iii. A mercantile agent, who is in possession of the goods with the consent of the real owner, or

iv. A person in possession under a voidable contract before the contract is rescinded, or

v. A seller, who is in possession of goods after the sale or a buyer who has obtained possession of the goods before the sale,

vi. A person who has a limited interest in the property. In such a case, the pawn is valid only to the extent of such interest.