Necessity - Overview, Structure, Properties & Uses

Necessity as a Defence in Tort

Edited By Ritika Jonwal | Updated on Jul 02, 2025 05:48 PM IST

A person may utilise a variety of "excuses" or defences known as general defences in tort law to avoid being held liable. If his acts meet certain circumstances, he can convince the court that he is innocent in any situation. When the plaintiff files a lawsuit against the defendant for a certain tort, proving the existence of all required elements for that tort, the defendant will be held liable for the same. To escape responsibility in this case, the defendant may, however, raise any of his defences against the tort he has committed. Certain defences can be used against specific types of torts, whereas others can be used against any kind of tort.

This Story also Contains

Meaning of Necessity
Doctrine of Necessity in Torts
Types of Necessity
Importance of Necessity
Application of the Necessity as a Defence
Limitation to the Defence of Necessity
Case Laws on Necessity as a Defence
Conclusion

Necessity as a Defence in Tort

Meaning of Necessity

Section 81 of the Indian Penal Code defines necessity as a defence as follows. Act with the potential to harm, but with good intentions and to stop more harm. Nothing that is done in good faith to prevent or avert further injury to people or property, even if it is done with the knowledge that it is likely to cause harm and without any criminal intention, is considered an offence.

This idea is typically put forth as a defence against all forms of trespassing, and it must serve the public interest or the greater welfare of the community. Thus, it is not only necessary but also necessary for the public. Given the facts of the case, there have been a few exceptions, but anything done by the defendant to further their interests would not be appropriate to prove the previously stated point. When using a reasonable amount of force against an innocent person or item of property to avert an imminent threat to the "public interest," a person or defendant may use the defence of necessity.

Doctrine of Necessity in Torts

The definition and application of the necessity doctrine in tort law are identical to those in criminal law. The theory is generally cited by the defendant in defence against deliberate torts like conversion and trespassing to land or chattels under the torts law. The main difference in its application is this. The defence of necessity under common law gives the government or a private party the authority to seize or use the property of another. In other words, someone is allowed to trespass onto someone else's property if doing so will avert substantial injury to themselves, their property, or their possessions, or to another person, their property, or their belongings.

The Latin common law dictum "necessitas inducit privilegium quod jura privata" serves as the foundation for this. This indicates that "a private right causes necessity to induce a privilege." When there is a clear and reasonable danger of harm to a person or society as a whole, a court will give a trespasser this privilege over damage to their property.

This defence differs from the privilege of "self-defence" in those persons who are injured by someone using the need privilege are typically innocent of any wrongdoing, in contrast to those who are attempting to defend themselves.

Types of Necessity

Public Necessity

A public necessity is when private citizens or public authorities take action to prevent a public disaster. The act involves stealing or causing damage to someone else's property. Public necessity is frequently demonstrated by the demolition of private property to protect the public, halt the spread of disease, or put out a fire. There is a public need wherever police trespass onto property. To obtain access to an emergency site or to capture a criminal suspect on private property. Public necessity is based on the legal presumption that the interests of the public are more important than those of individuals and that the latter must yield in cases of conflict. The public requires absolute defence.

Private Necessity

Rather than stemming from the demands of the community at large, private necessity is born out of individual self-interest. The defendant does so when he wants to protect his interests. It is not a full defence, as opposed to in cases of public necessity. To shed light on private requirements, consider the following example. Should the defendant have invaded his neighbour's property without authorization to prevent the fire from spreading to his land. Private necessity is governed by the principle known as "Necessitas inducit privilegium quod jura private," which states that "Necessity induces a privilege because of a private right."This proverb makes it rather evident that private defence is more of a privilege that is accorded to a diverse group of people.

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Importance of Necessity

Because of necessity, regulations that, if followed rigidly, would have resulted in unfair outcomes (punishing positive behaviour) are made more flexible. Torture is protected under the concept of necessity when it is thought to be ethically acceptable. comparable to when a prisoner violates prison rules and leaves after being mistreated by guards on a physical and mental level. These are comforting times when need is present. Someone who acts in a "necessary" manner is effectively protected from criminal prosecution by the "necessity" argument. Defence needs could be rationally viewed as a moral check on crimes against humanity. Mala in se offences typically prohibit someone from harming other people, while the necessity defence limits the circumstances in which this is permissible. The defence should consider this when deciding when it is morally appropriate for someone to harm another person.

Application of the Necessity as a Defence

In an emergency, if someone is permitted to act inappropriately to protect themselves, another person, their property, or the community at large, they are entitled to use the relevant defence. It is necessary to prove the following to bolster the necessity defence:

The injury that was inflicted was less than the harm that would have otherwise happened.
The individual had a legitimate belief that his acts were required to avert an impending danger.
There was nothing reasonable to do to prevent the damage.
The threat of harm was not first posed by the individual.

When someone raises the necessity defence, the court has the authority to determine whether or not it applies in the particular case and whether or not the claimant is released from all liability. Invoking this justification becomes highly challenging since it becomes very difficult to establish whether or not there was a necessity. These kinds of situations usually include the absence of other people, thus it's challenging to prove that breaching the law is required to preserve lives. As a result, the defence of necessity may only be raised in unique situations when it is proven that it is necessary.

Limitation to the Defence of Necessity

The limited scope of the necessity defence is one of many tools that help maintain the state's monopoly on legitimate violence; it exists to empower individuals where individuals are supposed to be powerless and cannot be used to confer powers on the state as well. The necessity defence restricts the use of force by private individuals against the interests of others. Above all, a government body must determine what is proper under the necessity defence and consult with legal experts on permissible acts. The stronger state's monopoly on violence must inexorably include the weaker individual's use of violence since the government has more authority than private persons are allowed by the necessity of defence. The defence of necessity may only be raised if it is appropriate for the specific federal offence in question.

Case Laws on Necessity as a Defence

In the case of, Vincent v. Lake Erie Transportation Co.

In this case, The defendant was at the plaintiff's pier unloading cargo from the defendant's vessel. The defendant tethered the ship to the pier because he was unable to safely exit it due to the development of a heavy storm. The pier sustained considerable damage after the ship was thrown against it by an unexpected wind. It was determined that even while stealing from or damaging someone else's property would be required for a private need, compensation would have to be given. The defendant purposely tied the ship to the dock; otherwise, it may have capsized and resulted in far more damage.

In the case of, Sirocco v. Geary

In this case, San Francisco experienced a significant fire. As the fire raged nearby, the plaintiff was trying to remove items from his home. To halt the plaintiff's home fire and stop it from spreading to other structures, the defendant (Mayor) gave the go-ahead for it to be demolished. The plaintiff claimed in his case that he might have recovered more of his possessions if his residence hadn't been bombed. The court determined that the right to necessity is independent of society and the state and arises from natural law. Individual liberties have to yield to the supreme law of imminent necessity. Here, extinguishing the Plaintiff's residence was required to quell the flames. It would have been too late to blow up the house if he had waited to do it to evacuate more of his belongings.

Conclusion

The necessity as a defence in tort is one of the most important defences among the other defences given under the tort. The defence of necessity prevents an innocent person from punishment. According to the doctrine of Necessity an act which is done in good faith and with an intent to prevent harm and injury the person committing such an act will not be held liable. Also in the necessity as a defence, the main purpose of such an act should be to prevent harm and injury. There are various defences given under the law of torts under which actions committed will not be held liable if it is done under the defences given in the law of Torts.

Frequently Asked Questions (FAQs)

1. What is the necessity of Tort?

The meaning of necessity means when A defendant may legitimately cause less harm to avert or prevent a significant loss or injury. Even though the defendant's action may not have been legal, he may raise this defence if it was necessary to prevent serious harm

2. What is an example of Necessity?

An example of necessity is The defendant was found guilty of driving while intoxicated.

3. What is the case law of the doctrine of necessity?

The case law is Gulapalli Nagaeswara Rao v. ASRTC

4. What are the two types of necessity?

The two types of Necessity are Public necessity and private necessity.

5. What are defences in Tort?

A group of defences, or "excuses," known as general defences are what you can use to avoid liability in tort cases.

6. What is the necessity defense in tort law?

The necessity defense in tort law is a legal justification that allows a person to commit an otherwise unlawful act in order to prevent a greater harm. It recognizes that in certain emergency situations, breaking the law may be necessary to protect a more important interest.

7. Can necessity be used as a defense for intentional torts?

Yes, necessity can be used as a defense for intentional torts. It's often applied in cases of trespass or property damage where the defendant acted to prevent a greater harm.

8. How does the necessity defense relate to the concept of "choice of evils"?

The necessity defense is often referred to as the "choice of evils" defense because it involves a situation where the defendant must choose between two harmful actions. The law recognizes that in such situations, choosing the lesser evil should not be punished.

9. Can necessity be used as a defense for trespass to land?

Yes, necessity can be used as a defense for trespass to land. A classic example is entering someone's property to escape a dangerous situation or to prevent a greater harm, such as stopping a fire from spreading.

10. What is the difference between necessity and duress in tort law?

While both necessity and duress can be defenses in tort law, they differ in their source of pressure. Necessity typically involves external circumstances or natural forces, while duress involves human threats or coercion.

11. How does the necessity defense differ from self-defense?

While both are legal defenses, necessity typically involves harm to property to prevent a greater harm, whereas self-defense involves using force to protect oneself or others from immediate physical danger. Necessity is broader and can apply to various situations beyond personal safety.

12. Can necessity be used as a defense for breach of contract?

While necessity is primarily a defense in tort and criminal law, it can sometimes be applied in contract law. However, it's generally more limited and may fall under doctrines like impossibility or frustration of purpose rather than necessity per se.

13. How does the necessity defense interact with the duty of care in negligence cases?

In negligence cases, the necessity defense can affect the standard of care expected of the defendant. If facing an emergency situation, the defendant may be judged by a modified standard that takes into account the pressures and limitations of the emergency.

14. Can necessity be used as a defense for criminal charges as well as torts?

Yes, necessity can be used as a defense in both criminal and civil (tort) cases. However, the specific requirements and application may vary between criminal and tort law.

15. What is the burden of proof for the necessity defense in tort cases?

The burden of proof for the necessity defense typically falls on the defendant. They must prove, usually by a preponderance of the evidence, that their actions meet all the elements required for the necessity defense.

16. What is the difference between necessity and inevitability in tort law?

While related, necessity and inevitability are distinct concepts. Necessity involves a choice between two harmful options, while inevitability suggests there was no choice at all. Inevitability might be a stronger defense, as it implies the harmful outcome was truly unavoidable.

17. What is the relationship between necessity and consent in tort law?

Necessity and consent can intersect in tort law. In some cases, necessity may imply consent (e.g., medical emergencies), while in others, it may override the need for consent when immediate action is required to prevent harm.

18. How does the necessity defense apply in medical tort cases?

In medical tort cases, necessity might be invoked when a healthcare provider takes emergency action without consent to save a life or prevent serious harm. It's closely related to the concept of implied consent in emergency situations.

19. Can necessity be used as a defense for battery?

Yes, necessity can potentially be used as a defense for battery. This might apply in situations where physical contact was necessary to prevent greater harm, such as restraining someone to prevent them from harming themselves or others.

20. Can necessity be used as a defense for nuisance?

While less common, necessity could potentially be used as a defense for nuisance in extreme circumstances. For example, if creating a temporary nuisance was necessary to prevent a greater harm to the community.

21. What is the relationship between necessity and emergency in tort law?

Necessity and emergency are closely related in tort law. The necessity defense often arises in emergency situations where normal rules of conduct may need to be breached to prevent greater harm. However, not all emergencies automatically justify a necessity defense.

22. What is the role of imminence in the necessity defense?

Imminence is an important factor in the necessity defense. The threat or danger that the defendant was trying to prevent should be imminent or immediate. This requirement helps ensure that the defense is not abused for non-emergency situations.

23. How does the concept of proportionality relate to the necessity defense?

Proportionality is crucial in the necessity defense. The harm caused by the defendant's actions must be proportional to (and ideally less than) the harm they were trying to prevent. Disproportionate actions may invalidate the necessity defense.

24. How does the necessity defense apply in cases of professional confidentiality breaches?

Necessity might justify breaching professional confidentiality in extreme cases, such as to prevent imminent harm to the client or others. However, professionals must carefully weigh their ethical obligations against the perceived necessity of disclosure.

25. Can necessity be used as a defense for conversion?

Yes, necessity can potentially be used as a defense for conversion (the wrongful possession or disposal of another's property). This might apply in situations where temporarily taking or using someone else's property was necessary to prevent greater harm.

26. Is necessity an absolute defense in tort law?

No, necessity is not an absolute defense. It's a justification that can reduce or eliminate liability, but its success depends on the specific circumstances of the case and how well the elements of necessity are proven.

27. Can economic necessity be used as a defense in tort law?

Generally, economic necessity alone is not accepted as a defense in tort law. Courts typically require a more immediate physical danger or threat to property, rather than purely financial considerations.

28. How does the concept of reasonableness apply to the necessity defense?

Reasonableness is crucial in evaluating a necessity defense. The defendant's actions must be considered reasonable given the circumstances. This includes assessing whether there were any less harmful alternatives available and if the defendant's belief in the necessity was reasonable.

29. What are the key elements required to successfully claim necessity as a defense in tort?

The key elements typically include: (1) the defendant acted to prevent a significant harm, (2) there was no reasonable alternative, (3) the harm caused was less than the harm prevented, and (4) the defendant did not create the dangerous situation.

30. What is the "lesser of two evils" principle in relation to the necessity defense?

The "lesser of two evils" principle is central to the necessity defense. It means that the harm caused by the defendant's actions must be less severe than the harm they were trying to prevent. This balancing act is crucial in determining if the necessity defense is valid.

31. What is the difference between public and private necessity in tort law?

Public necessity involves actions taken to protect the public or community at large, while private necessity involves actions to protect oneself or one's property. Public necessity often provides a complete defense, while private necessity may require compensation for damage caused.

32. How does the necessity defense apply in cases of property destruction?

The necessity defense can justify property destruction if it was necessary to prevent a greater harm. For example, destroying property to create a firebreak during a wildfire. However, compensation may still be required in cases of private necessity.

33. How does the necessity defense apply in cases involving animals?

The necessity defense can apply in cases involving animals, such as destroying or injuring an animal to protect oneself or others from harm. It may also apply to actions taken to rescue animals from immediate danger.

34. Can necessity be used as a defense for fraud?

Necessity is rarely accepted as a defense for fraud, as fraud typically involves intentional deception for personal gain. However, in extreme and unusual circumstances where deception was truly necessary to prevent greater harm, a necessity-like argument might be considered.

35. Can necessity be used as a defense for invasion of privacy?

While uncommon, necessity could potentially be used as a defense for invasion of privacy in extreme circumstances, such as entering a private space to prevent imminent harm or to save a life.

36. Can necessity be used as a defense for defamation?

Necessity is rarely used as a defense for defamation. More common defenses for defamation include truth, opinion, and privilege. However, in extreme situations where false statements were necessary to prevent greater harm, a necessity-like argument might be considered.

37. What is the role of foreseeability in the necessity defense?

Foreseeability plays a role in assessing whether the defendant's actions were truly necessary. If the situation could have been reasonably foreseen and avoided, it may weaken the necessity defense. However, immediate emergencies don't always allow for perfect foresight.

38. How does the necessity defense interact with the concept of assumption of risk?

The necessity defense and assumption of risk can sometimes conflict. While necessity may justify actions taken in an emergency, if the defendant voluntarily assumed the risk that led to the emergency, it could potentially weaken their necessity defense.

39. How does the necessity defense interact with statutory duties?

The necessity defense can sometimes justify the breach of statutory duties if adhering to the law would result in greater harm. However, courts are often cautious about allowing necessity to override clear statutory mandates.

40. How does the necessity defense apply in environmental tort cases?

In environmental tort cases, necessity might be invoked to justify actions that cause environmental damage to prevent greater ecological harm. However, given the complex nature of environmental issues, such defenses are often scrutinized carefully.

41. What is the role of expert testimony in establishing a necessity defense?

Expert testimony can be crucial in establishing a necessity defense, particularly in complex cases. Experts can help demonstrate the severity of the threatened harm, the lack of reasonable alternatives, and the appropriateness of the defendant's actions given the circumstances.

42. How does the necessity defense apply in cases of professional negligence?

In professional negligence cases, necessity might be invoked if a professional had to deviate from standard practices to prevent greater harm. However, the professional would need to demonstrate that their actions were reasonable given the emergency situation.

43. How does the necessity defense interact with the concept of vicarious liability?

The necessity defense can potentially shield both an employee and employer from vicarious liability if the employee's actions were truly necessary to prevent greater harm. However, the employer might still be required to compensate for any damage caused.

44. How does the necessity defense interact with the concept of strict liability?

The necessity defense can potentially overcome strict liability in some cases. While strict liability typically doesn't consider the defendant's intent or circumstances, necessity might be seen as an overriding justification in extreme situations.

45. What is the role of public policy considerations in applying the necessity defense?

Public policy considerations play a significant role in how courts apply the necessity defense. Courts must balance the need to uphold the law with the recognition that in some extreme circumstances, breaking the law may serve a greater societal good.

46. How does the necessity defense apply in cases involving rescue attempts?

The necessity defense often applies to rescue attempts, justifying property damage or trespass committed in the course of trying to save a life or prevent serious injury. However, the rescuer's actions must still be reasonable and proportionate to the perceived threat.

47. Can necessity be used as a defense for breach of fiduciary duty?

While rare, necessity could potentially be used as a defense for breach of fiduciary duty in extreme circumstances where breaching the duty was truly necessary to prevent a greater harm. However, courts would likely scrutinize such claims very carefully.

48. How does the necessity defense interact with the concept of comparative negligence?

In jurisdictions with comparative negligence, the necessity defense might reduce the defendant's share of fault if their actions, while harmful, were necessary to prevent greater harm. However, if the defendant's own negligence created the necessity, this could limit the defense's effectiveness.

49. What is the role of intent in the necessity defense?

Intent plays a complex role in the necessity defense. While the defendant must intend the action taken, they must not intend to cause harm for its own sake. The intent should be to prevent a greater harm, even if some harm is foreseen as a consequence of the necessary action.

50. How does the necessity defense apply in cases of property damage caused by law enforcement or emergency services?

The necessity defense often protects law enforcement and emergency services from liability for property damage caused in the course of their duties, such as breaking down a door to rescue someone or damaging property to apprehend a dangerous suspect.

51. Can necessity be used as a defense for interference with contractual relations?

While uncommon, necessity could potentially be used as a defense for interference with contractual relations if such interference was truly necessary to prevent a greater harm. However, courts would likely require strong evidence of necessity in such cases.

52. How does the necessity defense interact with the concept of res ipsa loquitur?

The necessity defense and res ipsa loquitur (a doctrine that infers negligence from the very nature of an accident or injury) can interact in complex ways. While res ipsa loquitur might suggest negligence, the necessity defense could explain why the seemingly negligent action was actually justified.

53. What is the role of post-incident behavior in evaluating a necessity defense?

Post-incident behavior can be relevant in evaluating a necessity defense. Actions taken after the incident, such as reporting damage or attempting to mitigate harm, can support the claim that the defendant acted out of genuine necessity rather than malice or recklessness.

54. How does the necessity defense apply in cases involving conflicting duties or obligations?

The necessity defense can be relevant in cases involving conflicting duties or obligations, where fulfilling one duty requires breaching another. Courts may consider whether the chosen course of action truly represented the lesser of two evils given the circumstances.

55. Can necessity be used as a defense for violations of intellectual property rights?

While rare, necessity could potentially be used as a defense for violations of intellectual property rights in extreme circumstances, such as using copyrighted material without permission in an emergency situation to prevent harm. However, such cases would likely be subject to intense scrutiny and debate.