Public and private necessity

There are two types of necessity defences public necessity and private necessity.

Necessity as a defence is defined under section 81 in Indian Penal Code as:

“An Act likely to cause harm, but done without criminal intent, and to prevent other harm.—Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.”


A private necessity occurs when a person, who needs to avoid serious harm interferes with property rights of another person. A public necessity defense is available when the defendant injuries the property interest of another to protect the entire community. Private necessity is called as an incomplete privilege because the person claiming the defence must pay for all the damages.

Example:- a family is on a boat and they find themselves in a storm. They move their boat on a dock belonging to stranger, causing damage to the dock. The family may claim the private necessity defence for their trespass to land, but must pay stranger for all the damages caused to the dock.



Public necessity defence occurs when there are huge catastrophes, such as earthquakes, city-wide fire and war. Also smaller events may qualify. Unlike the private necessity defence, someone claiming the public necessity defence is not liable for damages to the property that is taken for the public good.

Example:- in one case an enemy Army was about to capture a city so the oil storage tanks was set on fire keep them from getting into the enemy hands. The people that committed trespass to land and the trespass to chattles when the destroyed the oil were able to claim a public necessity defence, and were not liable to any damages to the oil storage tanks.

Second Example:- this may involve some people sinking a large ship in a Harbour hoping to block a tsunami from destroying the town when the tsunami hits.

In Vincent v. Lake Erie Transp. Co., In this case a ship was already tied to a dock, when a storm hit the region, due to which the ship and the deck was continuously colliding and the dock owner filed a suit for compensation against the ship owner’s. The court held that the defence of private necessity applies but the damage caused to one by the act of the other needs to be compensated which was left in Ploof v. Putnam. But, the principle that one, who is under the ambit of private necessity can’t be forced to move out of someone’s property comes from Ploof v. Putnam, in which the weather conditions were not good and a private sloop tied itself to a private dock, but their ropes were released in the middle of the storm and as a result they were held liable as the sloop was under private necessity. Hence, on a deep analysis of both the cases it comes out necessity in a way involves conflict of interests.

Aishwarya Says:

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