ENGLISH – III (FQF)
UNIT – V LEGAL MAXIMS
LEGAL MAXIMS
According to Britannica, Legal maxim,
a broad proposition (usually stated in a fixed Latin form), a number of which
have been used by lawyers since the 17th century or earlier. Some of them can
be traced to early Roman Law. Much more general in scope than ordinary
rules of law, legal maxims commonly formulate a legal policy or ideal that
judges are supposed to consider in deciding cases.
01. Actus reus non facit reum nisi mens sit rea (Latin)
An act is not
necessarily a guilty act unless the accused has the necessary state of mind
required for that offence.
¡ The
maxim that, generally, a person cannot be guilty of a crime unless two elements
are present: the actus reus(“guilty act”) and the mens
rea (“guilty mind”). Most criminal offences require (1) an actus
reus (conduct “external” to the defendant's thoughts and intentions)
and (2) a mens rea (a specific state of mind on the part of
the accused).
02. Actio personalis
moritur cum persona (Latin)
¡ A
personal action dies with the person concerned
¡ A
maxim stating that actions of tort or contract are destroyed by the death of
either the injured or the injuring party.
¡ Modern
statutes mean that this is rarely the case. However, before the passing of the
Fatal Accidents Act 1846 acceptance of this notion meant that in actions in
negligence it was better for a doctor to kill his patient outright than to
injure him. This situation arose because it was originally believed that the
primary function of tort was to punish and not to compensate for damage caused.
The maxim still survives in the law of defamation (“you cannot defame the
dead”).
03. Audi alteram partem
(Latin)
¡ Hear
the other side
¡ Also
called the Rule of Fair Hearing.
¡ This
principle is a Rule of Law and a part of the Principles of Natural Justice. It
says that no one shall be condemned unheard.
¡ When
a dispute is put before a Court or a Tribunal, the Bench should hear both the
parties of the case before a reasoned decision is made. The Bar comprising of Advocates
assists the parties in presenting the case.
04.Communis error facit
jus (Latin)
¡ Common error makes law.
¡ Another expression for this idea is "common opinion," or communis opinio.
¡ In ancientRome, the phrase expressed the notion that a generally accepted opinion or
belief about a legal issue makes that opinion or
belief the law.
¡ Judges have pointed out that universal opinion
may also be universal error. Until the error is
discovered,however, the belief continues to be the law. The concept of communis opinio
is not especially favored by contemporary U.S.courts.
05.Delegatus non potest
delegare (Latin)
¡ the
delegated (person) cannot delegate (further).
¡ The
rule that a person to whom a power, trust, or authority is given to act on
behalf, or for the benefit of, another, cannot delegate this obligation unless
expressly authorized to do so.
¡ For
instance, an auditor who has been appointed to audit the accounts of a company
cannot delegate the task to another unless expressly allowed to do so.
06.Ex nudo pacto non oritur actio (Latin)
¡ No
action arises on a contract without consideration.
¡ Since
consideration is the founding platform to a contract, a contract without
Consideration is void.
07.Ex turpi causa non
oritur actio(Latin)
¡ No
action can be based on a disreputable cause
¡ The
principle that the courts may refuse to enforce a claim arising out of the
claimant's own illegal or immoral conduct or transactions. Hence parties who
have knowingly entered into an illegal contract may not be able to enforce it
and a person injured by a fellow-criminal while they are jointly committing a
serious crime may not be able to sue for damages for the injury.
08.In pari delicto
potier est condition defendantis(Latin)
¡ In
equal fault ,better is the condition of the possessor.
¡ This
means, when the parties are equally at wrong, the condition of the possessor is
considered to be better. Simply put, it means a person in a wrongful act cannot
sue another person in the same wrongful act. When two parties have equally
wronged, courts will generally not interfere with the status quo, which is the
reason why the possessor is at benefit.
09.Falsus in uno falsus
in omnibus (Latin)
¡ False
in one thing, false in everything.
¡ A
Roman legal principle indicating that a witness who willfully falsifies one
matter is not credible on any matter. The underlying motive for attorneys to
impeach opposing witnesses in court: the principle discredits the rest of their
testimony if it is without legalization.
10.Generalia
Specialibus Non Derogant(Latin)
¡ The
universal things do not detract from specific things.
¡ It
says that when a matter falls under any specific provision, then it must be
governed by that provision and not by the general provision. The general
provisions must admit to the specific provisions of law. It is a basic
principle of statutory interpretation.
11.Facti excusat,
ignorantia juris non excusat(Latin)
¡ Ignorance
of the fact excuses; ignorance of the law excuses not.
¡ In
criminal cases this maxim applies, as if a man should think he has a right to
kill a person excommunicated or outlawed wherever he meets him and does so,
this is murder. But a mistake of fact is an excuse, as where a man, intending
to kill a thief or house-breaker in his own house, by mistake kills one of his
own family, this is no criminal action.
12.In jure non remota
causa, sed proxima spectator (Latin)
¡ The
immediate, and not the remote cause is to be considered.
¡ This
is a maxim of causation that is applied both in marine and general insurance.
Pursuant to this principle, the cause nearest in the order of causation,
without any efficient concurring cause to produce the result, must be
considered as the direct cause. For example, if a ship foundered during a
storm, the cause of her loss was considered bad weather conditions, regardless
of any other factors that might have contributed to her foundering.
13.Omnia praesumuntur
contra spolitorem (Latin)
¡ Against
the offeror.
¡ It
refers to a standard in contract law which states that if a clause in a
contract appears to be ambiguous, it should be interpreted against the
interests of the person who insisted that the clause be included.
14.Qui facit per alium
facit perse (Latin)
¡ He
who acts through another, acts himself.
¡ It
is the authorized act of an agent and is equated to the principal's acts. A
principal's tort liability is based not on an agency but on the relationship of
master and servant expressed in the maxim “respondent superior”. However, both
rules and maxims are founded upon the principle that a duty rests upon every
man in managing his/her own affairs, either by himself/herself or by his/her
agents or servants. But if another person gets injured as a result of the acts,
the principal is liable for the damage.
15.Respondeat superior
(Latin)
¡ Let
the superior reply.
¡ It
is used to describe the legal relationship between an employer and employee for
purposes of determining an employer's liability for acts of an employee.
¡ An
employee and employer relationship is determined based upon the amount of
control the employer exercises over the service provided by the employee. An
employer will be liable for acts of an employee committed while within the
scope of employment. Such liability attaching to an employer due to acts of an
employee is called vicarious liability.
16.Res ipsa loquitur
(Latin)
¡ The
thing speaks for itself.
It is a doctrine of law
that one is presumed to be negligent if he/she/it had exclusive control of
whatever caused the injury even though there is no specific evidence of an act
of negligence, and the accident would not have happened without negligence.
17.Sic utere tuo ut
alienum non laedas (Latin)
¡ It
means only that one must use his property so as not to injure the lawful rights
of another.
¡ Under
this maxim, it is well settled that a property owner may put his own property
to any reasonable and lawful use, so long as he does not thereby deprive the
adjoining landowner of any right of enjoyment of his property which is
recognized and protected by law, and so long as his use is not such a one as
the law will pronounce a nuisance.
18.Ubi jus ibi remedium
(Latin)
¡ Where
there is a right, there is a remedy.
¡ The
basic principle contemplated in the maxim is that, when a person's right is
violated the victim will have an equitable remedy under law. The maxim also
states that the person whose right is being infringed has a right to enforce
the infringed right through any action before a court.
19.Volenti Non Fit
Injuria (Latin)
¡ To
one who is willing, no harm is done.
¡ This
doctrine holds that a person who knowingly and willingly puts himself in a
dangerous situation cannot later on sue for any resulting injuries. Volenti non
fit injuria is a defense in tort. If a person engages in an event accepting and
being totally aware of the risks inherent in that event, then such person can
not later complain of, or seek compensation for an injury suffered during the
event.
20.Cessante ratione
legis cessat lex ipsa (Latin)
¡ When
the reason for a law ceases, the law itself ceases.
¡ The
principle that when the grounds that gave rise to a law cease to exist, the law
itself ceases to exist.
21.Salus populi est suprema lex (Latin)
¡ It
means welfare of the people shall be the supreme law.
¡ The
maxim tends to imply the information that law exists to serve common good. In
the U.S., public health is considered as a common good and therefore, laws are
framed keeping public health a central issue.
22.Novus actus
interveniens (Latin)
¡ It
means a new intervening act.
¡ It
is an act or event that breaks the causal connection between a wrong or crime
committed by the defendant and subsequent happenings. The new event relieves
the defendant from responsibility for the happenings.
23.Rex non potest
peccare (Latin)
¡ The
King can do no wrong.
¡ This
maxim has been the background of the legal principle, mostly now discarded,
that a citizen could not sue the state for any alleged tort. On a regular
basis in modern courts, Crown liability is being tested and teased
into the common law rendering the maxim rex non potest peccare.
24.Vigiantibus non
dormientibus, jura subvenient (Latin)
¡ Law
will help only those who are vigilant.
¡ Law
will not assist those who are careless of his/her right. In order to claim
one’s right, s/he must be watchful of his/her right. Only those persons, who
are watchful and careful of using his/her rights, are entitled to the benefits
of law. Law confers rights on persons who are vigilant of their rights.
Usually, law prescribes statutory limitations for enforcing one’s relief
against another.
25.Ut res magis valeat
quam pereat (Latin)
¡ It
is better for a thing to have effect than to be made void.
¡ Ut
res magis valeat quam pereat is a Latin term referring to a legal concept that
stands for trying to coonstrue a law in a way to make sense, rather than void
it. The law should be given effect rather than be destroyed.
REFERENCE
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