Legal Maxims(UNIT-II)

Legal Maxim

A legal maxim is generally defined as an established code of law and a

species of aphorism. The ancient Roman legal system has had a strong

influence on the legal systems of most western countries and then spread

to other parts of the world. After all, at one time, the Romans had

conquered most of Europe, the Middle East, and North Africa. The Roman

main motto was “divide and conquer” as they conquered nations and set

out to “Latinize” the anyone who wasn’t Roman. They teach others to

think and act like them. Though the Roman empire disappeared from the

colonized lands in the hand of time, but the others gradually adapted

existing Roman legal system. England and most of its former colonies and

the United States of America use a variation of the old Roman law called

‘Common Law.’. So, most of the Latin maxims and phrases originated

from the Medieval era in European states that used Latin as their legal

language.

ACTUS NON FACIT REUM

NISI MENS SIT REA

It is a Latin maxim comes under Criminal law.

The maxim can find its importance under section 14 of the Indian

Evidence Act, 1872.

‘Actus reus’ means “a guilty act/wrongful act”

‘Mens rea’ means “a guilty state of mind/state of mind behind such

acts”

Definition: “The act does not make one guilty unless there is a criminal

intent”

Or “without a guilty mind or criminal intention, there is no crime”

So, “there must be a vicious will or criminal intention as well as an

unlawful act.”

Illustration

Not only the act of the accused but also the intention of the accused is

equally important to prove the guilty of the accused.

Here severity of the committed crime is important.

When one engaged in doing a lawful act without any wrongful intention,

unfortunately kills another person, the homicide is excusable/forgiven.

(Homicide means ‘the killing of one person by another person’)

Thus to convict the defendent, it must be proved that the criminal act was

carried out with a criminal intend.

Case Law

The Supreme Court in the State of Rajasthan vs

Shera Ram held that “for committing a crime,

the intention and act both are taken to be the

constituents of the crime (actus non facit reum

nisi mens sit rea). Every normal and sane

human being is expected to possess some

degree of reason to be responsible for his/her

conduct and acts unless the contrary is proved.

But a person of unsound mind or a person

suffering from a mental disorder cannot be said

to possess this basic norm of human

behaviour.”

Case Law

The Supreme Court in the Bapu @ Gajraj Singh

vs the State of Rajasthan held that “Section 84

of Indian Evidence Act, 1872 embodies the

fundamental maxim of criminal law, i.e., actus

non reum facit nisi mens sit rea; (an act does

not constitute guilt unless done with a guilty

intention). In order to constitute an offence, the

intent and act must coincide; but in the case of

insane persons, no culpability is affixed on

them as they have no free will.

Diminimes non-curat lex

Latin Maxim De minimis means “about

minimal/trifle things”/ “too trivial or minor to

merit consideration, especially in law.”

Lex means “a system or body of laws”

Non-curat roughly means “not take care”

So, it does not itself concern with trifles or law

ignores insignificant details.

It’s a legal doctrine by which a court refuses to

consider trifling matters.

Illustration

A promised B they’ll go to watch a

movie together on Sunday. A did

not appear at the theater, however,

B suffered mental trauma and

agony. B filed a case against A for

damages. The court will dismiss

B’s appeal because the law does not

take into account trivial issues.

Continued..

X drives at a high speed along a

dusty road and his motor

wheels throw a little dust on Y.

Here X, on the basis of the

maxim de minimis non curat

lex, is not liable for the

tort/offence as the matter is

trivial in nature.

Continued…

X walks through the Y’s land for the first

time, without Y’s consent, without

causing any damage to Y’s land. If for

once, it is a trivial matter, and the maxim

would protect him, but if X repeats, over

and over again, to establish his rights on

the Y’s land, it will not remain a trivial

matter, and it will become a tort, and the

maxim will not protect X.

Damnum Sine Injuria

Damnum means “damage” or “loss”

Sine means “without”

Injuria means “injury”

When a damage suffered without breach of a

legal right; such claim of damage is not valid in

the court of law.

Even if the act of the person is intentional or

deliberate, but if there is no violation of the

legal right, there will be no remedy awarded.

Case Law

In Gloucester Grammar School Master case, a

teacher opened a school named XYZ to teach

grammar to the students. After few days,

another teacher opened a school named ABC

which was right opposite XYZ. Most of the

students from XYZ school took admission in

ABC thereby causing monetary damage to

XYZ. The teacher of XYZ filed a suit but the

court dismissed the petition because even

though damage was suffered, the legal right

was not violated.

Injuria Sine Damno

Injuria means “injury”

Sine means “without”

Damnum or Damno means “substantial harm,

loss or damage”

Where a person’s legal right is violated but the

person may not have suffered a damage or loss.

In this case, a person doesn’t have to prove the

damage. It is sufficient to show the violation of a

legal right in which case the law will presume

damage. For e.g., assault, libel/defamation,

trespass on land, etc.

Case Law

In the famous Ashby v. White case, Mr Ashby

was wrongfully prevented from exercising his

vote at an election by a constable, Mr White.

Interestingly, the candidate for whom Ashby

wanted to give his vote had come out successful

in the election. Still he brought an action

claiming damages because his legal right of

voting was infringed. In this case, court allowed

the damages.

Ex NudoPacto Non-oritur Actio

Nudo means ‘naked’ or ‘bare’

Pacto means ‘contract’/ ‘agreement’/’promise’

Non-oritur means ‘not arise’

Actio means ‘An action or suit; a right or cause

of action’

Definition: A contract without consideration is

void.

Continued…

Under the Indian Contract Act 1872, Section 2 (d)

defines consideration as “When at the desire of the

promisor, the promisee or any other person has

done or abstained from doing, or does or abstains

from doing, or promises to do or abstain from doing

something, such act or abstinence is called a

consideration for the promisee.”

Illustration

‘A’ and ‘B’ make a contract with each

other regarding the sale of house. ‘A’ sold

his house to ‘B’ on a consideration of an

amount of 50 Lakhs. In such a contract for

the sale of a house, the house is a

consideration for one party and the

amount paid in return is the consideration

for the other party.

Case Laws

1. In Sreenivasa General Traders & Ors. Vs. the State of Andhra

Pradesh & Ors., the Supreme Court held that there should be

an element of consideration for each service rendered in the

sphere of a contractual relationship.

2. In the case of S. Parameswari vs Balasubramanian (second

appeal no. 881, 1997) the court held that in this case there

was no breach of contract by the defendant, since the plaintiff

could not prove consideration from her side. Since, there was

no consideration from the side of the plaintiff, the contract

was declared void.

Audi AlteramPartem

The Germanic ‘Horch’ means ‘hear’, which is ‘audi’ in the singular

imperative form of “audire” – “to listen” – in Latin.

Alteram (alter/altera) means ‘former’/’latter’

‘one of two’

‘second’ /another

‘other’

‘another’

‘next’, etc.

Partem means ‘party’ or ‘side’

Definition: “Hear both sides”/ “listen to the other side”/ “let the other

side be heard as well”

Broadly, “no person shall be condemned, punished by a law court

without being heard.”

illustration

The maxim is one of the basic concepts of the

principle of natural justice.

The principles of natural justice is based on

fairness, equality, and equity.

Made to an opportunity to both the parties to

defend them.

Any decision made without giving fair

opportunity to both the parties is held to be

against the principal of natural justice.

Illustration

For example whenever any person is arrested that

person needs to be brought before the court of law

within twenty four hours of his arrest. This is

known as Hebeas Corpous.

If any person is not being able to represent

themselves through a lawyer then it is the duty of

the state to provide the legal aid. If any accused is

not able to afford legal services then he has a right

to free legal aid.

Case laws

In Suresh Koshy George v. The University of Kerala

and Others , it was observed that the aim of the rules of

natural justice is to secure justice or to put it negatively

to prevent miscarriage of justice. These rules can

operate only in areas not covered by any law validly

made. In other words they do not supplant the law of the

land but supplement it. The concept of natural justice

has undergone a great deal of change in recent years. In

the past it was thought that it included just two rules

namely : (1) no one shall be a judge in his own case

(Nemo debet esse judex propria causa) and (2) no

decision shall be given against a party without affording

him a reasonable hearing (audi alterampartem).

Case Law

In Maneka Gandhi vs. The Union of India, it was held

that the law and procedure must be fair, just, and

reasonable. The principle of natural justice comes into

force when no prejudice is caused to anyone in any

administrative action. The principle of Audi Alteram

Partem is the primary notion of the principle of natural

justice. This doctrine states that no one shall be

condemned unheard and ensures a fair hearing as well as

fair justice to both the parties. Under this doctrine, both

parties have the right to speak. No decision can be

declared without hearing both the parties. Both parties

are given equal rights to defend themselves.

Delegatusnon potestdelegare

Delegatus comes from delegeta refers to an “authorized

person”/ “delegate”

Potest means ‘having power” or “authority”/ “potent”

Non-potest means “having no power or authority”

Delegate means “to authorize or entrust or commit to

another”

Definition: “one to whom a power is delegated, cannot himself

further delegate or sub-delegate that power to other.”

Illustration

A principle in constitutional and administrative

law

A person to whom an authority or decision-

making power has been delegated to from a

higher authority, cannot, in turn, delegate again

to another person unless the original delegation

explicitly authorizes it.

Illustration

An attorney who has been

given/delegated a legal authority via a

power of attorney, cannot, further

delegate the exercise of that authority,

without the consent of that person who

granted him the power of attorney.

Case Law

In Democratic Bar Association vs. High Court

of Judicature, the Allahabad High Court held

that “the maxim delegatus non potest delegare

does not enunciate a rule that knows no

exception; it is a rule of construction to the

effect that a discretion conferred by a statute is

prima facie intended to be exercised by the

authority on which the statute has conferred it

and by no other authority, but this intention

maybe negative by any contrary indications

found in the language, scope or object of the

statute.”

Case Law

In The State vs Kunja Behari Chandra And Ors., the

Patna High Court while referring to the above maxim

held that “Because of the legislative power of the

government is vested exclusively in the legislature, the

general rule enunciated by Cooley is that the legislature

cannot surrender or abdicate such power and any attempt

to do so will be unconstitutional and void. There is also

the well-known maxim delegatus non potest delegare,

which means that the power to make laws cannot be

delegated by the legislature to any other authority.”

Ubi jus ibiremedium

The word ‘Ubi’ means

‘(time) when, whenever’

‘as soon as’

‘in what place’

‘in which’

‘where’

‘with whom’

The word “jus” means ‘legal authority to do something or to

demand something.’

Ibi means ‘in that place, there’

The word “remedium” means t’hat the person has the right of

action in the court of law. ’

Definition: where there is a wrong there is a remedy.

Illustration

A wrongful act must have been done which violates the

legal rights of a person clearly.

If there is a breach of right then the right which is

breached is incomplete without availability of proper

remedy.

So, the sufficient relief has to be provided by the court to

the person who sustains the injury.

Broadly, there is no remedy without any wrong and the

persons whose right is being violated has a right to stand

before the court of law.”

Case Laws

Sardar Amarjit Singh Kalra v. Promod Gupta & Ors.

“The court held that the principle of ubi jus ibi remedium is

recognized as a basic principle of the theory or philosophy of law.

The Supreme Court also held that it is the duty of the courts to

protect and maintain the right of parties and help them instead of

denying them relief.”

Ashby vs White

D.K. Basu v. State of West Bengal,

Bhim Singh v. State of Jammu & Kashmir

Shivkumar Chadha v. Municipal Corporation of Delhi

Ignorantia facitexecusat, Ignorantia Juris Non Excusat

Ignorantia means “Ignorance”

Facit means “fact”

Execusat means “excusable”

Definition: “Ignorance of facts excuses, or is excused”

While, Ignorantia means “ignorance”

juris means “law”

Non means “not”

Execusat means “excusable”

Definition: Ignorance of law not excuses, or is not excused

Illustration

The maxim which had its origin in Roman law

may be noted that ignorance of fact can be an

excuse but not that of law, or ignorance of fact

may be excused but not ignorance of law

All our actions are dependent on the law. We

have all sorts of law including Criminal law,

Constitutional law, Family law, Intellectual

property law etc. Ignorance of any of these laws

can never be an excuse.

illustration

If a person, who is ignorant of section 9 of the

Wild life protection Act, shoots a wild Buffalo

thinking that it is a domestic buffalo he is said to

be acting in ignorance of law as well as of a fact.

It’s an offence for hunting a Wild Buffalo is as

per section 9 of the Wild life Protection Act 1972

The maxim had its origin in Roman law

Illustration(Mistake of

Fact)

A takes his Labrador to the park every day so

that he can play off leash with other dogs. One

day, A lost sight of his dog for a few minutes.

Well, he relocated the dog and walked towards

the home. At home, he noticed a mark on the

dog and came to the conclusion that it is not his

dog, he mistakenly took another person’s dog

with him. Here, A will not be liable because he

gets the defence of mistake of facts.

Illustration(Mistake of

law)

A and B are playing games on a laptop in

B’s house. At the time A leaves, he took

the laptop from the table, believing that

it was his laptop. B repeatedly told A

that it was not his property and belonged

to him. If then also A leaves with B’s

laptop, in that situation A cannot take the

defence of mistake of fact.

Illustration

The maxim was considered by the Hon

Supreme Court in Motilal Padampat Mills Ltd

V State of Uttar Pradesh reported in (1979) 118

ITR 326(SC). The Hon Court observed as

follows:

“It must be remembered that there is no

presumption that every person knows the law. It

is often said that everyone is presumed to know

the law, but that is not a correct statement: there

is no such maxim known to the law.”

Case Law

In Chirangi v. the State of M.P.,

“In this case, a widower holding axe accompanied by

his son, went to woods to gather ‘siadi’ leaves. After

some time, his nephew discovered that the accused was

sleeping under the tree and the child was missing. Later

the child was found dead. It was transpired in evidence

that the accused at the time being was seized of the state

of mind in which he visualized that a tiger was going to

attack him as by mistake he killed his son considering

his son as the tiger. The court stated that it was a

mistake of fact that immunized him from liability. He

had no intention to kill his son.”

Case Law

State of Orrisa v. Khora Ghasi

“The accused while guarding his field shot an arrow on the

moving object in a good faith that it was a bear, but the shot

results in the death of a person. Here, he gets the immunity under

the mistake of fact.”

In Dhaki Singh v. State

The accused shot an innocent person mistaking him to be a thief,

although he believes that he is bound to nab the thief. According

to the officer’s finding, he was not in the position to apprehend

him, fired at him. Here, he cannot take the defence of mistake of

fact as the act done by him was not justified.

ActioPersonalis

Moritur Cum Persona

Actio means “action”

Personalis means “Personal”; belonging to a person

Mortitur means “die”

Persona means “person”

Actio Personalis Moritur Cum Persona

Definition: A personal right of action dies with the person.

Illustration

According to the maxim, actions of contract are destroyed by

the death of either the injured or the injuring party.

Actions arising out of contracts of a purely personal nature,

e.g., promise to marry. Therefore, such an action, where it

relates to the private character of the plaintiff, comes to an end

on his death, whereas an action for the publication of a false

and malicious statement which causes damage to the plaintiff's

personal estate will survive to the benefit of his or her personal

representative.

Continued…

So, an action may be brought by the personal

representatives of a deceased person for an

injury done to his property in his lifetime.

Compensation may, however, be recovered by

the relatives of a person negligently killed and

in some cases of trespass

Case Laws

Nurani Jamal And Others vs Naram Srinivasa Rao And Others

Girja Nandini And Ors vs Bijendra Narain Choudhury

Khuzemabhai Syedna vs Mufaddal Burhanuddin Saifuddin

Ishar Das v. Emperor

The End