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LegalMines(Committed to legal awareness and prudence!………….)
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#50# IMPORTANT
Legal Doctrines / Maxims/ Words
| 1 | Ab Initio: Ab initio is a Latin term which means ‘from the beginning’ or ‘since inception’. It is derived from the Latin ‘ab’ (“from”) and ‘initio’, (“beginning”). For examples: The agreement should be declared void ab initio as contravening law of the land; He is the member of this group ab initio. Section 11 of the Indian Contract Act, 1872, implies that a contract entered into with the minor is void ab initio. |
| 2 | Ab extra: It is a Latin phrase which means “from outside”. The term ab means (“from”) while extra means (“outside”). For example: Sometimes I wonder if this country is being controlled ab extra. |
| 3 | Actionable per se: The very act is punishable and no proof of damage is required. If a legal case is actionable per-se, one does not have to prove that he suffered loss or damage in order to take the case to court. Assault, battery, false imprisonment, libel or trespass are actionable per se and no specific proof to prove these civil wrongs are required. Ashby v. White (1703) 14 St Tr 695, 92 ER 126 is the example of actionable per se. |
| 4 | Actio personalis moritur cum persona: It is a Latin maxim. It means a personal right of legal action dies (i.e. abandoned) with the death of person. In other sense, if the claimant or plaintiff or respondent or defendant dies the right to sue is gone. Elaborately, some legal causes of action can survive the death of the claimant or plaintiff or respondent or defendant, for example actions founded in contract law. However, some actions are personal to the plaintiff, viz. defamation of character. 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 representatives. |
| 5 | Actori incumbit onus probandi: This is a Latin maxim which means the burden of proof is on the plaintiff. The general principle is that a party who raises the issue (the plaintiff) is the one who has the burden of proof. This general rule is based upon this maxim. As per this maxim, a plaintiff to a legal action must prove his or her case to win the lawsuit against the defendant. Chapter VIII (Sections 101-114A) of the Indian Evidence Act, 1872 is based upon this Latin Maxim. |
| 6 | Actus Curiae Neminem Gravabit: This maxim literally means ‘an act of the Court shall prejudice no man’ i.e no man should suffer because of the fault of the court or delay in the procedure. This principle is key to the administration of justice in Indian jurisprudence. Right to speedy justice (i.e. disposal of case within prescribed time-frame), right of hearing, nobody shall be judge in his own cause, right to appeal, right to review etc. are ejusdem generis of this maxim. For examples, Sections 152 and 153 of the Code of Civil Procedure, 1908 are founded upon the maxim of Actus Curiae Neminem Gravabit. |
| 7 | Actus Reus Non Facit Reum Nisi Mens Sit Rea : This Latin maxim means “an act is not culpable unless the mind is guilty”. In other words, an act does not constitute guilt unless done with a guilty intention. Popularly and briefly, this maxim is known as ‘mens rea’. As a general rule under traditional criminal law jurisprudence (TCLJ), someone who acted without mental fault is not liable in criminal law. The rule of strict liability and absolute liability are exceptions to this general rule of mens rea. However, under modern criminal law jurisprudence (MCLJ) ‘mens rea’ is not the only touchstone for turning the accused guilty of an offence and now the guilt of an accused is being examined on the basis of “CAR (conduct, attendant circumstances, result) Factors”. The definition of a crime is thus constructed using only the CAR elements rather than the colorful language of mens rea. On the other hand, in civil law, it is usually not necessary to prove a subjective mental element to establish liability for breach of contract or tort, for example. But if a tort is intentionally committed or a contract is intentionally breached, such intent may increase the scope of liability and the damages payable to the plaintiff. |
| 8 | Aequitas Legem Sequitur: This Latin maxim literally means “equity follows the law” i.e. equity cannot alter the law of the land. It is a concept that equity or the law will not aid a person or party who is at fault. The law will not aid a person whose own fault is what made the legal action necessary. |
| 8 | Alford Plea: Alford plea is a special type of guilty plea by which a defendant does not admit guilt but concedes that the State has sufficient evidence to convict. This type of plea is normally made to avoid the threat of greater punishment by the Court. |
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Allegiants Contrarie Non Est Audiendus : This maxim means he is not be heard who alleges things contradictory to each other. The principle of estoppel used in the Indian jurisprudence is based on this maxim. In simple terms, the maxim means that if a person states something in good faith on one event and says the contrary about the same event, that shall not be allowed. Sections 115-118 of the Indian Evidence Act, 1872 deal with the laws as to estoppel. |
| 11 | Ambulatory: Ambulatory is relating to or describing people being treated for an injury or illness who are able to walk (i.e. not bedridden), and who, when treated in a hospital, are usually not staying for the night. For examples: (i) No need to be worried! you will need an ambulatory surgery. (ii) We will be opening two new ambulatory care facilities for private patient in May this year. (iii) She is completely ambulatory and will be home today. |
| 12 | Amicus Curiae (AC): It is a Latin term which literally means “friend of the court”. Elaborately, AC is a professional person or organization that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question. The amicus curiae is generally, but not necessarily, an attorney. |
| 13 | Arbitrium est judicium: It is a Latin maxim which means ‘an award is a judgment’. An award is decision of the arbitrator. Awards mainly refers to one of the means of dispute resolution in the commercial sphere while judgment is not limited to the commercial/ civil matters. Though an award is analogous to judgment but not the same as award is given by the non-judicial persons while judgment is pronounced by the judicial persons. |
| 14 | Assentio mentium: This is a Latin maxim which means the meeting of minds, i.e mutual assents or consent. Such consent may be expressed or implied. This maxim is relevant in contractual relations/ obligations and synonymous to Latin maxim ‘consensus ad idem’. Section 13 of the Indian Contract Act, 1872 is based upon this maxim. |
| 15 | Bona vacantia : It is a Latin term which means goods without an apparent owner, such as treasure trove or the estate of a person dying intestate and without heirs. Thus, unclaimed assets/ funds are Bona Vacantia. Examples of unclaimed funds include unclaimed back wages, life insurance funds, pension money, and tax refunds. Bona vacantia is also known as “vacant goods” or “ownerless goods”. Article 296 of the Indian Constitution, 1950 deals with the concept of bona vacantia with reference to the State/ Union. |
| 16 | Caveat actor : It is a Latin maxim which means let the doer beware or let the doer be on guard. This is a common law maxim. Caveat actor is used as a warning that the doer of an action should be beware of his/her act. The burden of the action would be on the doer of the act. The person will have to bear the probable consequences of the act if not otherwise provided in any agreement. |
| 17 | Caveat venditor : It is a Latin term that literally means “let the seller/ vendor beware’. As per this doctrine, the seller/ vendor is accountable for providing information about the goods to the buyer or purchaser. This forces the seller to take responsibility for the product and discourages sellers from selling products of unreasonable quality. For example, when the Bank/Financial Institution put the property on auction against defaulting borrower, they must show clear title to the said property. Jurisprudentially, this rule is co-relative to the rule of caveat emptor (let the buyer beware) and vice-versa. |
| 18 | Contra Legam: Contra legem is a Latin phrase meaning “contrary to the law” i.e. illegal or opposed to law. It is synonymously used as ‘contra juris’ or ‘contra lex’. This term is used in a specific legal context to discuss court decisions that appear to contradict or defy the laws governing a particular legal controversy. |
| 19 | Corpus Juris: Corpus juris (originally used by Romans) is a legal terms which literally means ‘body of law’. Elaborately, it is the complete collection of laws of a particular jurisdiction or court. The term is commonly used to refer to the entire body of law of a country, jurisdiction, or court, such as “the corpus juris of the Supreme Court of India. For example, the Insolvency and Bankruptcy Code, 2016 (IBC) is the corpus juris as to law relating insolvency and bankruptcy in India. |
| 20 | De Minimis Non Curat Lex : It is a Latin maxim which means the law does not govern trifles (unimportant things) or law ignores insignificant details. Section 95 of the Indian Penal Code, 1860 is based upon this maxim. Section 95 is titled as: Act causing slight harm. Elaborately, as per Section 95, nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm. |
| 21 | Doli capax / Doli incapax : Doli capax and Doli incapax are Latin terms. Doli capax means a person capable of forming necessary intent to commit a crime or tort, especially by reason of age. Section 83 of the Indian Penal Code, 1860 is based upon this maxim which says that child between the age of 7 to 12 years is doli capax. On the other hand, doli incapax means a person incapable of forming the intent to commit a crime or legal wrong preferably by reason of his age. Section 82 of the Indian Penal Code, 1860 is based upon this maxim whereby child below the age of 7 years is doli incapax. |
| 22 | Donatio mortis causa (DMC)– It is a Latin maxim that means a gift made in prospect or peril of death. It is also known as deathbed gift. It is a gift which is made by the donor in anticipation of his imminent death and only delivered upon the donor’s death. Thus, when the donor dies, the subject-matter of the gift does not pass to the personal representative but to the person the deceased intended to benefit (the donee). It involves a type of conditional transfer of property, that is to say, it is a transfer which vests property in the recipient or donee immediately it is made, but subject to a condition that the testator’s death should occur shortly thereafter. The DMC is enshrined in Section 191 of the Indian Succession Act, 1925. Section 191 provides that a man may dispose, by gift made in contemplation of death, of any moveable property which he could dispose of by will. It further provides that a gift is said to be made in contemplation of death where a man, who is ill and expects to die shortly of his illness, delivers, to another the possession: of any moveable property to keep as a gift in case the donor shall die of that illness. Furthermore, such a gift may be resumed by the giver; and shall not take effect if he recovers from the illness during which it was made; nor if he survives the person to whom it was made. |
| 23 | Ex gratia : It is Latin term that literally means “by favour or as favour”. When something has been done ex gratia, it has been done voluntarily, out of kindness or grace. Compensation payments are often made ex gratia if a government or organization is prepared to compensate victims of an event such as an accident or retrenchment or lay off etc. In fact, it is a kind of compensation but the giver does not admit it as a liability to pay compensation. An ex gratia payment is viewed as voluntary because the party making the payment is not obligated to compensate the individual. |
| 24 | Factum Probandum and Factum Probans: The whole laws relating to evidence under the moves around relevancy and admissibility of evidence relating to “facts in issue and relevant facts”. Thus, an evidence may be given only of two things—Facts-in-issue and relevant facts. Facts in issue is also known as “Principal facts” or “Factum probandum”. While relevant facts are also called “Evidentiary facts” or “Factum probans”. |
| 25 | Doctrine of “Fruits of a Poisonous Tree (DFPT): The doctrine of “Fruits of a Poisonous Tree” was coined by Justice Frankfurter of the United States Supreme Court in Nardone Vs. United States (1939). The doctrine postulates that illegally procured evidence becomes inadmissible in the court of law as evidence. The doctrine of “Fruits of a Poisonous Tree” is an extension to the exclusionary rule of evidence (The exclusionary rule states that the evidence that is obtained illegally should be excluded from being admissible as a part of the evidence in a criminal trial). However, this doctrine is subject to certain exceptions viz. evidence obtained in good faith, evidence collected out of independent source etc. This doctrine is not applicable in India except in certain circumstances. |
| 26 | Functus officio: It is a Latin maxim which literally means ‘no longer having power or jurisdiction’. Functus officio refers to an officer or agency whose mandate has expired, due to either the arrival of an expiry date or an agency having accomplished the purpose for which it was created. Once a court has passed a valid sentence after a lawful hearing, it is functus officio and cannot reopen the case. However, right to review judgment is the exception to this Latin term “Functus Officio”. This principle is well established in international arbitration. |
| 27 | Generalia Specialibus non Derogant: It is a Latin maxim which means general law yields to special law. This legal maxim mandates that when a matter falls under any specific legal provision, then it must be governed by that provision and not by the general provision. Thus, this maxim incorporates a basic principle of statutory interpretation that is the general provisions must acknowledge to the specific provisions of law. Briefly, it is trite law that special enactment prevails over general law. |
| 28 | Ibid./ Ibidem: Ibid. is an abbreviation for the Latin word ibidem. It literally means ‘in the same place’. commonly used in an endnote, footnote, bibliography citation, or scholarly reference to refer to the source cited in the preceding note or list item. This is similar to Idem, literally meaning “the same”, abbreviated id., which is commonly used in legal citation. |
| 29 | Ignominious: It means any act or incidence that makes one feel embarrassed (शर्मिंदा करने वाला). For example: The team suffered an ignominious defeat. Its adv.is ‘Ignominiously’ (शर्मिंदगी के साथ) |
| 30 | Innuendo : Innuendo (also called insinuation) is statements which are defamatory because they have a double meaning. Such statements are veiled or equivocal reflection on character or reputation. |
| 31 | Jus scriptum : It is a Latin maxim which means ‘written law’. Such law is enacted by the legislative authorities viz. Parliament/ State Legislatures/ President (in the form of ordinance). Thus law declared/ pronounced by the Judicial Authorities may be judicial precedents but not be categorized as ‘jus scriptum’. |
| 32 | Jus soli : It is Latin term that means ‘right of soil’. It is commonly referred to as birthright citizenship. It is the right of anyone born in the territory of a state to nationality or citizenship. Thus, as a general rule, every person has the right to the nationality of the state in whose territory he was born if he does not have the right to any other nationality. Jus soli in many cases helps prevent statelessness. |
| 33 | Doctrine of Lex Fori: It is a general rule that once a court has taken jurisdiction, it will usually apply its own law. This rule is known as rule of Lex Fori. Lex fori is a Latin phrase which means the law of the forum (i.e. the law of the place of action/ choice of forum). Thus, lex fori means the law of the Court in which the proceeding is brought. For example, where evidence is taken in country ‘X’ for suit or proceeding in country ‘Y’, the law applicable to the recording of evidence would be law prevailing in country ‘Y’. Law of evidence is a lex fori. Therefore, we find that the doctrine of Lex Fori is applicable in procedural law. |
| 34 | Locus standi: The Latin maxim “Locus Standi” consists of two words namely “locus” which means ‘place’ and “standi” means the ‘right to bring an action’. Elaborately, this maxim means a right or capacity or ability of a party to file a suit or to appear and be heard by the court or any adjudicatory body or forum. Generally, when any legal right is infringed, the aggrieved person has locus standi. Thus, any person who does not have locus standi, has no right to knock the door of the Court. However, the litigation in the nature of Public Interest Litigation (PIL) or Social Action Litigation (SAL) is exception to the rule of Locus Standi. |
| 35 | Modus Vivendi : Modus vivendi is a Latin phrase that means “mode of living” or “way of life”. It often is used to mean an arrangement or agreement that allows conflicting parties to coexist in peace. In science, it is used to describe lifestyles. |
| 36 | Mutatis Mutandis : This is a Latin phrase which is used when comparing two or more cases or situations and accordingly making necessary alterations while not affecting the main point at issue. The phrase mutatis mutandis indicates that whilst it may be necessary to make some changes to take account of different situations, the main point remains the same. The phrase mutatis mutandis is used within contracts to incorporate terms from one agreement into a different and separate agreement. For examples: (1) a lease renewal with similar terms to a previous agreement, save for changes to the tenants, may incorporate terms ‘mutatis mutandis’. (2) This complex pattern has been repeated, mutatis mutandis, all over the country. |
| 37 | Nec vi, nec clam, nec precario: It is a Latin maxim meaning ‘without force, without secrecy, without permission’ or, in an alternative formulation ‘not by force, nor stealth, nor the licence of the owner’. It is the principle by which rights may be built up over time. Specifically, if a path is used – openly, not against protests, but without permission of the landowner – for an extended period (normally 20 years) then a permanent legal right to such use is usually established. This maxim is often referred to in the context of adverse possession and other land law issues. It is also relevant to the creation of easements whereby the law ‘prescribes’ an easement in the absence of a deed. |
| 38 | Nemo Potest esse tenens et dominus: It is Latin a phrase which means nobody can be both a landlord and a tenant of the same property. |
| 39 | Pacta sunt servanda: Pacta sunt servanda is a Latin term which means agreements must be kept. The rule of pacta sunt servanda is based upon the principle of good faith. The basis of good faith indicates that a party to the treaty cannot invoke provisions of its domestic law as a justification for a failure to perform. The only limit to pacta sunt servanda is the peremptory norms of general international law known as “jus cogens” which means compelling law. |
| 40 | Pater est quem nuptiae demonstrant: The meaning of this maxim is that the father is he who is married to the mother. The said maxim is well accepted in India through section 112 of the Indian Evidence Act, 1882. But in the changing socio-economic dimension and accepted scientific advancements (viz. DNA), the meaning of this maxim needs to be redefined. |
| 41 | Persona non-grata: (Plural: personae non gratae). This is a Latin maxim. It literally means an ‘unacceptable person’. In diplomacy, a persona non grata is a foreign person entering or remaining in a particular country is prohibited by that country’s government. The word is mainly used in international law and arbitration. The legal maxim received its diplomatic meaning at Vienna Convention on Diplomatic Relations, 1961 (consists of total 53 Articles). Under Article 9 of the Vienna Convention, a country can declare any member of a diplomatic staff persona non grata “at any time and without having to explain its decision. |
| 42 | Pro tanto: Pro tanto is a Latin phrase that means “only to that extent,” and is often used to denote partial fulfillment of an actual or potential obligation. It is made often in the form of a partial payment toward a claim asserted in a lawsuit. For example: A judge gives an order for payments for one year, pro tanto. |
| 43 | Prognosis: It literally means ‘fore-knowing’ or ‘foreseeing’. Elaborately, prognosis is a doctor’s judgment of the likely or expected development of a disease or of the chances of getting better. For Examples: The prognosis after the operation was for a full recovery. |
| 44 | Quantum Meruit (QM): Quantum Meruit is a Latin phrase meaning “what one has earned”. This doctrine is based upon the rule of restitution. This remedy is not a contractual remedy rather it is a quasi-contractual remedy. As a general rule if the party has contracted to do a particular work, but he did not complete because of refusal of one of the parties. Here as per QM doctrine the aggrieved is remunerated for whatever he has already done. For example, if A agrees to deliver B 500 bags of wheat. A has already delivered 100 bangs and B refuses to accept any further supply. Here A can recover from B the value of 100 bags of wheat which he has already delivered. Section 75 of the Indian Contract Act, 1872 deals with remedy as quantum meruit for breach of contract (BoC). |
| 45 | Sceleratus: It is a Latin word which means guilty / accursed / criminal. For example, though his act was sceleratus, he will be referred to juvenle care home being under the age of 12 years. |
| 46 | Doctrine of Severability (DOS): Severability literally means separation. As per DOS, any law inconsistent with the constitution shall be void to the extent of such inconsistency. Thus, the whole Act is not declared void.
DoS was considered in detail in A K Gopalan vs. State of Madras (1950:SC) and the Court held that only the inconsistent law will be invalid and not the whole Act itself. Similar stands were taken in the cases of State of Bombay vs. F M Balsara (1951), RMDC vs. Union of India (1957:SC). |
| 47 | Sine qua non – It is Latin term that literally means “without which nothing”. It refers to a particular element/ state which is indispensable and essential action, condition, or ingredient without which something is not possible. For example, the mens rea is a sine qua non to constitute an offence. |
| 48 | Doctrine of Specialty: This doctrine is an established rule of international law relating to extradition. Accordingly, an extradited person can only be charged for the offense for which the person was extradited, unless the person first returns to the country from which the person was extradited. Elaborately, when a person is extradited for a particular crime, he can be tried for only that crime. If the requesting State deems it desirable to try the extradited fugitive for some other crime committed before his extradition, the fugitive has to be brought to the status quo ante, in the sense that he has to be returned first to the State which granted the extradition and a fresh extradition has to be requested for the latter crime. The doctrine of specialty is in fact a corollary to the principles of double criminality and the aforesaid doctrine is premised on the assumption that whenever a State uses its formal process to surrender a person to another State for a specific charge, the requesting State shall carry out its intended purpose of prosecuting or punishing the offender for the offence charged in its request for extradition and none other. Section 21 of the Indian Extradition Act, 1962 incorporates this principle of specialty. Daya Singh Lahoria Vs. Union of India & Ors. (2001 4 SCC 516) is a leading case of the Hon’ble Supreme Court of India on doctrine of specialty and extradition. |
| 49 | Supernumerary—The meaning of supernumerary is exceeding or additional to the usual, stated, or prescribed number / position. For example, the Supreme Court observed that a High Court cannot direct regularisation of temporary employees by creating supernumerary posts. |
| 50 | Ubi jus ibi remedium: It is a Latin maxim. The word “jus” means legal authority to do something or to demand something. The word “remedium” means that the person has the right of action in the court of law. The literal meaning of the maxim is where there is a wrong there is a remedy. The law of tort is said to be the development of the maxim Ubi jus ibi remedium. Ashby v. White (1703) 14 St Tr 695, 92 ER 126 is usually cited to exemplify the maxim. The maxim does not mean that there is a legal remedy for each and every wrong committed. For example, a contract which was required to be made on stamped paper may be made orally; in such circumstances, irrecoverable harm may be caused to other person and yet no legal remedy is available. |
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