Legal Maxims-Lagal Language and Lagal Witting

1. "Actus non-facit reum nisl mens sit rea".

Ans - Actus non-facit reum niei means sit rea:- The Act itself does not constitute guilt unless done with a guilty mind. This maxim is popularly known as the principle of "Mens rea The doctrine says that mens rea, an ovil intention or knowiedge of the wrongfulness of the act is an essential ingredient in every offence. The maxim is a cardinal doctrine of the criminal law. No doubt the legislature can create offances which consist solely in doing an act whatever the state of mind of the actor may be, such cases should be regarded as exceptions to the general ruie that a person cannot be convicted of a crimo uniess it is committed with a wrongful intention.

2. "Actio personalis moritur cum persona".

Ans. - The exuression means that a personal right of action dies with the person. The maxim has been modified by statutes. Thus the fatal Accidents Act, 1855, Section 1- A provides for action by the representative of the deceased for damages for the benefit of the wife, husband, parent and child of the deceased against the wrongdoer notwithstanding the death of the injured.

3. "Audi Alterem Partem".

Ans. - Hear the other side that is, no man should be condemned unheard. It has long been an accepted. rule that no one is to be condemned, punished or deprived of property in any judicial or quasi-judicial proceeding unless he has had an opportunity of being heard.

4. "Ab-initio".

Ans. - Ab initio means from the beginning. A person who abuses an authority given to him by law becomes a trespasser ab initio i.e he is liable as a trespasser from the beginning wharton's Law Lexicon.

5. Amius curiae"

Ans. - Amicus curiae - Amicus curiae (a frend of the court) is a member of the bar or other stand by, who informs the court when it is doubtful or mistaken of any tact or decided case. An est the des The Supreme court may hear person who is not a party to the case where the nature and importance of the question before the court would require the assistance of such a person. (Hanti Vs. State of Bihar, AIR 1958 SC 783 (795).

6. "Bona vacantia". intr

Ans. - Goods without an apparent owner in which no one claims a property. such as, lost property, shipwrecks treasure, trove, or the personal property of an intestate without next-of-kin. The finder of lost property is "prima facie' entitled to it but, in general bona vacantia belongs to the state in the right of its prerogative. no the act The property of a dissalved company is deemed bona vacantia subject to an 11. order of the court and to the power of the state to disclaim An thin

7. "Caveat Emptor".

Ans. - Caveat Emptor - Let the buyer beware. A principle in commercial transactions, there being no warrantly, the buyer takes the risk of quality upon himself. The doctrine Is embodied in Sec. 16 of the Sale of Goods Act, 1930. Caveat emptor does not mean in law or Latin that the buyer must take a chance. It means that he must take care. It applies to the purchase of specific things. e.g. to a horse or a plcture upon which the buyer can and usually

does exercise his own judgement.

8. "Certiorari".

Ans. - Certiorari - A writ Irom a higher court requiring the records from a lower

court. A prerogative writ of superior court to call for the records of an inferior court or a body

acting in judicial or quasi-judicial capacity. Arts 32 & 226 of the Constitution of India anable the Suprerne Court and the High Courts respectively to issue orders. Writs or directions in the nature of habeas corpus, mandamus, quo-warranto, prohibition and certiorari. An essential feature of a writ of certiorari is that the control over judicial or quasi-iduicial tribunals or bodies is exercised non in an appellate but supervisory 15 A. a capacity.

9. "Corpus delicti".

Ans. - Corpus delicti - (corpus body, dolicti= the orime) The basic lact or lacts establishing that a crime or offenca has acutally been committed. Corpus delicti means the body Le the gist of the oftence. The corpus delicti in murder has two components death as the result, and criminal agency of another as the means. Where thare is direct proof of the one; tho other may be established by circumstantial evidence.

10. "Damum Sine injuria".

Ans. - Damnum sine injuria - The maxim means damages without injury Le without intringement of any legal right. There are many forms of ham of which the law take no account, Damace so done or sufterod is called "Damnum sine Injuria". Where there is no intringemant of a legal right, the mere fact of harm or loss resulting from an act of or omission is not wrongful even though the loss is substantial.

11. De minimis non cvrat lex".

Ans. - The law does not concem itself with trifies OR The law does not care not trivial things. "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 harmis so slight that no person of ordinar sense & temper would complain of such harm.

12. "Domus sua cuique est tutissimum".

Ans. - To every one his house is his surest refuge, or every man's house is his castle. The house of every man is to him as his castle and fortress, as well for his defence against injury and vioienca, as for his repose. Il thieves come to a mans house to rob him or murder, and the owner or his senrvants kill any of the thieves in defence of himsalf and his house, it not felany and he shall lose nothing

13. "Delegatus non potest delegare".

Ans. - The expression means that a delegate cannot delegate. The person to whom an office or a duty is delegated cannot lawfully delegate the duty upon another, unless he be expressly authorised so to do.

14. "Ejusdem generis".

Ans, - The full Latin maxims is - Clausula generalis de residuo non ea complecitur, quade non-ejusdem sint generis cum, its quo speciatim dicta fuerint. This means that a genearl clause of residum dees not comprehend those things which may not be of the same kind with those which have been specially expressed. And this is the wel known "ejusdom generistrule.

15. "Eminent domain".

Ans- The right of the state or the sovereign to its or his own property is absoiute while that or the subject or citizen to his property is only paramount. The citizen holds The any subject always to the right of the sovereign to take it for a public purpose. right is called

"eminent domain".

16. "Ex dolo malo non oritur actio".

Ans. - Ex dolo malo non oritur actio = No right of action can arise out of fraud.

17. "Ex post-fact".

Ans. - Ex post facto = Made after the occurrence.

18. "Expressio unius est exclusis alterlus".

Ans. - The express mention of the person to thing is the exclusion of another. Where the statutory language is plain and the meaning clear, there is no scope for applying the rule.

19. Factum valet quod fleri non debuilt.

Ans. - Factum valet quod fleri non debuilt - Where a fact is accomplished or where the act is done and completed, though in contravention of diretory provisions, the fact will stand and the act shall be deemed to be legal and binding. But where the provisions are mandatory, the principle does not apply. The principle above mentioend is applied In Hindu Law.

20. "Falsa demonstratio non nocet".

Ans. - The expression means that false description does no harm, The ruie is that where any proeprty is a will is sufficiently ascertained by the description, itpasses by the devise, although all particulars stated in the will with reference to it may not be true.

21. "Falsa demonstrations legatum non-perimitur".

Ans. - A legacy will not fail from a false description, Section 78 of the Indian Succession Act, 1925 is based on this maxim. If tho thing bequathed by the testator can be sufficiently identilied trom the description in the will, but some parts of the description do not apply, these parts will be rejectod and the bequest shall take effect.

22. "Generalia specialibus non derogant".

Ans- Generalla specialibus non derogant - General thingdo not derogate from Ans. special. Special Acts are not repealed by genaral Act uniess there be some express reference to the previous legislation or a necessary inconaistency In the two acts standing together which prevent the maxim from being applied.

23. "Grammatica talsa non vitiat chartum".

Ans. - Means talse grammer does not vitiate a deed.

24. "Guardian item".

Ans. - Guardirn ad litem - An infant defends proceedings by a guardian ad liten, and a person to fill that office must be named before appearance is entered or any other step is taken on behalf of or against the infant. Where the defendant is a minor, the court on being satisfied by the fact of his minority shall appoint a proper person to be guardian for the suit for such minor (Code of Civil Procedure 1908, 0.32. R-3 (D).

25. ''Habeas corpus."

Ans. - Habeas corpus - "have the body", a writ issed to a gaoler, requiring him to bring a prisoner into court. The High courts under Article 226, and the Supreme Court under Artcile 32, are empowered to issue writ of Habeas corpus.

26. "Haereditas Jacens".

Ans. - Haereditas Jacens - An inheritance not taken up.

27. "Haeses est nomen juris filius est nomen naturae".

Ans. - Heir is a name of law, son is a name of nature.

28. "Ignorantia legis neminem excusat".

Ans. - Ignorantia legis neminem excusat - Ignorance of law excuses nobody. The maxim cannot be carried to the extent of saying that every person must be presumed to know that a piece of legislation enacted by a legislature of competent jurisdiction Lagal Language and Legal Wrting must be held to be invalid in case a differential treatment is prescribed and that he must refuse to submit to it. There are many cases to be found in which equity, upon a mere mistake of the law without the admixture of other circumstances, has given relief to a party who has death with the property under irifluence of such mistake.

29. "Injuria sine damno".

Ans. - Injuria sine damno - Injury without darmage. Wherever there is an invasion of a legal right. The person in whom the right is vested is entiteld to bring an action and may be awarded damages although he has suffered no actual damage Thus the act of trespassing upon another's land is actionable even though it has none the plaintif not the slightest harm. The law presumes damage owing to the mischievous tendency of the act and therefore prohibits It absolutely.

30. "Injure non remota causa sed proxima spectatur".

Ans. - "Injure non-remota cause sed proxima spectatur" - In law the immediate, not the remote cause of any event is regarded.

31. "Judex est lex loquens".

Ans - "Judex ent lex loquens" - A judge is the law speaking

32. "Just-ad-rem".

Ans. - "Junt-ad-rem" - An inchoate and impertect right. It is an abridged expression tor jus aid rem acquirendam, it denotes a right to the acquisition of a thing.

33. Justitia non novit patrem nec matrem; solam veritatem spectat justitia".

Ans. - Justice knows neither father nor mother, but regards truth alone.

34. "Kidnapping".

Ans. - "Kidnapping" -At common law kidnapping consists the forcible adduction or stealing away of a man, woman or child from his or her awn country and sending him or her into another country. Kidnapping in common law is to be regarded as an aggravated species of false imprisonment.

35. "Kidnapping from India".

Ans. - "Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, said to kidnap that person from India

36. "Lex dilationes semper exhorret."

Ans. - "Lex dilationes semper exhorret" - The law always abhors delays

37. "Lex Loci rei sitae".

Ans - "Lex loci rei sitae" - Means the law of the place where the thing is situate

38. "Lis Penders".

Ans. - "Lis Pendens- During the pendency in any court having authority within the limits of India exclusing the state of Jammy and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is diretly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the sult or proceeding so as to offect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. (Transfer of Property Act, 1882. Section 52),

39. "Mens Rea".

Ans. - Mens Rea - "Actus non facit reum nisi mens sit rea" is the famous English maxim of ciiminal law. This miaxim means- "The act itself does not constitute guilt unless done with guilty mind This maxim is popularly known as "Mens-Rea". "Mens Rea" means criminal intention or guilty mind It has frequently been affirmed and should unhesitatingly be recognised that it is a cardinal principie of law that mens rea, an evil intention or a knowlege of the wrongfulness of the act is in all ordinary cases an essential ingredient of guilty of a criminal offence. Mens rea forms a necessary ingredient at an affenice Uniess by express lagnauge or by implication the element of mens rea is excluded.

40. "Mobilia sequunter personam"

Ans. - Mobilia sequunter personam - Movable follow the person A person's powers of dealing with his movable estate and its devolution on his death are governed by the law of his domicile.

41. "Mutatis mutandis".

Ans. - Mutatis Mutandis - (With the necessary changes) - The phraseis often used. in legisiation in applying or extending legislative provisions to same or similar circumstances or to same or similar subjects. It is nothing but a rule of adaption.

42. "Nemo dat quos non habet".

Ans- Nemo dat quos non habet - No one gives what he does not possess.

43. Nemo debet esse Judex in Propria Causa".

Ans- Nemo debet esse Judex in propria causa - No one should be judges in fis own cause.

44. Nemo debet bis puniri pro uno delicto.

Ans. - Nemo debet bis puniri pro uno delicto - No one should be punished twice for one fault.

45. "Nova constitutio futuris formam imponere debet non praeteritis".

Ans. - "Nova constitutiofuturis formam imponere debet non praeteritis - A new law ought to be prospective notretrospective in its operations.

46. "Nudam pactum".

Ans. - "Nudam Pactum - (A bare agreement or promise) An agreementwithout consideration and upon which no action lies unless it be under seal.

47. "Obiter dictum".

Ans. - "Obiter dictum" - (A saying by the way) An incidental opinion by a judge which is not binding; an incidental remark or observation "obiter dicta" signifies statements by the way. If a judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case, and the reasons for the decision. An "Obiter dictum" is an observation by a judge which is either not necesary for the decision of the case or does not relate to the material facts in issue. Pronouncements of law, which are not part of the ratio decidendi are ciassed as "Obiter dicta and are not binding

48. "Omne testamentum morte consummatum est",

Ans. - Omne testamentum morto consummatum est. Every will is completed by death.

49. Onus and Onus probandi.

Ans. - Onus - The "Onus probandi" or burden of proof lies on the party who substantialy asserts the atfimative of the issue The best test for asoertaining an whom the burden of proof lles are to consider first which party would suocoed it no evidence were given on either side; and secondly, what would be the effact of striking out of the record the allegations to be proved. The onus lies on whichever party would fail. If aither of these steps were pursued. (Onus probandi Burden of Proof )

50. Pacta dant legem contractui.

Ans. - Pacta dant legem contractui - Agreemants constitute the law of the oontract

51. Pari Passu.

Ans. - Parl Passu - (With equal step) on equat footing or proportionataly aqualy without preference eg a series of deberitures may be issued subject to The condition that they

are to rank parti passu as a first charge on the property chaiged by the debentures.

52. Persona designata.

Ans, - Persona designata -A person selected to act in his private capacity and not in his capacity as a judge. A persona designata is a person who is pointed out or described as an individual of a class or as tiling a particular charaater. But this does not mean that a persona designata cannot be designatad in terms of his office.

53. Per capita.

Ans. - Per capita - A distribution per capita (by heads) is when a number of individuals eg a class, even though in different degrees of relationship, take the fund distributable among them in equal shares Its opposite is per stripes (by stocks).

54. Profit a prendre.

Ans- Profit a prendre - A right to take something off another's iand and it is this participation in the produce of the soil or in the soil itself that principally distinguishes a profit from an casement. A right is a profit only if the thing to be taken is something that is capable of ownership. Ans. The right to profits a prendre is an easement under the Indian Easements Act, 1882. A right to catch and carry away fish in specific portions of a private lake is a profit a prendro, which is regarded as immovable property in India.

55. Quantum meruit

Ans. - Quantum meruit - As much as he hás earned: so much as he deserves, roabonable amount. Where a breach of contract has occured, the injured party may aue for work done or services pertormed as an alternative for a claim for damages.

56. Quantum valebat.

Ans. Quantuam valebat - (AS much as they are worth) . This relates to an action analogous to quantum meruit but brought in respect to goods supplied.

57. Quia timet action.

Ans. - Quia timet action - An inlunction is granted for the discontinuance of some wrong. If the wrong is merely threatened but not committed, the proper remedy is a quia timet action. For prevention is better than cure. But a rmere apprehension is not enough. There must be an immediate threat to do some wrongful act. An injunction may be obtained in a quia

timet action to prevent the commission of an injury in future; as when the defendant threatens or intends to errect a bulding which will obstruct the plaintiff's lights.

58. Quo-Warranto

Ans. - Quo-Warranto - A prerogative writ which can be granted by the Supreme Court and High Courts in India to inquire trom the other party by what autharity he claimed or usurped the office, franchise or liberty in order to determine the right. (Article 32 and 226 of the constitutian of lIndia, 1950).

59. Res ispa loquitur.

Ans. - Res ispa ioquitur - (The thing speaks for itselt) this maxim applies in actions for negligence where the circumstance of an accident are such that it is so improbable that it would have occured without the negligence of the detendant, that it can be presumed that it was so caused. eg. where a moving motor carcollides with a stationary vehicle. The onus is on the detendant to disprove the presumed negligence,

60. Respondent superior.

Ans. - One who supports an opposing argument; a defendant in a law suit.

61. Rebus-sio-stantibus.

Ans. - Rebus-sic-stantibus - Treaties may be discharged as a result of the rebus sic stantibus doctrine. According to this doctrine, a treaty may be come null and void in case there is a fundamental change in the state of facts which existed at the time the treaty was concluded. The rebus sic stantibus doctrine is one of the enigamas of International Law.

62. Ratio decidendi.

Ans. - Ratio-decidendi - The princple or reasons underlying a decision, apart from the special peculiarities of the case. The expression has three meanings. The first is *the reaons for deciding".A finding of fact may, in this sense, be the ratio decidendi. Secondly, it may mean, "the rule of law proffered by the judge as the basis of his decision". Thirdly. It may mean, "the rule of law which others regard as being of binding authority.

63. Res-judicata.

Ans. - Res-judicata- a judgement already given by court Section 11, Civil Procedure Code, 1908 explain this principle. It lays down, "No court shall try and suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a fomer suit between the same parties, or between parties under whom they or any of tham claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court".

64. Solus populi est supreme lex.

Ans. - Solus populi est supreme lex - The weifare of the people, or of the public, is supreme law. Thus, pulling down a house on fire to prevent its spread to other property does not Involve liability. It is only in cases of existing immediate and overwhelming public necessity that any such right exists. And it is made an exception by Section 81 of the Indian Penal Code.

65. Stare decisis.

Ans. - Stare decisis - The common law doctrine is stare decisis, derive from stare decisis et non quieta movere. It is different from the broad doctrine of precedent prevalent in all developed systems in that if certain conditions are tulfilled, a judge has either to follow the

previous decision or else to dinstinguish it; while in the continental systems, his counter part

may seek guidance from past decisions, but is not bound to follow them.

66. Status quo.

Ans.- Status quo- That state in which things were .

67. Terminus ad quem.

Ans. - Terminus ad quem - The terminal point .

68. Testis nemo in sua causa esse potest.

Ans. - Testis nemo in sua causa esse potest - No one can be a witness in his own cause.

69. Trespasser ab initio.

ns Trespasser ab initio - Where a person enters land of another withpermission Dur abuses his authority. he becomes a trespasser "from the beginnin.

70. Ubi jus ibi remedium.

Ans. - Ubi jus ibi remedium - Where there is right, there is a remedy.

71. Ubi eadem ratio ibi idem lex, et de similibus idem est judicium.

Ans. - Ubi eadem ratio ibiidem lex, et de similibus idem est judicium - Where the same reason exists, there the same lawprevalls; and of things similar, the judgement is similar.

72. Ultra vires.

Ans, - Ultra virese Beyond the scope, power of authority of any company, corporation or statutory body, contracts purporting to be made by statutory corporations or companies which are outside the powers conterred by status or taken by the memorandum of association are ultra vires and void and no ratification by all or any of the members can make them valid.

An act is said to be ultra vires, when it is enacted in excess of the legislative power, A rule is Ultra vires when it is beyond the rule-making power of authority.

73. Volenti non fit injuria.

Ans. - Volenti non fit injuria - Where the planitift relies on the breach of a duty to take care, owned by the defendant to him, it is a good defence that the plaintitt consented to that breach of duty or knowing of it voluntariiy, incurred the whole risk entailed by it. In such a case, the volenti non fit injuria applies. This defence is to be distinguished from the plea of contributory negligence, for a plaintiff may have voluntarily exposed himself to the risk of

being injured while himsell exercising the utmost care.

74. Void ab initio.

Ans. - Void ab initio - of no binding importance at any time from the beignning (of the supposed contract) void ab initio non valet in traltu temporis non-convalesscit - That which was originally void, does not by lapse of time become valid.

75. "Vigilantibus non dorminetibus jura subveniunt".

Ans. - "Vigilantibus non darminetibus jurasubveniunt" - Laws come to the assistance of the vigilant, non of the sleepy. Equity come to the aid of the vigilant and not the slumbering.

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