LEGAL MAXIMS

MAXIM MEANING

SALUS POPULI SUPREMA LEX Regard for the public welfare is the highest law

AUDI ALTERAM PARTEM No one should be condemned unheard

UBI JUS IBI REMEDIUM Where there is a wrong, there is a remedy

NEMO DEBET ESSE JUDEX IN No one ought to be a judge in his or her own cause
PROPRIA CAUSA

IGNORANTIA FACTI EXCUSAT Ignorance of fact excuse-ignorance of law does

IGNORANTIA JURIS NON EXCUSAT not excuse

VOLENTI NON FIT INJURIA Damage suffered by consent is not a cause of

action

RES IPSA LOQUITUR The thing speaks for itself

ACTUS NON FACIT REUM NISI An act act does not make one guilty, unless there
MENS SIT REA is a criminal intent

NEMO DEBET BIS VEXARI PRO UNA It is a rule of law that a man shall not be twice
ET EADEM CAUSA vexed for one and the same cause

ACTA EXTERIORA INDICANT Acts indicate the intention

INTERIORA SECRETA

NOSCITUR A SOCIIS The meaning of a doubtful word may be

ascertained by reference to the meaning of words
associated with it

CAVEAT EMPTOR Let purchaser beware

VIGILANTIBUS, NON The law assist those who are vigilant, not those
DORMIENTIBUS, URS SUBVENIUNT who sleep over their rights

ACTIO PERSONALIS MORITUR CUM A personal right of action dies with the person
PERSONA

NEMO TENETUR SEIPSUM No man can be compelled to criminate himself

ACCUSARE
 LEGAL CONCEPTS
CIVIL AND CRIMINAL WRONGS
All legal wrongs can broadly be classified into two heads: civil and criminal. The distinction
between the two is not to be found in the nature of the act itself. The same act may be a tort (civil
wrong) and a crime (criminal wrong). Thus, assault and defamation are torts and a proceeding
can be filed by the aggrieved party in a civil court for recovering compensation from the
wrong-doer. But, these acts are also crimes and a criminal complaint can be filed in a criminal
court for punishment of the offender.
The true distinction between them is thus not to be found by examining what is done. Rather, the
real distinction lies in the legal consequences that follow the wrong act. If criminal proceedings
can be filed in respect of that act, it means that the act is a crime or an offence. If, on the other
hand, the act is capable of being followed by proceedings in a civil court, the law will regard it as
a civil wrong. If both civil and criminal proceedings can be filed in respect of the same act, then
it is both a civil and a criminal wrong.
The procedure followed by a civil court in a civil proceeding is quite different from the one
followed by a criminal court in the case of a crime. The former is regulated by the Civil
Procedure Code, whereas the latter is governed by the Criminal Procedure Code. The outcome,
as well as the terminology used in both the proceedings are also different. In a civil suit, the
plaintiff can recover damages or compensation from the defendant. He can also get an order for
specific performance or injunction. In a criminal case, the complainant places evidence before
the court to show why the accused should be punished, by way of a jail sentence or a fine or
both. Again, the accused in a criminal proceeding may be found 'guilty' by the court, whereas the
defendant in a civil suit may be found 'liable' to pay damages. Also, the two sets of courts are
also different. Civil courts are presided over by Judges, whereas one finds a Magistrate in a
criminal court.
Classification of civil wrongs
Civil wrongs can be classified into three broad categories:
1. Breach of contract: If A and B enter into a contract and A does not fulfil his obligations
under the contract, B can sue him in a civil court for breach of contract.
2. Breach of trust: A trust is a fiduciary obligation which can be enforced by a court of law.
If a trustee fails to honour his obligations under the trust deed, a suit can be filed against
him for a breach of trust.
3. Tort: A civil wrong which is not exclusively a breach of contract or a breach of trust is
referred to as a tort. The field of torts covers several civil wrongs like assault, battery,
false imprisonment, trespass, defamation, negligence and nuisance.
COMMON LAW & EQUITY
The common law
The law of England can broadly be classified under three categories: common law, equity and
legislation. The term ‘legislation’ refers to Acts passed by the Parliament. Such Acts are also
referred to as statutes.
The term 'common law' is not easy to define. Originally and in the first sense, it meant all law
that was not local law, that is, all law which was common to the whole country. In the second
sense, the term covers all law that is not in the form of legislation. This would cover customary
law and decisions of law courts, generally referred to as 'precedents'. In the third sense, the term
common law is used to refer to the law applied and developed by law courts - as distinct from the
law applied by the courts of equity or the Chancery Courts.
One can thus define the term common law (sometimes called 'the law made by the courts') as the
law formulated, developed and administered by law courts, not being -
● statute law or law contained in Acts of Parliament; or
● equity, that is, the body of rules formerly administered exclusively by equity courts; or
● special law, that is, the law administered in special courts, as for instance, ecclesiastical
law or the law merchant.
Equity
The term 'equity' is understood as having three different meanings. In the first sense, it means
morality, honesty and uprightness. In the second sense, the term refers to the principles of natural
justice which tamper the fixed rules of law. Thus, in cases where the law is inadequate or rigid or
technical, it is supplemented by equity, justice and good conscience.
In the third sense, 'equity' refers to a fixed set of rules based on natural justice, formerly
administered by courts of equity (which no longer exist). In this restricted and technical sense,
the term refers to a system of law running parallel to the rules of common law and statute law.
Generally speaking, when one talks of 'equity' with reference to English law, the term is
understood in this third, technical sense.
Delay defeats equity
Until 1873, there were two parallel sets of courts in England - the law courts and the equity
courts. The practical working of these courts was generally smooth and harmonious - except for
a period of temporary conflict between the two. Thus, equity was never really in conflict with the
law. In the words of Maitland, "Equity had come, not to destroy the law, but to fulfil it." Its aim
was not to do away with the law, but to remedy its shortcomings and to keep it in pace with new
developments and the advancing needs of the community. Equity was not antagonistic to law, but
a supplement to it. "Equity therefore does not destroy the law, but assists it." (Lord Talboat)
Ultimately, as a result of the Judicature Acts of 1873 and 1875, the courts of common law and
the equity courts were abolished, and in their place was established one single Supreme Court of
Judicature, which administered both law and equity.
Equity in India
Even though India was under British rule for a long time, no equity courts were ever established
in the country. Rather, the Indian courts combined in themselves as they still do - both common
law and equity jurisdictions.
Several equitable principles and remedies have found place in Indian statutes. Thus, the equitable
concepts of specific performance and injunction have been incorporated in the Specific Relief
Act in India.
As observed by the Calcutta High Court, "In the absence of specific rules of law, courts in India
act according to equity, justice and good conscience". (Watson & Co. v. Ramchand Dutt, 18 Cal.
10)
RULES OF NATURAL JUSTICE
The expression 'natural justice' covers certain salutary rules of equity and fair play. The concept
originated in England and reflects the close connection between English common law and moral
or ethical principles. The rules of natural justice reflect the minimum procedural requirements
which must be followed if justice is to be done. Where these rules are complied with, a fair deal
is bound to follow. The following are traditionally regarded as the rules of natural justice:
1. Nemo debet esse judex in propria causa: No man can be a judge in his own case.
2. Audi alteram partem: A man cannot be condemned without being heard in the matter
3. An adjudicating authority must always pass a speaking order, that is, an order that
contains the reasons for passing that order.

Nemo debet esse judex in propria causa

This basic requirement of natural justice lays down that no man can be a judge and the
prosecutor in the same case. In other words, he who judges must be impartial and free from any
kind of bias. In applying this maxim, it is often said that it is not enough that justice is done; it is
also necessary that justice is seen to be done. This means that a judge must be totally neutral and
unbiased. Now, bias can be of the following four types:
(a) Personal bias: Personal bias arises when the judge is a friend, relative, neighbour,
business associate, etc. of one of the parties. It can also arise when the judge has an
enmity or personal grudge against a party appearing before him.
(b) Pecuniary bias: If the adjudicator has a pecuniary (that is, monetary) interest in the
subject matter of a dispute, he cannot decide that matter. His order would be set aside -
even if it is shown that his decision was not, in any way, affected by such interest.
(c) Official bias: Official bias is bias as regards the subject-matter of the litigation. To be
impartial, the judge must not have any interest in the subject-matter of the dispute being
adjudicated. Thus, if a lawyer has represented a client in a case, and he later becomes a
judge, he cannot hear that particular case and pass orders in that litigation.
(d) Judicial obstinacy: Judicial obstinacy is a phrase coined to cover a form of judicial bias.
Thus, in one case, Judge X heard a writ petition filed by a government servant and passed
an order that he should be immediately given a promotion. This order was set aside in
appeal. Later, the same employee filed a fresh petition for payment of his salary and other
benefits in terms of the order passed by Judge X (that is, the order which had been set
aside in appeal). When this second petition was dismissed, he filed an appeal which was
heard by a Bench of two judges, one of them being Judge X. The Bench allowed the
appeal and ordered certain arrears of salary to be paid.
The matter reached the Supreme Court, the order of the Bench was set aside on the
ground of a form of bias termed judicial obstinacy. The court observed that if a judge's
decision is set aside, the judge must submit to such a decision. He cannot rewrite the
overruled judgement in the same or collateral proceedings. (State of West Bengal v.
Shivananda Pathak, AIR 1955 SC 2050)

Audi alteram partem

This rule of natural justice lays down that no man can be condemned without a hearing. A
decision can be arrived at only after hearing both sides. Practically speaking, it means that - a
notice should be given to the affected party; and he should be heard in the matter before any
decision is taken.
Before any action is taken against a person, it is in the paramount interests of justice and fair play
that a notice be given to him- so that he can 'show cause', that is, explain or clarify the allegations
made against him. Any order passed without such a notice is liable to be set aside.
In one case, action was taken against a student for having copied answers from the answer-book
of another student. This action was taken without giving him any notice and without hearing
him. The Bombay High Court set aside the order passed by the University on the ground that it
was a violation of the rules of natural justice. (J. B. Parikh v. University of Bombay, AIR 1987
Bom 332)

Speaking orders
Although the two principles of natural justice discussed above are traditionally regarded as the
principles of natural justice, one more principle has also been evolved over the years. The third
requirement of natural justice is that the adjudicator must pass a speaking order, that is, an order
which contains the reasons in support of the order. In other words, an order must speak for itself.
In the words of Lord Denning, "the giving of reasons is one of the fundamentals of good
administration". The requirement of recording reasons in the order introduces an element of
clarity and transparency and assists the reader in understanding why a particular order was
passed. It also helps an appellate or higher authority to examine the correctness and validity of
the order that is passed.
When reasons are given in an order, they form a link between the materials on record and the
conclusion arrived at. They show that the adjudicator has applied his mind when coming to that
particular conclusion.
Can the rules of natural justice be excluded?
Although the rules of natural justice are firmly established, these rules are flexible, and may be
modified- or even excluded-in certain circumstances. A review of Indian and English cases
shows that rules of natural justice can be excluded, inter alia, in the following cases:
● where a statute expressly or impliedly negatives the application of the rules of natural
justice;
● when the action which is challenged is legislative in nature;
● when the facts are admitted by both the sides;
● when the inquiry is of a confidential nature;
● when prompt and urgent action needs to be taken immediately.
INTERPRETATION OF STATUTES
According to Salmond, interpretation of statutes is "the process by which the courts seek to
ascertain the meaning of legislation through the medium of the forms in which it is expressed".
In other words, when applying a law passed by the legislature, the court seeks to give effect to
the words used by the legislature in the same sense as was intended by the legislature. It is the
function of the legislature to make the law and that of the courts to interpret and apply such laws.

The following are the important rules of interpretation of statutes generally followed by courts in
most legal systems.
1. The Literal Rule of Interpretation: Under this rule, a Judge is bound to apply the law
as it is worded. The words used in a statute must be literally applied; nothing can be
added and nothing can be subtracted. This is also referred to as litera legis, that is, the
literal construction of the law. When this rule is followed, the Judge cannot look beyond
the litera legis. As a rule, Judges have to follow the letter of the law. They are not at
liberty to add or subtract or modify the letter of the law only because they feel that the
sententia legis (intention of the legislature) is not completely or correctly reflected in the
words used in the stature. However, there are occasions where such a strict and literal
 interpretation of an Act may have to give way to a free or functional interpretation,
because ultimately, the essence of any law lies in its spirit- and not in its letter. In such
cases, courts may follow other rules of interpretation (also called rules of construction)
discussed below. As observed by Lord Denning, a judge must not alter the material of
which the fabric is woven, but he can- and should-iron out the creases.
2. The "Mischief" Rule of Interpretation: Under this rule, a Judge may look at the law
which prevailed before the Act was passed to find out what "mischief" the Act was
intended to remedy. The Judge can then interpret the words used in the Act in such a way
as to suppress the "mischief" and advance the remedy. Thus, the courts have taken the
view that, if it is relevant and material to consider the circumstances in which an Act was
passed, the court may look at the debates which took place in the legislature before the
Act was passed. Similarly, the Statement of Objects and Reasons of the Act may also be
considered when interpreting the provisions of the Act.
3. The Rule of ‘Noscitur a Sociis’: The Latin maxim, Noscitur a Sociis, has been translated
by Lord Macmillan as: The meaning of a word is judged by the company it keeps. Henry
Fielding expressed it in almost identical words: A word is known by the company it
keeps. Applying this rule, if the meaning of a word used in a particular section of an Act
is not clear, the Judge must look at the rest of the section in which the same word
appears. He may also ascertain the context in which the same word is used even in other
sections of that Act- and in some cases, a reference may also be made to earlier
legislation dealing with the same subject-matter where the same word had been used.
This doctrine ensures that no word is to be interpreted in isolation; rather, it should be
interpreted in the broader context in which it appears.
4. The rule of Ejusdem generis: The ejusdem generis principle is similar to the rule of
Noscitur a sociis. Ejusdem generis, meaning "of the same kind" in Latin, is a principle of
construction, which lays down that when general words in a statutory text are preceded
by restricted words, the meaning of the general words are to be restricted to things similar
to the restricted words. Thus, for instance, if a statute specifies automobiles, trucks,
tractors, motorcycles and "other motor-powered vehicles", aeroplanes would not be
included, as the list refers to land-based forms of transportation. In K. K. Kochuni v. State
of Madras and Kerala, (AIR 1960 SC 1080), a Constitution Bench of the Supreme Court
observed as under:
"The rule is that when general words follow particular and specific words of the
same nature, the general words must be confined to the things of the same kind as
those specified. But it is clearly laid down by decided cases that the specific
words must form a distinct genus or category. It is not an inviolable rule of law,
but is only permissible inference in the absence of an indication to the contrary."
5. The Rule of 'Expressio unius est exclusio alterius': This Latin maxim lays down that if
one thing is specifically mentioned, by implication, other similar things are excluded.
Thus, if in one section, an Act uses the word "children", and in another section, it refers
to "boys", the legislative intent would be that the latter section does not apply to all
children-but only to boys..
6. The "Golden Rule" for avoiding absurdity: Often, the words used by the legislature
may be ambiguous. In many cases, if a strict and narrow rule of interpretation is applied,
it would lead to absurd results. Such a logical defect may have been created by bad
drafting or by accident or by a slip or oversight - or even by placing a comma at the
 wrong place. As observed by Lord Denning, where a defect appears in the language of a
statute, a judge cannot simply fold his hands and blame the draftsman.
In such cases, that is, cases where certain words can be given either a sensible meaning or
an absurd meaning, the courts would naturally lean towards the first alternative. As
observed by Lord Reid, "When one interpretation brings about a startling and inequitable
result, this may lead the court to seek another possible interpretation which will do better
justice." Applying this principle, courts have held that the word 'may used in an Act may
properly have to be construed to mean 'shall. Likewise, the word and has sometimes been
interpreted to mean 'or-and vice versa. In all such cases, the courts try to interpret the
statute in such a way as to avoid "outrageous injustice'.
The "Golden Rule' has been applied by the courts, inter alia, in the following
circumstances:
● when there is an ambiguity in the words used by the statute;
● when there is an ambiguity between two provisions in the same statute;
● when there is a clerical error in the statute;
● when the legislature has not made a provision in the statute for that particular situation
which is before the court.
Lord Denning is the generally accepted champion of the theory that lays down that a purposive -
rather than a literal - construction should be used when interpreting the language used in an Act.
In his own words,
"We sit here to find out the intention of Parliament and carry it out, and we do this better
by filling in the gaps and making sense of the enactment rather than by opening it up to
destructive analysis."

INTERPRETATION OF CONTRACTS
Several years ago, the courts preferred to interpret the words of a contract in a strict, literal,
grammatical sense. In discovering the real intention of the parties, the court refused to fill in any
gap or to imply any term which was not there. The courts would not look into the actual minds of
the parties, but only at the actual words used by them.
Thus, in an old English case, a house was given on rent for a fixed term of 21 years. During this
period, the house was forcibly occupied by enemy troops for 3 years and the tenant could not use
it during this period. When he filed a suit claiming that he was not liable to pay rent for those 3
years, the court rejected his claim. Since he had agreed to pay the rent for 21 years, he was bound
by this term of the contract. It was open to him to have provided for contingencies such as these
in the contract itself, but as he had not done so, he was bound by his written words. (Pardine v.
Jane, 1947 Aleyn 26)
However, this theory that the court has no right to add to or vary a written contract has been
given up in course of time and Lord Denning has championed the theory that courts can imply a
reasonable term in the contract - to do full justice in the matter.
Thus, in Liverpool City Council v. Irwin, (1976 1 QB 319), a multi-storied building had been
constructed by the City Council and flats were let out to several tenants. The Council itself
retained control of the lift and the staircases. Some years later, these fell into disrepair and as the
tenants could not use the lifts, they had to walk up the stairs in the dark. The question before the
Court of Appeal was whether there was any obligation on the Council to repair them in the
absence of a specific clause to that effect in the contract between the Council and the tenants.
The majority of the judges held that there was no such obligation. Lord Denning, however, gave
a strong dissenting judgement, observing that it was an implied term in the contract that the
Council would keep the lift and the staircase reasonably fit for use by the tenant, his family and
his visitors. In the words of Lord Denning, -
"Suppose the lift falls out of repairs and breaks down. Can the landlord say to the tenant:
"It is not my obligation to repair the lifts. You must repair them yourself or walk up and
down the 200 steps."? Or, if the electricity bulbs blow out, can the landlord say: "I am not
going to replace them, now or at any time. You must go up and down in the dark as best
as you can."?
When the matter went in appeal to the House of Lords, Lord Denning's view that the Council
was under "an implied obligation" to take reasonable care to keep the lifts and staircase safe was
accepted. However, the House of Lords declined to accept his general proposition about there
being an "implied term" in the contract as regards the repairs.
Lord Denning also refers to the doctrine of presumed intent, which according to him, "seems to
be becoming fashionable". Under this doctrine, the court seeks to find out the "presumed intent"
of the parties, that is, what they would have presumably agreed if they had envisaged that
particular situation. Next, the doctrine presumes that the parties would have agreed upon a fair
and reasonable solution. Finally, the court declares what that fair and reasonable solution is and
applies the same.
In one case, a water company had agreed in 1929 to supply water to a hospital "at all times
hereafter" at a fixed rate of seven pence per thousand gallons. Fifty years later, this sum became
absurdly small, having been reduced to one-twentieth of what it was originally on account of
inflation. The hospital, however, claimed that it was entitled to get water at this ridiculously low
rate for all time to come. The Court of Appeal rejected this claim and Lord Denning relied on the
doctrine of presumed intent in support. (Staffordshire Area Health Agency v. South Staffordshire
Waterworks Co., (1978) 122 Sol. Jo. 331)
In another case, a husband had done considerable work renovating his wife's house. When they
separated, a question arose whether he was entitled to any compensation for his work and the
materials bought by him. Lord Denning observed that when the work was done, it was done for
the sake of the family as a whole. None of the parties had even thought of separation at that time.
There was no occasion for any bargain to be made as to what would happen if there was a
separation - as it was something no one had even contemplated.
In such circumstances, Lord Denning felt that it would not be correct to find out if there was ever
any bargain between the parties in the past - or even whether there was any implied intention.
Rather, a judge must do what is fair and reasonable in the circumstances. It was, therefore, held
that as a lot of renovation work had been done, the husband was entitled to get so much of the
enhanced value of the wife's house as was due to his work, labour and materials. The court
further observed that if and when the house was sold, the husband would be entitled to a fair
percentage of the sales proceeds. (Appleton v. Appleton, (1965) 1 WLR 25)
PRECEDENTS: RATIO DECIDENDI AND OBITER DICTA
If each Judge were left to himself to decide cases without reference to similar cases decided in
the past, the result would be utter confusion and chaos. Uniformity and certainty can be achieved
only when Judges follow, as far as possible, the law laid down earlier by their fellow Judges.
A precedent is a statement of law found in the judgement of a superior court whose decision has
to be followed by all inferior courts. The rule of law is the most significant feature of every
democracy; certainty and continuity are necessary ingredients of the rule of law.
The doctrine of stare decisis (binding force of precedents) is also reflected in Art. 141 of the
Constitution of India, which declares that the law laid down by the Supreme Court is binding on
all courts in India.
Declaratory theory of precedents
According to the declaratory theory of precedents, a Judge never makes the law; he merely
declares what the law is. The function of the Judge is merely to apply the law and not play a
creative role in making the law. This theory is, however, an oversimplification of the process of
application of the law. Quite often, a Judge is faced with a unique situation, a situation that has
never arisen in the past. In such cases, he lays down an entirely new principle, and to that extent,
he widens and extends the law. He develops a new rule by analogy and by deduction. The
declaratory theory breaks down in such cases.

Authoritative and persuasive precedents

An authoritative precedent is one which a Judge must follow, whether he approves of it or not. It
is binding on him and he cannot use his judicial discretion not to follow it. Thus, a judgement of
the Supreme Court is binding on all courts in India. A Judge of the Bombay High Court cannot
disapprove or disagree with it. It is binding on all courts until it is set aside by the Supreme Court
itself.
A persuasive precedent, on the other hand, is one which has only a persuasive value and is not
binding on the court. The court is under no obligation to follow it and has the discretion not to
apply it. However, the court would normally take such a precedent into consideration and attach
such weight to it as it deems fit. Thus, a judgement of the Gujarat High Court would have only
persuasive efficacy when cited before the Bombay High Court.

Ratio decidendi
Every judicial decision has two aspects. Firstly, there is a concrete decision which is binding on
both the parties. Secondly, it also contains a judicial principle on which the concrete decision is
based. It is this judicial principle which operates as a precedent, and has the force of law and one
which binds future litigants. This is called the ratio decidendi (or ratio) of the case; it is binding
not only on the litigants in that case, but as regards the world at large.
Thus, a suit is filed against a minor for enforcing a mortgage signed by him. As a minor cannot
enter into a valid contract, the court dismisses the suit. Here, the dismissal of the suit is the
concrete decision which binds both the parties to the suit. However, the legal principle on which
this decision is based, namely that a minor's agreement is totally void, forms the ratio decidendi
of the judgement.

Obiter dicta
Obiter dicta (or obiter) are things said by the Judge in the judgement, which are not really
necessary for the decision in that case. In other words, they are things said by the way. In the
words of Chief Justice Chagla, "An obiter dictum is an expression of opinion on a point which is
not necessary for the ultimate decision of the case."
Thus, in one case, a favourable Report given by a bank in respect of the financial condition of a
company turned out to be false. However, there was a disclaimer clause in the Report under
which the bank disclaimed any liability in the matter. In view of this clause, the court held that
the bank was not liable, However, having said that, the court went on to discuss what the bank's
liability would have been if such a clause was not there in the Report. This entire discussion -
which was not at all necessary to determine the liability of the bank in this particular case -
would be regarded as obiter.

Legal force of ratio decidendi and obiter dicta

As a ratio decidendi reflects a legal principle which is applicable not only to that particular case,
but generally, it constitutes a legal source of law. It forms a precedent which must be followed in
subsequent cases. An obiter dictum is not a precedent, and is therefore not binding in other cases.
Although the distinction between the two sounds admirably clear-cut in theory, in actual practice,
it is not always easy to distinguish between a ratio and an obiter. In some cases, the dividing line
between the two is quite thin. and it becomes difficult to determine whether a particular
observation appearing in a judgement should be regarded as a ratio decidendi or an obiter
dictum.