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Nam Nemo Haeres Viventis

Origin

Latin

Literal Meaning

No one is heir of a living person

Explanation

Only when the ancestor dies, does an individual become an actual, complete heir to another. His / her father or other from whom he/she inherits must be deceased before a child may become an heir. According to the proverb, nemo est haeres viventis, the living children are expectant only descendants, and thus no one will take an estate under that title whilst the ancestor remains. When a will is made by the testator it is his intention that what will be done to his property after his death and thus it decides who will be his heir and because of this until death, nothing can be ascertained?

Illustrations

A is the father of his only son B and through the maxim Nam nemo haeres Viventis B can be his legal heir but does not become complete heir till A dies.

Case Laws

In Illinois Co. vs. Bosworth, there were only 2 children surviving of Mr. Bosworth to recover a certain portion of land in New Orleans. The land belonged to his father and that was seized due to some illegal activities by the father. On petitioner claiming the land, the Supreme Court of United States used the maxim nam nemo haeres viventis for the 1st time in this case and held the claim of the petitioner illegal.

In Krishna Kumar Birla vs. Rajendra Singh Lodha, the deceased industrialist Birla executed several wills and at last will in 1999 bequeathed his properties to the respondent Rajendra Singh Lodha thereafter the caveat was filed by the appellants opposing the will as they were his legal heirs.

The court has referred to S.2(h) with the maxim and nam nemi haeres viventis that there is no heir until the death of a person and he has executed a will so the properties belonged to the name mentioned in the will.

In Shamsudin vs. Abdul Hoosein If the heir apparent made a settlement of the property before the death of the propositus and got the money on the account that he would not have a claim in the share. He cannot make that transfer as he is not the legal heir by the maxim Nam nemo haeres viventis because the legal owner of the property is still alive and the transfer was held to be void by the top court.


This maxim has been written and submitted by Mr. Nikhil Punshi during his course of internship at B&B Associates LLP. Mr. Nikhil is a third-year law student at the Hidayatullah National Law University, Raipur.

Erga Omnes

Literal Meaning

“Towards All” Or “Towards Everyone”

Origin

Latin

Explanation

The maxim in legal terms means obligations and rights towards all. It is a kind of implied duty of any person or state also to not infringe the rights of anyone by performing his duty or during exercising his rights. In bifurcation erga means “towards” and omnes means “all”. this right is different from the contractual rights because erga omnes rights are enforceable against all and the latter is enforceable against the contracting parties only.

Illustrations

When the state has discriminated against violating the fundamental rights varying from article 14 to article 32. It is said that states have erga omnes the citizens i.e. the state have obligations towards paying respect to the fundamental rights of every citizen.

For e.g. property is an erga omnes thing which means that anybody having property will have legally enforceable rights in that property towards all infringing on his rights.

Case Laws

Barcelona Traction Case (Spain vs. Belgium)

Barcelona traction was a company in Canada and supplied electricity in Spain. There were investors who were non-Spanish and during the civil war, the Spanish government did not allow the company to pay the interest due to the investors. There was a dispute between Canada and Spain for treaty violations. In its judgment the international court of justice gave rise to the concept of erga omnes in the international law, the judgment the court said about erga omnes obligation of a state towards the international community as a whole and in the protection of those all states have erga omnes right, and erga omnes obligation of a state towards another state.

The court in Portugal vs. Australia where there was an issue pertaining to the territory of East Timor between Portugal who was having it earlier and presently Australia took over it from Indonesia. The ICJ went on to enforce the erga omnes obligation of the state towards the principle of self-determination by which people freely determine their political status.

In Ethiopia vs. South Africathe case pertaining to the issue of membership of league of nations, the court has laid the erga omnes obligation of outlawing of acts of aggression.  All members in their international relations shall refrain from using force or threat against any other state.

In Sree Swamy Prakash Ashramam vs. G. Anandvalli Amma & Ors. where the issue was for the right to get the way by easement rights, the apex court by virtue of Indian easement act has laid down that the person has erga omnes right to get the way out of easement.

In the case ofM.C Mehta vs. Union of India which is the oleum gas leak case in the Shriram fertilizers Delhi, the supreme court has carved out the polluter pays principle and forced erga omnes obligations for protecting the environment.


This maxim has been written and submitted by Mr. Nikhil Punshi during his course of internship at B&B Associates LLP. Mr. Nikhil is a third-year law student at the Hidayatullah National Law University, Raipur.


Lex Punit Mendaciam

LITERAL MEANING

The Law Punishes Falsehood

ORIGIN

Latin

EXPLANATION

In this legal maxim, there are three special components which are explained below:

  • The law: the system of rules which a particular country or the community recognizes as regulating the actions of its members and which it may enforces by the imposition of penalties.
  • Punishes: it inflicts a penalty or sanction on someone as retribution for an offense, especially a transgression of a legal or moral code.
  • Falsehood: a statement or assertion known to be untrue, and intended to deceive. A willful act or declaration is contrary to the truth.

So basically, it states that the law punishes the acts which are wrongful in nature. The law does not punish the innocent.

ILLUSTRATION

As the murder trial progressed, both the sides presented their arguments; after listening to them, Court declared the imprisonment for 10 years to the guilty party and remarked ‘lex punit mendaciam.’

CASE LAWS

In the case of Rangappa and Others vs. the State of Karnataka, it was held that the “petition stands disposed of. Further, it is also observed that any person, by obtaining false caste certificate has obtained appointment either in the State Government or the Central Government, and if it is found that the person has made false gains based on the false certificate, then the said person has to be prosecuted for the above offense. It is necessary to refer to the legal maxim lex punit mendaciam that means law punishes falsehood.”

Further, in the case of Hs Bedi vs. National Highway Authority, it was held that “to enable the Courts to ward off unjustified interference in their working, those who indulge in immortal acts like false claims have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail.”


This maxim has been written and submitted by Ms. Vishakha Bhardwaj during her course of internship at B&B Associates LLP. Ms. Vishakha is a third-year law student at the Army Institute of Law, Mohali.


Lex Succurrit Ignoranti

Literal Meaning

The law succors the ignorant

Origin

Latin

Explanation

According to this maxim, the law aids the ignorant. Ignorant means someone who has no knowledge of the law which is a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority.

Case Laws

In A Abitha v. Eben Jayanth, 2012 SCC Online MAD. 4810, the Madras High Court Justice G. Rajasuria while referring to the above maxim said that “Ignoring all these important salient features, the lower Court Judge concerned simply set the wife and her alleged guardian exparte and passed the exparte judgment and decree declaring the marriage as a nullity. Even for argument’s sake, it is taken that despite notice having been served on the alleged mentally challenged person and her guardian, none appeared before the Court, yet the duty was cast upon the Court to appoint a fresh Court guardian for the carriage of the case. Such procedure is found explicitly detailed in Order XXXII of the Code of Civil Procedure.”


This Maxim has been written and submitted by Mr. Sourav during his course of internship at B&B Associates LLP. Mr. Sourav is a third-year law student at the Hidayatullah National Law University, Raipur.

Nemo Punitur Pro Alino Delicto

Literal Meaning

No one is punished for the crime of another

Origin

Latin

Explanation

This means to say that no person can be punished for any crime which has been done by some other person. He should be punished only for the crime he has done, not for the crime other has done. Therefore, this is one of the important principles which means that the person who has committed the crime will only be liable and hence would be given the punishment. This is not something that could be transferred to another person, like an asset or liability. Every person suffers from the crime he or she has committed.

Illustration

A has committed trespass in B’s house. “C” a guard cannot be punished for trespass as he hasn’t committed any crime. No second person can be punished for the crime of another.

Case Laws

The District Collector vs Tmt.T.V.Kasturi on 21 February 2014

It is seen that marriage between the respondent/petitioner and one Chinnasamy, who is also employed in the Revenue Department as an Assistant was solemnized on 11.06.1985 without prior permission from the appellant/respondent, which resulted in the issuance of charge memo against the petitioner after a period of 22 years. Learned Single Judge, after considering the settled proposition of law and various aspects involved in the matter, decided to quash the charge memo on the sole ground of delay. The only question to be decided in the case on hand is as to whether issuance of charge memo after a lapse of 22 years is permissible in the absence of any specific assertion or denial by the appellant as to the application made by respondent/petitioner, seeking permission for marriage under the Conduct Rules. The answer is in negative, as there is no justification pleaded in keeping the application pending for so many years without taking any decision either way and therefore, it goes without saying that Nemo punitur pro alieno delicto (No one must be punished for the wrong of another).


This Maxim has been written and submitted by Ms. Aarushi Kapoor during her course of internship at B&B Associates LLP. Ms. Aarushi is a third-year law student at Hidayatullah National Law University, Naya Raipur, Chhattisgarh.

Non Definitur In Jure Quid Sit Conatus

LITERAL MEANING

What an attempt is, is not defined in the law

ORIGIN

Latin

EXPLANATION

The maxim can be defined as an attempt is nowhere defined in the law. A person commits the offense of ‘attempt to commit a particular offense’ when he intends to commit that particular offense, and he, having made preparations and with the intention to commit the offense, does an act towards the commission; such an act need not be second last act towards the commission of that offense nut must be an act during the course of committing that offense.

This is an old maxim which is used in modern times. This maxim is interpreted by many jurists. This maxim is being interpreted in many cases and precedents as well.

ILLUSTRATION

The Police Officer arrested a person after gathering enough evidence against him for an attempt to murder; after being produced in the Court, the Judge claimed that it is non definitur in jure quid sit conatus.

CASE LAWS

In the case of State of Maharashtra vs. Mohd. Yakub S/O Abdul Hamid & Ors, it was held that ‘what constitutes as an “attempt” is a mixed question of law and fact, depending largely on the circumstances of the particular case. “Attempt” defies a precise and exact definition. Broadly speaking, all crimes which consist of the commission of affirmative acts are preceded by some covert or overt conducted which may be divided into three stages.


This maxim has been written and submitted by Ms. Vishakha Bhardwaj during her course of internship at B&B Associates LLP. Ms. Vishakha is a third-year law student at the Army Institute of Law, Mohali.

 

Executio Est Finis Et Fructus Legis

Origin

Latin

Literal Meaning

Execution is the end and the fruit of the law

Explanation

The term “execution” has not been defined in the code. The expression “execution” simply means the process for enforcing or giving effect to the judgment of the court. The principles governing the execution of decree and orders are dealt with in Sections 36 to 74 and Order 21 of the Civil Procedure Code.

Implementation of litigation is also known as an execution. A decree will come into existence where the civil litigation has been instituted with the presentment of the plaint. The decree means operation or conclusiveness of judgment. Implementation of a decree will be done only when parties have filed an application in that regard. A decree or order will be executed by the court as facilitative and not an obligation. If a party is not approaching the court, then the court has no obligation to implement it suo moto. A decree will be executed by the court which has passed the judgment. In exceptional circumstances, the judgment will be implemented by another court which is having competency in that regard.

Execution is the medium by which a decree-holder compels the judgment-debtor to carry out the mandate of the decree or order as the case may be. It enables the decree-holder to recover the fruits of the judgment. The execution is complete when the judgment-creditor or decree-holder gets money or other thing awarded to him by judgment, decree, or order.

Illustration:

A files a suit against B for Rs 10,000 and obtains a decree against him. Here A is the decree-holder. B is the judgment-debtor, and the amount of Rs 10,000 is the judgment- debt or the decretal amount. Since the decree is passed against B, he is bound to pay Rs 10,000 to A. Suppose in spite of the decree, B refuses to pay the decretal amount to A, and A can recover the said amount from B by executing the decree through the judicial process. The principle governing the execution of decree and orders are dealt with in Sections 36 to 74 (substantive law) and Order 21 of the code (procedural law).

Case Laws

Supreme Court in Ghanshyam Das vs. Anant Kumar Sinha dealing with the provision of the code relating to the execution of decree and orders, stated, “so far as the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all aspects. The numerous rules of Order 21 of the code take care of different situations providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors, as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party inadequate measures and appropriate time, the answer is a regular suit in the civil court.


This maxim has been written and submitted by Ms. Aarushi Kapoor during her course of internship at B&B Associates LLP. Ms. Aarushi is a third-year law student at Hidayatullah National Law University, Naya Raipur, Chhattisgarh


Qui Prior Est Tempore Potior Est Jure

LITERAL MEANING

He who is earlier in time is stronger in Law

ORIGIN

Latin

EXPLANATION

It means he who is first in time is first in right or one who is prior in time has a superior right in law. The maxim is qui prior est tempore potior est jure: he who is earlier in time is stronger in law. Accordingly, where there are two competing equitable interests, the general rule of equity is that the person whose equity attached to the property first will be entitled to priority over the other. Where the equities are equal and neither claimant has the legal estate, the first in time prevails. This maxim is incorporated in Section 48 of Transfer of Property Act in India.

ILLUSTRATION

X mortgages his property to Y for Rs. 90,000/-. And then sells the property to Z. Here two transfers have taken place. Now Z owns the property but according to the law, the property is still subject to the mortgage and in case of default of payment of the loan, the mortgagee can cause the property to be sold. As the later transfer is subject to the prior transfer.

CASE LAW

In the case of S. Arunachalam vs. Sivan Perumal Asari it was held that this rule applies only to cases where the conflicting equities are otherwise equal.

The Madras High Court in Duraiswami Reddi vs. Angappa Reddi held that the prior transferee would be entitled to enforce his rights through his document is registered later and even if the subsequent transferee entered into transactions bona fide without knowledge of the first transaction. It was held that this result was implicit and was a direct consequence of the combined operation of Section 47 of the Registration Act and Section 48 of the Transfer of Property Act.


This Maxim has been written and submitted by Ms. Agrima during her course of internship at B&B Associates LLP. Ms. Agrima is a third-year law student at Hidayatullah National Law University, Naya Raipur, Chhattisgarh.

Crimen Falsi

Literal Meaning

The crime of falsehood

Origin

Latin

Explanation

It refers to the crime of deceit. In common law, the crime of deceit is the main element of falsehood and fraud which refers to a fraudulent alteration or forgery to conceal the truth to the prejudice of another.

Illustration

It includes fraud, forgery, perjury, conspiracy, use of false weights and measurements, fraudulent alteration of writing etc.

Case laws

In the United States of America vs. Robert Nello Brackeen [969 F.2d 827 (9th Cir. 1992)], the Hon’ble Court held that bank robbery is not Crimen Falsi. Court further defined Crimen Falsi as per Black Laws Dictionary “Term generally refers to crimes in the nature of perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense which involves some element of deceitfulness, untruthfulness, or falsification bearing on the witness’ propensity to testify truthfully.”

In Green vs. Bock Laundry Machine [490 US 504 (1989)], Justice Gibbons held that “the mandatory admission feature of prior crimen falsi convictions does not apply to the admissibility of prior felony convictions in civil cases.”


This Maxim has been written and submitted by Ms. Navya Sony during her course of internship at B&B Associates LLP. Ms. Navya is a final year law student of Symbiosis Law School, Pune.

Ex Injuria Jus Non Oritur

Literal Meaning

Illegal Acts Cannot Create Law

Origin

Latin

Explanation

Ex injuria jus non oritur is a Latin phrase which means “illegal acts cannot create law.” In other words, a legal right or entitlement cannot arise from an unlawful act or omission. This means that a right cannot arise from wrongdoing. This is a principle of great importance in international law and suggests that any state which obtains land by nondefensive war or such other aggressive action, cannot claim any legal rights to the land unlawfully obtained. It is often summarized as ex injuria. Certain facts when they spring from crime or other illegal or unlawful acts or omissions, no matter how public or prominent, cannot form the basis of law or legal rights.

The maxim plays an immense role in clarifying certain important dimensions of International Law. In international law it is used to suggest that any state unlawfully obtaining land such as through non-defensive war or other such aggressive action, cannot assert any legal rights to that land unlawfully obtained.

Illustration

For example, if a person seeking to break and enter your home in the middle of the night, fell into a deep construction hole, he could be estopped or precluded from obtaining damages because of ex injuria.

Recent Case Laws in International Law

The recent application of this legal maxim has been in the case of Kulbhushan Yadav. Pakistan before the International Court of Justice pleaded for India’s alleged unlawful conduct. There has been an adequate amount of dependence on the doctrine of “clean hands” and the principles of “ex turpi causa [non oritur actio]” and “ex injuria jus non oritur”, Pakistan contends that India has failed to respond to Pakistan’s request for providing the required assistance with the investigation into Mr. Jadhav’s activities, that it has provided him with a “false cover name authentic passport” and, more generally, that it is responsible for Mr. Jadhav’s espionage and terrorism activities in Pakistan. However, The Court does not consider that an objection based on the “clean hands” doctrine may by itself render an application based on a valid title of jurisdiction inadmissible. It takes into consideration the phenomenal judgment of times that is the case concerning Certain Iranian Assets (the Islamic Republic of Iran vs. the United States of America), it ruled that “even if it were shown that the Applicant’s conduct was not beyond reproach, this would not be sufficient per se to uphold the objection to admissibility raised by the Respondent on the basis of the ‘clean hands’ doctrine”. The Court, therefore, concludes that Pakistan’s objection based on the said doctrine must be rejected

There has been yet another case law wherein the Court elaborated exhaustively his maxim. The Court in Chorzów Factory case reached the same conclusion with respect to the explanation of this principle. The above finding leads the Court to a similar conclusion with regard to the principle of ex injuria jus non oritur, which stands for the proposition that unlawful conduct cannot modify the law applicable in the relations between the parties.


This Maxim has been written and submitted by Ms. Aarushi Kapoor during her course of internship at B&B Associates LLP. Ms. Aarushi is a third-year law student at Hidayatullah National Law University, Naya Raipur, Chhattisgarh.

Consensus Ad Idem

Literal meaning

Meeting of the minds/ mutual agreement

Origin

Latin

Explanation

Consensus ad idem means meeting of minds, mostly used in contract law, which refers to the fact that there is an agreement among the parties to contract. It simply means that there exists a mutual agreement among all parties to a contract. The agreement is one of the essential ingredients that constitute a contract. If the parties do not reach a stage of mutual assent then a valid contract can not be formed. The phrase is commonly used to refer to a situation of mutual understanding in the formation of a contract over the same thing. The formation of a valid contract consists of certain essential characteristic features, the agreement being one of them. Therefore, it can be understood in a way that in the absence of meeting of minds, a contract so formed is void ab initio (i.e. null and void from the very beginning). Meeting of minds is very essential to avoid any kind of misunderstanding and confusion in the later stages of a contract and to ensure proper execution of the purpose of entering into a contract. Thus, an agreement is a key feature that can make or break a contract or a legal relation, it is therefore very necessary that the parties are on the same page as to material facts, and contingencies involved in a contract.

The formation of a valid contract involves the following stages:

It is clear from the above flow chart that agreement to all the terms of a contract are very essential for a valid contract to be formulated. This phrase of Consensus ad idem originated from the fact that contracts are rendered void if the parties are not on the same tangent when it comes to terms and conditions that constitute a contract. Hence, in order to avoid conditions like mistake and misrepresentation that consequently makes a contract null and void, shall be removed at the time of formulating/ drafting a written contract. All kinds of perplexities shall be avoided in the terms of the contract and shall not be subject to any ambiguity.

Meeting of minds is therefore very necessary. It does not completely eradicate the possibility of difference in opinion but simply means that all the different opinions shall be clearly discussed and accommodated in a manner that does not overlook the interests of all parties to a contract. It focuses on the removal of any sort of confusion, that may, later on, lead to conflicts. Hence, mutual agreement is essential to keep away any conflicting situation that may arise from a misunderstanding when the contract was formulated.

Illustration

A and B are two parties willing to enter into a contract, they discuss the terms and conditions before formulating the contract and there are certain clauses that do not disclose the clear meaning of certain words used in the terms. In such a condition, the contract will not be a valid contract, since consensus ad idem is not reached.

Case laws

1. BRIJ MOHAN & ORS. VS. SUGRA BEGUM & ORS. 1990 SCR (3) 413

It was a case regarding the specific performance of an oral contract. In a landmark judgment, the Apex court aptly summarised that meeting of minds is a vital ingredient to establish the existence of a valid contract between the parties and held that:

“We have given our careful consideration to the arguments advanced by learned Counsel for the parties and have thoroughly perused the record. We agree with the contention of the Learned counsel for the appellants to the extent that there is no requirement of the law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of the contract of sale of immovable property on the basis of an oral agreement alone, a heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for the sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and the circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for the sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently, would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement.”

2. I.T.C LTD. VS. GEORGE JOSEPH FERNANDES & ANR. 1989 AIR 839

In this case, the court held that:

“Section 20 of the Indian Contract Act, 1872 provides that where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void. The explanation to the section says that an erroneous opinion as to the value of the thing which forms the subject-matter of the agreement is not to be deemed a mistake as to a matter of fact. Where the parties make a mutual mistake, misunderstanding each other and are at cross purposes, there is no real correspondence of offer and acceptance and the parties are not really consensus ad idem. There is thus no agreement at all; and the contract is also void. A common mistake is there where both parties are mistaken about the same vital fact although both parties are ad idem, e.g. the subject-matter of the contract has already perished.”

Conclusion

After reading the contents discussed above, it is crystal clear that in a case where the parties to a contract lack mutual agreement, the contract is rendered void. No Consensus ad idem equals no contract. Therefore, it can be understood that mutual assent/ meeting of minds is a key ingredient to formulate a valid contract.


(This Maxim has been written and submitted by Ms. Mansi Batra during her course of internship at B&B Associates LLP. Ms. Mansi is a third-year law student at the Fairfield Institute of Management and Technology, Kapashera, New Delhi.)

Functus Officio

LITERAL MEANING

Having performed his duty, having served its purpose/ Of no further legal effect

ORIGIN

Latin

EXPLANATION

It means no longer holding an office or having official authority. When an officer or agency whose mandate has expired either because of the arrival of an expiry date or because an agency has accomplished the purpose for which it was created it is termed as functus officio.

ILLUSTRATION

Once an arbitrator makes an award, she is functus officio—used especially of an officer who is no longer in office or of an instrument that has fulfilled its purpose

CASE LAW

Re: VGM Holdings Ltd (1941 (3) All. ER 417)

When a judge passes an order and it is registered, he becomes functus office. This means he cannot change the order passed as he no longer has the capacity to do so. The change in order can only be made by the high court.

State Bank of India & Ors. vs. S.N. Goyal

In this case court held that once the order has been passed by the Appointing Authority it becomes functus officio. Thereafter, they cannot modify, review and revise the order.

Juggilal Kamlapat vs. General Fibre Dealers Ltd., AIR 1962 SC 1123

Arbitrator becomes functus officio after he has made the award, it means that he cannot change that award in any matter of substance himself.


(This Maxim has been written and submitted by Ms. Agrima during her course of internship at B&B Associates LLP. Ms. Agrima is a third-year law student at Hidayatullah National Law University, Naya Raipur, Chhattisgarh.)

Omne Majus Continet In Se Minus

Meaning

“The greater contains or embraces the less”.

Origin

This maxim was suggested in the book “A Selection of Legal Maxims, Classified and Illustrated” by Herbert Broom. It’s a Latin Maxim.

Explanation

It’s a maxim used in criminal law. When this maxim is applied it literally means when a person is convicted for a greater offense, he can also be charged with smaller offenses as well. He can be convicted for a minor offense as well.

Illustration

A person charged for homicide can be convicted for manslaughter as well.

Case laws

State of New Jersey vs. Andrew [232 A. 2d 477 (1967)], Justice Kapp of the superior court of New Jersey held that “It is fundamental that a party indicted for a crime may be convicted of any offense of a lower grade, provided such lower offense is included within the description of the indictment.” He further held that “This rule of court, R.R. 3:7-9(c) (of the New Jersey Statutes Annotated), is declaratory of the maxim, omne majus continet in se minus … the greater contains the less.”

In People of the State of New York vs. Psaty & Fuhrman [240 NYS 2d 830 (1963)], Justice William Ringel held that “The People contend that the power to revoke includes the lesser power to suspend the permit (omne majus continet in se minus). Many cases are cited in support of this position.”


(This maxim has been written and submitted by Ms. Navya Sony during her course of internship at B&B Associates LLP. Ms. Navya is a final year law student of Symbiosis Law School, Pune.)


Contracture Uberrima Fides

Literal meaning

Utmost good faith/ most abundant faith

Origin

Latin

Explanation

The legal maxim uberrima fides refer to utmost good faith. The underlying principle that governs this maxim is that all human acts should be backed by good faith. Talking about, contracture uberrima fides, the phrase means that all kinds of contracts (commercial transactions) must be free from any kind of concealment, fraud, and misrepresentation. It simply says that any contract where the material facts are not disclosed on the part of either party to the contract stands null and void. The maxim majorly governs the insurance contracts. A complete and clear declaration of all material facts is vital for validating a contract. The said maxim, however, contradicts the maxim of Caveat Emptor (let the buyer be aware).

The maxim is sometimes also referred to as uberrimae fidei.

In contract law, the implied covenant of good faith is a general presumption, which states that the parties to the contract are thoroughly aware of all necessary facts with regards to the terms and conditions of contracts, and all material facts have been clearly stated. There exists no ambiguity concerning the contents of the contract. Good faith is presumed to be one of the essentials required to constitute a contract, this intention can be observed by the existence of sections like competency to contract and essential conditions of aa valid contract (also including the section 14 which talks about free consent as an essential of a valid contract). Section 14 of the Indian Contract Act, 1872, clearly rescinds all contracts that came into existence by means other than free consent. Any contract based on concealment of material facts, misrepresentation, fraud, attainment of consent by coercion are all void ab initio, i. e. invalid from the very beginning.

Under criminal law, the principle of good faith as defined under section 52 of the Indian Penal Code 1860, read as ‘Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention’.

Any contract, which is derogatory to the principle of good faith, creates a criminal liability on the wrongdoer.

Contracture uberrima fides, one of the major principles that govern the insurance contracts, create a mutual responsibility on both the insurer and the person insured to disclose all material facts. It states that Contract of Insurance is a contract for discharging mostly the indemnification liability by an insurer for premium tendered by the insured to the insurer.

Illustration

For instance, in a health insurance contract, the insured fails to disclose material facts like suffering from asthma or some other kind of health issue, results in non-disclosure of material facts, and ultimately frees the insurer from all liabilities of indemnifying the insured.

Similarly, if the insurer conceals certain material facts, the contract of insurance stands invalid, rendering the insurance company liable to compensate the insured along with damages and legal expenses.

Case laws

LIC vs. G.M. Channabasamma, (AIR 1991 SC 392) In a landmark judgment, the Apex Court held that the onus of proving that the policyholder has failed to disclose material facts lies in the corporation. It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know.

The above-cited judgment was used as a reference in the decision in another case having similar facts and circumstances, as cited below:

Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd. (2000 (2) SCC 734) It was observed that: “It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured must disclose and similarly, the insurance company and its agents must disclose all material facts in their knowledge since the obligation of good faith applies to both equally”.


(This Maxim has been written and submitted by Ms. Mansi Batra during her course of internship at B&B Associates LLP. Ms. Mansi is a third-year law student at the Fairfield Institute of Management and Technology, Kapashera, New Delhi.)

Innuendo

LITERAL MEANING

An indirect remark / Make a sign to

ORIGIN

The word innuendo comes from the Latin phrase innuere meaning ‘make a sign’

EXPLANATION

An innuendo (pronounced in-yu-EN-do) is when you say something on the surface that’s friendly and harmless that implicitly implies an insult or disrespectful remark, a dirty joke, or even social or political critique. Innuendos are widely used as a socially appropriate means of being critical, rude, sexual, funny, or even flirtatious in daily conversations. Typically, Innuendo applies to a circumstance in which an individual expresses a factual situation and a misinterpretation is extracted from it. An intimation regarding someone or something rendered implicitly or explicitly to imply the implied object. Often when the subject indicated is derogatory or derogative.

ILLUSTRATION

The former Mayor is a crook,” and Joe Alabaster is the only living ex-Mayor, thus innuendo Alabaster is the target of the statement.

CASE LAW

The aspect of innuendo was brought out best in the case of Lewis Vs. Daily Telegraph Ltd. In that case two newspapers published statements that officers of the City of London Fraud Squad were inquiring into the affairs of R.Co. and its subsidiary companies and that the chairman of the R.Co. was one Lewis who brought actions for libel against each newspaper. The two sets of actions were tried separately. L pleaded an innuendo to the effect that the statement meant that he had been guilty of fraud or was suspected by the police of having been guilty of fraud or dishonesty in connection with R.Co.’s affairs. R. Co. pleaded an analogous innuendo. The plaintiffs did not allege special damage. The defendants admitted that the words were defamatory in their ordinary meaning, but pleaded justification in that the fraud squad were at the time of publication inquiring into the affairs of R.Co

In W. Hay and Ors. v. Aswini Kumar Samanta a Division Bench of the Calcutta High Court held that it is well-settled that in a “libel action” the ordinary defamatory words must be set out in the plaint. Where the words are per se or prima facie defamatory only the words need be set out. Wherever the defamatory sense is not apparent on the face of the words, the defamatory meaning, or as it is technically known in law, the innuendo must also be set out and stated in clear and specific terms. Where again the offending words would be defamatory only in the particular context in which they were used, uttered, or published.


This Maxim has been written and submitted by Ms. Agrima during her course of internship at B&B Associates LLP. Ms. Agrima is a third-year law student at Hidayatullah National Law University, Naya Raipur, Chhattisgarh.

Ubi Jus Ibi Remedium

Literal Meaning

Where there is a wrong, there is a remedy.

Origin

Latin

Explanation

The maxim states that if any wrong has been committed, the law provides a remedy. In simple terms, the law specifies a remedy for every wrong. It shall also be described as the principle that no wrong should be allowed to go without any compensation if it can be redressed by a court of law. According to the law, wrong actions are those which are not prescribed by moral rules or which are prohibited by law. When a person’s right is denied, the law affords the remedy of an action for its enforcement. Thus, this right to a remedy includes a right of action. The maxim also states that the person whose right has been infringed has the right to enforce the infringed right through any action before the court.

The Law of Tort is a development of the Latin Maxim Ubi jus ibi remedium. The term jus in the maxim refers to the legal authority to do something or demand something, whereas the term remedium refers to the right of a person to approach the court for the wrong done to him. It is to be noted that the maxim applies only to the cases where a legal wrong has been done to a person and not for the moral or political wrongs.

Applicability

The applicability or the essentials of the maxim includes

  1. To be applicable where there is a right which is recognized by the law.
  2. To the wrongful act which violates the legal rights of the person.
  3. To be applicable when sufficient relief has not been provided by the court.
  4. To be applicable if there is a legal injury.

Exceptions

Although the maxim denotes that every wrong has equity of remedy provided by the law, it shall not be applicable in the following cases:

  1. To moral and political wrong which are not actionable.
  2. To breach of marriage vows or personal commitment without consideration.
  3. To those who do not have legal damage.

Illustration

A cloak tower fell due to the negligence on part of the Municipal corporation thereby injuring various people. The injured people have the right to ask for a suitable remedy in the law court.

Case Laws

In Sardar Amarjit Singh Kalra vs. Promod Gupta & Ors., the Supreme Court held that the maxim ‘Ubi jus ibi remedium’ is recognized as a basic principle of the theory or philosophy of law and that courts have to protect and maintain the right of parties and help them instead of denying them relief.

In Bhim Singh v. State of Jammu & Kashmir, the petitioner was MLA of Jammu and Kashmir parliamentary assembly. While he was on his way to attend the parliamentary session, he was wrongfully arrested by a police officer and he was restrained from attending the parliamentary session. He was not presented before the magistrate in time and he had a legal right to attend the meeting. His fundamental right under Article 21 of the Constitution was also violated. The Supreme Court held that the defendants were responsible and awarded Rs.50,000 as compensation to the petitioner for the infringement of his fundamental right.

In Shivkumar Chadha vs. Municipal Corporation of Delhi, the Supreme court held that where statutory enactments do not provide any remedy but only creates rights and liabilities if any person complains of his rights being violated or wrongly affected such person can approach the civil court based on the principle of legislation that where there is a right, there is a remedy.

In the case of Asbhy vs. White, Ashby was a qualified voter, however, he was stopped from voting in the parliamentary elections. The candidate he wished to vote for, won the election. Now the question arose that whether the right has been infringed and if the answer is in affirmative can he ask for remedy? The court held that though the plaintiff has suffered no damage as the candidate he wished to vote for, won the election but the legal right of the plaintiff has been violated and he is entitled to enforce the right. The maxim ubi jus ibi remedium was applied in the case and compensation was provided to the petitioner.


This Maxim has been written and submitted by Ms. Nidhi Chillar during her course of internship at B&B Associates LLP. Ms. Nidhi is a third-year law student at the Vivekananda Institute of Professional Studies, New Delhi, Delhi.

Affirmanti Non Neganti Incumbit Probatio

LITERAL MEANING

The burden of proof lies upon him who asserts and not upon him who denies

ORIGIN

Latin

EXPLANATION

Generally, it is the duty of the party who is asserting something, to prove the claims. The party affirming has to produce sufficient evidence in order to avoid the dismissal of the case. However, in criminal cases, the burden of proof is on the prosecutor to prove the guilt of the accused beyond a reasonable doubt. Nonetheless, in civil matters, the plaintiff needs to submit necessary facts and evidence as the burden of proof is on him and not on the defendant.

However, in some cases, the burden of proof might shift on the defendant, but this circumstance arises only when the defendant raises his defense against the plaintiff’s claims.

ILLUSTRATION

As the hustle created after the commencement of the trial, the Court issued affirmanti non neganti incumbit probatio, and ordered the plaintiff to submit the facts and evidence of the case.

CASE LAWS

In the case of Iniyan Sampath V. Sridharan, the major consideration was that whether there is any evidence available on record to prove the bona fide requirement of the landlord in respect of the demised premises. For this, the Madras High Court pointed this maxim and stated, “Affirmanti, non neganti, incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.”

Further, in the case of Kasthuri Ammal V. G Sampath, the Madras High Court again highlighted the importance of this maxim and stated that, “I would like to fumigate my mind with the following maxim – Affirmanti non neganti incumbit probation – The burden of proof lies upon him who asserts and not upon him who denies.”


This Maxim has been written and submitted by Ms. Vishakha Bhardwaj during her course of internship at B&B Associates LLP. Ms. Vishakha is a third-year law student at the Army Institute of Law, Mohali.

Sub Silentio

Literal meaning

under or in silence : without notice being taken or without making a particular point of the matter in question

origin

latin

Explanation

the maxim refer to something that is implied but not expressly stated. Commonly, the term is used when a court overrules the holding of a case without specifically stating that it is doing so.

Illustration

To assume that Congress, which had enacted a criminal sanction directed against state judicial officials, intended sub silentio to exempt those same officials from the civil counterpart approaches the incredible.

Case reference

In Municipal Corporation Of Delhi vs. Gurnam Kaur, the court while citing the above maxim and held that “A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of sub silentio.”

In Subin Mohammed S. vs. Union Of India the court observed that ‘precedents sub-silentio and without argument are of no moment’.

In State Of U.P And Another vs. Synthetics And Chemicals Ltd., it was held that “A decision passes sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind.”

It was approved  in Municipal Corporation Of Delhi vs. Gurnam Kaur, that, ‘precedents sub-silentio and…be levied on industrial alcohol with utmost respect fell in both the exceptions, namely, rule of sub-silentio and being in per incuriam, to the binding authority of the precedents.”


(This news has been written and submitted by Mr. Yogesh Sharma during his course of internship at B&B Associates LLP. Mr. Yogesh is a third-year law student at Chandigarh University, Gharuan, Mohali.)