legal maxim is an established principle or proposition of law or a legal policy usually stated in latin form. Most of these Latin maxims originated from the Medieval era in the European states that used Latin as their legal language. These principles guides Courts all over the world in applying the existing laws in a fair and just manner to enable the Courts in deciding issues before it. Such principles don’t have the authority of law but when Courts apply the maxims in deciding issues of law or the legislature incorporates such maxims while framing laws, they take the form of law and form the basis of sound judgements.
SOME of the legal maxims obtainable in our courts.
1. Ab initio – From the very beginning of the law/ act it was bad. Such a term is used in reference to law, agreements, a deed executed between parties, marriage etc. If something is said to be void ab initio, the thing was never created or void to begin with.
- Supreme Court used the latin term “ab initio” to arrive at a conclusion that the proceedings were ab initio defective as they could not have been instituted since the firm in whose name the proceedings were instituted was not registered at the date of the institution of the proceedings – Delhi Development Authority Vs Kochhar Construction Work & Ors., MANU/SC/1279/1998: 1998 (8) SCC 559.
- transactions of the sale made during the pendency of the proceedings were held to be wholly illegal and void ab initio in law and therefore the same were held to be not sustainable in law – R. Rajashekar & Ors. Vs Trinity House Building Co-operative Society & Ors., MANU/SC/1005/2016: AIR 2016 SC 4329: 2016 (16) SCC 46.
2. Actus Dei Nemini Injuriam – law holds no man responsible for the Act of God.
- Court held strike to be an act of god and held the maxim Actus Dei Nemini Facit Injuriam squarely applicable to such cases. Court further stated that in abnormal situations like strike in question, which can hardly be resisted by any litigant by applying any amount of skill or ability of his own, the courts should not insist for strict adherence to the procedural law so as to prejudice the interest of such litigants. In legal sense such incidents are well covered by the expression “Acts of God.” – Mali Ram Mahabir Prasad Vs Shanti Debi & Ors., MANU/BH/0010/1992: AIR 1992 PAT 66.
3. Actio Personalis Moritur Cum Persona – A personal right of action dies with the person.
- Supreme Court held that the maxim “actio personalis moritur cum persona” – a personal action dies with the person – has a limited application – operates in a limited class of actions such as:
- actions for damages for defamation,
- actions for assault or
- actions for other personal injuries not causing the death of the party,
- and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory.
It was held that an action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory – Girja Nandini Devi & Ors. Vs Bijendra Narain Choudhury, MANU/SC/0287/1966: AIR 1967 SC 1124: 1967 (1) SCR 93.
- vent of the death of the executor of a will, the maxim actio personalis moritur cum persona does not apply to probate proceedings initiated by the executor before his death. An executor in applying for probate is not fighting a personal action but fighting for the interests of all the beneficiaries under the will and that therefore the action of an executor in applying for a probate is not in substance a personal action. If the executor fails in his duty, any of those whom he represents are entitled to intervene and carry on the proceedings with a formal modification’ that the prayer must then be for letters of administration with the will annexed – Vatsala Srinivasan Vs Shyamala Raghunathan, MANU/SC/0498/2016: 2016 (13) SCC 253.
4. Actus Curiae Neminem Gravabit – An Act of the Court shall prejudice no man –
- This principle has been held to be fundamental to the system of justice and application to Indian Jurisprudence – that no man should suffer because of the fault of the court or delay in the procedure – Busching Schmitz Private Limited Vs P.T. Menghani & Ors., MANU/SC/0344/1977: AIR 1977 SC 1569: 1977 (2) SCC 835.
- A 3 Judge bench of Supreme Court held that if the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. It further went on to say that “there is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: Actus curiae neminem gravabit; Thus, in view of the mistake of the District Court which needed to be righted, the parties were relegated to the position they occupied when the error was committed by the Court, which error was rectified by SC nunc pro tunc. Jang Singh Vs Brijlal & Ors., AIR 1966 SC 1631: 1964 (2) SCR 145.
5. Actori incumbit onus probandi – the burden of proof lies on the plaintiff
- The cardinal principle of law of evidence is that “Actori incumbit onus probandi” – The burden of proof rests upon the plaintiff –
- Indra Raja & Ors. Vs John Yesurethinam, MANU/TN/4369/2011.
- He who asserts must proof
6. Actio personalis moritur cum persona – a personal action dies with the person
- This rule operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate – Girja Nandini Devi & Ors. Vs Bijendra Narain Choudhury, MANU/SC/0287/1966: AIR 1967 SC 1124: 1967 (1) SCR 93.
- Save and except the personal cause of action which dies with the deceased on the principle of actio personalis moritur cum persona i.e. a personal cause of action dies with the person, all the rest of the causes of action which have an impact on proprietary rights and socio-legal status of the parties cannot be said to have died with such a person – Smt. Yallawwa Vs Smt. Shantavva, MANU/SC/0016/1997: (1997) 11 SCC 159.
7. Actus Non Facit Reum Nisi Mens Sit Rea – The intent and act must both concur to constitute the crime
- Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively – R.Balakrishna Pillai Vs State of Kerala, MANU/SC/0212/2003: 2003 (9) SCC 700: 2003 (2) SCR 436.
- To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosi nulla voluntus est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behavior – State of Rajasthan Vs Shera Ram, MANU/SC/1428/2011: AIR 2012 SC 1: 2012 (1) SCC 602.
- Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that their can be no crime without a guilty mind. To make a person criminally accountable it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively – C.K. Jaffer Sharief Vs State (Through CBI), MANU/SC/0960/2012: AIR 2013 SC 48: 2013 (1) SCC 205.