Legal Maxims are established principles or propositions of law. They are usually stated in Latin and most of them originated in Medieval Europe. These principles help and guide the courts all over the world to apply the existing laws in a just manner. One must note that though these principles are universally accepted, they lack the force of law. However, courts often use these maxims to decide on issues and base their judgements on.
These maxims are often used by lawyers in their drafts or form a basis of their arguments. They are often asked in Law entrance exams like CLAT and are also often seen on Judiciary exams. Therefore, it is essential that any aspiring Law student or those applying for Judicial services exams be well versed with these.
Here, we take a look at some of the most important and frequently asked and used Legal Maxims that every aspiring law student must know.
1. Ab Initio – from the beginning.
Ab Initio means from the very beginning. It means that the particular thing is void or bad in law right from the start. The term is often used to describe clauses in contracts or deeds and even marriages. Things that are void ab initio means that they never existed in the first place.
For eg: Contracts involving a minor are void ab initio.
The marriage that is held to be void it means that as far as law is concerned, the marriage was void ab initio and hence never existed or came into being in first place.
2. Audi Alteram Partem – Listen to the other side/Let the other side be heard as well/No man shall be condemned unheard.
Audi Alteram Partem is a very important principle of Natural justice. It states that No side should be judged without a fair hearing and that every party to the proceeding must be given an opportunity to present their side of the story and respond to allegations against them. Needless to say this is one of the most important principle of Natural justice and not following this principle in any judicial proceeding would amount to gross violation of legal rights of the party affected by this.
In India, Supreme Court has reiterated this principle in the case of Maneka Gandhi v. Union of India, (A.I.R 1978 S.C. 597) where the Court stated that the order of the Government was clearly in violation of the rule of natural justice embodied in the maxim, Audi Alteram Partem.
3. Actus Dei Nemini Injuriam – The law holds no man responsible for the Act of God.
This is a very important principle and is an important defence available to a defendant in any civil suit. An Act of God, as the name suggests, is such a direct, sudden and violent act of nature that could not have been foreseen by any amount of human insight by a prudent man, and if foreseen, no ordinary and prudent person could have resisted it. Thus, damages caused by storms, earthquakes, lighting, etc is deemed to be an Act of God, and no man could be held responsible for damages caused due to such acts.
The Doctrine of Frustration in Contracts Act is based on the above Principle. Thus, if A agreed to ship goods to B, on a certain date, but if the Ship through which the goods were sent sinks due to an unusually severe storm, then A would be excused from performing the contract as sinking of the Ship due to storm is deemed to be an Act of God.
4. Actio personalis moritur cum persona – A personal right of action dies with the person.
This maxim refers to the principle, that means extinction of liability on death of a person. As per Common Law, if an injury was done either to the person or to the property of another, for which only damages could be recovered, then the action dies with the death of a person to whom, or by whom the injury was caused. Thus, personal right of action does not survive death of either party.
This principle is subject to several exceptions, the primary ones being any damage caused by defendant to platntiff’s reputation such as defamation or wrongly appropriated part of plaintiff’s estate.
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.
5. Actori Incubit Onus Probandi – The burden of proof always lies on the Plaintiff.
This is a cardinal principle followed in Law of Evidence. It means that the party that raises the issue, i.e. the Plaintiff is the one who has burden of proof.
In civil cases, the burden of proof therefore lies on the Plaintiff. In criminal cases, it lies on the Prosecution. As per principles of natural justice, it is on the prosecution to prove their case and allegations beyond all reasonable doubt.
6. Alibi – Elsewhere, In another place.
Alibi is a plea available to a defendant in a criminal trial. Alibi means that a person was literally somewhere other than a place where the crime occurred. In the original latin, it means “in another place”.
Black’s Law dictionary has defined Alibi as “A defense based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time. The fact or state of having been elsewhere when an offense was committed.”
In Indian context, Alibi has not been defined under Indian Penal Code, 1860 or Indian Evidence Act, 1872. However, the plea of Alibi is very much possible under Section 11 of Indian Evidence Act, which enumerates how facts that are not otherwise relevant. The plea of Alibi is described under Illustration (a) of S.11 of Indian Evidence Act.
7. Actus Reus Non Facit Reum Nisi Mens Sit Rea – An Act does not make anyone guilty unless accompanied by a criminal intent or a guilty mind.
“Mens Rea” literally means a “guilty mind” and “criminal intent”. As per this maxim, there can be no crime without a guilty mind. Thus, a guilty mind or a criminal intent is an important ingredient of a crime, or an offence. Therefore, if a person is to be punished under Criminal Law, then it is generally necessary that he must have not only committed the act that constitutes a crime, but that such act was done with a guilty mind (Mens rea).
Thus, a person who is in an extremely drunk and inebriated stage and is in no frame of mind to know what he is doing, cannot be said to have committed a crime. Similarly, a person who is a lunatic or is suffering from a mental disorder, that is so severe that he is not in a position to know the significance of his actions, cannot be said to have committed a crime. In both the cases, the intent and guilty mind or mens rea are missing.
However, this Principal is now subjected to a few exceptions. It is said that now the offences themselves are codified and clearly defined and it can be clear from reading the definition of an offence as to whether there is an ingredient of mens rea present on not. As a thumb rule, Mens rea is not required to be proved in petty offences like traffic offences, where it is impossible to prove. In offences involving strict liability, Mens rea is irrelevant, because the act itself constitutes a crime.
In one of the cases, In Re. Tunda: (1950) 51 Cr. L. J. 402, both accused and deceased were wrestlers and they arranged a wrestling match. In the course of the match, the deceased fell as a result from the blow from the accused and broke his skull. Under the circumstances, the court held that this was a case of accident and there was no guilty intention on part of the accused and hence he was not held liable of the crime.
8. Amicus Curae – A friend of the Court or a member of the Bar who is appointed to assist the court in some legal matter.
Amicus Curae literally means a “Friend of the court”. He is generally a person that is not a party to the case, but is appointed by the court to seek his assistance and expertise, in such areas where court may deem it to be necessary. Often Amicus Curae advice the courts on matters that are highly technical or where they have more expertise.
In India, courts often appoint counsels as Amicus Curae when it feels that their appointment is imperative to set the wheels of justice rolling in a particular case.
Supreme court has also laid down norms for appointment of Amicus Curae in cases where there is possibility of life or death sentence.
9. Assentio Mentium – Meetings of the minds or mutual assent expressed or implied by both parties to the contract.
This is a very important doctrine or legal maxim, primarily followed in Law of Contracts. As per law of contracts, a contract is not valid unless its terms have been agreed and understood by both the parties in the same sense. This implies there is meeting of the minds.
Thus both parties must consent to the Contract in the same sense and such consent should be free.
S.13 of Indian Contract Act, 1872 defines Consent and reads as “Two or more persons are said to consent when they agree upon the same thing in the same sense”. Therefore, the consent should not only be free, but an important ingredient of the contract should be meeting of the minds as well as Consensus ad idem, which is at the root of every contract.
As per a judgement in Raffles v. Wichelhaus (1864) 2 H&C 906:159 ER 375, It was held that “It is essential to the creation of contract that two parties agree to the same thing in the same sense. Thus if two persons enter into an apparent contract concerning a particular person or ship, and it turns out that each of them, mislead by a similarity of name, had a different person or ship in mind, no contract would exist between them”.
10. Ad Hoc – Created or done for particular purpose as necessary
Ad hoc means for the sole purpose of or “for this purpose only”. Thus an Ad Hoc committee is formed for a particular purpose only, and an ad hoc attorney is one who is hired to handle one problem only.
Ad hoc provides for something that was not planned for in the existing set up or framework.