Legal Terms Phrases & Maxims -v1.4.pdf

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LL.B. Semester - III SOFT SKILL 207 K LEGAL TERMS, PHRASES & MAXIMS Headnotes : ➔ Source : Public domain print/ internet contents. Some such resources are listed herein. Credits/ copyrights duly acknowledged. ➔ 12-Oct-2016. Version-1.4 compiled by [email protected] in academic pursuit. Dedicated to students of the subject. No claim is made/ implied about truthfulness of the document. ➔ Gujarat University Syllabus is in BOLD text. References to questions listed herein below, are to such questions which were asked in Gujarat University examinations. ➔ This PDF doc has navigation built-in. ie viewer shall be able to quickly move around the PDF with mouse clicks. However, sometimes due to browser limitations, click-able links may not work. In that case just download the PDF and open it in a standard PDF viewer like Adobe Reader. ➔ Lastly, | ववदद वववनययगदवदकदस: | This doc also promotes the cause of law students. Do suggest better answers and do point-out mistakes. Or alternately, feel free to update it (for non-commercial purpose) as you deem fit. But, do keep sharing with the world. Thank you. ➔ Refer : ✔ Google search is quick and the best source for this subject

✔ http://dictionary.law.com/ ✔ https://en.wikipedia.org ✔ http://www.duhaime.org/LegalDictionary.aspx ✔ The Law Dictionary (Featuring Black's Law Dictionary Free Online Legal Dictionary 2nd Ed) - http://thelawdictionary.org/ ✔ Classic ---> A COLLECTION OF LATIN MAXIMS & PHRASES (3rd EDITION) BY - JOHN N,COTTERELL, Cornell University Library, Digitized by Microsoft https://archive.org/stream/cu31924021688670/cu31924021688670_djvu.t xt ✔ https://adekunleadebajo.wordpress.com/2014/05/02/legal-maxims-andtheir-short-explanations/ ✔ https://www.vbook.pub.com/document/237332568/LatinLegalMaxims

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CONTENTS Module - 1) Legal Terms and Phrases Module - 2) Legal Maxims Module - 3) Legal Maxims SYLLABUS

Module - 1)

Legal Terms and Phrases :

1.1) Meaning and use in sentence 1.2) Importance of Legal Terms 1.3) Use Equivalent Legal Terms 1.4) Examples of Legal Terms : Abandon, Abscond, Accord, Acquiescence, Ad interim, Bona fide, Caveat Emptor, Capricious, Causus Omissus, Cypres, Codicil, Coparcenery, Damage and damages, Damage Feascent, De hors, De novo, Domicile, Double Jeopardy, Endowment, Frivolous and Vexatious, Heridatory, Juvenile Delinquency, Legum Baccalaureus, Lunatic, reciprocal, Onerous, Pro bono Publico, Quid Pro Quo, Ratification, Rescind Contract, Rule absolute, Rule Discharged, Sub Judis, Submission, Subrogation, Testamentary, Tenure, Undue Influence, Vakalatnama, Valuable Security, Verdict, Vicarious Liability, Viva voce, Void and voidable, Note : Above Legal Terms should be taught in the classrooms by explaining their meaning used in various laws and practically demonstrated by framing appropriate sentences. Go To Contents Module-1 QUESTIONS : ➔ "Command over Latin legal terms is sine qua non every lawyer" Discuss this statement taking into consideration the importance of Latin Legal Terms. (Oct2013) ✔ Explain in detail the meaning and significance of legal terms and legal phrases in the field of law. (Nov-2014) ✔ A lawyer can not effectively develop the art of drafting and art of oral https://www.facebook.com/LLB.GujUni/

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advocacy without proper knowledge of legal phrases and legal maxims. Discuss. (Jan-2016)

➔ Mr X a football player of team PQR sustains injury while playing a match against the players of team ABC. He files a suit to recover compensation against all players of team ABC. Will he succeed? Answer with reasons and application of appropriate maxims. ✔ –-------> This is the first time such a question is asked. Work on similar issues. ➔ Explain and frame sentence : Abandon. (Nov-2014) ➔ Explain and frame sentence thereof : Abscond. (Jan-2016) ➔ Explain the legal term and frame the sentence : Accord. (Oct-2013) ➔ Explain and frame sentence thereof : Ad-interim. (Jan-2016) ➔ Explain and frame sentence : Bonafide. (Nov-2014) ➔ Explain the legal term and frame the sentence : Caveat Emptor. (Oct-2013, Jan-2016) ➔ Explain the legal term and frame the sentence : Capricious. (Oct-2013) ➔ Explain and frame sentence thereof : Causes omissus. (Jan-2016) ➔ Explain the legal term and frame the sentence : Coparencery. (Oct-2013) ➔ Explain and frame sentence : Damage and damages. (Nov-2014) ➔ Explain and frame sentence : De hors. (Nov-2014, Jan-2016) ➔ Explain and frame sentence : De novo. (Nov-2014) ➔ Explain and frame sentence : Double jeopardy. (Nov-2014) ➔ Explain the legal term and frame the sentence : Frivolous and Vexatious. (Oct-2013) ➔ Explain and frame sentence : Legum Baccalaureus. (Nov-2014, Jan-2016) ➔ Explain and frame sentence : Lunatic. (Nov-2014) ➔ Explain the legal term and frame the sentence : Onerous. (Oct-2013) ➔ Explain and frame sentence thereof : Quid pro quo. (Jan-2016) ➔ Explain the legal term and frame the sentence : Rule absolute. (Oct-2013) ➔ Explain the legal term and frame the sentence : Sub iudice. (Oct-2013, Jan2016) ➔ Explain the legal term and frame the sentence : Testamentary. (Oct-2013)

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➔ Explain and frame sentence : Valuable security. (Nov-2014) ➔ Explain and frame sentence thereof : Verdict. (Jan-2016) ➔ Explain the legal term and frame the sentence : Vicarious Liability. (Oct-2013, Nov-2014, Jan-2016) Go To Contents Module-1 ANSWERS : ➔ "Command over Latin legal terms is sine qua non every lawyer" Discuss this statement taking into consideration the importance of Latin Legal Terms. (Oct2013) ✔ Explain in detail the meaning and significance of legal terms and legal phrases in the field of law. (Nov-2014) ✔ A lawyer can not effectively develop the art of drafting and art of oral advocacy without proper knowledge of legal phrases and legal maxims. Discuss. (Jan-2016) ANS :  Latin in Legal Writing: An Inquiry into the Use of Latin in the Modern Legal World – By Peter R. Macleod http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi? article=2089&context=bclr  Lexica iuridica in Juridica: Latin Terms as a Reflection of Europanisation of Estonian Legal Culture - By Merike Ristikivi http://www.juridicainternational.eu/?id=12680 ✔ Introduction :  Latin has always had a special role to play in the Western legal tradition. In recent decades, Latin juridical terminology has gradually been growing more important as regards understanding and communication between lawyers representing different languages and legal systems. It is also observed that the use of Latin expressions facilitates unifying various judicial system and makes juridical literature internationally understandable. However, in no way do such Latin words and expressions minimise the importance of developing and using legal terminology in our native language; on the contrary, these terms enrich the language of the law.

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✔ Desirable Characteristics of a Maxim :  Examining the contexts in which Latin terms occur in the writings of contemporary lawyers, we must remember that denoting a legal concept is not so unconstrained as is the case with other terms. Legal terms must be precise, effective, and clear. Legal terms must derive from the legal context and constitute the vocabulary of legal language. The terms in legal texts must convey accurately and wholly the content and meaning of the notions they represent. ✔ Importance of Latin legal Maxims : WHY Latin legal maxims ? : Absoluta sententia expositorsnon indiget (When language of law is clear, no explanation of it is required).  Why does the legal community continue to use Latin, when the study of Latin (in western countries) in schools is decreasing and when the Roman Catholic Church has largely stopped using Latin ? The answer could lie in the special position that legal language has in our society. Let us discuss some of the influences that make language in the law different from language in other areas of society.  What has an influence on legal language, what causes it to change or remain unchanged. Both internal and external influences affect the language people in the legal community use. On the one hand, lawyers, judges and professors discuss subjects that only exist in the legal world. On the other hand, Latin also creates a barrier that prevents non-lawyers from easily entering the community. To enter the legal world, nonlawyers must learn the language. Thus, both efficiency and community identity influence the language of lawyers.  The Norman conquest in 1066 placed French-speaking Normans in virtually all important positions in England; French thus became the language of power. Virtually all English words relating to government are originally French. The Normans initially used Latin rather than French as a written language of the law. Throughout this period, Latin continued to be used as a legal language. It came to be known as "Law Latin," and included various legal terms of French origin, as well as English words when clerks did not know the Latin. Legal maxims, even today, are often in Latin, which gives them a sense of heightened dignity and authority. Names of writs (mandamus, certiorari) and terminology for case names (versus, ex rel., etc.) are still in Latin, perhaps a reflection of the use of Latin for writs and court records until the early 18th century.  Latin juridical terms are typically single words — stem words or https://www.facebook.com/LLB.GujUni/

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compound words. In addition to nouns, also verbs, adjectives, pronouns, numerals, and adverbs are used as terms. Latin terms are concise and economical, enabling one to convey a notion that otherwise in one’s native language might require a lengthy explanation.  One of the sources for enriching specialised vocabulary is borrowing words from other languages. In law, Latin is a very useful source. In the course of time, the bulk of Latin terms now used in the legal environment have developed on the basis of Roman law. However, various important legal terms in Latin that are in current usage also come from the Middle Ages or the modern age. Namely, the development of law was based on Latin for centuries.  Substantive part of common law has its roots in "history" in the form of prior decisions. A system based on precedent is by its nature backwardlooking. The legal community is thus constantly discussing ideas and concepts that began in the past, sometimes in a different language. Some concepts in modern law began with Anglo-Saxons, Romans or Normans, and the language of the law reflects these influences. On the other hand concepts—such as internet law—are relatively new, a product of later societies, and may bring new vocabulary to the law. ● Thus, the language of the law may vary depending on where in legal history the substantive subject originated.  In the late eighteenth and early nineteenth centuries, for example, "natural law" played an important role in legal discourse. One major source of the principles of natural law was Latin maxims because of their perceived ancient and durable qualities. Members of the legal profession considered maxims to be the distilled wisdom of law, stretching back to ancient times. The majority of legal maxims in Common law were derived from the Romans. Thus, members of the legal profession who believed in natural law used a language that reflected that belief. The philosophical beliefs of a member of the legal profession may thus influence that member's language.  The Latin phrases that judges continue to use are not just technical shorthand. They are short phrases that often do not have a strong link to any area of law. The influence of history on language may explain part of the continuing use of Latin. Certainly, courts continue to rely on precedent in making decisions. Because the courts use the reasoning of the prior courts in their decisions, they also sometimes use their language. https://www.facebook.com/LLB.GujUni/

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 The usage of Latin terms primarily depends on the historical development of the particular area of law concerned. Latin terms often are used in articles on legal theory, philosophy of law, criminal law, international law, succession, and the law of obligations. In all of these areas, the body of terminology in use nowadays had developed already in ancient times or evolved during the Middle Ages. ● On the other hand, very few Latin terms or none at all are to be seen in articles on labour law, family law, and business law. The development and study of these fields has taken place mostly in the 20th century. Hence, there is very little or no connection with Roman law, from which the greater part of Latin legal terms originates.  A legal term might occur in legal language yet also be a word in the common language, having a particular meaning. Expressions like ultima ratio, a priori, prima facie, and de facto are of the kind used by lawyers in their general meaning but also in a specific juridical sense.  Latin adds to the richness of writing. Using a Latin word is not necessarily more accurate than using an English word. Neither is it necessarily redundant. Latin is a symbol of legal profession. Latin adds to the mystery of the law. It adds to the difficulty in accessing the law. It keeps the profession separate from other parts of society, perhaps more now than it ever did. ✔ Conclusions  Law is a field where linguistic means of expression are of utmost importance. This discipline operates directly through language; a word or expression acquires juridical power in it.  The spread of Latin juridical terms in the contemporary world and the principles of their usage depend on the conditions arising from historical development, the linguistic economy of Latin terms, and their effectiveness in communication in the field concerned. Occasionally, Latin expressions are also used for rhetorical and illustrative purposes; in general, though, Latin terms as normative arguments convey specific juridical information. Go To Module-1 QUESTIONS Go To Contents

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➔ Mr X a football player of team PQR sustains injury while playing a match against the players of team ABC. He files a suit to recover compensation against all players of team ABC. Will he succeed? Answer with reasons and application of appropriate maxims. (Jan-2016) ✔ –--> This is the first time such a question is asked. It gives an example and expects student to identify+justify legal maxim. This is interesting. ANS : 

Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence : Abandon. (Nov-2014) ANS :  v. to intentionally and permanently give up, surrender, leave, desert or relinquish all interest or ownership in property, a home or other premises, a right of way, and even a spouse, family, or children. The word is often used in situations to determine whether a tenant has left his/her apartment and the property inside and does not intend to come back. Thus, a landlord can take over an apparently abandoned residence, but must store anything a tenant leaves behind and give notice to the tenant before selling the possessions which are left. To abandon children can mean to have no contact and give no support for a year or more. Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence thereof : Abscond. (Jan-2016) ANS :  v. 1) traditionally to leave a jurisdiction (where the court, a process server or law enforcement can find one) to avoid being served with legal papers or being arrested. 2) a surprise leaving with funds or goods that have been stolen, as in "he absconded with the loot."

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Go To Module-1 QUESTIONS Go To Contents ➔ Explain the legal term and frame the sentence : Accord. (Oct-2013) ANS :  n. an agreement to accept less than is legally due in order to wrap up the matter. Once the accord and satisfaction is made and the amount paid (even though it is less than owed) the debt is wiped out since the new agreement (accord) and payment (the satisfaction) replaces the original obligation. It is often used by creditors as "a bird in the hand is worth two in the bush" practicality. Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence thereof : Ad-interim. (Jan-2016) ANS :  The Latin phrase ad interim (abbr. ad int., literally "in the time between") means "in the meantime" or "temporarily".  A diplomatic officer who acts in place of an ambassador is called chargé d'affaires ad interim.  “Ad interim, if I may be pardoned that expression, I shall give you this betel-box, which is highly valuable article and cost me two rupees only four years ago.” — Kim by Rudyard Kipling Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence : Bonafide. (Nov-2014) ANS :  Good faith (Latin: bona fides) is fair and open dealing in human interactions. This is often thought to require sincere, honest intentions or belief, regardless of the outcome of an action. While some Latin phrases lose their literal meaning over centuries, this is not the case with bona

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fides; it is still widely used and interchangeable with its generally accepted modern day translation of good fait Go To Module-1 QUESTIONS Go To Contents ➔ Explain the legal term and frame the sentence : Caveat Emptor. (Oct-2013, Jan-2016) ANS :  (kah-vee-ott emptor) Latin for "let the buyer beware." The basic premise that the buyer buys at his/her own risk and therefore should examine and test a product himself/herself for obvious defects and imperfections. Caveat emptor still applies even if the purchase is "as is" or when a defect is obvious upon reasonable inspection before purchase. Since implied warranties (assumed quality of goods) and consumer protections have come upon the legal landscape, the seller is held to a higher standard of disclosure than "buyer beware" and has responsibility for defects which could not be noted by casual inspection (particularly since modern devices cannot be tested except by use and many products are pre-packaged). Go To Module-1 QUESTIONS Go To Contents ➔ Explain the legal term and frame the sentence : Capricious. (Oct-2013) ANS :  adjective, given to sudden and unaccountable changes of mood or behaviour. "a capricious and often brutal administration"  synonyms: fickle, inconstant, changeable, variable, unstable, mercurial, volatile, erratic, vacillating, irregular, inconsistent, fitful, arbitrary, impulsive, temperamental, wild, ungovernable; whimsical, fanciful, flighty, wayward, quirky, faddish, freakish; unpredictable, random, chance, haphazard  "the capricious workings of fate"  antonyms: stable, consistent

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 changing according to no discernible rules; unpredictable.  "a capricious climate"

Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence thereof : Causes omissus. (Jan-2016) ANS :  Latin. Case omitted. A legal issue or situation not governed by statutory or administrative law or by the terms of a contract. The resolution of any legal dispute arising from such an issue or situation is governed by the case law or, if it is a case of first impression, by whatever guidance the court finds in the common law.  CASUS OMISSUS PRO OMISSO HABENDUS EST Words or phrases may be supplied in a law to eliminate repugnancy, inconsistencies, to complete the sense, give effect to the intention of the legislature, to supply omissions because of clerical errors because of accident or inadvertence.  This rule is necessary to prevent the law from becoming a nullity. (Hazelrigg vs. Penitentiary Comrs. 184 Ark. 154; Am. Jur., p. 233). But, in general, what has been omitted is deemed to have been done so intentionally. The maxim can operate only when the inadvertent omission has been clearly established. Go To Module-1 QUESTIONS Go To Contents ➔ Explain the legal term and frame the sentence : Coparencery. (Oct-2013) ANS :  noun. English Law. A person who shares equally with others in the inheritance of an undivided estate or in the rights to it (in the UK now as equitable interests).  'The proposed amendment now attempts to make daughters coparceners at birth in ancestral property.'

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Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence : Damage and damages. (Nov-2014) ANS :  Damage is defined as a loss or harm resulting from injury to a person, property or reputation.  Damages, on the other hand, refers to compensation - such as a monetary judgment - provided to a person who has suffered a loss or harm due to the unlawful act or omission of another. The person at fault - the one who caused the loss or harm - must compensate (or pay) the injured party for his or her losses, i.e. he must pay his damages for the damage he caused. Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence : De hors. (Nov-2014, Jan-2016) ANS :  L. Fr. Out of; without; beyond ; foreign to; unconnected with. Dehors the record; foreign to the record. 3 Bl. Comm. 387.  Out of; without. By this word is understood something out of the record, agreement, will, or other thing spoken of; something foreign to the matter in question. Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence : De novo. (Nov-2014) ANS :  From Latin, meaning “from the new.” When a court hears a case de novo, it is deciding the issues without reference to the legal conclusions or assumptions made by the previous court to hear the case.

as if it had

not been previously heard nor decided.

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 An appeals court hearing a case de novo may refer to the trial court’s record to determine the facts, but will but rule on the evidence and matters of law without giving deference to that court’s findings. A trial court may also hear a case de novo following the appeal of an arbitration decision Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence : Double jeopardy. (Nov-2014) ANS :  Double jeopardy is a procedural defence that forbids a defendant from being tried again on the same (or similar) charges in the same case following a legitimate acquittal or conviction. In common law countries, a defendant may enter a peremptory plea of autrefois acquité or autrefois convict (autrefois means "in the past" in French), meaning the defendant has been acquitted or convicted of the same offence and hence that they cannot be retried under the principle of double jeopardy Go To Module-1 QUESTIONS Go To Contents ➔ Explain the legal term and frame the sentence : Frivolous and Vexatious. (Oct-2013) ANS :  frivolous - Of minimal importance; legally worthless. ● A frivolous suit is one without any legal merit. In some cases, such an action might be brought in bad faith for the purpose of harrassing the defendant. In such a case, the individual bringing the frivolous suit might be liable for damages for Malicious Prosecution. ● A frivolous appeal is one that is completely lacking merit, since no review able question has been raised therein. ● An answer or plea is called “frivolous” when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or

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to embarrass the plaintiff  Vexatious ● Causing or tending to cause annoyance, frustration, or worry. ● Law Denoting an action or the bringer of an action that is brought without sufficient grounds for winning, purely to cause annoyance to the defendant.  ‘a frivolous or vexatious litigant’  ‘the vexatious questions posed by software copyrights’

Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence : Legum Baccalaureus. (Nov-2014, Jan-2016) ANS :

 http://latindictionary.wikidot.com/noun:lex  https://en.wikipedia.org/wiki/Bachelor's_degree  https://en.wikipedia.org/wiki/Bachelor_of_Laws  What is meant by LL.B. / L.L.B. - Legum Baccalaureus - Bachelor of Laws - abbreviation - full form - meaning - acronym

 correct - LL.B.  false - L.L.B.  LL.B. is Latin abbreviation for "Legum Baccalaureus".  "Bachelor of Laws" is the correct English translation   "Lex" in Latin is equivalent to "Law" in English  "Baccalaureus" in Latin is equivalent to "Bachelor's degree" in English  Genitive plural for 'Lex' in latin language is 'Legum'   In latin language plural term is often abbreviated by doubling the first letter of singular term (e.g. "pp" for "pages"),

 Thus "LL.B." stands for Legum Baccalaureus in Latin.

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  Other full forms of LL.B. like "Bachelor of Legal Letters" or "Bachelor of Legislative Law" are incorrect.

 In India, LL.B. is a first professional degree in law Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence : Lunatic. (Nov-2014) ANS :  A now-disused term of the common law to refer to a person suffering from a disabling mental disorder. The term lunacy comes form the French word for moon, lune and is taken from the old belief that the moon was responsible for all disorders of the mind.  One who has had an understanding, but who, by disease, grief, or other accident, has lost the use of his reason. A lunatic is properly one who has had lucid intervals, sometimes enjoying his senses, and sometimes not. Go To Module-1 QUESTIONS Go To Contents ➔ Explain the legal term and frame the sentence : Onerous. (Oct-2013) ANS :  A near synonym is burdensome. In legal usage, onerous describes a contract or lease that has more obligations than advantages. Onerous derives from Middle English, from Old French onereus, from Latin onerōsus, from onus "burden." In English, an onus is a task or duty that is onerous, or very difficult.  A contract, lease, share, or other right is said to be “onerous” when the obligations attaching to it counter-balance or exceed the advantage to be derived from it, either absolutely or with reference to the particular possessor.

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Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence thereof : Quid pro quo. (Jan-2016) ANS :  ‘something in exchange for something else  [Latin, What for what or Something for something.] The mutual consideration that passes between two parties to a contractual agreement, thereby rendering the agreement valid and binding.  In common usage, quid pro quo refers to the giving of one valuable thing for another. Quid pro quo has the same meaning in the law but with varying implications in different contexts.  Quid pro quo, or the exchange of valuable consideration, is required for the formation of a valid contract between individuals who are not merchants. This requirement of mutual consideration, or the exchange of something of value, indicates the sincerity of the parties' intent to adhere to the contract between them.  Example of its use: "What is the quid pro quo for my entering into this deal?" Go To Module-1 QUESTIONS Go To Contents ➔ Explain the legal term and frame the sentence : Rule absolute. (Oct-2013) ANS :  a rule that will enforce without delay, a peremptory rule. issued by a court when a litigant fails to show sufficient cause why an order shouldn't be carried out.  decree nisi (rule nisi) : A decree nisi or rule nisi (from Latin nisi, meaning "unless") is a court order that does NOT have any force unless a particular condition is met.  decree absolute (rule absolute) : However, once the condition is met, the ruling becomes a decree absolute (rule absolute), and is binding.  Typically, the condition is that an adversely affected party fail to provide

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satisfactory evidence or argument that the decree should not take effect (i.e. the decree takes effect unless the party shows that it shouldn't).  For that reason, a decree nisi may also be called a rule, order or decree to show cause.  Using the example of a divorce, the wording of such a decree is generally in the form of "that the marriage, had and solemnized on (date) between AB and CD, be dissolved by reason that (grounds) UNLESS sufficient cause be shown to the court why this decree should not be made absolute within six weeks of the making hereof". This allows time for any party who objects to the divorce to come forward with those objections. Go To Module-1 QUESTIONS Go To Contents ➔ Explain the legal term and frame the sentence : Sub iudice. (Oct-2013, Jan2016) ANS :  Latin-under a judge. A matter or case that is before a judge or court for determination.  In law, sub judice, Latin for "under judgment", means that a particular case or matter is under trial or being considered by a judge or court. The term may be used synonymously with "the present case" or "the case at bar" by some lawyers.  In UK, India, and other commonwealth countries it may be considered inappropriate to comment publicly on cases sub judice, which can be an offence in itself, leading to contempt of court proceedings. This is particularly true in criminal cases, where publicly discussing cases sub judice may constitute interference with due process. Go To Module-1 QUESTIONS Go To Contents ➔ Explain the legal term and frame the sentence : Testamentary. (Oct-2013) ANS :  Testamentary means related to a will. One appointed by will or testament https://www.facebook.com/LLB.GujUni/

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may receive letters testamentary, authorizing them to distribute the assets. A testamentary trust is a trust created by the provisions in a will.  A person must have the mental competency to execute a will at the time the will was signed and witnessed. In a will contest, the issue of the decedent's lack of testamentary capacity is often argued. To have testamentary capacity, the author of the will must understand the nature of making a will, have a general idea of what he/she possesses, and know who are members of the immediate family or other "natural objects of his/her bounty." A person lacking testamentary capacity may be pressured into making a bequest by undue influence.  An individual is said to have testamentary capacity to make a will when that person has sufficient mental ability to comprehend what he or she is doing, the nature and extent of his or her property, the natural objects (which means appropriate persons or recipients) of his or her bounty, and the interrelationships among these three concepts.  Generally, a Letter of Testamentary, along with a legally binding death certificate, are the two documents you’ll need to do the real estate transactions, banking, and asset distribution you were appointed to do.  Often, you’ll need to take the official will, also known as a last will and testament, and death certification to your city hall or a local court to obtain one. Also, know that banks and other institutions will sometimes want to keep your Letter of Testamentary, so make sure you get multiple certified copies, just in case. Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence : Valuable security. (Nov-2014) ANS :  Sec-30 of IPC – Indian Penal Code ● 30. The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.  Illustration https://www.facebook.com/LLB.GujUni/

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● A writes his name on the back of a bill of exchange. As the effect of this endorsement is to transfer the right to the bill to any person who may become the lawful holder of it, the endorsement is a "valuable security". Go To Module-1 QUESTIONS Go To Contents ➔ Explain and frame sentence thereof : Verdict. (Jan-2016) ANS :  The formal decision or finding made by a jury concerning the questions submitted to it during a trial. The jury reports the verdict to the court, which generally accepts it.  The decision of a jury is called a verdict. A jury is charged with hearing the evidence presented by both sides in a trial, determining the facts of the case, applying the relevant law to the facts, and voting on a final verdict. There are different types of verdicts, and the votes required to render a verdict differ depending on whether the jury hears a criminal or civil case.  Though most verdicts are upheld by the judge presiding at the trial, the judge has the discretion to set aside a verdict in certain circumstances.  A judgment by a judge sitting without a jury is not a verdict.  A general verdict is the most common form of verdict. It is a comprehensive decision on an issue. In civil cases the jury makes a decision in favor of the plaintiff or the defendant, determining liability and the amount of money damages. In criminal cases the jury decides "guilty" or "not guilty" on the charge or charges against the defendant. In cases involving a major crime the verdict must be unanimous. In minor criminal cases, however, some states allow either a majority vote or a vote of 10 to 2. In civil cases many states have moved away from the unanimity requirement and now allow votes of 10 to 2.  A "special verdict" is a decision by the jury on the factual questions in the case, leaving the application of the law to those facts to the judge, who makes the final judgment.  A "directed verdict" is a decision following an instruction by the judge that the jury can only bring in a specific verdict ("based on the evidence https://www.facebook.com/LLB.GujUni/

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you must bring in a verdict of 'not guilty'").  A "chance verdict" (decided by lot or the flip of a coin),  A "compromise verdict" (based on some jurors voting against their beliefs to break a deadlock), and  A "quotient verdict" (averaging the amount each juror wants to award) are all improper and will result in a mistrial (having the verdict thrown out by the judge) or is cause for reversal of the judgment on appeal. Go To Module-1 QUESTIONS Go To Contents ➔ Explain the legal term and frame the sentence : Vicarious Liability. (Oct-2013, Nov-2014, Jan-2016) ANS :  Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability.  It is a tort doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as Parent and Child, employer and employee, or owner of vehicle and driver), to exercise such care as a reasonably prudent person would use under similar circumstances.  The doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently. It is also referred to as imputed Negligence. Legal relationships that can lead to imputed negligence include the relationship between parent and child, Husband and Wife, owner of a vehicle and driver, and employer and employee. Ordinarily the independent negligence of one person is not imputable to another person.  Other theories of liability that are premised on imputed negligence include the Respondeat Superior doctrine and the family car doctrine. https://www.facebook.com/LLB.GujUni/

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 The doctrine of respondeat superior (Latin for "let the master answer") is based on the employer-employee relationship. The doctrine makes the employer responsible for a lack of care on the part of an employee in relation to those to whom the employer owes a duty of care. For respondeat superior to apply, the employee's negligence must occur within the scope of her employment.  The employer is charged with legal responsibility for the negligence of the employee because the employee is held to be an agent of the employer. If a negligent act is committed by an employee acting within the general scope of her or his employment, the employer will be held liable for damages. For example, if the driver of a gasoline delivery truck runs a red light on the way to a gas station and strikes another car, causing injury, the gasoline delivery company will be responsible for the damages if the driver is found to be negligent. Because the company will automatically be found liable if the driver is negligent, respondeat superior is a form of Strict Liability. Go To Module-1 QUESTIONS Go To Contents

Module - 2)

Legal Maxims :

2.1) Meaning and importance of Legal Maxims 2.2) Legal Maxims : 2.2.1) Actio Personalis Moritur cum Persona 2.2.2) Actus Non Facit, Reum, Nisi Mens Sit Sea 2.2.3) Delegates non potest delegare 2.2.4) Damnum Sine Injuria Esse Potest 2.2.5) Delegatus Non Potest Delegate 2.2.6) Ex Nudo Pacto Non Oritur Actio 2.2.7) Ex Turpi Causa Non Oritur Actio 2.2.8) Falsus In Uno Falsus In Omnibus 2.2.9) Ignorantia Facit Excusact Ignorantia Juris Non Excusat (Ignorance Legis Neminem Excusant) 2.2.10)

In Jure Non Remota Causa, Sed Proxima Spectatus

2.2.11)

Injuria Sine Damno

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Go To Contents Module-2 QUESTIONS : ➔ Discuss with relevant cases : Actio personalis moritur cum persona. (Nov2014) ✔ Discuss the Legal Maxims with relevant cases : Acto personalis Moritur cum persona. (Oct-2013) ➔ Discuss the Legal Maxims with relevant cases : Damnum sine Injuria Esse Potest. (Oct-2013, Nov-2014, Jan-2016) ➔ Discuss with relevant cases : Delegates non protest delegare. (Nov-2014) ✔ Discuss with relevant cases : Delegatus non potest delegate. (Jan-2016) ➔ Discuss the Legal Maxims with relevant cases : Ex Nudo Pacto non Oritur Actio. (Oct-2013) ➔ Discuss with relevant cases : Falsus in uno falsus in omnibus. (Jan-2016) ➔ Discuss the Legal Maxims with relevant cases : Innoratia Facit Excusact, Ignoratia juris Non Excusat. (Oct-2013, Nov-2014) ➔ Explain the following legal maxim along With the relevant eases : “Injuria sine Demno". (Oct-2013) ✔ Discuss with relevant cases : Injuria dine damno. (Jan-2016)

Go To Contents Module-2 ANSWERS : ➔ Discuss with relevant cases : Actio personalis moritur cum persona. (Nov2014) ✔ Discuss the Legal Maxims with relevant cases : Acto personalis Moritur cum persona. (Oct-2013) ANS : ✔ Actio personalis moritur cum persona is a Latin expression meaning a personal action dies with the person. (Santos vs. Secretary of Labor, L21624, 27 Feb. 1968; 22 SCRA 850). ✔ Effect of the maxim :

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 Some legal causes of action can survive the death of the claimant or plaintiff, for example actions founded in contract law. However, some actions are personal to the plaintiff, defamation of character being one notable example. Therefore, such an action, where it relates to the private character of the plaintiff, comes to an end on his death, whereas an action for the publication of a false and malicious statement which causes damage to the plaintiff's personal estate will survive to the benefit of his or her personal representatives.  The principle also exists to protect the estate and executors from liability for strictly personal acts of the deceased, such as charges for fraud. ✔ Origins of the maxim :  It has been argued by academics and acknowledged by the Courts that notwithstanding the Latinate form in which the proposition is expressed its origins are less antiquated. It has been described by one Lord Chancellor (Viscount Simon) as : 

...not in fact the source from which a body of law has been deduced, but a confusing expression, framed in the solemnity of the Latin tongue, in which the effect of death upon certain personal torts was inaccurately generalised.

✔ The general rule of the common law is that if an injury were done either to the person or to the property of another for which unliquidated damages only could be recovered in satisfaction, the action died with the person to whom, or by whom, the wrong was done." ✔ The effect of the maxim was described by Justice Brewer of the Supreme Court of the United States in the 1897 case, Stewart v Baltimore and Ohio Railroad Company :  "A negligent act causing death is in itself a tort, and, were it not for the rule founded on the maxim actio personalis moritur cum persona, damages therefor could have been recovered in an action at common law." ✔ A maxim stating that actions of tort or contract are destroyed by the death of either the injured or the injuring party. Modern statutes mean that this is rarely the case. ie in contemporary world, ONLY such actions, which relates to the private character of the plaintiff, comes to an end on his death. Other actions survive the death. Go To Module-2 QUESTIONS https://www.facebook.com/LLB.GujUni/

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Go To Contents ➔ Discuss the Legal Maxims with relevant cases : Damnum sine Injuria Esse Potest. (Oct-2013, Nov-2014, Jan-2016) ANS :  "Damnum sine Injuria Esse Potest" is a Latin maxim which, in simple language means, "there may be damage or injury inflicted without any wrong being done"  The principle that a claimant who has suffered damage in consequence of the act of another may not be entitled to recover compensation because the defendant's act was not in law wrongful.  "Damnum sine injuria" is a Latin maxim which means damage without (sine) legal injury.  When there is an actual damage caused to the plaintiff without an infringement of his legal right, no action lies against the defendant.  In order to make someone liable in tort, plaintiff must prove that he has sustained legal injury, because damage without injury is not actionable in the law of torts.  Example : ● A sets up a rival school opposite to B’s school with a low fee structure as a result of which students from B’s school flocked to A’s school thereby causing a huge financial loss to A. This act of A is not actionable in law of torts since it did not lead to the violation of any legal right of the plaintiff although he has sustained financial loss. ● In Mayor of Bradford v Pickles [1895] AC 587 (HL) the House of Lords refused to intervene against a landowner who, annoyed by the refusal of a municipal authority to purchase his plot in connection with a water-supply scheme, intercepted underground water percolating in undefined channels through his land to an area owned by the corporation. The landowner committed no breach of the law in acting as he did so; although the municipal authority suffered damage (to their water supply) they did not suffer a wrong in law. Go To Module-2 QUESTIONS Go To Contents

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➔ Discuss with relevant cases : Delegates non protest delegare. (Nov-2014) ✔ Discuss with relevant cases : Delegatus non potest delegate. (Jan-2016) ANS :  Delegata potestas non potest delegari is a principle in constitutional and administrative law that means that "no delegated powers can be further delegated", UNLESS there is an explicit authorization for sub-delegation in the original delegation. ● Alternatively, it can be stated delegatus non potest delegare ("one to whom power is delegated cannot himself further delegate that power").  The principle is present in several jurisdictions such as that of the United States, the United Kingdom and India as well as in Catholic canon law. In India, the law was first stated in A K ROY v. State Of Punjab, (1986) 4 SCC 326, that sub delegation of delegated power is ultra vires to the Enabling Act.  An agent cannot delegate his authority. A principal (except by his own assent) is not bound by the acts or contracts of subagents unless they be of necessity, or in accordance with the usual custom of trade.  The maxim is an administrative tool to prevent the circle of excessive delegation of powers.  Example : If power to conduct elections has been delegated to Election Commission, the Election Commission can not delegated such power to other agencies. EC can not even make a committee within itself and delegate power to conduct election to such a committee, UNLESS there is explicit authorization in original delegation. Go To Module-2 QUESTIONS Go To Contents ➔ Discuss the Legal Maxims with relevant cases : Ex Nudo Pacto non Oritur Actio. (Oct-2013) ANS :  http://lex-warrier.in/2015/04/ex-nudo-pacto-non-oritur-actio/  The maxim "ex nudo pacto non oritur actio" means, “No action arises https://www.facebook.com/LLB.GujUni/

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from a nude contract (ie a contract without consideration)”. Since consideration is the founding platform to a contract, a contract without consideration is void.  The concept of consideration is the most basic and essential feature of a valid contract. Consideration is based on the phrase, “quid pro quo”. Consideration basically means something in return for the promise made by the offeror. A valuable consideration in the sense of the law may consist of some right, interest, forbearance, detriment, loss or responsibility, given, suffered or undertaken by the other.  Exceptions : ● As per Section 25 of Indian Contract Act, an agreement without any consideration is declared to be void, BUT there are some exceptions in this rule, in which an agreement is enforceable even though they are made without consideration. For instance, contracts made out of love and affection is one instance wherein consideration is not required. Thus with regard to contracts based on love and affection, the maxim does not hold valid. ● Even in cases involving promises to pay time barred debts since no consideration is required, the maxim ex nudo pacto non oritur actio does not stand validated.  Though these exceptions are present, consideration is still the very basis on which a contract is formed. Without consideration, a contract becomes naked. It is the concept of consideration that brings life to a contract and makes it actionable before the court of law.  Thus, the maxim ex nudo pacto non oritur actio is one of the key elements looked by the court while deciding cases pertaining to contracts.  Example : In the case of S. Parameswari vs. Balasubramanian2, the court held that in this case there was no breach of contract by the defendant , since the plaintiff could not prove consideration from her side. Since, there was no consideration from the side of the plaintiff, the contract was declared void. Go To Module-2 QUESTIONS Go To Contents

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➔ Discuss with relevant cases : Falsus in uno falsus in omnibus. (Jan-2016) ANS :  http://www.legalblog.in/2010/11/trustworthy-evidence-doctrine-offalsus.html  Latin maxim “Falsus in uno falsus in omnibus” means, “False in one thing false in all. Once a knave (dishonest or unscrupulous man) always a knave”.  It is the legal principle that a witness who testifies falsely about one matter is not credible to testify about any matter. Although many common law jurisdictions have rejected a categorical application of the rule, the doctrine has survived in some American courts  Criticism : Many legal scholars have criticized the continued use of the "discredited doctrine" because witnesses "are prone to fudge, to fumble, to misspeak, to misstate, to exaggerate," few trials would reach a judgment if "any such pratfall warranted disbelieving a witness's entire testimony.  Indian case-law : The maxim is not strictly applicable to India. In Ugar Ahir & Ors. v. State of Bihar, AIR 1965 SC 277, Hon Supreme Court held as under :- "The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."  Justice B S Chauhan of the Supreme Court has also recently dealt with the maxim 'Falsus in Uno, Falsus in Omnibus', and held that the said maxim is not applicable to India. Go To Module-2 QUESTIONS Go To Contents ➔ Discuss the Legal Maxims with relevant cases : Innoratia Facit Excusact, Ignoratia juris Non Excusat. (Oct-2013, Nov-2014)

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ANS :  Latin maxim "Ignorantia Facti Excusat, Ignorantia juris Non Excusat" means "Ignorance of fact excuses, ignorance of law does not excuse". Ignorance of law is not a bliss, because the law says "you do know what you don't know"!  Ignorantia juris non excusat (ignorance of the law does not excuse) --- A legal principle whereby ignorance of a law does not allow one to escape liability. All citizens are required to know the law.  Note : "Laws are instituted when they are promulgated". The doctrine assumes that the law in question has been properly promulgated— published and distributed, for example, by being printed in a government gazette, made available over the internet, or printed in volumes available for sale to the public at affordable prices.  Rational : The rationale of the doctrine is that if ignorance were an excuse, a person charged with criminal offenses or a subject of a civil lawsuit would merely claim that he or she is unaware of the law in question to avoid liability, even if that person really does know what the law in question is. Thus, the law imputes knowledge of all laws to all persons within the jurisdiction no matter how transiently. Even though it would be impossible, even for someone with substantial legal training, to be aware of every law in operation in every aspect of a state's activities, this is the price paid to ensure that willful blindness cannot become the basis of exculpation.  In criminal jurisprudence, it is not required to prove that the accused knew that he was committing a criminal offence. It has always been accepted as an axiomatic principle that ignorance of the law is no excuse. A person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content.  Ignorantia Facti Excusat : In India as well as many other jurisdictions, courts tend not to adversely conclude on the basis of ignorance of facts. However, here also outcome is critically dependent upon specific case details.  Case-law : In the criminal law, although ignorance may not clear a defendant of guilt, it can be a consideration in sentencing, particularly where the law is unclear or the defendant sought advice from law enforcement or regulatory officials. For example, in one Canadian case, a person was charged with being in possession of gambling devices after

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they had been advised by customs officials that it was legal to import such devices into Canada.[4] Although the defendant was convicted, the sentence was an absolute discharge. Go To Module-2 QUESTIONS Go To Contents ➔ Explain the following legal maxim along With the relevant eases : “Injuria sine Demno". (Oct-2013) ✔ Discuss with relevant cases : Injuria dine damno. (Jan-2016) ANS :  http://lex-warrier.in/2015/04/injuria-sine-damno/  "Injuria Sine Damno" is used in law of torts and is related to damages. This maxim says that in the law of torts the infringement of right is itself considered as damage and there is no need to prove that an actual damage is caused.  The meaning of the above maxim is infringement of an absolute private right without any actual loss or damage. Here the actual damage means physical loss in terms of money, comfort, health, etc.  Actions lies against a defendant who causes legal injury even when there is no actual damage. This implies an infringement of the legal rights of a person without any actual loss. Since there is an infringement of legal right of a person, right to sue for a remedy is available against the wrongdoer regardless of the fact whether any actual loss is sustained or not.  To make it clear “whenever a person has sustained what the law calls as ‘injury’ he may bring an action without being under the necessity of proving actual physical loss or damage, because the injury itself is taken to imply damage”.  Example : ● 1. We can take many examples regarding this maxim. If a person comes to your home without your permission and roams all around in your home and leaves your home, here there is no actual damage caused but your private legal right has been infringed. ● 2. Ashby v. White : In this case the defendant, the returning officer,

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wrongfully refused to register a duly tendered vote of plaintiff, a legally qualified voter, at a parliamentary election and the candidate for whom the vote was tendered was elected, and no actual/ physical loss was suffered by the rejection of the vote. Here the defendant (returning officer) had maliciously refused to register the vote of the plaintiff. However, action of Returning Officer was considered as legal damage caused to plaintiff as it is infringement of the fundamental rights of a person who has right to vote. The court held that the action, against Returning Officer, was allowed on the ground that the violation of plaintiff’s statutory right was an injury for which he must have a remedy and was actionable without proof of any pecuniary damage. Go To Module-2 QUESTIONS Go To Contents

Module - 3)

Legal Maxims :

3.1.1) In bonam partem 3.1.2) Nemo Dat Quod Non Habet 3.1.3) Novus Actus (Or Causa) Interveniens 3.1.4) Qui Facit Per Alium Facit Per Se 3.1.5) Res Ipsa Loquitur 3.1.6) Respondeat Superior 3.1.7) Re Non Potest Peceare 3.1.8) Salus Populi Supreme Lex 3.1.9) Sic Utero Tuo Ut Alienum Non Leadas 3.1.10)

Ubi Jus Ibi Idem Remedium (or) Ubi Jus Ibi Remedium

3.1.11)

Ut Res Magis Valeat Quam Pereat

3.1.12)

Volenti Non Fit Injuria

Note : Above Maxims should be taught taking into consideration the relevant decided cases as well as the illustrative Examples. Go To Contents

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Module-3 QUESTIONS : ➔ Explain in detail with decided cases : In bonam partem. (Nov-2014) ➔ Discuss the Legal Maxims with relevant cases : Qui Facit Per Alium Facit Per Se. (Oct-2013, Jan-2016) ➔ Discuss the Legal Maxims with relevant cases : Res Ipsa Loquitur. (Oct-2013, Nov-2014, Jan-2016) ➔ Discuss the Legal Maxims with relevant cases : Salus Populi Supreme Lex. (Oct-2013, Jan-2016) ➔ Discuss the Legal Maxims with relevant cases : Ubi jus ibi remedium. (Oct2013, Nov-2014, Jan-2016) ➔ Define and explain with relevant cases and illustrations the following legal maxim “Volenti non fit injuria”. (Nov-2014) ✔ Explain in detail with decided cases : Volenti non fit injuruia. (Nov-2014)

Go To Contents Module-3 ANSWERS : ➔ Explain in detail with decided cases : In bonam partem. (Nov-2014) ANS :  http://studylib.net/doc/6795368/%E2%80%9Cin-bonam-partem %E2%80%9D---conceptualization--history-and  The maxim "In bonam partem", means that things must be interpreted in their better sense.  The core premise of this principle is the acceptation of ambiguity as a grounds for the presumption of innocence. It is also in accordance with the judiciary’s traditional reluctance to label a statement as being defamatory or derogatory when it can have a plausible innocent intention.  Tracing the etymology of the term would bring us to the conclusion that ‘Bonam Partem’ would literally mean ‘The good side or part’.  From the mid-sixteenth to the mid-seventeeth century, English defamation law operated with the hermeneutic rule of Bonam partem which stipulated that if a statement can be construed both in a defamatory and an innocent sense, the latter must be considered as the

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true meaning. Where the words are general or ambiguous, the more favourable reading must take precedence.  Thus, to take up a standard textbook case, to accuse someone of having the French pox (Syphilis) would be actionable, but since ‘pox’ taken alone, could refer either to French pox or Small pox, if a person was charged with defamation for having called someone a ‘poxy knave’, the court would dismiss the charge by interpreting ‘poxy’ in Bonam partem as a reference to Small pox, which was not an actionable insult.  Abuse of the rule : The rule of Bonam partem could, however, authorize what would seem to be the radically different strategy of creative hyper literalism. To rebut a defamation charge, the defendant usually found it sufficient to show that their words, even if strictly construed, would have an innocent sense, regardless of what the context indicated the speaker’s intention to have been.  Interpretation of the rule : Interpretation of law depends on distinction between malice and good will, truth and deceit, words uttered in Bonam Partem and Malam Partem. Interpretation in words is decided by general or particular social context, by accompanying signs such as laughter or gestures, by the application of jurisprudential norms (like the prior presumption of innocence or guilt). The office of all judges is always to make such construction as shall suppress subtle inventions and evasions for the continuance of mischief, and to add cure and remedy, according to the true intent of the makers of the disputed act. ● Conversely, if the words did not refer unambiguously to specific persons, or did not explicitly allege an actionable offence, then they will be interpreted in Bonam partem.  The most notorious (and oft-cited) example is of one Astgrigg’s allegation that ‘’Sir Thomas Holt struck his cook’s head with a cleaver, and cleaved it in half”. ● Holt sued in King’s Bench, but the jury decided for the defendant on the grounds that Astgrigg had not said that the cook died, and since he had not accused Holt of killing his cook, the words were not actionable. ● However implausible the verdict in this instance, it rested on legal principles of far-reaching importance. It was held that for the law to consider words as defamatory, two things were requisite :  1) That the person who is scandalized is certain

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 2) That the scandal is apparent from the words themselves

Go To Module-3 QUESTIONS Go To Contents ➔ Discuss the Legal Maxims with relevant cases : Qui Facit Per Alium Facit Per Se. (Oct-2013, Jan-2016) ANS :  http://www.duhaime.org/LegalDictionary/Q/QuiFacitPerAliumFacitPerSe.a spx  Qui facit per alium facit per se. He who acts through another acts through himself.  The maxim often stated in discussing the liability of employer for the act of employee, or principal for an agent. A contract made by an agent is looked upon in law as the contract of the principal, so agents need not be "sui juris" and infants, married women, and others are competent to act as such. The agent must, however, act within the scope of his authority.  According to this maxim, if in the nature of things, the master is obliged to perform the duties by employing servants, he is responsible for their act in the same way that he is responsible for his own acts.  NOTE : Maxims (i) Respondeat superior and (ii) Vicarious Liability, are BOTH based on this maxim of “Qui facit per alium facit per se. He who acts through another acts through himself”.  Example : ● In Scott v. Shepherd, 2 Black. 892, an action was held to lie against the person who originally threw a squib which, after being knocked about by other persons in self-defence, ultimately hit and put out the plaintiff's eye. ● In Pennsylvania v International Union of Operating Engineers at 469 F. Supp. 329, the US District Court wrote (1978), in reference to the related term respondent superior :  "Respondeat superior, a doctrine centuries old, is predicated on the assumption that a master, employer, or principal will be held responsible for the acts of a servant, employee, or agent respectively. The rationale for this view is succinctly expressed by

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the maxim qui facit per alium facit per se." ● In Butler v Bunge Corporation (1971), the US District Court adopted these words:  "Qui facit per alium facit per se, that is, that the authorized acts of an agent are, in legal contemplation, the same as the principal's acts; and that a principal's tort liability is based, not on an agency relation, but on the relationship of master and servant and is expressed by the maxim. Go To Module-3 QUESTIONS Go To Contents ➔ Discuss the Legal Maxims with relevant cases : Res Ipsa Loquitur. (Oct-2013, Nov-2014, Jan-2016) ANS :  Res Ipsa Loquitur --- Res ipse loquitur --- The thing speaks for itself {without proof). Frequently quoted in actions for damages for negligence.  The doctrine provides that in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence that establishes a prima facie case.  Res Ipsa Loquitor more often than not operates against the defendant and puts the plaintiff in a slightly elevated position.  The application of this doctrine induces strict liability.  Elements : The following elements need to be proved in order to establish the claim of Res Ipsa Loquitor : ● - The defendent owed the plaintiff a duty of care ● - The injury was caused to the plaintiff due to the defendent's negligence in observing such duty ● - The negligence is more attributable to the act or ommission on the part of defendent, than the plaintiff or a 3rd party.  Comparison with tort of negligence : ● Negligence is a tort which is committed when a person is injured due to the irresponsibility of another. The damage so caused must be an

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immediate cause of the act of negligence and not a remote cause. Essential elements of negligence are as follows : •

Duty to take care

•

Beach of such a duty

•

Legal damage caused to the complainant due to a breach of duty

● Reasonable foresee-ability is the basic principle on which the tort of negligence is based. When a person before or at the time of committing an act can reasonably foresee that his act is likely to cause a damage to the other person and he still continues to do it, he is said to have committed a tort of negligence ● The burden of proof falls on the plaintiff that he has sustained legal damage due to a breach of duty on the part of the defendant. ● However, in certain cases the plaintiff doesn’t have to prove negligence on the defendant’s part. Such cases fall under the principle of res ipsa loquitor which means “things speak for itself” where it is evident from the facts of the case that there has been negligence on the side of the defendant.  Res Ipsa Loquitor is a crucial tool for determination in medical and traffic cases.  Examples of Res Ipsa Loquitor : ● - A doctor while performing an operation leaves a pair of scissor inside the stomach of the patient. ● - Ravi is rashly driving on wrong side of the road, hits Annie and injures her. Ravi's action is in itself is wrongful and speaks for itself. Go To Module-3 QUESTIONS Go To Contents ➔ Discuss the Legal Maxims with relevant cases : Salus Populi Supreme Lex. (Oct-2013, Jan-2016) ANS :  http://www.duhaime.org/LegalDictionary/S/SalusPopuliEstSupremaLex.a spx

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 Latin maxim "Salus Populi Est Supreme Lex", translated literally means, "The health, safety or welfare of the public is the supreme law".  Salus populi est suprema lex. The public safety {welfare) is the supreme law.  The prosperity of its people, and the proper maintenance of order and security, as also the diffusion of domestic and social happiness, should be the first and main object of every government.  The good of the individual ought to yield to that of the community.  "This phrase is based on the implied agreement of every member of society that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty and life shall, under certain circumstances, be placed in jeopardy or even sacrificed for the public good"  Judges ought above all to remember salus populi est supreme lex ... and to know that laws, except they be in order to that end, are but things captious and oracles not well inspired."  This Latin maxim has been used to justify damages for the tort of nuisance as including the legal requirement that one not use his/her property as unreasonably to injure others. Go To Module-3 QUESTIONS Go To Contents ➔ Discuss the Legal Maxims with relevant cases : Ubi jus ibi remedium. (Oct2013, Nov-2014, Jan-2016) ANS :  http://www.duhaime.org/LegalDictionary/U/UbiJusIbiRemedium.aspx  "Ubi Jus Ibi Remedium" is a latin phrase which means "There is no wrong without a remedy, or, Where there is a legal right there is a remedy". In other words, "whenever the law gives a right or prohibits an injury, it also gives a remedy".  If a man has a right, he must also have a means to vindicate and maintain it, and a remedy if he is injured in the exercise and enjoyment of it, and, indeed, it is a vain thing to imagine a right without a remedy.  Want of right and want of remedy are reciprocal.

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 It is an elementary maxim of equity jurisprudence that there is no wrong without a remedy. An action will lie for an injury although no actual damage be sustained. It is an integral and intrinsic equity principle highlighting the duty of court.  Right violated : Where a right has been violated, a proportional and equitable remedy shall be provided,  Right infringed : Where a right has been infringed, the affected party has a right to enforce enjoyment of right through court.  Example : In the case of Ashby v. White is a foundational case in UK constitutional law and English tort law. It concerns the right to vote and misfeasance of a public officer who prevented Ashby from voting at an election on the apparent pretext that Ashby was not a settled inhabitant. Held that, it is not relevant that "Ashby's vote would not have made any material difference on outcome of election". It was decided that an action lay against a returning officer for tortious act. Go To Module-3 QUESTIONS Go To Contents ➔ Define and explain with relevant cases and illustrations the following legal maxim “Volenti non fit injuria”. (Nov-2014) ✔ Explain in detail with decided cases : Volenti non fit injuruia. (Nov-2014) ANS :  http://blog.ipleaders.in/10-principles-of-tort-law-every-indian-shouldknow/  The Latin maxim "volenti non fit injuria" literally means “to the one who volunteers, no harm is done”. It is a common law doctrine which states that if someone willingly places him/herself in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or derelict.  Essential elements constituting volenti non fit injuria are as follows :  plaintiff having complete knowledge of the risk  plaintiff consented to such an activity/ process  consent was voluntary and not induced or forced  A person who after knowing the risks and circumstances willingly and https://www.facebook.com/LLB.GujUni/

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voluntarily consents to take the risk cannot ask for compensation for the injury resulting from it.  A person who voluntarily abandons his rights cannot sue for any damage caused to him. The maxim is used as a complete affirmative defence in the law of torts liberating the defendant from all kinds of liability.  Volenti only applies to the risk which a reasonable person would consider them as having assumed by their actions;  However, the action causing harm must not go beyond the limit of what has been consented.  Contrast with comparative negligence : It is not easy for a defendant to show both elements and therefore comparative negligence usually constitutes a better defence in many cases. Note however that comparative negligence is a partial defence, i.e. it usually leads to a reduction of payable damages rather than a full exclusion of liability. However, the person consenting to an act may not always be negligent: a bungee jumper may take the greatest possible care not to be injured, and if he is, the defence available to the organiser of the event will be volenti, not comparative negligence.  Often, consent to medical treatment or consent to risky sports on the part of the claimant excludes liability in tort where that consent is informed consent.  Example : ● A boxer consents to being hit by hand, and to the injuries that might be expected from being hit by hand, but he does not consent to his opponent striking him with an iron bar. ● By participating in a football match, the player willingly consents to bear the risk that may arise in the normal course of the game. Go To Module-3 QUESTIONS Go To Contents Suggested Reading : ➔ P. Ramaswami Aiyar, Law Laxicon, Wadhwa and Co. ➔ Ramanathan Aiyer P., The Law Lexicon ➔ Dr. Amit Sen : Text book of Legal Language

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➔ Gary Slapper and David Kelley : Lectures on Language System ➔ Brayan Garner : A Dictionary of Modern Legal Usage ➔ John Gibbons : Language and the Law ➔ Peter M. Tiersma : Nature of Legal Language ➔ Wikipedia: Legal English

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