Ex nudo pacto non oritur actio

Maygha Viswanat

The law relating to contracts forms one of the most fundamental aspects of the legal arena. We individuals get into contracts on a day to day basis be it with friends, relatives or colleagues. Since, we live in a world where we keep entering into contracts, it often becomes imperative to analyse the various components of a contract. Out of all the components constituting a contract, the most important is consideration.

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. Sir Frederick Pollock has defined consideration, “It is the price for which the promise of the other is bought, and the promise thus given for value is enforceable.” In the case, Curie v. Misa (([1875] LR 10 Ex 153; (1875-76) LR 1 App Cas 554))the term was defined, “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”. The Indian Contract Act states, “When at the desire of the promissory, the promise or any other person has done or abstained from doing something or does or abstains from doing something or promises to do or abstain from doing something, such act or abstinence or promise is called a consideration for the promise.”

The maxim ex nudo pacto non oritur actio means, “No action arises on a contract without consideration”. Since consideration is the founding platform to a contract, a contract without consideration is void. In the case of S. Parameswari vs. Balasubramanian ((SECOND APPEAL No.881 of 1997)), 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.

Though a contract without consideration is void, there are certain exceptions to this as present in Section 25, Indian Contract Act. 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 and maxims looked by the court while deciding cases pertaining to contracts.

Res communis and res nullius

Sai Manoj Reddy

Res communis and res nullius are the two legal maxims which have a great significance in the legal world and mainly in the laws related to seas, space and many natural resources. These two legal maxims take us back to the roman philosophy from which these maxims are born. In Roman law these maxims usually determine about the public property and its ownership.

Now coming to what is res communis and res nullius actually mean; res communis is something which is owned or being used commonly by all, like seas, underground water, and many other natural resources. In sixth century C.E the institutes of Justinian codified the relevant Roman law as, “By the law of nature these things are common to mankind- air, running water, the sea and the shores of the sea. The concept of res communis also includes biological elements like fish and aquatic animals in the seas, plants in seas and rivers and many others. In the present concepts of law the res communis preceded into the concepts of public domain and common heritage of mankind. In the present generation of law the concept of res communis played a major role in the world by development of maritime law, space law, rules of usage of the continent Antarctica.

Res nullius is also Latin term derived from Roman law which means any object which is an ownerless property and is usually free to be owned. Some examples of res nullius are wild animals or abandoned property, a thing which is completely lost or abandoned is also res nullius and belonged to the first taker.

In the development of the space law there are many complications initially and the major jurists debated on the matter whether the space can be taken as res communis or res nullius and how can one restrict or apply laws as the space is limitless and as the Earth is rotating how can one divide boundaries. And even in the maritime law the concept of res communis is applied to gain free access to the high seas considering it as property of all or none. Best example in the space law where the concept of res communis and res nullius came to play in the development of space law is after the launch of sputnik by Russia the first colloquium on the law of outer space took place in Hague. Initially the jurists debated whether to consider the outer space as res communis or res nullius and how can it be governed and later after the second colloquium it is clear that the jurists are not only debating on how outer space is to be governed but they are also trying to figure out how outer space is to be imagined. Now in the case of US v. causby where the respondent made a petition to the court saying that the owner of land owns it from depths to the heavens according to the maxim “Cujus est solum, ejus est wsque ad coelum”, and the court held that this maxim is of no use in the present generation of highly developed technology of airways and communication and held that there is a minimum safe altitude to which the owner of property can own up to.

Now coming to the maritime law where the laws are made over the usage of seas and oceans using the concepts of res communis and res nullius. There is a certain distance up to which the waters belong to the particular country and the jurisdiction lies only up to that distance. The high seas there are no one who can have jurisdiction and anyone can move freely in high seas.

Next comes the laws relating to the usage of underground water and flowing water like rivers and streams. There is an interesting case in India Perumatty Gram Panchayat v.State of Kerala, where a soft drink company has been sued by the Perumatty Gram Panchayat for the excess usage of ground water leading to the depletion of the underground water level in the nearby villages. Here the company tried a lot to justify their usage of water and also relied on the concept that a person who owns the land owns till the depths of it and can do anything with it. They also relied on the famous case of Bradford v. pickles, where the court held that the owner can do anything in his own land whether it is on the surface or under the surface. But the court very interestingly held that the underground water is everyone’s property and usage of more underground water by only one person is a big issue and if the court allows the company to continue its usage of water then many others will do the same and it will become an big issue and the court also involved article 21 of the Indian constitution which says right to life also includes the clean drinking water which is violated by the company by the over usage of underground water.

Finally the concept of res communis and res nullius is very useful in the interpretation by the court on the issues related to the natural resources and the exploitation of natural resources by the corporates.

Corpus delicti or Body of crime

Lohitashwa Pratap Singh

Corpus delicti translated to “body of crime” is a term that refers to the principle that a crime must have been proven to have occurred before a person can be convicted of committing that crime. Black’s Law dictionary defines “corpus delicti” as the “fact of a crime having been actually committed”.

The above mentioned maxim is one of the most important concepts in murder investigation. When a person goes missing the police file a missing report and initiates the search proceedings and during that course if the investigators feel that the person was murdered the investigation is done on the evidentiary items including physical, demonstrative and testimonial evidences. In this case the physical evidence is the most important but if due to any reason the physical evidence is not present it is possible to prove that the crime took place if the situational and circumstantial evidences are well detailed.

Many jurisdictions hold as a legal rule that the defendant’s out of court statement is sufficient to prove if the convict is guilty or not beyond reasonable doubts.

In the end just to say there must be palpable harm or injury to rights of other with mens rea (guilty mind) or in alternative an element of negligence so severe as to be called criminal.

Ratio Decidendi – the reason

Mahima Gherani

Ratio decidendi is a Latin phrase meaning “the reason” or the “rationale for the decision”. The term ‘ratio” means the ‘the measure of the quantity in other’ and ‘decidendi’ means decision. It is the point in a case which determines the judgement and explains the principals established in d case. According to Salmond “A precedent is a judicial decision which contains in itself a principal”. The underlying principal which thus forms is an authoritative element and is termed as ratio decidendi. It is a legal rule which is derived from the parts of legal reasoning within a judgement.  It refers to legal, moral, political, and social principals used by a court in a particular judgement. This is a general rule and is binding on all the courts. The process of determining the ratio decidendi is the analysis of what the courts decide based on the facts of every case. It is one of the most essential tools used by the lawyers. The ratio decidendi of a case can be defined as the material facts of the case plus the decision thereon.

 Various professors have put forward their views on how the ratio decidendi of a particular case could be decided. Professor Wambaugh suggests that the ratio decidendi can be discovered by reversing the proposition of law put forward by the court and inquiring whether the decision would be same notwithstanding the reversal. If it is the same, then the proposition of law is no part of the ratio. This test is known as the “Wambaugh Test”. The view of Professor Goodheart is that ratio decidendi is nothing more than the decision based on the material facts of the case. The view of Goodheart is that facts such as time, place etc are presumed to be immaterial unless expressly stated to be material. So there should always be a distinction between material and immaterial facts of the case. His theory mainly focussed on 2 main points. The first point is that it is within the function of the judges in the subsequent cases to say what they choose to regard as the material facts of the earlier case. The second point is that two persons may agree to a collection of individual facts and yet from different impressions of the group of them as a unit.

The search for the ratio of a case is a process of elucidation, i.e. the abstract principals of law that led to the decision. For example, the ratio in Donogue v. Stevenson would be that a person owes a duty of care who he can reasonably foresee will be affected by his actions. It is in this statement of the material facts and the conclusion based that the ratio of the case can be found.  A case in law is a collection of facts. Whether two cases resemble each other sufficiently so that one can be regarded as a precedent for the other rests entirely on the impression which a particular judge forms of the facts of each case as a whole. The result is that the ratio decidendi of a case depends a good deal on what later tribunals have declared to be the ratio decidendi.

Locus Standi

Maygha Viswanat

Being in the legal fraternity and as law students we often come across the term “Locus Standi.” This maxim forms the deciding factor when a case comes up before the court. It is thus the very basic requirement for the case to be heard by the presiding judge. In simple parlance it means, the right of a party to appear and be heard before a court or the right of a part to bring an action before the court. In better words it is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. In Canadians for the Abolition of the Seal Hunt ((Canadians for the Abolition of the Seal Hunt v Canada [1981] 1 FC 733)), Justice Walsh of the Canadian Federal Court referred to locus standi as:

“The right of individuals to bring proceedings … when they are not personally affected (other than of course in their sensibilities) by the law or regulations complained of….”

In R v Paddington ((R v Paddington Valuation Officer, Ex parte Peachey Property Corporation Ltd[1966] 1 QB 380))the court held that:

“The court would not listen, of course, to a mere busybody who was interfering in things which did not concern him. But it will listen to anyone whose interests are affected by what has been done.”

In Saskatchewan Ltd. v Sask. Liquor and Gaming Authority ((157DLR 4th 82 (1998).)), the Saskatchewan Court of Appeal adopted these words in regards to locus standi:

“A place of standing; standing in court. A right of appearance in a court of justice… on a given question. Roughly speaking, this place of standing, enabling a person to appear before and be heard by a court in relation to a given question, may be acquired in one of two ways: as of right, in reliance upon one’s own private interests in the question (private interest standing); or with leave of the court in reliance largely upon the public’s interest in the question (public interest standing). And standing may exist, or be granted, in both civil and criminal proceedings, proceedings of one sort and other involving claims of various kinds, including a claim that a law is unconstitutional.”

In the case of R vs. Inland Revenue Commissioner (([2000] STC 751, 73 Tax Cas 276)), the court laid down guidelines to determine when the party has sufficient interest in the matter. In India, the concept was Locus Standi was broadened with the advent of Public Interest Litigation. Thus in Fertilizer Corporation Kamgar vs. Union of India ((1981 AIR 344, 1981 SCR (2).)), the court liberalized the concept of locus standi to encourage public interest litigations. Today in India with regard to Public Interest Litigation (PIL), locus standi has been relaxed. Now, any person, group etc who are acting as public spirited citizens can approach the court of law.

Today the concept of locus standi has been broadened and is no more looked at from a narrow angle. Locus standi is one of the most essential and fundamental ingredients or pre-requisite that has to be fulfilled before the court hears the matter. However, due to its strict interpretation, many at times justice was not being served. By bringing out regulations to relax Locus Standi, the country has struck the right chord to bring in a balance with regard to approaching the court.

Non Compos Mentis

Balakumar Rajendran

Latin term meaning of Non Compos Mentis is “Not of a sound mind, memory, or understanding.” Defendants could argue in their defence that they were not responsible for the crime, owing to the fact that they are not sound in mind and therefore they cannot be held liable for their act. This type of defence can be taken only if the defendant totally lack in reasoning and understanding, and defendant should not be able to differentiate between right and wrong. If the defendant comes under the above said conditions then the juries deliver the verdict of “Non Compos Mentis.” Section.84 of the Indian Penal Code deals with act of the person of unsound mind[1].

There are four kinds of persons who may be said to be Non Compos Mentis

  • An Idiot;
  • One made Non Compos by illness
  • A lunatic or a mad man
  • One who is drunk

Person who can take up the defense of  Non Compos Mentis are who cannot count twenty, or tell the days of the week, or who do not know their father or mother.[2] Section 84 of IPC itself provide that the benefit is available only after proving that at the time of committing the act, he must be affected by the disease of mind and he must not be knowing that the act he was doing is lawful or not. In Siddhapal Kamala Yadav v state of Maharashtra the appellant murdered a person and pleads before the Supreme Court of India that he was in an unsound mind while performing the act, so he can’t be held under section 302 of IPC, but the doctors who attended the appellant gave a report that the appellant was normal and he was not in unsound mind when the act was done, taking the medical records into account Supreme Court declared that section 84 of IPC does not have any application to the facts of the case.

In Paramjeet Singh v state, a man was arrested for murdering his own daughter and causing injuries to the wife and the other two children, he claimed that he had unsound mind at the commencement of the act and he held that there was not motive in committing such a act, The Delhi high court held that motive cannot be a ground to access 84 of IPC, further on looking into the facts the neighbor came to the spot and said the appellant to through his knife away and so did the appellant which proves that he was not in a state of unsound mind he knows what was happening. So the Delhi High court dismissed the case on the grounds that article84 of IPC cannot be applicable.

[1] 84. Act of a person of unsound mind.—Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

[2] See Archbold’s Criminal Pleadings, Evidence and Practice, 35th Edn. pp.31-32; Russell on Crimes and Misdemeanors, 12th Edn. Vol., p.105; 1 Hala’s Pleas of the Grown

Nemo debet esse judex in propria sua causa

Lohitashwa Pratap Singh

No man can be judge in his own cause

Nemo debet esse judex in propria sua causa is a fundamental rule in the administration of justice ,that a person cannot be judge in a cause wherein he is interested; nemo sibi esse judex vel suis jus dicere debet; and, therefore, in the reign of james I., it was solemnly adjudged that the king cannot take any cause, whether civil or criminal, out of any of his Courts, and give judgment upon it himself ; but it must be determined and adjudged in some. court of justice according to the law and custom of England; and “the judges informed the king that no king, after the Conquest ,assumed to himself to give any judgment in any case whatsoever which concerned the administration of justice within this realm; but these were solely determined in the courts of justice”,

Justice should not only be done but seem to be done P. K. Ghosh v J. G. Rajput. That is the basic structure on which confidence and faith in the institution rests. The judiciary commands respect from the bottom in the hierarchy to the apex because of its impartiality and objectivity. When a judge directs a case to be listed before another Court or Bench, as he knows one or the other party, it is not because any statutory law precludes him from hearing and deciding it but the propriety is practised and observed to exclude even the remotest possibility of any misgiving or doubt about the impartiality of the judge as even if he is just and fair and his decision is correct yet it may not be satisfying.

Injuria Sine Damno

Sai Manoj Reddy

Injuria Sine Damno is used in law of torts and is related to damages. 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. 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. 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 special damage, because the injury itself is taken to imply damage”. 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. To explain this maxim in terms of application the following case laws will be helpful.

  1. Ashby v. White

In this case the  defendant, the returning officer, 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 loss was suffered by the rejection of the vote. Here the defendant maliciously refused to register the vote of plaintiff. This is considered as legal damage caused to plaintiff as it is infringement of the fundamental rights of a person who has right to vote and is unconstitutional. The court held that the action 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 pecuniary damage.

  1. Bhim Singh v/s State of Jammu and Kashmir. [AIR 1986 Sc. 494]:

In this case the petitioner was an MLA of Jammu and Kashmir assembly was wrongfully detained by the police while he was going to attend the assembly session. He was not produced before the magistrate within the requisite period. As the consequence of this the member was deprived of his constitutional right to attend the assembly session. There was also violation of fundamental right to personal liberty guaranteed under article 21 of India constitution. In this case the court ordered to pay exemplary damages of Rs. 50,000 to the petitioner.

Thus the maxim ‘ínjuria sine damno’ means that infringement of a legal right will give rise to action irrespective of the fact that no actual loss or damage has taken place.

Ignorantia juris non excusat

Adyasree Prakriti Sivakumar

Ignorantia juris non excusat” is a Latin legal maxim, on literal interpretation, means Ignorance of Law is not an excuse. This is one of the most important and basic concepts any lawyer or legal academician should know. Also, being law students it becomes necessary for us also to know about it.

This term, is derived from the Latin word. The origin of the of the maxim can be found with the philosophies of the Greeks and Romans. These cultures were heavily influenced by customary legal systems. Within such a system, law is learned as a person participates in the culture and customs ornate community. Thus, it is unreasonable to believe a person could have avoided learning them. These rules and customs were also interwoven with ethical and religious dialog and hence, the practice of laws became an involuntarily phenomenal

The ratio for this doctrine is to punish all offenders and not let him escape liability on the grounds that he was unaware of the law. The application of this maxim is more wide in civil cases than criminal cases.

For example, if a person wants to start a business he needs to be aware of the rules and regulations and the procedure involved in doing so. He needs to be aware of the various acts and statues that govern the Labour Laws. Some of them being the payment of wages, safe and secure working conditions and the compulsory establishment of grievance cells for both the employees and customers. If at a later date he is brought before law, he cannot merely deny the claim on the grounds that he was unaware of the law.

It is simple to know for basic things like a murder or killing the defaulter is sure to get punished. Now, the main question that raises here is how is a lay man supposed to be aware for the laws of the land, especially laws relating to environment, property, or ownership? These are not that common concepts that one comes across in our day to day life. Hence, for such concepts the government has a duty to publish the laws on a public platform. A public platform is one where any common man can view the laws of the land. They include, government gazettes or official documents which are available easily for a reasonable price. Also today, in an era where computerisation had become a sole criteria, to save trees, that the legal contents and can be easily downloaded for free. The statues and cases are available for free on many a web sites. Hence, anyone afoul with the law cannot claim that he wasn’t aware of the law.

With increasing crime rates in every aspect of life it becomes necessary to impart legal education not just at the graduation level but also a very basic at the school level. By doing so we are preparing our younger generation to not only become better citizens but also better and civilised individuals.

Ejusdem generis

Mahima Gherani

This commonly used Latin maxim means “of the same kind, class or nature”. Known as a “canon of construction”, it states that while interpretation or construction of a statute the first thing which is done by the court is to assign literal meaning to the statute in question, but in case, there exists any vagueness, then the court goes a step ahead in its interpretation, and try knowing the intent of the legislature in constructing such a statute, which can be inferred and determined from the application of statutory rules out of which one of them is Ejusdem Generis. It is an ancient doctrine, commonly called Lord Tenterden’s Rule. The general expression takes its meaning from the preceding particular expressions. The basis of the principle of Ejusdem Generis is that if the legislature intended general words to be used in unrestricted sense, it would not have bothered to use particular words at all.

This rule of law must be applied cautiously because it implies a departure from the natural meaning of words in order to give them a meaning on a supposed intension of the legislature. The rule must be controlled by the fundamental rule that statutes must be construed so as to carry out the object sought to be accomplished. This term can be further explained by its usage in various case laws and the decisions of the judges.

The Supreme Court in Uttar Pradesh State Electricity Board v. Harishanker, has laid down the following five essential elements of this rule:

  • The statute contains an enumeration of specific words
  • The subjects of enumeration constitute a class or category
  • The class or category is not exhausted by the enumeration
  • The general terms follow the enumeration
  • There is no indication of a different legislative intent.

If the legislative purpose of a statute is such that a statutory series should be read Ejusdem Generis, so it be, and the rule is helpful.

In State of Bombay v. Ali Gulshan , Section 6(4)(a) of the  Bombay Land Requisition Act, 1948 was in question wherein the High Court held that the words “any other words” used in the Section should be read Ejusdem Generis with the purpose of the State that accommodation for a member of the foreign consulate staff is a purpose of the Union. This rule was also applied in University of Madras v. Shanta Bai, where in the Madras High Court evolved the principal of Ejusdem Generis i.e of like nature. It means that those authorities are covered under the expression ‘other authorities’ which perform governmental or sovereign functions.

In another landmark case Porwell v. Kempten Park the question was in reference to the Betting Act 1853. The Betting Act 1853 made it an offence to keep a house, office, room or other place for the purposes of betting. The House of Lords had to decide if the statute applied to Tattersall’s enclosure at Kempton Park Racecourse. The court applied the ejusdem generis rule and held that the other items mentioned in the statute related to places indoors whereas Tattersall’s enclosure was outside. There was thus no offence committed. In another old English case of Evans v. Cross, the words ‘other devices’ had to be interpreted in Section 48(9) of the Road Traffic Act, 1930 which defined a ‘traffic sign’ to include ‘all signals, warning sign posts, direction posts, signs or other devices.’ Applying the rule of Ejusdem Generis the Court held that a painted white line on a road could not be called a traffic sign because devices are things and not those that are painted.

This is a rule of language employed by the courts when a situation arises that may not have been foreseen when the statute was being drafted. It will bring within the meaning of the statute things that are of the same class or genus as those mentioned within the statute itself. Thus, if specific items are listed, plus a general term (for example, houses, offices, rooms or other places), the general term of other places will include things only of the same class as the specific list, in this case indoor places.

The doctrine of Ejusdem Generis is only part of a wider principle of construction, namely, that, where reasonably possible, some significance and meaning should be attributed to each and every word and phrase in a written document. That being the object of the doctrine, it is difficult to see what difference it can make whether the word ‘other’ is or is not used, provided-and this is essential-that the examples which have been given are referable to a clearly ascertainable genus.