UNIT 3

LEGAL MAXIMS

1. Actio personalis moritur cum persona

Meaning: A personal right of action dies with the person.
Illustration: A entered B’s house without permissions. B filed a case of trespass against A. During the
pendency of the case in the Court, B died. B’s legal heirs cannot pursue the matter further in the Court
against A.
Cases:
a) Anjilamma and Ors. v. Labour Court-III, Hyderabad, (1996) ILLJ 733 AP
b) Mahtab Singh v. Hub Lal and Anr., AIR 1926 All 610

2. Actus non facit reum nisi mens sit rea

Meaning: The act and the intent must both concur to constitute a crime.
Illustration: A finds a book kept on his table which belongs to B. B mistakenly left his book on A’s table.
A thinks that someone had given the book to him and so he takes it with him. B cannot file a complaint of
theft against A.
Cases:
a) Nathulal v. State of MP, AIR 1966 SC 43
b) Ranjit D Udeshi v. State of Maharashtra, 1965 SCR (1) 65

3. Audi alteram partem

Meaning: No man is to be condemned unheard.
Illustration: A terrorist commits an act of terror and kills a lot of people. There is sufficient evidence to
prove that he was involved in the terror attacks. The law still would allow him a fair trial.
Cases:
a) Smt. Maneka Gandhi v. UOI, AIR 1978 SC 597
b) Hira Nath Mishra v. Principal, Rajendra Medical College, Ranchi, AIR 1973 SC 1260

4. Caveat emptor
Meaning: A purchaser of property must examine and judge for himself as to its title and quality, unless
dissuaded by representation; let the buyer beware.
Illustration: If a buyer goes to the shop to buy vegetables, he is supposed to ensure that he buys the
vegetables that he thinks are worth buying.
Cases:
a) Commissioner of Customs (Preventive) v. Aafloat Textiles India Private Limited and Others, (2009) 11
SCC 18
b) MS Padmanabha Iyer v. Devadass Sylus and Anr., (1969)
5. Damnum sine injuria
Meaning: Damages without injury; damages in which there is no infringement of any legal right which are
vested with the plaintiff. Since no legal rights are infringed, no action lies in these cases. The general
principle on which this maxim is based upon is that if one exercises his common or ordinary rights, within
reasonable limits, and without infringing other’s legal right; such an exercise does not give rise to an action
in tort in favour of that other person. Damages can be in any form either in the form of any substantial harm
or loss suffered from respect to the money, comfort, health, etc.
In law, there are no remedies for any moral wrongs, unless and until a legal right has been infringed.
Cases:
a) Mayor & Co. of Bradford v. Pickles (1895) – The corporation of Bradford filed a suit against the
defendant alleging that the act of defendant by digging a well in the adjoining land owned by the
defendant has cut the underground supply of water in the corporation’s well hence causing them
monetary losses since there was no adequate supply of water to discharge for the people living under the
jurisdiction of the corporation. It was held that the defendant is not liable since they had not violated any
legal right of the plaintiff.
b) Gloucester Grammars School case (1410) – Here, a schoolmaster set-up a rival school to that of the
plaintiff and since because of the competition the plaintiff had to reduce the fees. Thus, claimed for
compensation from the defendants for the losses suffered. It was held that the plaintiff had no remedy
for the losses suffered, since the act though morally wrong had not violated any legal right of the
plaintiff.

6. De minimis non curat lex

Meaning: The law does not concern itself with trivials.
Illustration: Sec 95, IPC, 1860: Act causing slight harm - Nothing is an offence by reason that it causes, or
that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no
person of ordinary sense and temper would complain of such harm.
Cases:
a) Mrs. Veeda Menezes v. Yusuf Khan & Anr., 1966 SCR 123
b) Narayanan And Ors. v. State of Kerala, 1987 CriLJ 741

7. Doli incapax
Meaning: Incapable of crime; a child is incapable of crime.
Illustration:
‘X’ an adult of 25 years, in order to kill ‘P’, instigates ‘Z’ a child of 6 years to do an act which causes P’s
death. Here, the child will not be liable for any crime as he is doli incapax. However, X will be held liable
for murder of P.
‘G’ instigates ‘K’ a child of 7 years to burn a dwelling house. K without knowing the consequences of his
actions burns the house. Here K cannot be held liable.
Cases:
a) R v. LMV (1999) – A 10-year-old boy, LMW, was charged with the manslaughter of six-year-old Corey
Davis, who drowned on 2 March 1998. The defendant had dropped Corey into the Georges River,
knowing that Corey was unable to swim. The defendant was found not guilty of manslaughter, as the
 jury supported the defence case that the drowning of Corey had been ‘an act of bullying that went
wrong’. This case raised the issue of doli incapax, which presumes any child aged 10-14 is incapable of
criminal intent unless proven otherwise.
b) Kakoo v. The State of Himachal Pradesh, AIR 1976 SC 1991 - Kakoo who was of thirteen years had
committed rape on the child of 2 years and was sentenced to 4 years of rigorous imprisonment by the
trial court and the decision was upheld by the High Court. The defence counsel pleaded defence under
section 82 and 83 of the Indian Penal Code. This took place in 1976 when laws for juvenile and child
delinquents were not fully developed and Himachal Pradesh did not have any enactment in force at the
time. The court however stated, “Taking into account all the circumstances of the case. we are of
opinion that the ends of justice will be served by reducing the sentence of the appellant to one year’s
rigorous imprisonment and a fine of Rupees 2,000/-, and in default of payment of fine, to suffer six
months’ further rigorous imprisonment. The appellant shall be detained separately from adult prisoners.
He should preferably be detained in a Reformatory School, if any, for the said period. The fine, if
realised, shall be paid as compensation to Shrimati Parmeshwari Devi, the mother of the victim baby.”

8. Double jeopardy
Meaning: Article 20 (2) provides that no person shall be prosecuted and punished for the same offence
more than once. It has been enshrined as a part of the Fundamental Right by the fathers of our Constitution
under Part III. When a person has been convicted for an offence by a competent court, the conviction serves
a bar to any further criminal proceedings against him for the same offence. No one ought to be punished
twice for one and the similar offence.
Ingredients:
i. The person must be accused of an offense. The word ‘offense’ as defined in general clauses Act
means ‘any act or omission made punishable by law for the time being in force.
ii. The preceding or prosecution must have taken place before a Court or Judicial Tribunal.
iii. The person must have been prosecuted and punished in the previous proceeding.
iv. The offense must be the same as of before compulsorily for which he was prosecuted and punished.
Cases:
a) Kalwati v. State of Himachal Pradesh, AIR 1953 SC 131 - The accused was acquitted of the charge of
committing a murder. The state appealed this decision by the court and the accused pleaded double
jeopardy. It was held that here, since the accused had not been originally punished, double jeopardy
could not be applied and the appeal was allowed.
b) State of Rajasthan v. Hat Singh, AIR 2003 SC 791 – The Court clarified that prosecution and
punishment that is carried out under 2 different sections of the same Act, so long as the offenses in the
two sections are distinct, would not amount to double jeopardy. If, however, the accused was neither
convicted nor acquitted during the course of their trial, then bringing a fresh trial against them would not
amount to double jeopardy, this was laid down in O.P Dhaiya V UOI, (2003)1 SCC 122.
c) Mohammad Ali v. Sri Ram Swaroop, AIR 1965 A11 161 – The Court stated that if there is a case where
the offense is continuing, then it is said that each day constitutes a new offense and the accused can be
punished for each one separately, and this would not amount to double jeopardy.

9. Ignorantia juris non excusat / Ignorantia Facti Excusat Ignorantia Juris Non-Excusat
Meaning: Ignorance of law is no excuse. Ignorance of facts may be excused but not ignorance of the law –
the legal principle being that a person who is unaware of a law may not escape liability for violating that
law merely because he was unaware of its content.
Illustration: A person driving a two-wheeler without a helmet cannot be excused on the ground that he did
not know that it is mandatory under law to wear helmet and drive.
Cases:
a) Union of India v. Zareen Taj Begum, (2007)
b) Inder Singh v. Union of India and Anr., (2014) - The court used the maxim to not entertain the plea of a
party that he was not aware of the right to file an appeal i.e., ignorance of the law is not an excuse
c) S.A. Qadir v. Union of India & Ors. - The principle underlying the said maxim was used to counter the
stand taken by an accused that he could not be convicted because he did not know that bringing gold on
his person amounts to an offense. Court held that the ignorance on the part, of the respondent, who was
coming to India from a foreign country, was not sufficient to save him from punishment on the ground
that men’s rea was necessary. In the above maxim, the terms ‘fact’ obviously does not include the
existence of a law in force. Therefore, ignorance of the law cannot be regarded as ignorance of fact for
the purpose of protecting offenders from punishment.
d) Dolatram & Ors. v. Kishan & Ors. - Court held that the maxim “ignorantia juris non excusat” is not an
inflexible rule when the Court is dealing with the case of a rustic farmer and the condonation of delay
application was allowed by the Court and the legal representatives of the deceased Respondent were
brought on record.

10. Injuria sine damno

Meaning: Injury/loss/damage (legal) so caused to the plaintiff without suffering any physical injury or
damage. Latin term where “injuria” means “injury”, “sine” means “without”, and “damno” means
“property/physical loss”. Therefore, the maxim means “injury suffered without any actual loss”. Here, the
plaintiff doesn’t have to prove the damages so suffered, he only has to prove that there is some legal
damage suffered by him.
Illustration: Where A roams around B’s house without any justification then, in that case, there is a
violation of the legal right of B and therefore this maxim is applicable.
Cases:
a) Ashby v. White (1703) - The plaintiff was a qualified voter at a parliamentary election, while the
defendant who was a returning officer in election wrongfully refused to take the vote of the plaintiff.
Although the plaintiff didn’t suffer any loss by such wrongful act as the candidate, he wanted to vote for
won the election, but the legal rights of the plaintiff were infringed and therefore the defendant was held
liable.
b) Bhim Singh v. State of J & K, AIR 1986 SC 494 - the petitioner was an M.L.A. of J. & k. parliamentary
assembly. While he was going to attend the assembly session, police there wrongfully arrested him. He
was not even presented before the magistrate within the stipulated time. Resultant was that the person
was wrongfully deprived of his legal right to attend the meeting and moreover his fundamental right i.e.,
Art. 21 of the constitution was also violated. It was held that the respondent was responsible, and the
petitioner was liable to receive Rs. 50,000 from the defendant.

11. Nemo debet esse judex in propria causa

Meaning: No one can be a judge in his own cause.
Illustration: A judge cannot decide a case involving theft by an accused in his own house.
Cases:
a) Justice P. D. Dinakaran v. Hon'ble Judges Inquiry Committee, W.P. (C) No. 217 of 2011
b) A. K. Kraipak & Ors. Etc v. Union of India & Ors., [1959] 1 Supp. S.C.R. 792. 464
12. Qui facit per alium facit per se
Meaning: One who acts through another, is deemed in law, to do it himself. “He who acts through another
does the act himself”. It is a fundamental legal maxim of the law of agency. It is a maxim often stated in
discussing the liability of employer for the act of employee in terms of vicarious liability.
Illustration: A is the owner of a taxi company. He employs B to drive taxis for his company. If B is driving
according to the instructions given by A and meets with an accident, the compensation can be claimed from
A.
It is often seen in the torts in the case of vicarious liability. For example, if a master gives the some work to
the servant then he is doing it through the servant but in a sense he is also doing the work.
Explanation: 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.
The maxim is a shortened form of the fuller 18th-century formulation: qui facit per alium, est perinde ac si
facit per se ipsum: “whoever acts through another, acts as if he were doing it himself”. Indirectly, the
principle is in action or present in the duty that has been represented by the agent so the duty performed will
be seen as the performance of the agent himself. Whatever a principal can do for himself, can be done
through an agent. The exception to this maxim would be acts of personal nature.
Cases:
a) H. E. Nasser Abdulla Hussain v. Dy. Cit, (2002) 77 TTJ Mumbai 878
b) Ruby Roy v. Sudarshan Roy, AIR 1988 Cal 210
c) Motilal Channoolal Vaish v. Golden Tobacco Co., AIR 1957 MP 223 - This was the matter of appeal by
the plaintiff, from the decree of the Trial Court. Plaintiff, who was a distributor of goods of the
Defendant company, at the end of his work, asked the defendant to take back the remaining stock and
demanded the payment of the price back along with the outstanding due. The claims were dismissed by
the Trial Court, on the ground that property in goods had passed to the plaintiff by the sale and
accordingly he was not entitled to refund the money.
The Madhya Pradesh High Court, while explaining the rule as the agency expressed in the maxim, held
that the contract either expressed or implied by which one of the parties confides to the other, the
management of some of the business to be transacted in his name or on his account, and by which the
other assumes to do business and render an account of it.
And dismissed the appeal upholding the judgment of Trial Courts, that the goods passed to the plaintiff
and the price thereof was not liable to be refunded.

13. Respondeat superior

Meaning: Originated in the United States, from a Latin word meaning, “Let the master answer”. This
doctrine was brought on the premise of the limited economic capacity of the subordinates and to control the
irresponsible behaviour of superiors like the masters or employers. It is founded on public policy as its
purpose is to allocate to the business the risks normally attendant thereto. When this doctrine applies, an
employer and the master will be liable for an employee’s and the servant’s negligent commissions or
omissions that occur during employment. However, there should be the establishment of a relationship
between the superior and the subordinate for the liability to fall on the superiors.
Essentials:
A true master-servant and employer-employee relationship must be there so that a master and an employer
may be properly charged with the servant’s and the employee’s act as his own. The tortious act of a servant
and an employee must be one within the scope of his employment
The course of employment according to Black’s law dictionary is a legal consideration of all circumstances
which may occur in the performance of a person’s job, especially during a period of time where specific
objectives are given by the employer to the employee.
Cases:
a) Kumari Smt. v. State of Tamil Nadu & Ors., AIR 1992 SC 2069 - The appellant’s six-year-old son died
as a result of falling in a ten feet deep sewerage tank in the city of Madras. There was no safety cover
and the tank was left open. The appellant approached the Madras High court seeking a writ in the nature
of mandamus directing the respondents to pay Rs 50,000 as compensation to the appellant. The High
Court dismissed the petition on the ground that in the jurisdiction it was not possible to determine as to
which of the respondents was negligent for leaving the sewerage tank uncovered.

The Appellant further approached the Supreme Court, in present case.

Held: While granting Special Leave, the Hon’ble Supreme Court, overruled the decision of
the Madras High Court, observed that the writ jurisdiction, under Article 226 of the
Constitution, can be invoked by the Writ Court for awarding compensation to the victim, who
had to suffer due to negligence of the State or its functionaries. In the present case the SC
rightly determined the responsibility of the State and directed the State to pay compensation.

b) Smt. Savita Garg v. The Director, National Heart Institute, (2004) 8 SCC 56 - The Supreme Court held
that in the contract of employment, the hospital is the principal who is responsible for the act of the
agent, i.e., one of its doctors if it is unable to justify the court and the complainant that there was no
negligence or recklessness on their part and that they acted with due care and caution. As the hospital is
in a better position to render such information when demanded as to what medicine was administered,
failure to disclose such information would render them culpable.

14. Rex non potest peccare

Meaning: A citizen cannot sue the state for an alleged tort. This maxim has mostly now been discarded. On
a regular basis in modern courts, Crown liability is being tested and teased into the common law rendering
the maxim “rex non potest peccare” more and more into the dust-bin of law. Even in monarchies, the Crown
is no longer some divine creature called a monarch but is mostly managed by public servants very capable
of negligence or tortious omission.
Cases:
a) Maneka Gandhi v. UOI, 1978 AIR 597 - In this case the honorable Supreme Court stated the following,
“The Maxim that King can do no wrong or that the Crown is not answerable in tort has no place in
Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their
representatives to run the Government, which has to act in accordance with the provisions of the
Constitution and would be answerable to the people for any violation thereof”.

15. Ubi jus ibi remedium / Ubi jus ibi remedium est
Meaning: Where there is a right, there is a remedy. For every wrong, the law provides a remedy. Every
right when it is breached must be provided with a right to a remedy.
Illustration: If a person gives a pen to A, and A does not return his pen, this person has a right to file a case
against A and get his pen back.
Cases:
a) The General Secretary v. Socialist Workers Forum, (2010)
b) Madanlal v. Hansraj, AIR 1985 Raj 19
c) Anita Kushwaha & Ors. Vs Pushap Sudan & Ors., AIR 2016 SC 3506 - 5 Judge Constitution Bench of
SC concluded that access to justice is and has been recognized as a part and parcel of the right to life in
India and in all civilized societies around the globe. The right is so basic and inalienable that no system
of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens.
The Magna Carta, the Universal Declaration of Rights, the International Covenant on Civil and Political
Rights, 1966, the ancient Roman Jurisprudential maxim of “Ubi Jus Ibi Remedium’, the development of
fundamental principles of common law by judicial pronouncements of the Courts over centuries past
have all contributed to the acceptance of access to justice as a basic and inalienable human right which
all civilized societies and systems recognize and enforce.
d) Rajender Bansal & Ors. Vs Bhuru (D) thr. L.Rs. & Ors., AIR 2016 SC 4919 - Ubi jus ibi remedium lays
down the principle that where there is a right there is a remedy and it can be excluded only by
substantial legislation expressly extinguishing the said right.

16. Volenti non fit injuria

Meaning: No one can be held liable for an injury incurred voluntarily.
Illustration: A man feels chest pain and goes to consult the doctor. The doctor suggests him to undergo a
surgery. The consent form he signs for the operation is based on this principle.
Cases:
a) The Branch Manager, National Insurance Co. Ltd. v. Agilan and Ors., (2011)
b) Padmavati v. Dugganaika, 1975 ACJ 222