Action Personalis Moritur cum Persona:-
The maxim Action
Personalis Moritur cum Persona means that a personal action dies
with the death of the person. It is a common law rule applicable to the torts
and it prevents the representatives of the deceased from suing in his right to
the suffering and the pecuniary loss caused to him during the life time by the
reason of the injury of which he dies ultimately.
Major case law includes:-
Baker vs. Bolton:
The facts of the above mentioned
case is as follows, the plaintiff and his wife were the passengers on the top
of the defendant’s stage coach which was overturned by the negligence of the
defendants whereby the plaintiff was much bruised and his wife was so severely
hurt that she died about a month later. The plaintiff recovered one hundred
pound for his own bruises but nothing for his wife’s death. According to this
rule, the infliction of death as such is not a tort against the person killed.
The tort is alleged to have already merged in the crime. But we have already
seen that in such cases what really takes place is not complete merging of the
tort in the crime but only a temporary suspension of the remedy in tort. The
real reason was probably the ancient practice of the appeal for the felony
which we had already noticed in connection with the other rule of the
extinction of the liability. It was held that in a civil court the death of a
human being could not be complained of as an injury.
This maxim was originally
introduced to prevent the actions of the penal character like the trespass, but
now it is applicable to the actions for the defamation, seduction, enticement
of a spouse, and the claims for the damages for the adultery. This rule does
not apply to the action for the breach of the contractual obligations and the
unjust enrichment of a tort feasor’s estate.
Section 306 of the Indian
Succession Act, 1925, provides that all the rights to prosecute or to defend
any action for or against a person at the time of his decease, survive to, and
against his executor or the administrator, excepting the causes of the action
for the torts like defamation, assault, or any other personal injuries causing
death.
Actus Non Facit Reum ,
Nisi Mens Sit Rea:-
The maxim Actus Non
Facit Reum , Nisi Mens Sit Rea means that the act itself does not
make a man guilty unless his intention were so. This maxim is the core
doctrine of the criminal law. An act in order to be punishable at law must be:
a. A
voluntary wrong act, that is, (Actus Reus);
b. It
must have been done with the criminal mind, that is,(Mens Rea).
It includes the commission of
doing a thing which includes the murder and the omission, etc. Mens rea is the
mental element, that is, the necessary part to constitute the criminal
liability. The mind must be at fault before the committing of the crime. The
wrong doer is required to have done the act consciously knowing well that it
might cause the harm or the injury to the other. An act by itself is not a
wrong. There can be no crime without the evil intent. The criminal liability
arises only when a voluntary wrong act is done with a particular evil intent or
a guilty mind.
Major case law includes:
State of Maharashtra vs. M H
George:-
In the above mentioned case, it had
been held that, the act itself does not constitute a guilt unless done with a
guilty intent. A criminal intention is also essential to make the act guilty.
It is presumed that the children
under the age of 7 are incapable of having the mens rea, or the guilty mind.
Similarly, the people with the mental disability or mental disorder are under
the natural disability to distinguish between the good and the bad. Similarly
the people who are toxicated against their will cannot commit a crime, as in
these cases the person does not have a bad intention or a guilty mind.
Audi Alteram Partem:-
The maxim Audi Alteram
Partem means that a person should not be condemned on the ex parte
statements or unheard. The natural justice requires that both the sides should
be heard fairly and reasonably. This maxim requires to hear the other party or
that no one is to be punished or deprived of his property in any judicial or
the quasi judicial proceedings, unless he has an opportunity of being heard.
The right to hearing means that each party should be given a fair opportunity
of being heard. Each party should have the reasonable notice of the case, the
opportunity of presenting his case and the evidence, the right to rebut the
adverse evidence, the report of the enquiry to be shown to the other party, the
reasoned decisions, etc. The natural justice requires that a person should get
the opportunity of adducing the relevant evidence on which he relies and the
evidence of the opponents should be taken in his presence and he should be
allowed to cross examine the witness examined by that party and no materials
against him should be relied on without giving him an opportunity to explain
them.
Major case laws includes:-
Maneka Gandhi vs. Union of India:
The facts of the above mentioned
case are as follows, Maneka Gandhi was issued a passport on 01-06-1976 and
within a week the same was impounded. When she requested the Passport
officer to furnish reasons a letter was sent by the Ministry of external
affairs saying that it was decided not to give her the reasons in 'public
interest'. The reason therefore never came out. She then filed a writ
petition challenging the impounding of her passport. This case became a
landmark case on Article 14 as well as 21 of the Constitution and came to be
known as Maneka Gandhi vs. Union of India.
The maxim has some exceptions,
which are as follows:
The exclusion in the emergency,
in the cases of the dire public interests, in the case of the confidentiality,
in the case of the academic adjudication, in the case of impracticability, in
the case of the interim preventive action, in the case of the legislative
action, etc.
Damnum Sine Injuria Esse
Potest:-
The maxim Damnum Sine
Injuria Esse Potest means that there may be damage or an injury
inflicted without any act of injustice. The word ‘Damnum’ means a damage,
‘Sine’ means without and ‘Injuria’ means an infringement of legal private right
or a violation of any right. Thus the maxim in a whole means the damage without
the infringement of a legal private right in rem. Damnum includes the loss of
the money, the loss of the comfort, the service, health, etc. and the injuria
stands for an act contrary to the law. There are many acts which are, though
harmful, are not wrongful, therefore such acts are not actionable. The person
who suffers from the harm cannot have the remedy in the court of the law
because the exercise of a legal right by one person resulted in the damage to
the other, without the violation of his right.
Major case law includes:-
The Gloucestor Grammer School
case:-
The facts of the above mentioned
case is as follows, the defendant set up a rival school the next door to the
plaintiff. He taught the children at a lower fee than what the plaintiff took.
Due to this the plaintiff suffered loss. So he sued the defendant for the loss.
The court held that no suit could lie as there was no infringement of the legal
right of the Gloucestor Grammar school, although it suffered the pecuniary
loss. That means though the damage occurred due to the setting up of the other
school, but it is not contrary to law; hence the damage suffered was damnum
sine injuria, that is , damage without legal injury.
Mogul Steamship Company vs.
McGregor Gow and Company:-
The facts of the above mentioned
case is as follows, a no. of steamship companies combined together and drove
the plaintiff company out of the tea carrying trade by offering reduced
freight. The House of Lords held that the plaintiff had no cause of action as
the defendant’s had by the lawful means acted to protect and extend their trade
and to increase in profit. Hence it was held that the damage done by the
competition in the trade is also not actionable.
Delegatus Non Potest
Delegate:-
The maxim Delegatus
Non Potest Delegate means that a delegation cannot be made by a
delegate. A delegate is a person to whom some power or the authority has been
given to do some act. This rule is based on the trust. The maxim applies
wherever the authority involves a trust or a discretion in the agent for the
exercise of which he is selected. In matters involving judicial power, trust,
confidence, etc. the delegate must act himself and should not delegate his
functions to the other person without the express authority. All the judicial
officers who are entrusted to perform the judicial functions, whether in the
higher or the subordinate courts, cannot delegate their power unless there are
provisions in the statute to that effect.
Major case law includes:-
Cockran vs. Irlam:-
In the above mentioned case, it
had been held that, a broker cannot, without the authority of his principal,
transfer the consignments made to him, in his character of broker, to another
broker for the sale.
Section 190 of the Indian
Contract Act, 1872, provides that a delegate cannot delegate the execution of
those duties which are entrusted to him due to his integrity and the
competence. This principle has its universal application. It is applied in the
Administrative law while the exercising the executive power.
Ex Turpi Causa Non Oritur
Actio:-
The maxim Ex Turpi
Causa Non Oritur Actio means that an act does not arise from a
base cause. This maxim is based on the principle that an agreement to do an
unlawful act cannot be supported at the law. No right of action can spring out
of an illegal contract. This maxim applies where the contract is illegal and
wherever it is opposed to the public policy or is founded on an immoral
consideration. In a suit on a contract the plaintiff must prove the object to
be lawful. If it is proved to be unlawful the agreement is void. An agreement
to do an unlawful act cannot be supported by the law. Section 23 of the Indian
Contract Act, 1872, defines the unlawful agreement as the one in which the
consideration or the object of the agreement is forbidden by the law, or is of
such a nature that it is fraudulent, or involves the injury to the person or
the property or is immoral or opposed to the public policy. Every agreement of
which the object or the consideration is unlawful is void. If a person makes
himself a party to an illegal act, he cannot claim any legal aid in reference
to that act. From an immoral contract, no cause of the action arises.
Eg: ‘A’
enters into a contract with ‘B’ to let his house for the running of a brothel.
If ‘B’ fails to pay the rent for the house, ‘A’ has no legal remedy. The reason
is that the object of the contract is immoral and opposed to the public policy.
This maxim applies on the basis that the judicial process may not be misused.
Qui Facit Per Alium Facit
Per Se:-
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