Question of Law & Fact

Nature of Law
1. Law brings a lot of scientific factors like right, wrong, exception, punishment, etc.
That’s why the law is a normative science.
2. Law keeps changing based on the requirements of society. One of the major
examples of this one is homosexuality in the IPC. Because the society is
changing. Law is dynamic in nature.
3. Law depends on the territory too. Because there are many laws in India and
Bangladesh that are not in other places too.
4. Laws might be different in different territories but they are universally accepted
subjects.

Value Of Law
1. Law is a result of excessive study and research. Many jurists and scholars have
researched on it for decades. That’s why it has a lot of weightage.
2. It is a result of legal, political, social and psychological thoughts (criminology).
3. It has educational value. You can become a lawyer, barrister, solicitor, judge,
attorney as a career option.
4. It is a growing concept. Just some years ago, anyone couldn’t even think about
Cyber Crime related law or a major breakthrough in Intellectual property related
law. As these things are growing, the law makers have to make law on these
issues.
5. It is more of a practical subject. Let’s say in science, a student has to read many
concepts like how a rocket is made from a particular formula and all. This thing is
 more of hypothetical thing for most of the students. But when someone studies
law, he or she can apply most of it in real life.
Question of law & Question of Fact
The responsibility of court is basically to give answers to all the questions coming inside the
court hall. Now to find the answer there are two options. One is laws and the second one is the
facts. The answers that are from the help of law is called question of law and the answers that are
from the facts are called question of facts.

Question of Law
1. The question of law is related to interpretation and the judiciary does it. For
example, there are many laws in every country. The judiciary decides which law
to apply and which to exclude. This is question of law. When the judiciary wants
to interpret a law then the question of law comes. So, question of law is related to
interpretation.
2. It is answered by fixed rules of law.
3. It is answered by judges.
4. It is called the Point of law.
5. It can’t be converted. It is a constant thing.
6. Example: What is murder, dacoity, theft, etc. All these are explained in IPC.
Question of Fact
1. For question of law, the court actually finds the answer with help of rules
available under different laws and legislations. When the court fails to do so, it
seeks help from the higher courts. Sometimes, after judgment, the victim goes to
higher courts for better judgment. But not all the problems can have answered in
the law itself. In that time, the court uses facts or evidence as help. It is called the
question of facts. One important aspect of question of fact is that it is only
bothering about the evidence of proof available. It doesn’t consider on what kinds
of opinion is available. There is only opportunity for the matter of facts.
2. Questions other than particular law is question of fact.
3. It is answered by the parties.
4. It is called Point of fact.
5. It can be converted into a question of law.
6. Example: In the question of law, we saw what is murder but here in the question
of law, we get to whether the person is a murderer or not in light of the evidence.
Mixed Question of Law & Fact
Just like the title, it is mixed of law and fact. In this case, there are some questions jointly related
to both law and fact. Here is an example to illustrate this.

There is a dispute regarding a partnership matter between A and B.

Here question of fact is, what was the relation between A and B and nature of their work.

Question of law is, whether the behavior between the parties would constitute as partnership
between the two parties.
Presumptions – Law & Fact
1. The court may presume fact. For example, A is dead because of a gunshot. When
the police arrived, B is caught with a gun. As B is being caught red-handed, it
may be presumed that B shot A.
2. Shall Presume. It is rebuttable. For example, whenever a person is brought into
the court, we call that person accused. But court always believes that such person
is innocent. This is the presumption that the court starts the case with.
3. Conclusive proof or irrebuttable presumption. In Section 82 of IPC, it is said that
it won’t be an offence if a child under 7 years of age did that.
These were all about question of law and question of fact. Click here to read
all jurisprudence related articles

Question of fact vs. Question of law

In law, a question of fact (also known as a point of fact) is a question which must be answered
by reference to facts and evidence, and inferences arising from those facts. Such a question is
distinct from a question of law, which must be answered by applying relevant legal principles.
The answer to a question of fact (a "finding of fact") is usually dependent on particular
circumstances or factual situations.
In jurisprudence, a question of law (also known as a point of law) is a question which must be
answered by applying relevant legal principles, by an interpretation of the law. Such a question is
distinct from a question of fact, which must be answered by reference to facts and evidence, and
inferences arising from those facts.
To illustrate the difference:

• Question of fact: Did Mr. and Mrs. Jones leave their 10-year-old child home alone with
their baby for 4 days?
• Question of law: Does leaving a baby with a 10-year old child for 4 days fit the legal
definition of child neglect?
All questions of fact are capable of proof or disproof, by reference to a certain standard of proof.
While questions of fact are resolved by a trier of fact, which in the common law system is often
a jury, questions of law are always resolved by a judge, or an equivalent.
[A trier of fact (or finder of fact) is a person, or group of persons, who determines facts in a
legal proceeding, usually a trial. To determine a fact is to decide, from the evidence, whether
something existed or some event occurred.]

Q. Bring out clearly points of distinction between question of law and question of fact.

Introduction:
It is commonly said that all questions which arise for consideration in a Court of justice are of
two kinds. They are either question of law or of fact. It has been found to be very difficult to
define the exact difference between law and fact. Law consists of the abstract rules and facts are
the raw materials on the basis of which the law creates certain rights and duties.
Question Of Law:
According to Salmond, the term question of law is used in three distinct, thought related senses.
I. Questions Authoritatively Answered By Law:
In first sense, it means a question, which the Court is bound to answer in accordance with a rule
of law. All other questions are questions of fact. It excludes the right of the Court to answer the
question as he thinks fit.
Illustration:
Whether the holder of a cheque has been guilty of unreasonable delay in giving notice of
dishonor is a question of law to be determined in accordance with certain fixed principles (sec.
138) laid down in the Negotiable Instruments Act,1881.

II. Interpretation Of Statutory Provision:

In the second sense, it means a question as to what the law is on a particular point. This arises in
cases where a rule of law is ambiguous and requires determination.
Once the provision has been authoritatively interpreted by the judge, it becomes a judicial
precedent and a settled question of law.

III. Questions To Be Answered By Judges:

In the third sense, all question whose answers given by the judges and not the jury are questions
of law.

Question Of Fact:
The term question of fact is used also two different senses:
I. Wider sense
II. Narrow sense

I. Wider Sense:
In a Wider or general sense, all questions which are not questions of law are questions of fact.

According to Salmond:
A question of fact means any question
(i) Which is not previously determined by a rule of law.
(ii) Other than question as to what the law is.
(iii) Which is to be answered by the jury and not by the judge.

II. Narrow Sense:

In a narrow sense, question of fact means only those questions which are not subject to judicial
discretion. [Judicial Discretion is the power or right to make official decisions using reason and
judgment to choose from among acceptable alternatives. It is the Power of a court to act or not
to act, as it deems fair under the circumstances, and as provided under the rules of law. It refers
to the inherent powers of the judge to pass a judgment without interference of the rules laid in
the statues or law books.]

Illustration:
The question as to whether the accused has committed the criminal act with which he is charged
is a question of fact.
Mixed Question Of Law And Fact:
Some questions are partly of law and partly of fact. Such questions are called mixed questions of
law and fact. If there is a dispute whether a partnership exists among certain parties or not.
i) It is question of fact as to “what is the basic relationship between the parties?”
ii) It is a question of law “whether the basic relationship between the parties constitute
partnership in the eyes of law or not?”

Difference Between Question Of Law And Fact in a nutshell:

(i) Relation:
Question of law is purely related with the law.
Question of fact is not related with the law.

(ii)As to Proof:
There is no need to prove question of law.
Question of fact is needed to prove.

(iii)As to conversion:
Question of law cannot be converted into question of fact.
Question of fact may be converted into question of law.

(iv)Duty of Judge:
In a question of law, is the duty of the Court to ascertain the law and decide to case accordingly.
In a question of fact, it is the duty of the Court to weigh the evidence and then come to its
conclusion.

(v) As to Authoritatively Answered:

Every question which has been authoritatively answered by the law is a question of law.
Every question which has not been determined before and authoritatively answered by the law is
a question of fact.

(vi) Example:
In case of filing an appeal, delay explained is question of fact. On the other hand, whether such a
fact is entertainable or not is a question of law.

Conclusion:
The sum up, I can say, that all matters and questions which come before a Court of justice are
either of law or fact or judicial discretion. As the legal system grows, there is a tendency to
transform question of fact, into those of questions of law

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ZEESHAN HUSSAIN ADIL: ENGLISH JURISPRUDENCE
(Q&A-LL.B-I, Session 2012-13)
2-D
INTRODUCTION:
All questions which arise for consideration and determination in a court of justice are of two
kinds, i.e., question of law and question of fact.
1. QUESTION OF LAW
All questions:--i. which have already been answered by the law;ii. or by the court and became
judicial precedent for similar cases;iii. or is to be answered by the court without recording the
evidence is questionof
law. According to Salmond the question of law is used in three distinct, though related,senses:--
i. Question which the law itself has authoritatively answered.ii. Question as to what the law is on
certain point which is answered by judge.iii. In general sense question of law for the judge but
question of fact is for the

jury.
i. QUESTION AUTHORITATIVELY ANSWERED BY LAW:
1. Question which court is bound to answer in accordance with a rule of law;2. a question which
the law itself has authoritatively answered;3. to the exclusion of the right of the court to answer
the question as it thinks fitin accordance with what is considered to be the truth and justice of the
matter.
Illustration of question of law:

Whether the holder of a bill of exchange has been guilty of unreasonabledelay in giving notice
of dishonor is a question of law to be determined inaccordance with certain fixed principles laid
down in the bills of Exchange Act.

The question whether a child accused of crime has sufficient mental capacityto be criminally
responsible for his acts is one of fact, if the accused is overthe age of ten years, but one of law if
under 10 years of age.
ii. QUESTION ARISES OUT OF UNCERTAINTY OF LAW:

In this second sense, a question of law is a question as to what law is.

Thus, an appeal on a question of law means an appeal in which the questionfor argument and
determination is what the true rule of law is on a certainmatter.

Question of law in this sense arises, not of the existence of law, but out of itsuncertainty

ZEESHAN HUSSAIN ADIL: ENGLISH JURISPRUDENCE

(Q&A-LL.B-I, Session 2012-13)
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 If the whole law could be definitely ascertained, there would be no question oflaw in this sense;
but all questions to be answered in accordance with that lawwould still be question of law in the
former sense.

When a question first arises in a court of justice as to the meaning of anambiguous statutory
provision, the question is one of law in this secondsense; it is a question as to what the law is.

The business of the court is to determine what, in its own judgment and infact, is the true
meaning of the words used by the legislature.

But when this question has once been judicially determined, the authoritativeanswer to it
becomes a
judicial precedent
which is law for all other cases inwhich the same statutory provision come in question.
ILLUSTRATION

In judicial precedent the word “Sufficient Cause” has been explained that“pursuing remedy in a
wrong forum on mistaken advice on counsel is not
sufficient cause within the meaning of S. 5 of Limitation Act, 1908.
PLD2006 Lah. 26.
Therefore, it is now a judicial precedent that mistakenadvice is not
“
Sufficient Cause
”
within the meaning of Sec. 5 of Limitation Act, 1908.
iii. QUESTION OF LAW DETERMIEND BY JUDGE:

In the third sense a questions of law is for the judge, but the questions of factare for the jury.
However, in Pakistan instead of jury Local Commission is issued bythe Court, under section 75
of The Code of Civil Procedure Act, 1908, if necessaryfor the determination of the question of
fact. In Pakistan Superior Courts
a m i c u s curiae
is appointed,

for getting help for the determination of question of law and fact.In short, a question of law is
one which is determined by the court without recordingany evidence.
2. QUESTION OF FACTIntroduction:
Salmond described question of fact in two senses,
i.e;(a) in general sense(b) in narrower sense.(a)
In general sense
question of fact includes all questions;

Any question which is not predetermined by a rule of law;

or any question except a question as to what the law is;

 or any question that is to be answered by the jury.(b)
In narrower sense
the expression question of fact does not include allquestions that are not questions of law, but
only some of them. In this sense aquestion of fact is opposed to a question of judicial discretion.

Difference between judicial discretion and question of fact

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ZEESHAN HUSSAIN ADIL: ENGLISH JURISPRUDENCE

(Q&A-LL.B-I, Session 2012-13)
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Judicial discretion includes all question as to what is right, just,equitable, or reasonable

—
so far as not predetermined byauthoritative rules of law but committed to the
liberum arbitrium
of the courts.

A question of judicial discretion pertains to the sphere of right,as opposed to that of fact in its
stricter sense.

It is a question as to what ought to be, as opposed to a questionof what is.

Matters of fact are capable of proof, and are the subject ofevidence adduced for that purpose.

Matters of right and judicial discretion are not the subject ofevidence and demonstration, but of
argument, and aresubmitted to the reason and conscience of the court.

In determining questions of fact the court is seeking to ascertainthe truth of the matter; in
determining question of judicialdiscretion it seeks to discover the right or justice of the matter.
EXAMPLE
The Companies Act empowers the court to make an order for the winding-upof a company if
,inter alia, the company is unable to pay its debts or the courtis of opinion that it is just and
equitable that the company should be woundu

p. The first of these questions is one of pure fact, whereas the second is aquestion of judicial
discretion.

Question of fact and matter of opinion:

A question of fact is one capable of being answered by way ofdemonstration
—
a question of opinion is one that cannot be so answered. Theanswer to it is a matter of
speculation which cannot be proved by anyavailable evidence to be right or wrong.
EXAMPLE:

The past history of a company‟s business is a matter of fact; but

its prospects of successful business in the future is a matter of opinion.
Many of the question which courts decide “on the facts‟ and which are not
governed by fixed legal rules are question of opinion in this second sense. Whetherthe defendant
drove without due
care, whether accused reacted to the deceased‟s
provocation as would a reasonable man, whether a flat has been so substantiallyaltered as to
suffer a change of identity
—
all these are strictly neither questions of lawnor of fact; they are matters for evaluation.
PRIMARY AND SECONDARY FACTS:
A distinction is also drawn between primary and secondary facts;

Primary facts are proved by oral, documentary and other evidence; secondaryfacts can be
inferred from primary facts.

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ZEESHAN HUSSAIN ADIL: ENGLISH JURISPRUDENCE

(Q&A-LL.B-I, Session 2012-13)
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The importance of the distinction is that an appellate tribunal can be said to bein as good a
position as the trial court with regard to secondary, though notprimary, facts.
(3) MIXED QUESTION OF FACT AND LAW
There are also mixed questions which are partly questions of fact and partly of law.
EXAMPLE:
Whether a partnership exists between A and B is
partly one of fact
(viz., what agreement has been made between them) and
partly oneof law
(viz., whether such an agreement is sufficient to constitute thelegal relation of partnership).
CONCLUSION

Question of law is one which is answered by law or judicial precedent and judges.

Question of fact is one which can be proved through recording evidence. Itexcludes the
discretion of the court to decide the matter.

Mixed question of law and fact is determined by law and fact.

Q.
Explain the terms „question

of law‟, „question of fact, and

mixed question oflaw and fact. (Ann. 2007)
Q.

Explain the term „Question of law” and “Question of fact‟. What do youunderstand by “mixed
question of law and fact”? (Sup. 2006)

Q.
What do you understand by the term „Question of Law‟ and „Question ofFact‟? Also discuss the
mixed question of law and fact. (Ann. 2010)