Legal Maxim collection 2

Article on Legal Maxims and their meaning and use published in Distant News IN LAW Magazine,
National Law School of India University, Issue no 1, Vol. 3, ISSN No 2349-624X, (page 43 to 45)
March 2015.
LEGAL MAXIMS and their meaning and use: Series 11
1. Ab initio
‘From the very beginning’
Etymology this Maxim is derived from the Latin, meaning ab (from) and initio (beginning). Ab
initio is a maxim which is used quite often in many fields of research and studies. However, in
law, its contractual derivation would be in terms of extortion, minor agreements etc. It leads us to
believe that the validity of agreements can be decided in the very beginning itself.
For example, a boy, aged 17, without disclosing his age, enters into an agreement with a money
lender. According to the conditions (Section 10 & 11) of Indian contract Act, 1872, a contract with
a minor is void (not in existence from the very beginning). However, before the Case of Mohiri
Bibi v. Dharmodas Ghose 2, the contract could be voidable at the option of the minor. The court,
in that case, held that agreements entered into by minors are void ab initio.
2. Audi alteram partem

‘Hear the other side too’
This principle is most often used to show that no person shall be condemned without being heard.
Each party will be given an opportunity to defend themselves against the evidences provided by
the opposition. It is a principle of fundamental justice.
Let us take the example of Habeas Corpus (You have the body, Latin). It is one of the five main
writs (court orders) issued by the court. The writ of Habeas Corpus is issued by a higher court to
a subordinate court to produce the detained person before higher court to test the legality of the
detention. The court also hears the prisoner’s side of the story and decides whether he is guilty or
not. Habeas Corpus is a perfect example of audi alteram partem.
3. Actori incumbit onus probandi

‘The burden of proof lies with the plaintiff’
The burden of proof is an essential requisite to a party in a trial to produce evidence that will shift
the blame or conclusion away from the current defaulting position to one’s own position. We can
consider the examples of reasonable suspicion, reasons to believe otherwise, probable cause for
arrest, credible evidences, etc are necessary for determining the guilt of a person. For example in
1
This is the first of the series on Legal maxims, the next editions of the Distance News will carry the remaining legal
maxims.
2
[1903] 30 Cal. 539
Criminal cases, the burden of proof always lies on prosecution subject to certain exception
whereas, in civil cases plaintiff has the burden of proving his case by preponderance of evidence.
Every plaintiff at law or complainant at equity must show a good title or claim before he can prevail
in his suit, conformably to the maxim, "actori incumbit onus probandi.”3
Notable case for this maxim: Dahyabhai Chhaganbhai Thakkar V. State of Gujarat,4
4. Actus non facit reum nisi mens sit rea

‘for an act to be illegal, the person should do it with a guilty mind’
This Latin maxim is a lucid explanation for criminal intention. An act is intentional if it exists in
idea before it exists as a fact. Therefore, mens rea (guilty mind) is one of the essential elements of
a crime.
For example, A and B work on a construction site. A is hammering away at plywood with a
machete and the head flies off hitting B on the head and killing him instantly. Although A’s action
killed B, he cannot be held guilty as there was no intention to kill B.
Notable case for this maxim: DPP v. Morgan.5
5. Actus reus
‘Guilty act’
Actus reus with means rea (guilty mind) together when proved beyond all reasonable doubt
produces criminal liability. Actus reus can be considered as the objective element for the
commission of the crime. Therefore, in order for an actus reus to be committed there has to be an
act.
For example- One night, A and B went drinking. A had a few too many drinks and in an inebriated
state, pulled a knife on B and killed him. A cannot be held guilty of committing murder as he was
not competent to understand what he was doing.
It must be noted that voluntary reflexes or self defence does not fall under this category. The act
being committed must be foreseen by the offender of being guilty.
6. Bona fide
‘Sincere, in good faith’
This legal maxim refers to an act being made or carried out in good faith that is, one which lacks
an intention to deceive. A bona fide purchaser pays in good faith, full value of the object.
For example, A agrees to sell his bike to B. B, after looking into the bona fide credentials of both
the seller and the object, agrees to buy it from A.
3
[Murfree's Lessee v. Logan, 2 Tenn. 220, 224 (Tenn. 1814)].
4
A.l.R. 1964 S.C. 1563 (1566)
5
[1975] 2 WLR 913
7. Boni judicis est ampliare jurisdictionem
‘It is the part of a good judge to enlarge his jurisdiction.’
A Judge is duty bound to prevent litigation, in the interest public. A good judge always tries to
prevent the litigation, since the interest of the society at large lies with the same i.e. every litigation
must come to an end. Therefore, disputes should be encouraged to be resolved by ways of
arbitration, mediation and conciliation.
8. Boni judicis lites dirimere est

‘Duty of a good judge to prevent litigation’
Illustration – In a case before the court, the judges should give their judgments and put an end to
the case and try to make sure that another suit may not grow out of the present suit. It concerns
the welfare of a state that an end must be put to litigation. The court handling the case is duty
bound to put an end to litigation as soon as possible.
9. Boni judicis est judicium sine dilatione mandare executioni

‘It is the duty of a good judge to cause execution to issue on a judgment without delay.’
The judge assigned a case should give his decision without any delay which is under his control
and within the jurisdiction of the court he is in-charge of. A good judge does not delay justice
rather he implements justice with zeal and clarity, without any delay and adheres to the laws of the
land.
10. Bona vacantia

‘Goods that do not have an owner’
Bona vacantia is a Latin legal term for instances in which properties are left without any owner. The
precise handling of such property varies depending on the jurisdiction. In simpler words, common
situations where property can become abandoned are when a person dies with no known heirs or
next of kin or when the owner of the property leaves a jurisdiction without leaving any contact
information or forwarding address. It exists in various jurisdictions, with consequently varying
applications like in England and Wales, the Bona Vacantia Division of the Treasury Solicitor's
Department of the UK Government is responsible for dealing with bona vacantia assets or in The
United States of America where Bona Vacantia continues in the form of lost, mislaid, and
abandoned property. The states do not take permanent possession, but act as the custodian of the
property in perpetuity on behalf of the rightful owner.
11. Consensus ad idem

‘Meeting of the minds’
Meeting of the minds if literally translated in the laws of contracts, would mean that two or more
parties to an agreement have the same understanding of the terms and conditions of the agreement
in the same sense. The terms of the agreement have to be express or implied and must be clearly
understood by all parties to the agreement.
A and B enter into a contract with C. Since A and B are friends, they already know the terms of
the contract, but the contract with C does not become valid till C understands all the terms of the
contract.
12. Communis error facit jus

‘Common error makes law’
‘Common opinion’ is another expression for the maxim. In ancient Rome, when the community
or society as a whole took to a common understanding of a generally accepted belief or a legal
issue, that issue would become law. Some philosophers and judges have pointed out that a
universal belief can be a universal error. Unless and until the error in the belief is found and
rectified, it will continue to remain a law. The concept of communis opinio is not particularly
favored by the contemporary U.S. courts.
13. Corpus delicti

‘Body of crime’
Corpus delicti is a Latin term taken from the jurisprudence of the West which means that before
the conviction of a person accused of a committing a crime, the criminal act in itself must be
proved. The criminal act must be proven to have taken place before holding the accused guilty.
For example, in order for a person to be tried for arson, it must be proven beyond reasonable doubt
that a criminal act resulted in the burning of that property. All Corpus delicti requires at minimum
the occurrence of the specific injury and some intentional, knowing/foreseeable act as the source
of the injury.
14. Consensus
‘General consent or unanimous’
Consensus is the general consent that is required to be given by all parties to a contract before
entering into it. Consensus can be presumed to exist until voiced disagreement becomes evident.
A, B and C enter into a contract adhering to all the terms and conditions. There is a consensual
understanding between the three till any or all of them show their disagreement.
15. Contra bonos mores

‘Against good principles’
It can also be translated as a thing or act which is against moral conscience and social justice.
Example: All contracts contra bonos mores are illegal and have no value in the eyes of law.
16. Coram non judice
‘before one who is not a judge’
This Latin phrase describes a trial brought before a court which does not have jurisdiction over the
matter. Any judgment or verdict passed by the court which does not have jurisdiction over the
matter will be void.
In the landmark case of Dynes v. Hoover6, the proceedings of the court martial were rendered
coram non judice, and the officer who executed the judgement was made liable for action.
17. Cursus curiae est lex curiae

‘The practise of the court is the law of the court’
This maxim establishes the rules of the court. The rules of the court have to be followed strictly.
For example, in a recent hearing in the Supreme Court, a highly respected advocate entered the
chamber of the CJI of India in an orange robe. The CJI was displeased with this behaviour and
immediately issued a notice stating that the dress code has to be followed strictly. The dress code,
here, is the practise and rule of the court, and hence, is a law of the court.
6
[1857] 61 U.S. (20 How.) 65

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Article on Legal Maxims and their meaning and use published in Distant News IN LAW Magazine,

LEGAL MAXIMS and their meaning and use: Series 11

2. Audi alteram partem

3. Actori incumbit onus probandi

4. Actus non facit reum nisi mens sit rea

8. Boni judicis lites dirimere est

9. Boni judicis est judicium sine dilatione mandare executioni

10. Bona vacantia

11. Consensus ad idem

12. Communis error facit jus

13. Corpus delicti

15. Contra bonos mores

17. Cursus curiae est lex curiae

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