4.

ex nudo pacto non oritur acto

(No cause of action arises from a bare promise)

(A contract without consideration is void)

Section 2(h) Indian contract at 1872

A contract is a legally recognized agreement between two parties that may be given rise to
obligations that may be enforced in the court.
Section 2(d) : lawful consideration
Consideration is one of the most essential elements for formation of a contract. It means
“something in return”. It is the price of contract. It refers to both the parties. A contract to be
valid and enforceable, there must be lawful consideration.

E.g.: A sells his house to B for 10 lacs. Here , A’s lawful consideration is rs 10 lacs. Similarly, B
lawful consideration is the house. Therefore, it is said that ‘a contract without consideration is
void”. In other words, a contract without consideration is not valid and enforceable. Therefore,
it has been contained/enshrine in the lain maxim that ‘ ex nudo pacto non oritur acto’ , which
means ‘out of a nude fact, no cause of action arises’. In other words ‘a contract without
consideration is void’.

However, here is an exception to this general rule under sec. 25 of the Indian contract act, 1872
as stated below –
1. Love and affection. (Sec. 25(1)).
2. Compensation for voluntary service. (sec. 25(2))
3. time barred debt (sec 25(3))

Balfour v. balfour, 1919

The defendant in the instant case was civil servant in Ceylon. When he left for England, he
promised his wife (plaintiff) to send 30 pounds per month. But he did not send the amount. The
plaintiff filed a suit against her husband. It was held that the suit is not actionable/maintainable
on the ground it does not give rise to legal consequences.
5. ex turpi causa non oritur actio.

(an action does not arises from a bare cause)

The maxim ‘ ex turpi causa non oritur actio” means ‘ no action may be based on an illegal
cause” meaning ,that the court will not assist a claimant who has been guilty of illegal conduct
because it would be ‘an affront to the public conscience” to do so, and might encourage other
in illegal activities. On the ground of public policy the court are unwilling to accept volenti in
cases where the defendant alleges that the claimant agreed to undergo really serious bodily
harm.
This maxim literally means that an action does not arise from an immoral cause. According to
the law of trots, the damage sustained by the plaintiff must be a legal damage or the injury
must be a legal injury. When the damage or injury is sustained in any immoral manner no cause
of action arises in favour of the plaintiff.

Smith v Jenkins 1970

Persons who join in committing an illegal act have no legal rights inter se in relation to torts
arising directly from that act.

(No duty of care- no breach- no damages- no claim can be made)

6. falsus in uno falsus in omnibus

(False in one particular is false in general)

(False in one thing, false in all things)

Malus in uno malus in omnibus

(Bad in one respect, bad in all)

The principle where a witness has willfully falsified the truth on one point, his testimony upon
other point may be disregarded. This maxim is not mandatory rule of evidence, but a
permissive (free/open-mind) one. When the mistaken statement is consistent with good faith
and is not conclusively indicative of a deliberate (intended) falsification, the believable portion
of the testimony should be admitted, because though a person may have mistake or in
observation in one or other respects, he may have told the truth as to others.
The maxim is not a positive rule of law. Neither is it in an inflexible one of universal application.
If a part of witness, testimony is found true, it cannot be disregarded entirely. The testimony of
a witness may be believed in part and disbelieved in the other parts.
The maxim “falsus in uno falsus in omnibus” has no application in India and the witness cannot
be branded as liars. The maxim has not received general acceptance nor has this maxim come
to occupy the status of rule of law. It is merely rule of caution. The doctrine merely involves the
question of weight of evidence which a court may apply in a given set of circumstance, but is
not what may be called a mandatory rule of evidence. The maxim only applies where the
witnesses deliberately or intentionally falsified the truth.

Triloki nath v. state of utter Pradesh, air 2006, sc

The court held that “falsus in uno falsus in omnibus” is not a rule of evidence in criminal trail
and it is duty of the court to engage the truth from falsehood to shift gain from the chaff and
the maxim has not receive general acceptance as the status of rule of law.
7. fiat justitia ruat caelum

(Justice shall be done even if the heaven fall down)

(Let justice be done, though the heavens should fall)

The maxim ‘fiat justitia ruat caelum” seems to tell the judge that his or her task is to do justice
and not to worry too much about the wider consequences. The maxim denotes that justice
should be carried out regardless of the situation or consequences. It calls for an urgent
necessity of justice.
A judge is to be impartial, fair an unbiased and to follow the law to the state. Judge must not
shrink (draw back) from doing their duty and they are bound to pass a capital sentence in case
of murder when they believe the evidence.
In any country, the judiciary plays the important role; it is the function of the court to maintain
rules of law in the country and to assure that the government runs according to law.
Judicial independence serves as a safeguard for the rights and privileges provided by a limited
constitution and prevent executive and legislative encroachment upon those rights. It serves as
a foundation for the rule of law and democracy. The rule of law means that all authority and
power must come from an ultimate source of law. Under an independence judicial system, the
court and its officers are from inappropriate intervention in the judiciary’s affairs. With this
independence, the judiciary can safeguard people’s rights and freedom which ensure equal
protection for all.

Prathibha rani v. suraj kumar, . air 1985, sc

The Supreme Court observed that administration of justice and judges are open to public
scrutiny, judges have their accountability to the society and their accountability must be judged
by their conscience and oath of their office. That is to defend and uphold the constitution and
the laws without fear of favour.
8. Ignorantie juris non exusat

(Ignorance of law does not excuse)

Section 76 ipc 1860: general exception

Nothing is an offence which is done by a person who is, or who by reason of mistake of fact and
not by reason of a mistake of law in good faith believes himself to be bound by law to do it.

Illustration:
A soldier, fires on the mob by the order of his superior officer, in conformity with the
commands of the law. Soldier has committed no offence.

According to this maxim, it is presume that everyone knows the law, though he is not presumed
to know every fact. The maxim holds well in equity as well as in law. Presumed knowledge of
law is the principle in jurisprudence that one is bound by the law even if one does not know of
it. It has also been defined as the “prohibition of ignorance of the law”. The presumption of
knowledge of law however admits of exceptions in doubtful cases. An infant of the age of
discretion is punishable for crimes, thought ignorance of law, but infant under such age are
excused by natural ignorance. Person not of sane mind are excused for their ignorance of law,
for this ignorance they have by the hand of god. An illiterate , or deft, dumb or blind is excused
from the consequences of his acts, unless it appear that he was doing and that he did so
understand.

M h George v. state of Maharashtra, 1965

A German smuggler left from Zurich with 34 kilos of gold to deliver in manila. But due to some
technical issues, the flight has to land in India. So he was recovered with gold and he was
charged with the offence under section 8(1) and 23(1-a) of the foreign exchange regulation act
1947. Here George seek the excuse of ignorance of law, but the court uphold the case and held
liable to the respondent, Stating that everyone is presumed to know the law, and ignorance of
law does not excused.
9. lex injustitis nonest lex

(Unjust law is not law)

(An unjust law is no law at all)

According to st. Thomas Aquinas ‘law” means “nothing else than an ordinance of reason for the
common good, made by him who has care of the community and promulgated”
A just law is a human code that squares (open) with the moral law or the law of god. An unjust
law is a code that is out of harmony with the moral law. To put it in the terms of st. Thomas
Aquinas, an unjust law is a human aw that is not rooted in eternal and natural law.
According to dr. martin Luther king jr. stated difference between a just law and unjust law,
stating we, as human beings, have not only a legal but moral responsibilities to obey just law.
Conversely, one has a moral responsibility to disobey unjust law.
King also states that there should be equal right for all human beings of every shape, color, sex,
age, size and belief.
According to Aquinas law are just :-
a. when they are ordained to the common good
b. when they are within the lawmaker’s limits of power
c. when the burden imposed are in due proportion with a view to the common good.
Aquinas specifies law to be unjust :-
a. by being contrary to the divine good
b. by being contrary to human good
Evangelium vitae teach that a law violating the right to life of an innocent person (e.g., a law
that tolerates or obligates abortion) is the unjust and “not valid as a law”.
10. Nemo dat quod non habet

(No one can convey a better title than he himself has)

(No one can give what he has not got)

As a general rule, when a person takes goods (buyer), he or she gets only the same rights to the
goods as the person from whom he or she took them (buyer). This rule is expressed in the Latin
maxim “nemo dat quod non habet”

Section 27: sell of goods act, 1930

Subject to the provisions of this act and of any other law for the time being in force, where
goods are sold by a person who is not the owner, thereof and who does not sell them under the
authority or with the consent of the owner, the buyer acquires no better title to the goods than
the seller had, unless the owner of the goods is by his conduct precluded (prevent) from
denying the sellers authority to sell.

Section 28: sell of goods act, 1930

This section states that if there is a property to which there are several joint owners but one of
them had the sole possession of the property (with the permission of the other co-owners), and
he sell the property or transfer the property to a buyer who buys the property in good faith
without having knowledge of the fact that the seller had no authority to transfer or sell the
property, the buyer gets a good title.

Greenwood v. Bennett, 1973

Bennett was the real owner of jaguar car, he give the car to Searle for repairing work. But
Searle used the car for his purpose, when he met with accident; he sold the car to garage
owner- herper. Harper further sold the car to the finance company.
The court held that since Searle was not the real owner, he couldn’t transfer the right to
Harper, who in turn could not pass the right to the finance company. Bennett was entitled to
recover the car.