Legal Maxims

SESSION 2
10 MAXIMS PER SESSION
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De jure – By law. De facto – In fact.

Existing in law, or having formal, legitimate, moral,
or rightful effect, force, or possession. Used usually
as an opposite of de facto. Latin for, in law or of law.
USAGE: You must always be in de jure of the law so
that no fines or penalties are levied against your
business or you.
Patent Related : Standards
Standards May be de facto or de jure
De facto standards means they are followed by
informal convention or dominant usage.
De jure standards which are part of legally binding
contracts, laws or regulations.
existing in fact, although perhaps not
intended, legal, or accepted
USAGES:
The city is rapidly becoming the de facto
centre of the financial world.
He's her de facto husband though they're
not actually married.
English is de facto the common language of
much of the world today.
If it is on British soil then it is de facto
British.
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De novo – To make something anew.

A second time; afresh.
A trial or a hearing that is ordered by an
appellate court that has reviewed the record of
a hearing in a lower court and sent the matter
back to the original court for a new trial, as if it
had not been previously heard nor decided.
USAGE:

De novo kidney transplantation.

De novo prediction of three-dimensional structures for major protein families.
He filed a motion for a de novo hearing.
 Dictum – Statement of law made by judge in
the course of the decision but not necessary
to the decision itself.
A dictum (plural dicta) is a statement of
opinion considered authoritative
(although not binding), given the
recognized authoritativeness of the person
who pronounced it.
Dicta in this sense are not binding under
the principle of stare decisis, but tend to
have a strong persuasive effect, by virtue
of having been stated in an authoritative
decision, or by an authoritative judge, or
both.

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Types of Dictum
dictum proprium: A personal or individual dictum that is expressed by the judge who delivers an
opinion but that is not necessarily concurred in by the whole court and that is not essential to
the disposition of the case.
gratis dictum: an assertion that a person makes without being obligated to do so, or a court's
discussion of a point or question not raised by the record, or its suggestion of a rule not
applicable in the case at bar.
judicial dictum: an opinion by a court on a question that is directly involved, briefed, and argued
by counsel, and even passed on by the court, but that is not essential to the decision.
obiter dictum in Latin means "something said in passing" and is a comment made while
delivering a judicial opinion, but it is unnecessary to the decision in the case and therefore not
precedential (although it may be considered persuasive).
simplex dictum: an unproved or dogmatic statement.
 Detinue – Tort of wrongfully holding
goods which belong to someone else.
In tort law, detinue is an action to
recover for the wrongful taking of
personal property. It is initiated by an
individual who claims to have a
greater right to their immediate
possession than the current
possessor.

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 Donatio mortis causa - a gift of personal property
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made by someone who expects to die in the
immediate future, taking full effect only after the
donor dies.
It is now well established that real property, whether a house or land, can be the subject of a valid donatio mortis
causa, as per the Court of Appeal decision in Sen v Headley [1991] Ch 425.
CASE FACTS: The deceased was a close friend of the claimant, Mrs Sen. Some three days before his death, Mrs Sen
asked him what she should do about the house were he to die. His reply was, ‘The house is yours, Margaret. You have
the keys. They are in your bag. The deeds are in the steel box.’ Shortly after, the deceased died intestate and the
question arose whether there had been a valid donatio mortis causa.
The necessary ingredients of a donatio mortis causa were summarised by Nourse LJ in Sen v Headley as follows (at
431):
(a) First, the gift must be made in contemplation, although not necessarily in expectation, of impending death;
(b) Secondly, the gift must be made upon the condition that it is to be absolute and perfected only on the donor’s
death, being revocable until that event occurs and ineffective if it does not;
(c) Thirdly, there must be a delivery of the subject matter of the gift, or the essential indicia of title thereto, which
amounts to a parting with dominion and not mere physical possession over the subject matter of the gift.
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Estoppel – Prevented from denying.
Estoppel is a judicial device in common
law legal systems whereby a court may
prevent, or "estop" (a person who
performs this is estopped) a person
from making assertions or from going
back on his or her word.
Estoppel may prevent someone from
bringing a particular claim, particularly
if a promise unsupported by
consideration is being relied on by the
other party.
CASE:
A landlord informs a tenant that rent
has been reduced, for example,
because there was construction or a
lapse in utility services. If the tenant
relies on this statement in choosing to
remain in the premises, the landlord
could be estopped from collecting the
full rent.
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Ex parte – Proceedings in the
absence of the other party.
An ex parte decision is one decided by a judge without requiring all of the
parties to the controversy to be present
ex parte means a legal proceeding brought by one person in the absence of and without
representation or notification of other parties
General Principle: a person shall not be deprived of any interest in liberty or property without
due process of law.
In practice this has been interpreted to require adequate notice of the request for judicial relief
and an opportunity to be heard concerning the merits of such relief.
A court order issued on the basis of an ex parte proceeding, therefore, will necessarily be
temporary and interim in nature, and the person(s) affected by the order must be given an
opportunity to contest the appropriateness of the order before it can be made permanent.
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Ex gratia – As a favour.
Jammu and Kashmir govt announces Rs 4 lakh ex gratia for families of three
killed in avalanche.
Navjot Sidhu announces ex-gratia of Rs 5 lakh & 1 govt job for kin of Iraq
victims
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Ex officio – Because of an office held

It is often used in the context of legislative bodies to automatically confer membership on a
subcommittee to a chairman and top minority member of a committee.

Rajya Sabha Chairman

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Habeas corpus – A writ to have the body of
a person to be brought in before the judge
a writ requiring a person under arrest to be brought before a judge or into court, especially to
secure the person's release unless lawful grounds are shown for their detention.
Purpose: To Prevent unjust imprisonment
Article 32 & Article 226
Article 32 differs from Article 226. Article 32 can be invoked only for the enforcement of
Fundamental Rights whereas Article 226 can be invoked not only for the enforcement of
Fundamental Rights but for ‘any other purpose’ as well.
This means that the Supreme Court’s power under Article 32 is restricted as compared with the
power of a High Court under Article 226, for, if an administrative action does not affect a
Fundamental Right, then it can be challenged only in the High Court under Article 226, and not in
the Supreme Court under Article 32. The words “for any other purpose” found in Article 226 (but
not in Article 32), enable a High Court to take cognizance of any matter even if no Fundamental
Rights in involved.
 Practice Question: Match the Following
1. De jure A. Prevented from denying.

B. a gift of personal property made by someone who expects to die in the immediate
2. De facto
future, taking full effect only after the donor dies.

3. De novo C. A writ to have the body of a person to be brought in before the judge

4. Dictum D. Proceedings in the absence of the other party.

5. Detinue E. Because of an office held

6. Donatio mortis causa F. In fact

7. Estoppel G. By law

H. Statement of law made by judge in the course of the decision but not necessary to the
8. Ex parte
decision itself.

9. Ex gratia I. As a favour.

10. Ex officio J. Tort of wrongfully holding goods which belong to someone else.

11. Habeas corpus K. To make something anew.

 Answers
1. G

2. F
3. K
4. H

5. J
6. B

7. A

8. D
9. I
10. E
11. C