Contracts Assignment

Introduction

The word "Maxim" is derived from the Latin word "axioma," which refers to the first
principle, such as geometry. Axioms are fundamental truths that are obvious in nature.
Although they were underived, they could be used to infer all the subsidiary prepositions.
They exercised independent power. Consequently, a legal maxim would be an unambiguous
first principle of self-evident truth. Here are some of the maxims and the principles derived
from it.

Ab initio (from the very beginning of the law/ act).

The Supreme Court used the Latin term ab initio to arrive at a conclusion in Delhi
Development Authority vs. Kochhar Construction Work and others. In this case, it decided
that the proceedings were ab initio defective and could not be instituted because the firm in
whose name the proceedings took place was not registered at the date of the institution of the
proceedings. In Manjeet Singh vs. Parson Kaur, the Supreme Court decided that void
marriages are void ab initio which means that the marriage never came into existence in the
eyes of law.

Ubi Jus Ibi Remedium ("Where There Is A Right There Must Be A Remedy")

The party who has been wronged has the upper hand when asking for equitable remedy. The
party with the ability to seek legal redress is the one who is in a stronger position (judicial
relief). This type of remedy in equity typically takes the form of a particular performance or
an injunction (injunctive relief). Compared to common law remedies like damages, these
ones are preferable. Ubi jus ibi remedium is the latin maxim behind this principle ("where
there is a right there must be a remedy"). The maxim is necessarily subordinate to positive
principles and cannot be applied either to subvert established rules of law or to give the courts
a jurisdiction hitherto unknown, and it is only in a general not in a literal sense that the
maxim has force.

HE WHO SEEKS EQUITY MUST DO EQUITY

The maxim means that to obtain an equitable relief the plaintiff must himself be prepared to
do “equity”, that is, a plaintiff must recognize and submit to the right of his adversary. The
Indian lawmakers has given much importance to this maxim. As a result there are some
sections of The Contract Act, The Transfer of Property Act, Specific Relief Act and Trusts
Act, Civil Procedure Code are based on this maxim. The maxim of ‘he who seeks equity must
do equity’ is inherent in Section 33 of the 1963 Act. It puts an obligation on the party to
whom the relief of cancellation is granted, to restore any benefit which he may have received
from the other party and to make any compensation to him which justice require.

Nemo debet locupletari ex aliena jactura

When something has been done for the benefit of another person without the waiting for his
formal assent as also for the completion of other formalities, it is expected that the person
receiving the benefit must compensate the other party for the trouble and expenses incurred.
The contract and quasi contract can be distinguished by focusing on the concept of
agreements and obligations by and on the parties respectively. The unjust principle came
from the old maxim of Roman law ‘Nemo debet locupletari ex aliena jactura’ that means no
man must grow rich because of one’s personal loss. The doctrine of quasi contracts has been
an essential part and aspect of the Indian Contract Act, 1872 in dealing with such obligations
which causes loss to one party over undue benefit to the other party.

Caveat Emptor

S. 15 of the Indian Contracts Act states that “When the goods are sold by sample as well as
description, it is not sufficient that the bulk of goods correspond with the sample if the goods
do not correspond with the description.” The section provides that as a general rule, there is
no implied warranty or condition as to the quality or fitness for any particular purpose of
goods supplied under a contract of sale. It is incorporation of the rule contained in maxim
caveat emptor which means buyer beware. According to this rule, the buyer himself should
be careful while purchasing the goods and he should himself ascertain that the goods suit his
purpose; but if the goods are subsequently found to be unsuitable for the purpose of the
buyer, he cannot blame seller for the same.

Nemo Dat Quod Non Habet

The general rule relating to the transfer of title on sale according to S.27 is that “the seller
cannot transfer to the buyer of goods a better title than he himself has.” If the title of the seller
is defective, the buyer’s title will also be subject to the same defect. This rule is expressed by
the maxim “nemo dat quod non habet”, which means that no one can give what he has not
got, i.e., a seller cannot convey a better title than that of his own. When the seller himself is
the owner of the goods which he sells or he is somebody’s agent to dispose of the goods, he
conveys a good title in the goods to the buyer. Difficulty arises when the seller is neither
himself the owner nor has he any such authority from the owner to sell the goods.

Ex Nudo Pacto Non Oritur Actio

The legal maxim "Ex nudo pacto non oritur actio", means "Agreement without consideration
is void". This principle is embodied in Sn. 25 Contract Act. Section 25 declares that an
agreement made without consideration is void, Sn. 2 Cl. (d) defines consideration. The basis
of all contractual obligations, is consideration and without consideration, the contract
becomes void and unenforceable in the courts.

Conclusion

Legal maxims are entertaining and their expressive wisdom meets with the approval of
modern law students and legal professionals. That’s why it is very common to find them
throwing such maxims often during arguments. Commentaries on the maxims in law libraries
generate historical curiosities. They still serve as guiding principles for legal literature.