net

1. Ate peuena lu mohitus cum ttie pesen.

’ he gh ofatien des nith
caue ot aton deu with he
ineiple: dndivdual
death olte plaint
dqndant
Case Baker v. Boltan s n lcouty the dua H.
deatth
etenboough ard’ Su ul
lod
hunn

damags muut atos with the

uter ated-
He
peruen nieihy them
by dod Holdaw
maxm ticued
’ he Healt
called iti
tth, he

Boten ds eutiued a a
n Baku v.
priniple
blw tott long
Atkin ob4ed that e
Fond, lod
’ dn kee v. Reted.
have been
marm ahould
famaton,
aault,peuonal inuis.
euniehmeut-matfrohialio
4. Unlalaful eatate peudeet
21
Atatutory exeftons
3 Dbligodtoneaw sut e} a conthaet
 tt. intentien
mes
Aea -
aet
guilty an
be element) 6] 4-363)
commuti
be (2|
cannot the
conditute ( we [ctio IC)
ellment)
lphycical puon
atatute
-slelhe (35 232
uten)
guiltytee M.H tatu kidnatbing
lale
not that meral
oglt (mental a v. -
oyences~Mala
cos
aet IPe asant
dos tountiebu
mean
mindME thethe mind
guity por
itselt ’dutpoet
toto Rea-
nee-
CRI ’Two
o
by yAtate as Nan Atdueten
done
wth
a
essential bHoluibitd
bestious
Atatutey Exeeston
2.
^ctw
nen NO wagug
aet ’A
tate Menu
Aetu
t a Case
wlo
(he wlo (a) (b) (i)
ú)
 Tus

Commen bwo4 Aomeumes basses cwe as law

u baued en the ptineip l common
od law,i.e ldw avoww lputbetlea gocd
Ae casest

Commone o pas.
gatcaution,
Lhtwood v. oLaknow
lond suenboro uglh obeeedi
lemmon
not aeeulatue
stiuFolesaid that ’ he newer hosed
’ MH.
neitene an He ule because that
to heaw
at up a mis coueeston in lauw.
would u
no'tonnel v.R
’ kovd benman had obewed d to with
bee
that gond e lawmut
a wew to tind the thuth
NAtiton by lawyes cannct make iub law
IHen taced to competud autheiy
4. Non Potet elegae
deligale cannet
Alo
’'vieaiou nem habet ieahi oe agont cannot
lawkully appount another to he dutiu
 to conthachual otlisatont -

pruineill
Afiduay nelatieu- likdlauetioneen, brokey,
Liquidato.
’ Arty ageut he wok
picipal t0 comjlete tae woh a ser prinipal:
tuctiu with easenable waillingneub epestc
’ is where
pinciple
a petan To whomla
t to smene ele.
Eq’ An btaton cannct ules expcely
Oaiked to do
An indiidual ith eannet dalg
v. tate o kanataka
Cae, futa Kama a
Auiatat colecto had ruen
Faet,- tn ths caue Hhe Teheildas,thereme
executuoy to the
non petut

cannet

Aee 54 cPc e o< tae Desut

Commusne ho handed t uen to tue Aesitaut

Coletlo
’ Aue msim loes not abpy to consttituena/ au.
 sn du He Deli tauu det, 195 0, nfue ay ument
Hhat paliament could not deliqate Jegulatue
hepeted ay fazl Hei, z°oclenefiid
UHat t u narm app ied n case
elaties,
Excettione
e
expert knewlidde
utom olles Jelegaliom
bpneipale conacnt where pineipal expealy
alou

5. Ex Nudo Pocto NOn Qutw Aetio

No awe o
acton aUss onm a bare phemie.
 2(d)deetion Read ’
aometg wgluuntaiuly
done
combenate
lpaut whely to(3)
lebt baed time pemAe
to aa)
tfeetiony
wuttenaffeceny- )
loueb Naral
tios aee
25Exettiey
ald)eaed lonsdeaton >
enyoable pome
not Mee ’
b.jex Tuwpi Causa Non Ouitus Aetie
Aglt ol attien ausu om an immpial
conaitleration
No
apxings out pom an wulauiku
igbt from conthat! etfoed Io puble poligy
ation ating
actiom
covthalt
en the bastthat gudizial
pHoCess may ne be muwed.
loulins . Blateun au aement about a
pendng dicial proueutiod(wimina) a
Beot Brown 9 lount wl not allow aell to te
ued a an tunent
-tLaniactuon, henee hee aues

Ly Falus tu Uno Falw in mnibus

" falue n one

dt is a mee ule e< evllee deali with only

He weiglht of eudenee, dou not geliee Hue juy
edibiluts ef utimonier
" Jt il applied to the testimony o a withess who
uee ahowm to hae
{aluky uemb maybe
comidered wwoorty belieb
 But an Aueka Aiughv. Atale e uayab,
ui le has no
patteulas maleial wituee woud
Faluity ol a
to end.

’ Maxim does not aply n Tudia- witnes e cannet

be banded as liaYu
a Rule of cauton

9) Je norauia facti &xuLat dqnorutia Juris non

ekeuat
’
exeure, law oles
not exAe
G)
gnorance Ket efteu neuitasle
.
uarsidlable a {aet not a elear sule.
Ey’ lelonab Bank y. Exchange Bank - frineiple
to
ALd to B, Held
w
agut opay to A, moy Was

A can eoe
Tanoandtia Twu Non Exeusaty
Jinoanee awd0e not exeuLe a law
aud' tnoum
’ Net ateable to
 9 lblislhed
twhat law
cna bles people do fuud
dnatliable pvate
aiglat
hüvate xigr in a mattt o at
Nous tetu nter venieus,

Nova cauAa mty venie

intweninq aet
’A an nital caua
{actoaeh as ngligeut t/ omieion
as hasm
l the
dakndat
’ he tvenq aet ahau be deemed to hawe
boken the casual cennection blw fe case the
onequuee t t ueuedes he oigjina
AMudl faeto.
’ tt an be outiuted nt e

)by an aet | omieion of thnd party

(u) by euett hatue

Fait Aum Faiit fy

 LEGAL MAXIMS 163

24
QUI FACIT PER ALIUM FACIT PER SE
He who does an act through another is deemed to be in law to do it himself)
This maxim enunciates the general rule on which the law relating to the
rights and liability of principal and agent depends.)
Where a contract is entered into through authorised agent of a prinipal,
the principal is the proper party to sue or be sued for a breach of contract.
The reason is that the agent is merelyamedium through which the contract
was effected-
qui facit per alium facit per se.
In the following cases the agent is identified with the
pavment to an authorised agent as an auctioneer, in the regularprincipal )
source of his
employment, is payment to his principal; (iiY payment to an agent in ordinary
course of business operates as a payment to the principal. But such payment is
to be made in cash.\If it is paid through a bill, cheque ornote it may
be a good
payment if such bil is subsequently honoured or cheque or note is paid;
tender made to an authorised agent will, in law, be regarded as made (ii) a
to the
principal; payment to an agent, in the ordinarycourse of business amounts
to. payment to the principal; (v the delivery of goods to a carrier's
a delivery of them tó the carrier and delivery of a cheque to servant is
agent amounts to
payment to a principal; (vi) the rule is also applicable to liability of persons in
partnership for the acts of a member of the firm.
Exception.--Y f a person contracts as agent for a non-existent
principal,
the agent himself is liable.
i I f a person professes to a contract as an agent when he in fact has no
authority, usually he incurs liability.
(iiY If a person continues to act as agent, in ignorance that his
has been determined by his principal's death or lunacy, authority
may be liable as having
impliedly warranted the continuance of his authority.
25
RESPONDEAT SUPERIOR
(Let the principal be held responsible)
This maxim relates to the liability of the principal for the act of the
It is more usually and appropriately applied to actions ex delicto, than servant.
to such
as are founded in contract In cases of the wrongful act of
the agent under the
direction or assent of the principal both are held iable. The agent is liable
the authority of the principal cannot justify his wrongful acts. And, because
who directs the acts to be done is likewise liable, the person
according to the naxim
respondeat superior.
It is well established prirciple of liability
that if a person employs another
to do an act is responsible for the act if it be in itself unlawful. It may extend
to the cases of employment of independent contractor by the
a distinction is maintained between the liability of the principal. However,
Qy the servant and the acts done bý the employer for the acts done
independent contractor. In cases of
gployment to do wrongful act, the principal is liable for the action of both the
Servant and the independent contractOr. J
tndepident
cortiato
 INDIA
OUTLINES OF LEGAL LANGUAGE IN
164
independent contractor to do a
wrongfulanand negligent acts unnecessarily committed by
foremploys
is not But if a person
answerable
the performance of the
lawful act,he
the contractor or his servants in contract.
Quarman v.
liabBe for his
Burnett,) it
collateral
is settled view that a person employing another
negligence unless the relation of
However, there is exception to master and
this rule. If
Bvservant
ersince
is not
a
existed between them lawful act but that is a
dangerous, principal
employs a contractor for aBlackburn pointed out thatt a
Angus,? Lord
the
person causing
perliablsoen.:
is| luo
In Dalton v.
to be done, the doing of which
to a contractor.attaching
casts on him a duty, cannot escape
on him of seeing that duty performed by
something
from
the
responsibility
delegating it
Thus, the employer cannot be relieved of his responsibility to
take proper care that the danger
is avoided.
superior is based on the existence of a
The principle of respondeatgeneral
master-servant relationship. The rule is that master is
responsible for all
ats one by his servant in the course of his employment In, Bayley v.
de., Riy. o., Ketty, CB. observed: "Where a servant is acting within the Mancheste,
of his employment and in so acting does something negligent or wrongful,scopethe
master is liable, even though the act done may be the very reverse of that which
the servant was actually directed to do."
There are two convincing reasons for the maxim respondeat superior 6
difficulty in the way of proving the authority; and (i) that the master is
financially capable of bearing the burden of civil liability. That is the reason why
this principle finds place even in social security measures. Under Provident Fund
Act, employer is under obligation to ensure the deposit of not only his OWn
contribution, but also the contributions of the employees. The defaultindepOsit
makes him punishable.
26
RES IPSA LOQUITUR
(The thing speaks for itself)
This principle is frequently invoked in the Law of Tort. It indicates that the
event itself explains that the defendant was negligent. It relieves plaintiff of the
burden of proof. It applies where the thing which caused. the accident, e.g., an
aircraft was under the control and management of the defendant or his servants
and the accident was such as would not have happened in the ordinary course
if due care had been exercised by him or them., The
happening
affords prima facie evidence of negligence, which may, however, bethen by itselt
the defendant.) rebutted by
Res ipsa loquitur is a rule of evidence. It affects onus of proof. It
çourts to draw inference that the accident could enabies
not have taken place excep
through the negligence of the defendant. In Shyam Sunder v. State of Rajastha
th Supreme Court of India dËd not recognise it even as a rule of
observed: evidence.
"The maxim does not
1. 6M and W. 499. embody any rule of substantive law, nor a rue
2. 6 App. Cas. 740.
3. L.R. 8 C. P 148.
called utal cautin'
4. A.ILR. 1973 S.C. 890.
2not aale
 LEGAL MAXIMS 165

of evidence. It is perhaps not a rule of any kind but simply the caution to
an argument on the evidence....the maxim is only aconvenient label to
apply to a set of circumstances in which the plaintiff proves a case so as
to call for a rebuttal from the defendant without having to allege and prove
any specific act or omission on the part of the defendant."
The object of the maxim is to prevent injustice to the plaintiff which could
ensue if asked to prove precise cause of the accident. It has been pointed out
that over the years, the general trend in the application of the maxim has
undoubtedly become more sympathetic to plaintiffs in view of the rising chances
of safety problem.
The rule has its origin in Byrne v. Boadle, wherein a barrel of flour fell from
a first floor window on a passer-by and struck him. It has been applied to a
variety of cases e.g., a defective bun; dashing of pony and a milk van against a
shop; crash of an aeroplane, passenger riding on top of the defendane's omnibus
and injuring accumulated gas explosion and consequent injury, etc. In India it
has been applied to cover a vide spectrum of cases, like, fire, fireworks, taxicab,
ire caused by railway wagon or in a bus engine, negligent plying of a bus, a
live electric wire, faulty structure of a building, a level crossing, an aircraft, a
clock tower etc.
The maxim applies when the following conditions are fulflled :
) the fact of 'control' of the res,
fi) for the accident to happen somebody's negligence is responsible,
otherwise ordinarily it could not happen; and
(iiüi)y absence of reasonable explanatioB.
The rule of Res ipsa Loquitur was applied in Divisional Controller, KSRTC
(NWKRTC) v. A.T.Mane? to the case of misconduct committed by a bus conductor
who was found to be in possession of sum over and above amount equivalent
to tickets issued by him and in excess of the sum that bus conductors in the
employ of the appellant were permitted to carry. The bus conductor id not have
any explanation for having carried the said excess amount. In North East
Karnataka Road Transport Corporation v. Devidas Manikrao Sadanand) the driver of
the Corporation was trying to take over another bus and collided with the back
part of the bus. Consequently, the other bus clashed against a tree and four
Passengers died on spot and 56 passengers were seriously injured. Noattempt
was made by the delinguent driver to show that the cause of the accident could
not have been avoided by the exercise of ordinary care and caution. In
Circumstances of the case, the Apex Court held that maxim res ipsaloquitur was
applicable.
In Jayarajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel, in an election of
tne President of Municipality, few minutes before the scheduled voting time, two
cOuncillorsS-voters were arrested by police and were produced before Magistrate
Wnen the meeting was over. They could not vote. At the meeting both candidatesof
having got equal votes, drawing of lots was resorted as a result where
1. (1863) 2 H. & C. 722.
2. (2005) 3 S.C.C.
254.
3. (2006) 8 S.C.C. 52.
4. (2006) 8 S.C.C. 200.
166 OUTLINES OF LEGAL LANGUAGE IN INDIA

appellant was declared elected. The Supreme Court applied the principle of res
ipsa loquitur and held that decision of the Presiding Officer in
circumstances
hold election was perverse and irrational, as hne could have postponed theto
meeting. However, as pointed out in acob Mathew v. State of Punjab! res ines
Loquitur is only a nule of evidence and operates in the domnain of civil res tpsa
aw
specially in cases of torts and helps in determining the onus of proof in actions
relating to negligernce./The Supreme Court of India further clarified that it cannot
be pressed in service for determining per se the
the domain of criminal law. Res ipsa loquitur has, liability for negligence within
if at all, a limited application
in trial on a charge of criminal
negligence.
The Supreme Court of India has extended the
cases under Prevention of Corruption Act and IP.C. rule of res ipsa loquitur to
Maheshwar Rao and earlier in Raghubir Singh v. StateThus, in State of A.P. v. Uma
of Haryana possession of
marked money-currency note was held to be sufficient for application of the
maxim. In B. Nagbhushan v. State of
rash and negligent driving, i.e., Karnatakas it wWas extended to cover cases
Sections 304-A and 279, L.PC.
27
 OUTLINES OF LEGAL LANGUAGE IN INDIA
168

chooses.
own property as he
2. He must, however, so enjoy and use it as not to
the rights of others. affect
3. Where rights are such as, if exercised, to conflict
we must consider whether the exercise of the right claimed wibyth eachinjuriouly
other,
be not restrained by the existence of some duty imposed on
the other. Whether such a duty be be not imposed must behim party
or either
towards
byreference to abstract rules and principles of law.
4. A man cannot by his tortious act impose a duty on
5. But, lastly, a wrongdoer is not necessarily, by reason of
determined
another.
such, disentitled to redress by action, as against the party who his
damage, for sometimes the maxim holds that injuria non being
excusatcauses him
29 injuriam.
SALUS POPULI EST SUPREMA LEX
(Regard for the public welfare is the highest law)
This maxim is based on the principle of the common social
that every member of socieBy surrenders his own individual welfare
welfare of the community. The property, liberty and life of an individual
understanding
before maythe
be put in jeopardy, under certain circumstances with a view to secure the nuh
good. In Plate Glass Co. v. Meredith, Buller, J. observed that "there are many cases
in which individuals sustain an injury for which the law gives no
where private houses are pulled down, or bulwarks raised on private action:
as
for the preservation and defernce of the kingdom against the King's property,
enemies.TA
person committing a private injury maybe justified on account of the pubic
good) For example, under certain circumstances, pulling down of a house may
be permitted by law, in order to arrest the progress of a fire.? In Absor v. French
it was ruled that in comparison to a public
inconvenience a private mischtef
shall be endured. Individual loss may be overlooked in the cases of promoting
some specific undertaking of public utility like a canal, railway, or paving
But such apower has to be exercised with great caution. It should be limitedwayto
the extent of securing public object and, therefore, a person cannot be deprivd
of his estate)with a view to transter it to some other
person without compensaion
and in absence of any. clear policy. As Erle, C.J. pointed out in Chelsea Vestry
King "where an Act is susceptible of two constructions one of which will hav
the effect of destroying the property of large members of the
the other will not" the courts will "assume that the community and
latter. Legislature intended ute
In Pranballav Saha v. Tulsibala Dassi, it was ruled that all other maxims of
public poicy must yield to the rule that regard for public welfare is the suprete
law for the object of all law is to promote the general well-being of the society.
1. 4 T.R. 794.
2. Noy, Maxi. 9th ed. 36.
3. 2 Show 28.
4. Broom's Legal Maxims, 10 ed., Indian
5. 17 C.B.N. S. 625. Reprint, 2000 p. 4.
6. 17 C.B.N.S. p. 629.
7. A.LR. 1958 Cal. 713.
 LEGAL MAXIMS 169

30
UBIJUS IBI IDEM REMEDIUM (L)
(Where thère is right, there is remedy)
The Jaw of tort has developed out of the maxim--ubi jus ibi idem remedium.
Under the traditional common law this maxim means wherever the common
U rovides the right it also provides protection or provides right of action
againstinterference with the right or provides remedies on the breach of those
ciehts Jus is indicative of the demand of doing something for the legal
jurisdiction. Remedium means a right of action for the regaining of right.
According to Blackstone wherever the common law provides aright or prohibits
any injury, it also provides for the remedy.
UBI JUS IBI IDEM REMEDIUM is such an important and significant rule
hat aform has been searched for action. Statute of Westminster I, 1285, provides
that writ tor the enforcement of right and remedy has to be provided irrespective
df thelack of precedent on the point. Generally remedy is founded in the form
of damages.
In Ashby v. White! it'was held that man who has a right to vote at an
election for members of Parliament may maintain an action against the returning
officer for maliciously refusing to admit his vote. It was, however, so that even
the member to whom he wished to vote was elected and no loss was caused to
him. In answer to a question that in absence of precedent it would lead to
multiplicity of action; Lord Holt observed that "if men will multiply injuries,
actions must be multiplied too, for every man that is injured ought to have his
recompense.(In Contastinev. Imperial London Hotels? the petitioner was afamous
West Indian Cricketer. Defendant has wrongfully deprived him of being a guest
at the hotel. The King s Bench declared him entitled of damages.)
In India the maxim ubi jus ibi idem remedium, has been applied with a view
to ensure justice. In Shivashankar Dal Mills v. State of Haryana? the petitioners had
iled application for refund of the payment of excess market fee due to the
mistake of law. The Supreme Court declared the increased rate ultra vires. Kristna
Iyer, J, said the maxim ubi jus ibi idem remedium is fully applicable in United
States and in England. It is more significant than mere tautological proposition.
The Court ordered the refund of the excess payment.
In PM.A. Metropolitan v. Moran Mar Marthoma, the Supreme Court of India
explaining the maxim made clear that every civil suit is cognizable unless it is
barred, there is an inherent right in every person to bring a suit of a civil nature,
and unless the suit is barred by statute, one may, at one's peril bring a suit of
one's choice.
The Supreme Court of India has made it clear that for application of the
maxim ubi jus ibi idem remedium there is no necessity of clear cut statutory
Provisions. nD.K. Bass v. State of West Bengal5 issuing an order for damages
against custodial death, Dr. A.S. Anand observed that there is no wrong without

1. 2 Raym. Ld. 938.

2. 1944 K.B. 693.
3. (1980) 2 S.C.C. 437.
4. A.IR. 1995 S.C. 2001.
5. (1997) 1S.C.C, 416.
 172 OUTLINES OF LEGAL LANGUAGE IN INDIA

each case delay will be decided according to the facts of the case.
33
VOLENTI NON FIT INJURIA he

(Damage suffered by consent is not a cause of action)

In action of tort the leave and licence of the plaintiff to hin

complained of usually provides a good defence by reason of the do the act

maxim volenti
non fit injuria. As was pointed out in Gould v. Oliver, as a rule a man of

loss arising from acts to which he asserted. must bear an

The maxim is applied in favour of defendants who are sued

for personal injuries. Ilott v. Wilkes? the maxim was applied in a for
man was hurt by a spring-gun while he trespassed in a wood damages
case where
after being
spi

by the owner that in it there were spring-gun set. warned

The application of the maxim volenti non fit injuria is often a
fact rather than law. Thus, in Cutler v. United Diaries, Londona personquestion of AlL
gone to the aid of a driver endeavouring to pacify a horse which had who had
afield was declared not entitled to damages for injury caused to him. Inbolted into
v. Chapman, a man had unnecessarily crossed a barrier to Sylvester
extinguishHe could
a n
which he saw smouldering near a leopard's cage. He was injured. cigarette of
get damages as he was declared to have voluntarily assumed a risk
and coul
brought
the injury upon himnself. In Hall v. Booklands Auto Racing Club petiioner G
late
not succeed in a claim for being injured in collision of two racing cars the
spectator. He was held to have undertaken the risk himself or could Dredict inte
risk. In Thomas v. Quarterman, a workman of distillery tried to pull the cover of Su
aboiling pot and fell in another boiling pot. He met with accident and receivod the
injury due to his own rash act.
Explanation.-In the principle volenti non fit injuria main emphasis is upon Cu
the word volenti. The consent must be free. Thus, in Bowetter v. Raley Regis
Corporation,; it was held that if servant is resisting any work and is forced to that an
and is injured, the rule will not apply.
The defence based on consent has two elementsfirst,that the plaintiff had of
knowledge of consent and secondly, that knowing the risk he gave consent for Co
that. jin Bowetter case plaintiff coachman knew the irritant nature of the horse sh
and resisted the driving of the coach. But he drove on being ordered by the of
defendant foreman. The horse became unruly and plaintiff was injured. Lord th
Goddard ordered the payment of damages and rejected the plea based on H
Consent. St
be
(Exceptions Cu

Rescue cases present exception to the rule volenti non fit injuria. In Haynes
1. 4 Bing. N.C. 134.
2. 3 B. and Ald. 304.
3. (1933) 2 K.B. 297.
4. (1935) 79 Sol. Jo. 777.
5. (1933) 1 K.B. 297.
6. (1837) 18 Q.B.D. 685.
7. (1944) 1 K.B. 476.