CAVEAT EMPTOR

Caveat Emptor is an ancient Latin maxim relevant in common law that means ‘let the buyer beware’. It is used in theresolution of disputes arising on the question of goods, services and property. In contract law, it cautions the buyer and places him into an obligation to perform the due diligence and examination before making the purchase. It is also a vital rule in the Sale of Goods Act, 1930 wherein it holds the purchaser responsible for his decision to purchase.

In the case of Mariappan v Inspector General of Registration, Department of Registration, Chennai and others, the court applied the principle of caveat emptor in stating that the buyer ought to have exercised due diligence before buying the item.

Similarly, in the case of Rekha Sahu v UCO Bank and Others, the court applied caveat emptor to state that the buyer must verify the title of the property before purchase or else would invite complications.

However, the use of caveat emptor has declined with the rise of consumerism and Consumer Protection Laws in business and commercial transactions in India. Instead, contemporary times find the principle to be replaced by that of caveat venditor. This was necessitated by the fact that the realm of modern trade and commercial relationships were changing and the principle ought to change in line to it. This maxim, meaning ‘let the seller beware’ places an obligation on the seller to disclose all appropriate information of the item of sale, especially with regard to deformities. It is now the duty of the seller to make sure that the buyer makes an informed choice and to compensate for defective products. It also places an implied warranty on each item such that the buyer need not perform his due diligence before purchase of the same.

A case of such nature is Peter Darlington Partners Ltd vs. Gosho Co. Ltd, wherein there was a contract for the sale of canary seeds subject to customs of the trade; the court held for rebate on the price of the seeds due to impurities present in them. Here, the defective nature of the product of sale invited remedy for its buyer.

In conclusion, the principle of caveat emptor has evolved over time into that of caveat venditor, which is widely relevant in disputes on goods, services and property disputes.

Ex Post Facto

The Latin maxim ex post facto literally translates to ‘arising from past facts’ or ‘out of the aftermath’. In the legal scenario, the ex post facto law can retroactively change the legal consequence of an action that was committed before the enactment of the law and was considered lawful in the past. 

However, there have been objections to this law as it is seen as a violation of the rule of law, and many constitutional democracies have safeguards against it. Article 20 (1) of the Constitution of India enshrines the judicial right of a person to not be convicted of an offence that did not violate the law at the time that it was committed, while immunizing the person against an enhanced penalty than that incurred when convicted, acting effectually as a prohibition to the ex post facto law. 

With reference to the Rattan Lal v. State of Punjab case, the boy charged with the offence of outraging the modesty of a girl and trespassing was sentenced to six months of imprisonment. Meanwhile, with the enforcement of the Probation of Offenders Act, 1958, stating that an individual below the age of twenty-one years cannot be imprisoned. With regard to this Act, the accused pleaded that he be considered under the provisions of the reformed Act. This plea was dismissed citing that it was an ex post facto law, although, prohibition to ex post facto laws when beneficial to the accused does not fall under the ambit of Article 20 (1).

An exception to the prohibition, and a relevant case for the ex post facto law is that of Jawala Ram v. the State of Pepsu. There was a retrospective imposition of special rates for the unauthorised use of canal water in this scenario, not impinged by Article 20 (1).
Ex post facto laws have been considered a privilege for legislators, however, in the present scenario, apex courts play a significant role in preventing the abuse of the law, and protecting the rights of the people.

IGNORANTIA FACTI EXCUSAT

Ignorantia Facti Excusat, is a Latin Maxim which means “Ignorance of fact can be excused”. This maxim is the principle behind the concept of fact which is considered a valid and sufficient defense in criminal law. It means that any act done under a mistaken impression of a material fact is excused. In U.S vs Ah Chong (1910), it is explained that ignorance or mistake of fact works an acquittal if it is sufficient to negate a particular intent which under the law is a necessary ingredient of the offense charged. The mistake of fact must be honest and reasonable i.e., bona fide in nature, and must relate to the fact, not to law. A defendant cannot claim later that he was under the mistake of fact when he knew about the situation.

However, Section 76 of the Indian Penal Code, 1860, explains the provision about “mistake of fact”. The exemption on the ground of mistake of fact is based on the principle that a man who is mistaken or ignorant about the existence of a fact cannot establish an intention to constitute a crime, and hence, is not responsible in law for his deeds. Under S. 76 of IPC, nothing is an offence which is done by a person who is, or who by reason of a 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. For instance, a soldier, fires on a mob by the order of his superior officer, in conformity with the commands of the law. A has committed no offense.In, State of West Bengal vs. Shew Mangal Singh (1981 AIR 1917, 1982 SCR (1) 360), the accused police officers were on patrol when they were attacked by a mob. The Deputy Commissioner of Police ordered to open fire and a constable got injured. It was observed that the accused constables were bound by law to obey the orders of the superior officer. Both the HC and SC ruled that the situation was warranted and justified by the order to open fire and therefore, the accused got protection under section 76 and was held not guilty.

Nova Constitutio Futuris Formam Imponere Debet, Non Praeteritis

Nova Constitutio Futuris Formam Imponere Debet, Non Praeteritis means a new law has to be prospective and not retrospective in its operation. Hence, a new statute of law has to affect the future, not the past. For instance- a new tax law cannot levy a tax on previous income, it can levy a tax on future income. This maxim implies that except in special cases the new law has to read to interfere as little as possible with already vested rights. It incorporated a particular rule of establishment which is constructive only when the words of the Act of the Parliament are vague and plain. So, if any enactment requires to be performed as retrospective it must be interpreted. 

However, it is presumed that the legislature does not intend to prejudice the tendency against giving certain Statutes a retrospective operation. As a rule, new Statutes are construed as operating only in cases or facts that come into existence after the enactment. It is also settled that no Statute shall be construed to have a retrospective effect unless such enactment appears very clearly in the terms of the acts or arises by necessary and distinct implication.

The wording of the Constitution and judicial review is constructed in such a way that no existing law will be struck down as a whole but only to the extent of its inconsistency. In Keshavan Madhavan Menon v. State of Bombay AIR (1951 S.C 128), the question arose whether the fundamental rights and freedom guaranteed to each citizen has a retrospective effect or prospective effect? The court held that the language of Art. 13 did not allow retrospective operation and will not render the law void ab initio.

There are many established principles in respect of retrospective effects of statues. Such as in Amireddi Raja Gopala Rao v. Amireddi Sitharamamma – “Every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect”. “As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed to have a larger retrospective operation than its language renders necessary” (Reid v. Reid). In other words, “close attention must be paid to the language of the statutory provision for determining the scope of the retrospective intended by Parliament”- (Union of India v. Raghubir Singh)

Actio Personalis Moritur Cum Persona

Actio Personalis Moritur cum persona– it means that “a personal action dies with the person”. The principle denotes that the individual cause of action ends with the death of the petitioner or defendant. It can be said that a personal action does not survive on the death either of the person who committed the wrong or of the person to whom the wrong was committed.

However, some legal causes of action can be survived at the death of the claimant or plaintiff. For example- action founded in the contract law. If someone contracted with anyone for a lifetime and dies before completion of the contract, the contract will still survive upon the rest parties or the legal representatives. Similarly, some actions are personal to the plaintiff. Such as defamation of the character. Therefore, such an action where it relates to the private character of the plaintiff comes to an end on the death. Whereas, an action for the publication of a false and malicious statement, which causes damage to the plaintiff’s personal estate or assets, will survive to the benefit of his/her personal representative. The principle also exists to protect the estate and execution from liability for strictly personal acts of the deceased such as charges for fraud.

Hence, the underlying rule of the maxim applies to the cases of defamation, assault, and personal injuries. There are three exceptions to the maxim rule-

Contract: The cases arising under contract will not be affected by the death of any of the parties. In case M. Verappa v. Eveline, SC held that whether the suit will end or not on the death of the party depends on the nature of proceedings. If the proceeding relates to tortious action, it will end. Contrarily, if it relates to contractual action, it will not end.

Estate: If the wrongdoer has misappropriated the property of the petitioner, then the property could be recovered from the legal representative in the case of his death during the pendency of the suit.

Statutory exception: By enacting the Law Reform Act, 1934 in England, the effect of this maxim has been ended. It has been limited only to cause of defamation, the outrage of modesty, or adultery between husband and wife.

Hambly vs. Tratt (1776), this case is considered as one of the founding cases of this maxim. In this case, the defendant had misappropriated some sheep, goats, and pigs from the house of the plaintiff and later on died. It was held that the plaintiff was sought the return of his items from the deceased legal representative.

However, an action for trespass will not be governed by this maxim if it is against the character of a person.

CONTEMPORANEA EXPOSITIO EST OPTIMA ET FORTISSIMA IN LEGE

The Latin maxim contemporanea expositio est optima et fortissima in lege bears the literal meaning ‘the best way to construct a document is to read it as it would be read when it was made. In the legal framework, it states that an enactment should be interpreted in such a manner that it preserves the meaning intended by its creator in the truest sense, and in the context of the circumstances prevailing at the time of its construction, and not by the individual’s discretion.

This maxim was exercised in JK Cotton Spinning and Weaving Mills Ltd v Union of India, when the Collector Central Excise held JK Cotton Spinning and Weaving Mills in default for not paying central excise on the yarn used as an intermediary raw material for fabric production. The Mills claimed Contemporanea expositor and appealed that levy of excise on yarn and other fabrics is applicable only when it is removed from the factory premises,  and not if it is utilised in intermediary stages.  However, the Supreme Court dismissed the appellants’ plea, presenting their judgement by holding the Mills liable for the payment of excise.

In reaching this judgement, the apex court referenced the decision in KP Varghese v The Income Tax Officer, Ernakulam. In this judgement, the maxim was appropriately applied, considering that there was ambiguity in the relied case as a word had two possible constructions. This was untrue for JK Cotton Spinning and Weaving Mills Ltd v Union of India, where the maxim was pleaded in the absence of an ambiguity, with the consequence of their plea being rejected.

The maxim was also applied in National Textile Corporation, New Delhi, and another v Swadeshi Mining and Manufacturing Co Ltd, Lucknow. The issue in regard was whether the shares held by Swadeshi Cotton Mills in Swadeshi Mining and Manufacturing Co Ltd and Swadeshi Polytex Ltd, come under the possession of the Central Government. The appellants posited that possession of certain documents was necessary for the shares to be vested with the Government, however, the apex court ruled against this. The judgement claimed that the case could be resolved by interpreting the relevant provisions of the Swadeshi Cotton Mills Co Ltd Act 1986, with regard to which the claim was made, enforcing that there is no ambiguity and the maxim is not applicable in this case.

The maxim holds significance in interpreting an enactment and reinforcing as stated by Salmond that the essence of law lies in the spirit, and not its letters.

EJUSDEM GENERIS

Ejusdem Generis is a Latin maxim, literally translates to ‘of the same kind’ and in the legal context implies a case where ‘general words follow specific words in a statutory enumeration, where the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. It resembles a general and similar class, where words illustrate a category of objects having similar characteristics, deduced from the specific class.

In the Thakur Amar Singhji v. the State of Rajasthan case, the ordeal in consideration was the Rajasthan Land Reforms and Resumptions of Jagirs Act of 1952. The validity of the act was questioned and it was claimed that the holders of the Bhomichartenure would not be classified as jagirdars. In agreement with the petitioners, the Court stated that the creation of a jagirrequires that it be through a grant, and consequently if the Bhomichar tenure is not held under a grant, it does not classify as a jagir. This conclusion was reached with reference to Article 31-A of the Constitution of India where the word ‘jagir’ cannot be read ejusdem generis with ‘other similar grants’. In this instance, ejusdem generis is not applicable as to invoke the maxim the words of a general nature must follow specific and distinct categories and not the reverse.

We see an appropriate application of the maxim in the English case Evans v. Cross where the interpretation of the words ‘other devices’ in Section 48(9) of the Road Traffic Act of 1930 was implemented through the maxim ejusdem generic. By the Act, the ‘traffic sign’ referred to ‘all signals, warning signposts, direction posts, signs or other devices. The Court rules that since a white line painted on the road is not a ‘device’, it could not be categorised as a traffic sign.

This rule is important for unforeseen situations that arise but were not explicitly mentioned when the statute was drafted, bringing within the ambit of the statute things that are of a similar or same class.

ACTUS REUS

Actus Reus is a Latin phrase for a guilty act which refers to the action you need to do to commit an offense. According to Kenny, ‘Actus Reus is such a result of human conduct as the law seeks to prevent’. The act done or omitted should have criminal liability, which must be prohibited by law. The Actus Reus is the physical facet of a crime. If there is no guilty act, there can be no crime and therefore no suit for damages can arise.

Generally, Actus Reus must be a voluntary or willful act like stealing a bracelet. On the contrary, an act that is involuntary is not covered under the guilty act. An example of an involuntary act is given in the case of Hill v. Baxter when someone loses control of a car because they are attacked by a swarm of bees, or because they have a heart attack.

The guilty acts come about because of the circumstances. This can mean that people are guilty of criminal offense just by being in the wrong place at the wrong time, even though they had no control over their actions. In R v. Larsonneur,Larsonneur, a French woman who was no longer allowed to stay in England, went to Ireland. She was immediately sent back to England and handed over to the England police on arrival. She was charged with being ‘an alien’ without permission to be in England. She was founded guilty even though she had been sent to England by the Irish police.

Actus Reus includes not only act but also omission. The general rule is that there can be no liability for failing to act unless, at the time of failure to act, the Defendant was under a legal duty to take positive action. Such positive duty arises from the following circumstances-

The Duty Arises from Statute: In UK, there is a Statute namely Children and Young Persons Act, 1933, which provides omissions culpable by people over the age of 16,failing to look after a child under 16. It means that if a child is not provided with adequate food or clothes, is called the Actus Reus of the crime.

The Duty Arises from a Contract: A positive duty to act because of one’s obligation under a contract, if failed to perform, the contractual duty in question can form the basis of criminal liability. In R. v. Pittwood, a gatekeeper failed to close the railway gate on time. As a result, one person died and the other got injured. The court convicted the gatekeeper for manslaughter as he failed to carry out his contractual duty.

The Duty owed to family members: In R. v. Gibbsons and Proctor, the Court ruled that the accused and his wife were guilty of murder by failing to feed the accused’s daughter. As the woman hated the daughter, it was sufficient to make her liable for the crime.

Moral duty should be distinguished from the legal duty in the rule of Actus Reus.

NULLUS COMMODUM CAPERE POTEST DE INJURIA SUA PROPRIA

Nullus commodum capere potest de injuria sua propria is a Latin maxim, fairly translating to mean that no one can make gains from their own wrongs. Its relevance is primarily foundin Contract Law —reiterating that when there is a contractual obligation between two parties; neither party may derive an advantage from its own unlawful acts.

It is derived from the good faith arrangement that parties within a contract often undertake. By this arrangement, parties mutually agree upon the fact that in a scenario where, due to an unlawful act on the part of one party, the other party is not able to fulfil its contractual duty to the former, the former may not take advantage of the non-performance condition. They agree to not deceive each other and operate with ‘clean hands’ and in complete confidence and cooperation with each other.

In India, where the common law system prevails, such a provision is primarily seen in contracts such as partnership agreements and other agreements prescribing a fiduciary duty such as insurance contracts.

In the judgment for the case of Ashok Kapil vs. Sana Ullah, the Supreme Court applied the maxim, nullus commodumcapere potest de injuria sua propria stating it to be “one of the salient tenets of equity” and that “hence, in the normal course, the respondent cannot secure the assistance of a court of law while enjoying the fruit of its own wrong”.

Another application of the maxim is implemented when courtsexercise its equitable jurisdiction by the law. In the case of A. P. State Financial Corporation v. GAR Re-rolling AIR 1994 SC 2151 and State of Maharashtra v. Prabhu 1994 2 SCC 481, the Court observed that “a writ court, while exercising its equitable jurisdiction under Article 226 of the Constitution, should not act to prevent perpetration of a legal fraud and thecourts are obliged to do justice by promotion of good faith. Equity is, also, known to prevent the law from crafty evasions and subtleties invented to evade the law.”

To sum up, nullus commodum capere potest de injuria sua propria is a maxim fairly used by courts in matters of application of their equitable jurisdiction and to prevent deceptive practices prevalent in the ambit of cases involving commercial contracts.

Actus Non Facit Reum Nisi Mens Sit Rea

Meaning:-

An act does not make anyone guilty unless there is a criminal intent or a guilty mind. In simple words, for any act to be illegal in nature, it must be done with a guilty mind.

Explanation:-

To be guilty of a crime, two elements are considered i.e. a guilty act and a guilty state of mind. Without a criminal intent or guilty mind, there is no crime. There must be a criminal intention along with an unlawful act. For committing a crime, the intention and the act both are to be taken intoconsideration.

Origin:-

The two basic elements of criminal law are ActusReus and Mens Rea. Actus Reus is the wrongful or unlawful act committed and Mens Rea is the guilty state of mind. The Latin maxim states that a person is guilty of a criminal act only if such act is accompanied by a criminal intent. Severepenal actions are required for crimes committed with specific intent and not for unprecedented acts.  Hence, this maxim is used to differentiate between intentional and unintentional criminal act to decide the quantum of punishment.

Illustration:-

“A” commits a motor vehicle accident leading to the death of “B”. A shall be charged with murder if he had the intention of causing death of “B”. Without a guilty mind or intention, the act would be considered an accident or negligence on part of the accused.

Also, a person who is suffering from  unsoundness of mind or involuntary intoxication cannot be said to have committed a crime as he would not know the repercussion of his act.

Case Law:-

In State of Rajasthan vs Shera Ram, it was held that “for committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi menssit rea. Every normal and prudent human being is expected to be responsible for his/her conduct and acts unless the contrary is proven. But a person of unsound mind or a person suffering from a mental disorder cannot be said to possess this basic norm of human behaviour.”

In Gajraj Singh vs State of Rajasthan, it was held that, Section 84 of Indian Penal Code, encapsulates the fundamental maxim of criminal law, i.e., actus non reum facitnisi mens sit rea. To constitute an offence, the intent and act must be in unison.

In Brend v. Wood, it was held by the Lord Goddard, C.J. that:- “It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.”