Actio Personalis Moritur Cum Persona

The legal maxim "actio personalis moritur cum persona" means A personal right to action dies with person.

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This maxim was very first time used in a case in 1496 where an old woman died before paying damages. The old woman was liable for a case of defamation. It was the principal of early law that the death of either party to a personal duty takes away or remedy and destroys the duty. 

In England under the common law there was a general rule that on the death of any party in matter of tort it stands disposed off automatically. However in due course of time the rule was reversed by the Law Reform (Miscellaneous Provisions) Act, 1934 on the death of any person all causes of action vested in him shall survive for the benefit of his estate. Thus all causes of action in tort suit for defamation and the claim for damages for bereavement survive the deceased. 

Exceptions to the legal maxim Actio personalis moritur cum persona: 

• Defamation 
• Attack or assault
• Personal damages 

Thus right of action arising tinder the court the contract act cannot be quashed on the death of any party. Wherein the person had illegally acquired the property belonging to the other person, even on death of that person who possessed property unlawfully, right of action can be initiated against such person through his legal representatives. 

It has been described by Viscount Simon as “not in fact the source from which a body of law has been deduced, but a confusing expression, framed in the solemnity of the Latin tongue, in which the effect of death upon certain personal torts was inaccurately generalised”  

The doctrine is embodied and not peculiar to common law system. The idea belongs to primary strata in universal law. In modern times it has been gradually limited by judicial decisions and is now being still further restricted by legislation. 

A maxim stating that actions of tort or contract are destroyed by the death of either the injured or the injuring party. Modern statutes mean that this is rarely the case. However, before the passing of the Fatal Accidents Act 1846 acceptance of this notion meant that in actions in negligence it was better for a doctor to kill his patient outright than to injure him. This situation arose because it was originally believed that the primary function of tort was to punish and not to compensate for damage caused. The maxim still survives in the law of defamation (“you cannot defame the dead”).

In India under the Fatal Accident Act 1855 death caused on account of negligence, rashness and due to wrongful act the legal representatives of the deceased can sue. 

Even cases involving determination of liabilities of the parties arising as a result of breach of contractual duties, a personal right to action does not die with person. Their legal representatives or authorised attorney can file a suit for specific performance and claim damages. 

e.g. 1) If P commits battery on Q and either party dies the right of action which accrued to Q by the reason of the battery is taken away. 

e.g. 2) If P commits battery on Q or do other injury to him, any right of action which accrues to third person say wife a legal heir of Q, will not be affected by the death of Q so far as the application of the maxim is concerned. 

Case Laws:

1) In Gujarat State Road Transport Corporation Ahmedabad versus Ramanbhai Prabhatbhai, wherein due to negligence on the part of the petitioner's driver, a boy aged 14 years was crushed to death. Brothers of the deceased boy file suit claiming compensation. The motor accident claim tribunal passed award of compensation which was affirmed by the High Court and by the Apex Court. The Court held that contention of the compensation that right of personal action dies with the person is no more recognised rule of law. Hence, corporation is liable to pay compensation to the deceased brother. 

2) In Nurani Jamal And Others vs Naram Srinivasa Rao And Others [AIR 1996 AP 6] the maxim actio personalis moritur cum persona has applicable in respect of all personal wrongs but there is an exception where a tortfeasor is benefited by the wrong done and action would lie against the representatives of a wrongdoer. 

3) Baker vs. Bolton [KBD 8 Dec 1808] case arose : The defendants were the proprietors of a stage coach , on the top of which the plaintiff and his wife were travelling from Portsmouth to London. The coach was overturned and the plaintiff’s wife was so badly hurt that she died a month later. The plaintiff brought an action for negligence and sought to recover for the loss of service and consortium. It will be noted that the maxim actio personalis did not apply and there was nothing to show that the defendant’s conduct was felonious. Hence, the doctrine of merger was not applicable.

4) M. Veerappa vs Evelyn Sequeira & Ors: During the pendency of the suit the plaintiff died and his legal representatives, who are the respondents herein, filed a petition under order XXII Rule 3(1) of the Code of Civil Procedure seeking their substitution in the suit for prosecuting the suit further. The appellant opposed the application and contended that as the suit was one for damages for personal injuries alleged to have been sustained by the plaintiff, the suit abated on his death as per the maxim Actio Personalis cum moritur persona. The District Munsif upheld the objection and dismissed the suit as having abated but the High Court held otherwise and declared the legal representatives to be entitled to get impleaded and continue the suit.

5) In Girja Nandini Devi v. Bijendra Narain Choudhury observed as under: "The maxim 'actio personalis moritur cum persona' a personal action dies with the person has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory."

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Contract Law: Short Question and Answers: Part 3

Hello friends. In this blog I am sharing some short question and answers regarding Indian Contract Law.


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Q. 1. Define "ab initio"
A. Ab initio is a Latin term meaning "from the beginning" and is derived from the Latin ab ("from") + initio, ("beginning").

Q 2. What is "void ab initio".
A. The term "void ab initio" means "to be treated as invalid from the outset." E.g., in many jurisdictions, if a person signs a contract under duress, that contract is treated as being "void ab initio".

Q 3. For which type of contracts a minor is bound?
A. A minor is bound for the beneficial contract. 

Q 4 What is a beneficial contract?
A. The beneficial contracts are those contracts which are for the benefit of minor.
Q 5 Which was first case of beneficial contract?
A. S. Subramanyam v/s Subha Roy-1948

Q 6 Enlist the various beneficial contracts?
A. Following are the beneficial contracts for a minor:

• Contract of Insurance
• Contract to purchase of the immoveable property 
• Contract of service
• Contract of apprentice ship
• Contract of Marriage
• Contract of Necessities 

Q 7 Which section describes the contract of necessities?
A. Section 68 of ICA, 1872 describes the contract of necessities.

Q 8 Is minor liable to compensate for the contract of necessities? When?
A. The minor is liable to compensate for the contract of necessities when he attains majority.

Q 9. Define the majority.
A. In India a person attains his or her majority at the age of 18 years.

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Majority Act, 1875 alongwith Guardians & Wards Act, 1890

Indian BareActs(Indian Law)

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A priori

Hello friends welcome to series of Legal Maxims.

Introduction:

A legal maxim is an established principle or proposition of law. Legal maxims are generally in Latin language and are written in italics in a legal document.

A priori

Literal Translation:from earlier.

Definition and use: An argument derived from previous event.

Explanation:

It is a philosophical term. This term is used for with respect to reasoning to distinguish "necessary conclusions from first premises"; from "conclusions based on sense observation" which must follow it.

A prioriknowledge or justification is independent of experience, as with mathematics (3 + 2 = 5), tautologies ("All bachelors are unmarried"), and deduction from pure reason (e.g., ontological proofs).

A prioriknowledge is defined as knowledge that we can have "prior to experience". We do not need to observe how the world is to have such knowledge. Some examples are: "All bachelors are single", "All rectangles have four sides."

A priori is a Latin term meaning “from the cause to the effect.” It is a term of logic used to denote that when one generally accepted truth is shown to be a cause, another particular effect must necessarily follow. This phrase refers to a type of reasoning that examines given general principles to discover what particular facts or real-life observations can be derived from them. It is also known as deductive reasoning.

An a priori conclusion or judgment is one that is necessarily true, that is neither proved by nor capable of being disproved by experience, and that is known to be true by a process of reasoning independent of all factual evidence. The term is commonly used to indicate a judgment that is widely believed to be certain or that is introduced presumptively, without analysis or investigation. Thus to accuse someone of having assumed a fact or conclusion a prioriis often to disparage him or her for having failed to support a judgment through evidence or analysis.

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A posterior

Hello friends welcome to series of Legal Maxims.

Introduction:

A legal maxim is an established principle or proposition of law. Legal maxims are generally in Latin language and are written in italics in a legal document.

A posterior

Literal Translation:from later.

Definition and use: An argument derived from subsequent event.

Explanation:

It is a philosophical term. This term is used for with respect to reasoning to distinguish "necessary conclusions from first premises"; from "conclusions based on sense observation" which must follow it.

A posteriori justification or knowledge depends on experience or empirical evidence, as with most aspects of science and personal knowledge.

A posterioridescribes a method of reasoning from given, express observations or experiments to reach and formulate general principles from them. This is also called inductive reasoning.

It can also be defined as “from particular instances to a general principle or law; based upon actual observation or upon experimental data”: e.g. an a posteriori argument that derives the theory from the evidence.

A posterioriknowledge is knowledge that we can have only after we have certain experiences. We have to observe to get such knowledge. Some examples are: "There is a mug on this desk", "Smoking causes cancer."

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A mensa et thoro

Hello friends welcome to series of Legal Maxims.

Introduction:

A legal maxim is an established principle or proposition of law. Legal maxims are generally in Latin language and are written in italics in a legal document.

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A mensa et thoro

Literal Translation:from table and bed.

Definition and use: Divorce a mensa et thoro indicates legal separation without legal divorce.

Explanation: A mensa et thoro or Legal separation; sometimes also called as judicial separation, separate maintenance, divorce a mensa et thoro, or divorce from bed-and-board is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order. In cases where children are involved, a court order of legal separation often makes child custody arrangements, specifying sole custody or shared parenting, as well as child support. Some couples obtain a legal separation as an alternative to a divorce, based on moral or religious objections to divorce.

Legal separation does not automatically lead to divorce. The couple might reconcile, in which case they do not have to do anything in order to continue their marriage.

A mensa et thoro separation:

A mensa et thorois a legal Latin phrase which means "from table and bed" or "from bed and board". Separation a mensa et thoro is a separation sanctioned by a court order, allowing the spouses legally to live apart, but they are still legally married. The legitimacy of any future child born to the couple remains intact, and the spouses may not legally remarry. This type of separation allows the couple to live apart without concerns about being taken to court for "desertion".

Sometimes, an a mensa et thoro separation is used when one partner is claimed to be emotionally, verbally, or physically abusive, keeping the marriage in existence while the two spouses are physically separated. This physical separation may give the two of them a chance to work out the problems in their relationship while residing in legally sanctioned separate dwellings.

Spouses may also request an a mensa et thoro separation to protect themselves from accusations of desertion or abandonment – such as in cases where one must depart from the other for an extended period of time.

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A fortiori

Hello friends welcome to series of Legal Maxims.

Introduction:

A legal maxim is an established principle or proposition of law. Legal maxims are generally in Latin language and are written in italics in a legal document.

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A fortiori orArgumentum a fortiori

Literal Meaning: from stronger.

Definition and Use: An a fortiori argument is an "argument from a stronger reason", meaning that, because one fact is true, a second (related and included) fact must also be true.

Argumentum a fortiori is a form of argumentation that draws upon existing confidence in a proposition to argue in favour of a second proposition that is held to be implicit in, and even more certain than, the first.

Examples

1. If a person is dead (the stronger reason), then one can with equal or greater certainty argue a fortiori that the person is being dead.

2. If driving 10 mph over the speed limit is punishable by a fine of $50, it can be inferred a fortiori that driving 20 mph over the speed limit is also punishable by a fine of at least $50.

3. If a teacher refuses to add 5 points to a student's grade, on the grounds that the student does not deserve an additional 5 points, it can be inferred a fortiori that the teacher will also refuse to raise the student's grade by 10 points.

Usage in Context:

Clearly, if laws depend so heavily on public acquiescence, the case of conventions is an a fortiori one.

In ancient Indian logic (nyaya), an inference derived from an a fortioripostulation is known as kaimutika or kaimutya nyaya, from the words kim uta meaning "even more so".

In Islamic jurisprudence, a fortiori arguments are proved utilising the methods used in qiyas (reasoning by analogy).

Types of a fortiori:

1)A maiore ad minus

In logic, a maiore ad minus describes a simple and obvious inference from a claim about a stronger entity, greater quantity, or general class to one about a weaker entity, smaller quantity, or specific member of that class:

1) From general to particular

e.g. What holds for all X also holds for one particular X.

2) From greater to smaller

e.g. a) If a door is big enough for a person two metres high, then a shorter person may also come through;

e.g. b) If a canister may store ten litres of petrol, then it may also store three litres of petrol.

3) From the whole to the part

e.g. If the law permits a testator to revoke the entirety of a bequest by destroying or altering the document expressing it, then the law also permits a testator to revoke the portion of a bequest contained in a given portion of a document by destroying or altering that portion of the document.

4) From stronger to weaker

e.g. If one may safely use a rope to tow a truck, one may also use it to tow a car.

2) A minore ad maius

The reverse, less known and less frequently applicable argument is a minore ad maius, which denotes an inference from smaller to bigger.

In law

Argumentum a maiori ad minus(from the greater to the smaller) – works in two ways:

Way 1) who may more, all the more so may less, and relates to the statutory provisions that permit to do something.

Way 2) who is ordered more, all the more so, is ordered less, and relates to the statutory provisions that order to do something.

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Prerogative: Definitions, Meaning and synonyms

Meaning as noun: a right or privilege exclusive to a particular individual or class. e.g. "in some countries, higher education is predominantly the prerogative of the rich"

Variations: noun: prerogative; plural noun: prerogatives

Synonyms:

entitlement, right, privilege, advantage, due, birthright, liberty, authority, authorization, power, licence, permission, dispensation, leave, consent, warrant, charter, franchise, sanction, exemption, immunity, indemnity, carte blanche, droit

Meaning 2 in politics: the right of the sovereign, which in British law is theoretically subject to no restriction. noun: royal prerogative; plural noun: royal prerogatives,

Meaning 3: a faculty or property distinguishing a person or class. e.g. "it's not a female prerogative to feel insecure"

Meaning 4 as adjective in BRITISH LAW

Adjective: prerogative. arising from the prerogative of the Crown (usually delegated to the government or the judiciary) and based in common law rather than statutory law. e.g. "the monarch retained the formal prerogative power to appoint the Prime Minister"

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Hindi Meaning:

परमाधिकार, रिआयत, सुविधा, राजा का अबाध अधिकार, सुविधा-प्राप्त होनेवाला.

Marathi Meaning:

विशेष हक्काचा, विशेष हक्क

Sanskrit Meaning:

प्रक्रिया, अधिकार, पूर्वपरिग्रह

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Right in personum

Hello my reader friends, in this blog I am sharing notes. These notes are related to law study only. Underlined group of words are minimum necessary things you must incorporate in your answers. There may be a question to write a short note on this subject. 

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Right in personum or jus in personum is opposite to right in rem. 
This is derived from the Roman term "action in personum"
Right in personum gives the person rights against one person or party to the contract. 
A right in personum corresponds to a duty imposed upon determinate persons. It generally will correspond with a duty imposed on the said person or party. The Indian Contract Act grands right in personum to the parties of a contract. So the parties of a contract have this contractual rights only against each other. 

Rights under a contract are rights in personum for only the parties thereto are bound.

Right in personam binds only a particular person or persons.

Rights in personum are usually positive. It is acquired because the subject stands in some special relationship towards another person as in the case of a contract.

Rights in personum may also be negative as in the case of sale of goodwill when the seller undertakes not to set up a rival business within the prescribed area and period of time.

Right in personum is spoken of as personal rights because persons bound being determinate, personal relation are stressed.

For example 1) Person P sold his car to Q. Thus P has the right to receive the sale proceeds. This right to receive the money only belongs to P, so it is a right in personum, no other party is involved. 
Example 2) B loan money to C. The right to recover money belongs to only B not the world in general.
Example 3) My right to receive rent from tenant is right in personum.
Example 4) my right to receive compensation for false imprisonment or defamation is right in personum.
Example 5) The right of A after signing the contract for the purchase of land is a right in personum against B that B shall execute a deed of sale in his favour and transfer the property. After the execution of the sale deed the right of A is a right in rem available against the whole world that nobody shall interfere with his ownership.

You can read the following judgment also for more understanding of this legal maxim.
Daljit Singh And Anr. vs Yogeshwar Prasad: Delhi High Court

Note: If you write atleast one example while writing your answer then it will be beneficial to you to get more marks. In every article I am trying to write relevant examples as well as judgments and case laws will also be shared if needed.
Also you can read the judgment one-liners by clicking on the case name.
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Ab initio

Meaning and definition: -

• Ab initio is a Latin term meaning "from the beginning" and is derived from the Latin ab("from") + initio ("beginning").
• For example, if something is said to be void ab initio, the thing was never created or valid to begin with. The term is often used in connection with contracts, estates, and marriages.
• This adverb was adopted at the beginning of the 17th century directly from Latin, where it translates as "from the beginning."
• Initio is a form of the noun initium, meaning "beginning," which gave rise to such English words as initial, initiate, and initiative.) 
• The phrase is also used as an adjective meaning "starting from or based on first principles" (as in "predicted from ab initio calculations"). 

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Ab initio is used in several contexts:

Law

• In law, ab initio refers to something being the case from the start or from the instant of the act rather than from when the court declared it so. For instance, the term "void ab initio" means "to be treated as invalid from the outset." E.g., in many jurisdictions, if a person signs a contract under duress, that contract is treated as being "void ab initio".
• Typically, documents or acts which are void ab initio cannot be fixed and if a jurisdiction, a document or an act is so declared at law to be void ab initio, the parties are returned to their respective positions that they were at the beginning of the event.
• "Void ab initio" is often contrasted with "voidable", such documents which become void only as of the date of the judicial declaration to that effect.
• An insurer facing a claim from an insured who had deceived the insurer on a material fact would claim that the insurance contract was void ab initio; it was null and void from the beginning and that since there was no legally enforceable contract, the insurer ought not to have to pay.

Science and engineering

• Documentation of a process is said to be ab initio (or from scratch, or from the ground up) if the documentation shows how to set up and complete the process from basic materials (to which a competent practitioner is expected to have access) without prior special preparation.
• A calculation is said to be ab initio (or "from first principles") if it relies on basic and established laws of nature without additional assumptions or special models.
• For example, an ab initio calculation of the properties of liquid water might start with the properties of the constituent hydrogen and oxygen atoms and the laws of electrostatics and quantum mechanics. From these basics, the properties of isolated individual water molecules would be derived, followed by computations of the interactions of larger and larger groups of water molecules, until the bulk properties of water had been determined.
• In chemistry, an abbreviation referring to ab initio quantum chemistry methods.
• Ab initio methods in nuclear physics.
• In biophysics, a method for the prediction of protein structures in protein folding.
• In aviation, the very first stage of flight training.
• In bioinformatics, ab initio is a method for making predictions about biological features using only a computational model without extrinsic comparison to existing data. In this context, it may be sometimes interchangeable with the Latin term de novo.

Other uses

• when describing literature, it is told from the beginning as opposed to in medias res (meaning starting in the middle of the story)
• when describing a subject or a module, say when a person is learning French from the beginning, they are said to be a student of French ab initio
• in language didactics, foreign languages may be studied ab initio, meaning that the course is designed for students with no previous knowledge.

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Concise LawDictionary with Legal Maxims, Latin Terms and Words & Phrases

Legal Maxims

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Right in rem

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Rights in rem or jus in rem means rights available to a person against the entire world. As per the law of land, every person has rights in rem. This right is available to him or her against the entire world. 

This is called a negative right because it gives the right to any person to be left alone. This means that no other person can interfere with his right. 

This specific right (jus in rem) is given via the freedoms written in Article 19 of the Indian Constitution with its restrictions. This right in rem is available to an indefinite or open class of people, i.e. available to all. 
Please share this blog with your friends and remember it is intended only for study purpose.

As per the law of the land, every person has rights in rem. This is right available to him or her against the entire world. It protects a person and a person’s property from the entire world.

A right in rem is available against the world at large; it is a right available against persons generally. Examples are rights of possession and ownership.

Thus, my right lo the peaceably occupation of my farm is right in rem. My right lo liberty and reputation is right in rem. My right a right in rem avails against the whole world.

Rights in Rem are Negative:

Rights in rem are almost always negative. It is a right to be left alone. It is a right that people should not interfere with my ownership. Rights in rem are said, though incorrectly, to be rights in expect of things, because the persons of incidence being indefinite, there is greater emphasis on the thing or object of the right. It is for this reason that rights in rem are known as real rights.

This terms is derived from the Roman term “action in rem”. A right in rem corresponds to a duty imposed upon persons in general.

Let us see some examples.

Examples

(i) The right of A after signing the contract for the purchase of land is a right in personum against B that B shall execute a deed of sale in his favour and transfer the property. After the execution of the sale deed the right of A is a right in rem available against the whole world that nobody shall interfere with his ownership.

(ii) Mr. X owns a house. This house exclusively belongs to him. He has right in rem with respect to the house. So nobody can interfere with his ownership of the house. No one can disturb his right in rem.

(iii) Mr. Y has a suitcase full of cash. This money belongs to Mr. Y exclusively. The world or anyone in it cannot take away the money from him, .i.e. they cannot disturb his possession or interfere with his ownership of the money.

Note: The highlighted part is important in point of view of exams. You must right atleast one example in the answer. This is asked in Write short notes for atleast 5 marks. Underlined part is specific to our Indian law system.

Legal maxims

Legal maxims  are very important part of complete  law system. These are nothing but the latin phrases. Latin is used because  Roman legal system  had a great influence on the system. If you are law professional or law student or aiming to crack law CET then this article will help you.

1. Divide et impera - divide and conqure. This is common rule of Romans to win the world. Even British also applied this to rule the world.

2. Barbarians - a person who is not a Roman. Roman set out for Latinize all the barbarians.

3. Alibi - elsewhere, at some another place. In police investigation she provided an abili for her whereabouts and it was true.

4. Alise - at another time, other, alternative name of a person. Rinku alise Rohan is the owner of this place.

5. Per se - as such, by itself. The land is reserved per se, but can be developed.

6. Versus - against. It is used in gaming also. As India versus Pakistan match was full of excitements.

7. A fortiori - from stronger. E.g. a fortiori argument means an argument from a stronger reason - this in because one fact is true and thus second related and included fact also be true. Her argument is a fortiori because she is really harassed.

8. A mensa et thoro - from table and bed. Divorce a mensa et thoro indicates legal separation without legal divorce. Both of them got the divorce a mensa et thoro and living happily.

9. A posteriori - from later. A posteriori argument  means an argument derived from subsequent argument. In series of legal activities against management a posteriori argument had arised to make the case complicated.

10. A priori - from earlier.  A priori argument means an argument derived from previous event. He stretched  the facts and a priori argument took place.

So these are some of legal maxims I have shared with you. For more such legal maxims pleae share and subscribe this blog. Thanks for reading. For any corrections please comment below.