C Law is order, and good law is good order. R LEGAL APTITUDE BOOKLET # 01 LEGAL TERMINOLOGY, MAXIMS AND BROCARDS Legal terminology, Maxims and Brocards is an important topic for all law school entrance exams and forms the basis for numerous questions. On an average, there are at least 3-5 questions from this topic. Though the number of direct questions may vary from year to year and test to test, many of the principles are used for constructing legal problems (Principle and Fact questions) in these tests. Therefore, a thorough understanding of these legal terms is a must. Do couple your sincere reading of this booklet with classroom notes given. Best wishes! d. e v er s e s r ht g All ri n, o ati c u d E T P (cid:211) Regd. Office: Indore PT centres spread across India ~ Established 1993 Our motto “Kar Ke Dikhayenge” is delivered through our unique Technology Driven Process Engine (TDpro engine). Email: [email protected] Web: www.PTeducation.com , www.Facebook.com/PTeducation IC : PTtklla01 (1) of (20) MAXIM Legal Maxim: A Legal Maxim is an established principle or proposition. A principle of law universally admitted as being a correct statement of the law, or as agreeable to natural reason. Maxims in law are somewhat like axioms in geometry. They are principles and authorities, and part of the general customs or common law of the land; and are of the same strength as acts of parliament, when the judges have determined what is a maxim; which belongs to the judges and not the jury. Maxims of the law are holden for law, and all other cases that may be applied to them shall be taken for granted. The application of the maxim to the case before the court is generally the only difficulty. The true method of making the application is to ascertain how the maxim arose, and to consider whether the case to which it is applied is of the same character, or whether it is an exception to an apparently general rule. The alterations of any of the maxims of the common law are dangerous. For example : ubi jus ibi remediam When seeking an equitable relief, the one that has been wronged has the stronger hand. The stronger hand is the one that has the capacity to ask for a legal remedy (judicial relief). In equity, this form of remedy is usually one of specific performance or an injunction (injunctive relief). These are superior remedies to those administered at common law such as damages. BROCARD Brocard is a Legal principle expressed in Latin (and often derived from past legal authorities or Roman law) which is traditionally used to express concisely a wider legal concept or rule. For example : Nemo dat quod non habet The basic rule that a person who does not own property (e.g. a thief) cannot confer it on another except with the true owner's authority (i.e. as his agent). Exceptions to this rule include sales under statutory powers and cases in which the doctrine of estoppel prevents the true owner from denying the authority of the seller to sell. (2) of (20) IC : PTtklla01 LEGAL TERMINOLOGY, MAXIMS AND BROCARDS A Ad quod damnum : According to the harm; appropriate to the harm; a measure of damage inflicted, and implying a remedy if one exists that ought to correspond specifically and only to the damage suffered. ab extra : from without; from outside: For example: affidavit : declaration upon oath; a formal sworn statement of 1. Concerning a case, a person may have received some fact information from a third party 2. The assistance may have been considered ab extra alter ego : the other ab initio : = from the beginning a mensa et thoro : divorce a mensa et thoro; divorce from bedandboard; a de facto separation while remaining legally actus reus : guilty act; the objective element of a crime; the married external element of a crime amicus curiae/amici curiae : friend of the court/friends of actus non facit reum nisi mens sit rea : the act does not the court make a person guilty unless the mind is also guilty animus nocendi : animusmind, noceoto harm: the subjective ad coelum/cuius est solum, eius est usque ad caelum et state of mind of the author of a crime, ad inferos : for whoever owns the soil, it is theirs up to Heaven and down to Hell ante : before For ex. Reverting to the situation antebellum ad colligenda bona : to collect the goods arguendo : for the sake of argument ad damnum : According to the harm; appropriate to the harm; a measure of damage inflicted, and implying a remedy if one a posteriori : after the fact; (logic) Involving deduction of exists that ought to correspond specifically and only to the theories from facts. damage suffered. a priori : known ahead of time ad hoc : for this (purpose); composed or designed for a particular purpose only argumentum a fortiori : even more so; from the stronger; with even stronger reason. ad hominen: argument against the man; argument to the man: For example: also see argumentum ad hominem 1. If it is illegal to steal one apple then it is also illegal to steal ten apples (from smaller to bigger, a minore ad ad idem/consensus ad idem : mutual assent; of the same maius): mind; meeting of the minds: the situation where there is a common 2. If you can drink ten sodas then it follows that you can understanding in the formation of the contract drink five (from bigger to smaller, a maiore ad minus). ad infinitum : to infinity; continue forever; without limit argumentum ad hominem : argument against the man; argument to the man; attacking the person; replying to an argument or factual claim by attacking or appealing to a ad litem : for the suit; a party appointed by a court to act in a characteristic or belief of the source making the argument or lawsuit on behalf of another party claim, rather than by addressing the substance of the argument or producing evidence against the claim administrator de bonis non cum testamento annexo : administrator of goods not administered with the will annexed audi alteram partem : hear the other side ad nauseam : repeated continuously or continuing to the point of boredom IC : PTtklla01 (3) of (20) B confer : bring together consuetudo est altera lex : custom is another law bona fide/bona fides : good faith; in good faith; A Bona Fide agreement is one entered into without attempt to fraud; It is a state in which the person is cognatively and morally committed to consuetudo pro lege servatur : custom is kept before the do the right thing. Opposite: mala fide/mala fides = bad faith; in law bad faith. consuetudo vincit communem legem : custom overrules bona vacantia : vacant goods: Indicates the absence of any the common law known person entitled to the estate of a deceased person C contra : against contradictio in terminus : contradiction in terms cadit quaestio : the question falls; is a legal term used to indicate that a settlement to a dispute or issue has been reached, and is now resolved contra bonos mores : against good morals casus belli : act of war; cause for war contradictio in adjecto : contradiction in terms; contradiction in itself c.a.v. : the court wishes to be advised: abbreviation for curia advisari vult contra legem : against the law caveat : beware; take care; let him beware: An entry in the contra proferentem : against the one bringing forth; (court) records that effectively prevents action by another party without first notifying the party entering the Caveat cor (coram) : In the presence of caveat emptor : let the buyer beware coram Deo : in the Presence of God caveat lector : let the reader beware coram non judice : not in the presence of a judge; a legal proceeding without a judge; with improper venue; without caveat venditor : let the seller beware jurisdiction. certiorari: to be shown: an action of certiorari was suggested coram populo : in the presence of the people; openly in terms of reviewing a case curator ad litem : a party appointed by a court to act in a ceteris paribus : with other things the same; all other things lawsuit on behalf of another party; legal representatives who being equal are appointed by court when the court believes that the person lacks the mental capacity to make decisions for themselves. circa; c. : around; approximately corpus : body clausula rebus sic stantibus : things thus standing : the legal doctrine allowing for treaties corpus delicti : body of the offence compos mentis : of sound mind: Legally capable to conduct or Corpus Juris Canonici : Body of Canon Law defend proceedings: non compos mentis = not of sound mind Corpus Jurus Civilus : Body of Civil Law concensus facit legem : agreement makes the law; permission makes the law; consent makes the law Corpus Juris Secundum : C.J.S; an encyclopedia of U.S. law: Complete Restatement Of The Entire American Law As Developed conditio sine qua non : a condition without which it could not By All Reported Cases (1936 ) be or without which there is nothing. corpus vile : worthless body contra ius commune : against common law corrigenda : things to be corrected contra ius gentium : against the law of nations (4) of (20) IC : PTtklla01 corruptio optimi pessima : the corruption of the best is the cur. adv. vult : the court wishes to be advised: abbreviation for worst curia advisari vult corruptus in extremis : corrupt to the extreme curriculum vitae : course of life corruptissima re publica plurimae leges : When the republic custodia legis : in the custody of law is at its most corrupt the laws are most numerous custos morum : keeper of morals; a censor Credo in Unum Deum : I Believe in One God cygnus inter anates : swan among ducks crimen laesae maiestatis : the crime of injured majesty, D an offense against an authority, someone's dignity or against a sacred custom da mihi factum, dabo tibi ius : give me the fact, I will give cucullus non facit monachum : The hood does not make the you the law monk damnatio memoriae : damnation of memory: a custom in which cui bono : Good for whom? disgraced Romans were pretended to have never existed cui prodest/cui prodest scelus is fecit : for whom it damnum absque injuria : damage without injury: one is not advances/for whom the crime advances, he has done it responsible for unintended, consequential injury to another resulting from a lawful act, excluding unintended damage by negligence or foolishness. cuius est solum eius est usque ad coelum et ad inferos : Whose the land is, all the way to the sky and to the underworld is his; For whosoever owns the soil, it is theirs up to the sky and data venia : with due respect; given the excuse down to the depths de bonis asportatis : carrying goods away: the traditional cuius regio, eius religio: whose region, his religion: the religion name for larceny of the king of the region is the religion of the people de bonis non administratis : of goods not administered: An cuiusvis hominis est errare, nullius nisi insipientis in appointed person who administer an estate following the death errore perseverare : Anyone can err, but only the fool persists of the original administrator in his fault: Marcus Tullius Cicero, Philippica XII, ii, 5. de facto : concerning fact; In fact; As a matter of fact; in practice culpa : guilt; blame; mistake but not necessarily ordained by law; in practice or actuality, but without being officially established; The de facto standard is a formal or informal standard that has a dominant position by cum gladiis et fustibus : with swords and clubs cultural acceptance, market dominance, tradition or enforcement. cum gladio et sale : with sword and salt defalcation : embezzlement; bad acts that changes a particular debt so it cannot be discharged in bankruptcy cum grano salis : with a grain of salt de fideli : with faithfulness cum hoc ergo prompter hoc : with this, therefore on account of this: correlation does not imply causation de futuro : regarding the future cum laude : with praise de integrow : again, a second time cum mortuis in lingua mortua : with the dead in a dead de jure : By right; concerning law; in principle language de lege ferenda : from law to be passed; what the law should cura personalis : care for the whole person be cura te ipsum : take care of your own self; take care of yourself de lege lata : from law passed; by law in force; the law as it first exists curia advisari vult : the court wishes to be advised IC : PTtklla01 (5) of (20) de minimis non curat praetor : The commander does not et ux : and wife bother with the smallest things. Exempli Gratia (eg) : For example: Used when explaining a de mortuis aut bene aut nihil : about the dead, either well or statement through a relevant example nothing ex gratia : from grace; from kindness: (without legal obligation) de mortuis nil nisi bonum/de mortuis nil nisi bonum dicendum est : no one can speak ill of the dead; let nothing be ex libris : from the library; from the books said of the dead but what is good; of the dead, speak no evil ex officio : by right of office; from the office de nobis fabula narratur : about us is the story told Ex Parte : by a party: An ex parte application is when an de novo : afresh; anew; beginning again apllpication is made to the Court during proceedings by one party in the absence of another or without notifying the other party dictum/dicta (plural) : is a statement of opinion or belief considered authoritative because of the dignity of the person Ex Post Facto : by a subsequent act: Something that occurs making it after the event but also have a retrospective effect F dictum probium : A personal or individual dictum that is given by the judge who delivers an opinion but that is not necessarily concurred in by the whole court and is not essential to the factum : an act; a deed disposition felo de se : felon of himself; suicide: an adult who committed gratus dictum : an assertion that a person makes without being suicide was considered a felon. The crime was punishable by obligated to do so, or also a court's discussion of points or forfeiture of property to the king. The felon would get a shameful questions not raised by the record or its suggestion of rules not buria applicable in the case at bar ferae naturae : wild animals of nature: unowned property: judicial dictum : an opinion by a court on a question that is English property law and English tort law case about rights to directly involved, briefed, and argued by counsel, and even wild animals; Keeble v Hickeringill, 11 East 574, 103 Eng. Rep. passed on by the court, but that is not essential to the decision 1127 OR 3 Salk. 9 (as Keeble v Hickeringhall) Queen's Bench, 1707: American law; Pierson v. Post (3 Cai. R. 175, 2 Am. Dec. obiter dictum : something said in passing: a comment made 264) (Supreme Court of New York 1805) while delivering a judicial opinion, but it is unnecessary to the decision in the case and therefore not precedential (although it fiat justitia ruat caelum : do justice, let the sky fall: justice may be considered persuasive) should be done regardless of the consequences simplex dictum : an unproved or dogmatic statement fiduciary : trustee: also fiduciary duty; someone who acts for and on behalf of another person in a particular matter in doli incapax : Incapable of deceit; Incapable of crime: conclusive circumstances which give rise to a relationship of trust and presumption or irrebuttable presumption: in English law it is a confidence: A fiduciary (fid) is expected to be highly loyal to the presumption of law that cannot be rebutted by evidence and person (principal) to whom he owes the duty: he should not put must be taken to be the case whatever the evidence to the his personal interests before the duty, and he should not profit contrary from his position as a fiduciary, unless the principal consents (however the question remains; when can a principal consent?) dolus specialis : special intent; specific intent fides : faith duces tecum : Bring with you: Order to produce document to court: see subpoena duces tecum fiducia : trust E fieri facias : that you cause to be made: a writ of execution after judgment obtained in a legal action for debt or damages ergo : therefore caused by a person/party erratum : error; mistake: errata (plural); errors; mistakes flagrante delicto : in the progressing offence or misdeed: caught in the act of committing an offence: caught redhanded et cetera; etc : and so on; and more; and the rest Forum Conveniens : At a convenient place: The Court have jurisdiction in a particular case (6) of (20) IC : PTtklla01 forum non conveniens : inappropriate forum: when a court person: an "admiralty action" in personam would be issued against refuse to hear a case that has been brought before it the owner of a ship fructus naturales : plants and trees which grow naturally In Re : In the matter of: Concerning...........: A heading in legal without cultivation documents which introduces the title of the matter or proceedings functus officio : having performed his office; having discharged In situ : in its original place duty: an official institution, statute or government office that has no more legal authority because his or its duties and functions inter alia : among other things: The details given are only an have been completed: A person in a judicial or official position extract from the whole prevented from taking a matter or case further because of limitation by certain regulations G Intra : Within intra vires : within the powers; within the power of: An act that gravamen : the essential element of a lawsuit falls within the jurisdiction of the Court: Opposite: ultra vires = beyond the powers guardian ad litem : legal guardian H in vitro : taking place outside a living organism: in vitro fertilization habeas corpus : You (shall) have the body; Produce the body: Ipso Facto : By the fact: The dependance upon facts that a court order instructing that a person under arrest be brought together prove a point before a judge; A document or instruction which directs a person to produce someone held in custody before the court; legal action ius/jus : justice to seek relief from unlawful detention. It is a legal instrument to protect the individual against arbitrary state action ius ad bellum / jus ad bellum : justice to war; just war hostis humani generis : enemy of mankind I ius civile / jus civile : civil law ius cogens/jus cogens : compelling law: it is a fundamental Ibid : In the same place: Used in a document or text to refer to principle of international law which is accepted by the international a page previously mentioned community of states as a norm from which no derogation Id Est (ie) : That is to say: Used with an explanation: Used as a ius commune/jus commune : common law description to explain a statement in limine : at the threshold Ignorantia Juris non excusat : Ignorance of the law is no J excuse: When committing an offence guilty parties cannot use as a defence the fact that they did not know that they were breaking the law jurat/jurare : he swears/to swear In Camera : In the chamber: The hearing of a case in private jus/ius : justice with selected participans, without the facts being reported to the public: Often used when minors or rape victims are involved jus ad bellum/ius ad bellum : justice to War; just war In Curia : In open court: The hearing of a case before an open public court: The hearing of a case before a court sitting in public jus civile : civil law; also ius civile In flagrante delicto : in the progressing offence or misdeed: jus cogens/ius cogens : compelling law: it is a fundamental caught in the act of committing an offence: caught redhanded principle of international law which is accepted by the international community of states as a norm from which no derogation in limine : at the threshold Jus commune/ius commune : common law in loco parentis : in the place of a parent In Personam : Against the person: Proceedings issued against a specific person: Proceedings issued with reference to a specific IC : PTtklla01 (7) of (20) L novus actus interveniens : Newly intervening act: a principle in criminal law; an act that breaks the chain of causation locus delicti or lex loci delicti commissi : law of the place Nulla Bona : No effects: The defendant has no goods of any where the tort was committed value to remove; usually a notice of a sheriff to a High Court writ of execution indicating that the defendant possesses nothing of value that can be removed Locus in quo : The place in which: may be used as reference to subject matter during proceedings i.e. the scene of accident O M obiter dictum (singular) or obiter dicta (plural) : said by the way. A remark or observation made by a judge that, although included in the body of the court's opinion, does not form a magna carta or Magna Carta Libertatum: The great charter; necessary part of the court's decision: Words said/mentioned in Great Charter of Freedoms, imposed upon the King of England by passing by a Judge on a legal point however not constituting his barons, in 1215 part of the evidence or judgment magnum opus / plural magna opera : a great work; great onus probandi : burden of proof work opinio juris : an opinion of law mala fide /mala fides : bad faith; in bad faith. opinio juris sive necessitatis : an opinion of law or necessity malum in se : wrong or evil in itself P malum prohibitum / plural mala prohibita : wrong (as or because) prohibited pacta sunt servanda : promises must be kept mandamus : we command per : for each; As stated by mare clausum : closed sea per annum; p.a. : for each year mare liberum : the free sea; the freedom of the sea per capita : for each head; for each person; By heads: eg the cost is $20 per capita $20 each person mea culpa : my fault, or my own fault Per Pro (pp) : For another/through another: A person mea maxima culpa : my big mistake; my most grievous fault delegated/ordered to act for another mens rea : guilty mind: The intention to commit an offence whilst per se : intrinsically; in itself/by itself; in themselves: Indicating knowing it to be wrong or against the law that the topic should be taken alone motion in limine : at the threshold persona non grata : person not allowed; unacceptable person; unwelcome person mutatis mutandis : with those things having been changed which need to be changed; the necessary changes having been Post : After: after something; to refer to something to be found made further on in time or place N postmortem : after death; examination of a body after death; autopsy Non Compos Mentis : Not sound in mind: A person proven/ classed as unfit to conduct or defend legal proceedings Prima Facie : First sight: Prima Facie evidence would be considered enough/sufficient to prove a case unless disproved Non Est Factum : It is not (my) deed or rejected; if no Prima Facie evidence can be shown or offered, there is no case to answer/continue Nota Bene (nb) : Note well: An abbreviation denoting/indicating that the reader of an article or writing should make a specific pro bono or pro bono publico : for the public good; The term note of the article/writing mentioned is generally used to describe legal representation undertaken voluntarily and without payment as a public service. Pro bono service uses the specific skills of professionals to provide services to those who are unable to afford them. (8) of (20) IC : PTtklla01 Pro Forma : As per form; A matter of form: Pro Forma procedure res publica : public issue; public matter is performed following an agreed manner; Pro Forma procedure is executed subject to a prescribed set of rules res publica christiana : the worldwide community of Christianity pro rata : proportional; In proportion: The investor will receive his dividend Pro Rata to his investment respondeat superior : let the master answer Pro Tempore (Pro Tem) : Temporarily; For the time being estitutio in integrum : restoration to original condition Q S quaere : inquire; query Semble : It appears quantum meruit : as much as he has deserved; reasonable Sine Die : Without a day: A hearing adjourned sine die stands value of services open indefinitely without a further hearing having been decided on quasi : as if: A person exercising powers similar to those of a judge is sitting in a QuasiJudicial capacity sine qua non : a condition without which it could not be or without which there is nothing; essential condition; something quid pro quo : something for something; a favour given or that is absolutely necessary expected in return for something; tit for tat status quo : the existing state of affairs qui tam/qui tam pro domino rege quam pro se ipso in hac parte sequitur : he who sues in this matter for the king as Sub Judice : In the course of trial: The case is under well as for himself consideration. Proceedings are subjudice and details cannot be released qui facit per alium facit per se : the one who acts through another, acts in his or her own interests subpoena : a written command/order to a person to testify before a court or be punished quo warranto : by what warrant? R Subpoena ad Testificum : To produce evidence: A document directed to a person commanding him or her, under a threat of penalty, to appear before a Court and give evidence ratio decidendi/rationes decidendi : the reason/the reasons; the rationale for the decision; the point in a case which subpoena duces tecum : bring with you under penalty of determines the judgment; the principle which the case establishes; punishment The principles of law applied by a Court upon which judicial decisions are based supra : beyond; over; more than; in charge of, in authority over; on top; more; above; before; formerly ratio scripta : written reason T re : about; regarding; concerning tabula rasa : blank slate; plank paper; blank mind rebus sic stantibus/clausula rebus sic stantibus : things thus standing terra firma : dry land; ground as opposed to the air or sea res gestae : things done terra nullius : nobody's land; nomans land; empty land; land belonging to no one; also see res nullius. res ipsa loquitur : the thing itself speaks; the thing speaks for itself: Because of the obvious negligence of the defendant, the trail do novo: a new trail onus of proof would not be on the plaintiff U res iudicata/res judicata : a matter already judged; A thing ajudged: Once a case has been finally decided upon by a Court ultra vires : beyond the powers: An act that falls outside or the decision stands, the same parties cannot attempt to raise beyond the jurisdiction of the court: Opposite: intra vires = within the issue again, by or during further proceedings the powers. res nullius : nobody's thing IC : PTtklla01 (9) of (20) uberrima fides/fidei : utmost good faith; most abundant faith Some more useful Latin phrases and terms : A uno flatu : in one breath. Used in criticism of inconsistent pleadings, ie. "one cannot argue uno flatu both that the person is dead and also that he is responsible for wrong actions a fortiori : with yet stronger reason unus multorum : one of many; an average person a posse ad esse : from possibility to actuality uti possidetis : as you possess a posteriori : derived by reasoning from observed facts uxor (ux) : wife; et ux = and wife a priori : from what was before V ab incunablis : from the origin vel non : or not ab initio : from the beginning vera cause : true cause ab intra : from within verbatim : in exactly the same words ab urbe condita (AUC) : from the founding of the city (Rome in 753 BC) versus; vs.; v. : against ad absurdum : to the point of absurdity veto : I forbid ad eundem : to the same level vice versa: the other way around ad eundem gradum : to the same level vide infra (v.i.): see below ad hoc : for this special purpose videlicet: namely; that is to say; as follows: Used in text to show examples ad hominem : denoting an argument made personally against an opponent, rather than logically against an issue (literally, "to videre licet: it is permitted to see the person") vide supra (v.s.): see above ad idem : of the same mind Vigilantibus non dormientibus aequitas subvenit: equity ad infinitum : without limit aids the vigilant, not the negligent; equity aids the vigilant, not the negligent who sleep on their rights. ad libitum : according to pleasure vis major: an act of God; a superior force ad litem : for the suit viz.: namely; that is to say; as follows ad locum (ad loc.) : at the place volenti non fit injuria: no injury is done to a person who ad nauseam : to a disgusting extent consents; to a willing person, no injury is done. ad valorem : according to value ~ addenda : things to be added advocatus diaboli : devil's advocate affidavit : a sworn written statement usable as evidence in court (10) of (20) IC : PTtklla01
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