bls llb_ chapter no. 01 legal concepts legal language ii.pdf

8/18/2019 BLS LLB_ CHAPTER NO. 01 LEGAL CONCEPTS LEGAL LANGUAGE II.pdf

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S LLB: CHAPTER NO. 01 LEGAL CONCEPTS LEGAL LANGUAGE II

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CHAPTER NO. 01 LEGAL CONCEPTS

LEGAL LANGUAGE II

CHAPTER NO. 01

LEGAL CONCEPTS

CIVIL AND CRIMINAL:

All legal wrongs can broadly be classified into two heads, Civil & Criminalwrong.

The distinction between the two is not to be found in the nature of the act itself as is offence supposed by persons. The same act may be aTort (Civil Wrong) and a Crime (Criminal wrong). Thus, assault anddefamation are Torts and the proceeding can be file by the aggrievedparty in a civil court for covering compensation from the doer. But this actis also crimes and a criminal complaint can be file in a criminal court for punishment of the offender.

If criminal proceeding can be file in respect of that act it means,

that the act is a crime or an offence. If on the other hand the act iscapable of being followed by proceeding in a civil wrong. If both Civil andCriminal Proceedings can be filed in respect of the same act then it isboth a civil and criminal wrong.

The procedure followed by civil court in a civil proceeding is quitedifferent from that followed by Criminal court in the case of a crime. Theformer is regulated by the Civil procedure code 1908 (CPC) and later isgoverned by Cr. Pc 1973. The outcome as well as the terminology usedin both the proceeding is also different. In a civil suit the Plaintiff canrecover damages or compensation from the defendant. He can also getan order for specific performance or injunction. In a Criminal case thecomplainant places evidence before the court to show why the accusedshould be punished, by way of jail sentence or a fine or both. Again theaccused in a criminal proceeding may be found guilty by the court whereas the defendant in a civil suit may be found liable to pay damages. Alsothe two sets of courts are also different civil courts are presided over by judges. Whereas criminal is presided by the magistrate.

An appeal court may bear appeal from civil court as well ascriminal courts. All High Courts and Supreme Court hear appeals in civiland criminal matters

• CLASSIFICATION OF CIVIL WRONGS:a. Breach of contractb. Breach of trust

c. Torts – assault, battery, nuisance, trespass (civil wrong)negligence.Examples:

¨ Breach of contract:¨ Breach of trust:¨ Torts:

• COMMON LAW AND EQUITY:Rules of natural justice.Maxims:

a. Nemo debet esse judex in propria causa – ( No man can be judge in his own cause)

b. Audi atterem parterm – (a man cannot be condemn withoutbeing heard in the matter)

c. Speaking order.

v Nemo debet esse judex in propria causa:The basic requirement of natural justice lays down

that noman can be judge and the prosecutor in the same case, in other words, he who judge must be impartial and free from any kind of





bias.In applying this maxim it is often said that it is not

enoughthat justice is done, it is also necessary that justice is seen to bedone. This means that judge must be totally neutral and unbiased.Now bias can be divided in to four types.

§ Personal Bias:Ranjeet Thakur Vs union of Union of India.

In one case an officer was dismissed from the army on theground of disobeying his superior. An inquiry committee was set

up to conduct an inquiry and the very officer whose order he wasalleged to have disobeyed was the member of this committee. TheSupreme Court set aside the report of inquiry committee in theground that inquiry was vitiated by bias.

§ Pecuniary Bias:If the adjudicator has a pecuniary _______________ in the

Subject matter of the dispute he cannot decide the matter.His order would be set aside even if it is shown that his decisionwas not in any way affected by such interest.

Mohapatra & co. Vs State of Orissa.When a committee was set up to select book for

educational

Institution and it termed out that some of the committee memberswere themselves authors of some books put up for selection. TheSupreme Court set aside the list of books recommended by thecommittee. As observed by court it is not the actual bias in favor of author members that is material but the possibility of sub bias.

§ Official Bias:Official bias is a bias as regards the subject matter tobe

Impartial the adjudicator must not have any interest in the subjectmatter of the dispute being adjudicator. Thus, if a lawyer hasrepresented a client in a case and he latter becomes a judge hecannot hear the particular case and pass orders in that litigation.

§ Judicial obstinacy (Bias):

Judicial obstinacy also means judicial bias thus inone case

judge X heard a write petition file by a government servant andpassed an order that he should be immediately given a promotion.This order was set aside in appeal. Later the same employee fileda fresh petition for payment of salary and other benefits in terms of the order passed by the judge acts. (That is the order which hasbeen set aside in appeal). When this second petition wasdismissed he filed an appeal which was heard by a bench of two judges one of them being X. the bench allowed the appeal andordered certain arrears of salary to be paid.

When the matter rich the Supreme Court the order of the bench was set aside in the ground of a form of bias termed judicial obstinacy. The court observed that if a judge decision isset aside, the judge must submit to such a decision, he cannotrewrite overruled judgment in the same or collateral proceedingState of West Bengal Vs Shivananda Pathak.

RULE OF INTERPRETATION:Rule of interpretation are divided into two parts:

1. Interpretation of statue2. Interpretation of contracts

I. INTERPRETATION OF STATUE: According to salmond, interpretation of statue is the

process by which the court seek a certain the meaning of legislation, “through the medium of the forms in which it isexpressed”. In other words when a apling the law passedby the legislature, the court seeks to give effect to thewords used by the legislature in the same sense as wasintended by legislature. It is a function of legislature tomake the law and that of the courts to interpret and applysuch laws.

The following are the important rule of interpretation





of statue, generally followed by courts in most legal system –

a. Literal rule of interpretation:Under this rule a judges is bound to apply the

law as it is worded. The word used in the statue mustbe literally applied, nothing can be added andnothing can be subtracted. This is also refers to as“Litera Legis” i.e literal construction of law. When thisrule is followed the judge cannot look beyond theliteral legis. As a rule, judges have to follow the letter of

law. They are not at liberty to add to subtract or modify to the letter of the law only because they feelthat the Sententia Legis (Intention of Legislature) isnot completely or correctly reflected in the wordsused in the statue.

b. Mischief Rule of Interpretation:Under this rule the judge may look at the lawwhich

Prevail before the act was passed to find out whatmischief the act was intended to remedy. The judgecan then interpret the words used in the act in such away as to suppress the mischief and advance theremedy.

Thus the Bombay High Court has take theview that if it is relevant and material to consider thecircumstance in which an act was passed the courtmay look at the debates which took place in thelegislature before the act was passed. Similarly thestatement of object and reason of the act may alsobe considered when interpreting the provision of theact.

c. The Rule of Nosciter a Sociss:The Latin maxim “Nosciter a Sociss” has been

translated by Lord McMillan as the meaning of wordis judge by the company it keeps, Henry Fieldingexpress in it almost identical words, a word is known

by the company. Applying it rule if the meaning of the word

used in a particular section of an act is not clear the judge must look at the rest of the section in whichthe same word appears. He may also ascertain thecontext in which the same word is used even in other sections of that act and in some cases a referencemay also be made to earlier legislation dealing withthe same subject matter where the same word alsomay be used.

d. Rule of “Expressio Unius est exclusio alterius”:The Latin maxim lays down that if one thing is

specifically mention by implication, other similar things are excluded, thus if one section an act usesthe word “Children” and in other section it refers tobays the legislative intent would be that, the later section almost apply to all children but to bays.

e. Golden Rule:Often the words used by legislature may be

Ambiguous. In many cases if a strict and narrow ruleof interpretation is applied it would be absurd result.Such a logical defect may have been created by baddrafting or accident or even placing a comma at awrong place. As observed by Lord Demin where a

defect appears in a language of statue a judgecannot simply fold his hands and blame to thedraftsmen. In such cases where certain words can begiven a sensible meaning or an absurd meaning thecourts would naturally lead towards the firstalternative. As observed by Lord Reid, “when an





interpretation brings about a starting and inequitableresult, this may lead the court to seek another possible interpretation which will do better justice”. Applying this principle courts have held thatthe words may used in an act may properly have tobe construct to mean shall, likewise the word andhas some time been interpreted to mean or vice-versa. The golden rule has been applied by the courtin the following circumstance:

a) When there is an ambiguity in the words used

by the statue.b) Where there is an ambiguity between twoprovisions in the same statue.

c) Where there is a clerical error in the statue.d) When the legislature has not made a

provision in the statue for that particular situation which is before the courts.

INTER PRETATION OF CONTARCT: Several years ago the court prefer to interpret the words of acontract in a strict lateral and grammatical sense in discovering the realintension of the parties the court refuse to fill in any gap or to imply anyterm which was not there. The court would not look in the actual minds of the parties but only at the actual words used by them.

PARDINE Vs JANE – In an old English case a house was given on rent for a fixed termof 21 years. During this period the house was forcibly occupied by enemytroops for three years and the tenant could not used it during this period.When he file a suit containing that he was not liable to pay rent for those3 years, the court rejected his claim since he had agreed to pay the rentfor 21 years, he was bound by his terms of contract. It was open to him tohave provided for contingency such as this in the contract itself but as hehad not done so, he was bound by is written words. This theory that court had no write to add to or vary a writtencontract has been given up in course of time and Lord Denim haschampioned the theory that court can imply reasonable term in thecontract to do full justice in the matter.

LIVER POOL CITY COUNCIL Vs IRWIN: A multi-storey building has been constructed by the City Counciland flats were let out to several tenants. The Council itself retainedcontrol of lift and stair case. Some years later this fails into disrepair andas the tenants could not use the lifts, they had to walk-up the stairs in thedark. The question before the court of appeal was whether there was anyobligation on the council to repair them in the absence of specific laws tothat effect in the contract between Council and the tenants. The majority of the judges held that there was no such obligation.Lord Denim however gain a strong dissenting judgment observing that itwas an implied term in the contract that the Council would keep the liftand the stair case reasonable fit for used by the tenant, his family and his

visitors. When the matter went in appeal to the house Lords, Lord Denimviews that the council under implied obligation to take reasonable care of lift and stair case safe was accepted. However the house of Lorddeclines to accept his general proposition about there being an impliedterm in the contract as regards the repairs.

PRECEDENTS

DECLARATORY THEORY AUTHORIATIVEOF PRECEDENT & PEARSUASIVE PRECEDENT

PRECEDENT:

If each judge were left to himself to decide cases withoutreference to similar cases decided in the past the result would be utter conclusion and chaos. Uniformity and certainty can be achieved onlywhen judges follow as far as possible the law led down earlier by their




Posted by Mohd Yasin Kapadia at 00:15

fellow judges. A precedent is the statement of law formed in the judgment in thesuperior court which decision has to be followed by all inferior courts. Therule of law is most significant feature of energy democracy and certaintyand continuity are necessary ingredient rule of law. Doctrine of stare decisis (Binding forces of precedent) is alsoreflected in Article 141 of constitution of India which declares that law laiddown by Supreme Court is binding on all courts in India.

DECLARATARY THEORY -

According to this theory, a judge never makes the law he merelydeclares what the law is. The function of the judge is merely to apply thelaw and not to play a creative role in making the law. This theory ishowever, the process of application of law. Quite often a judge is facedwith a unique situation; a situation has never arisen in the past. In suchcases he lays down an entirely new principle and to that extent, hewidens and extends the law. He develops a new rule by analogy and bydeduction. The declaratary theory breaks down in such cases.

AUTHORITATIVE AND PERSUASIVE – An authoritative precedent is one which a judge must followwhether he approves of it or not. It is binding on him and he cannot usehis judicial discretion not to follow it thus a judgment of Supreme Court isbinding on all courts in India. A judge of Bombay High Court cannot

disapprove or disagree with it. It is binding on all courts until it is setaside by the Supreme Court itself. A persuasive precedent on the other hand is one which has only apersuasive value and is not binding on the court. The court is under noobligation to follow it. And has the discretion not to apply it. However the court would normally takes such a precedent in theconsideration and such wait to it as deems fit. Thus the judgment of Gujrat High court would have only persuasive efficacy cited before theBombay High Court.

RATIO DECIDENDY - Every judicial decision has two aspects:

a) Concrete decidian which is binding on both the parties.b) It also contains the judicial principle on which concrete decision is

based, one which operates as a precedent, one which has theforce of law, and one which bind with future litigants. This is calledthe Ratio Decidendy of the case.Thus a suit is file against a minor for enforcing a mortgage signedby him as a minor cannot enter into a valid contract. The courtdismisses a suit here dismissal of suit is the concrete decisionwhich binds both the party to the suit. However, the legal principlethe decision is based namely that minor agreement is totally voidcan be regarded as Ratio Decidendy.

OBITOR DICTA – Obitor Dicta are things said by the judge in the judgment which

are not really necessary for the decision in that case. In other words they

are things said by bay. In other words of Chief Justice Chagla, “an obiter dictum is an expression of opinion on a point which is not necessary for the ultimate decision of the case. In one case a favorable repeat given by a bank in respect of financial condition of a company turned out to be false. However, therewas a disclaimer clause in the report under which the bank disclaimedany liability in the matter in view of this clause the court held that thebank was not liable. However, having said that the court went ontodiscussion. What the banks liability would have been in such a clausewas not there in the report. The entire discussion which was not at allnecessary to determine the liability of a bank in a particular case wouldbe regarded as obiter.

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