DECODING LATIN MAXIMS

Meaning of Maxim:

A maxim is a broad statement of principle, the truth and reasonableness of which are self-evident.

Meaning of Latin Maxims:

Latin Maxims are the established principle or propositions on which law is built. The maxims are time tested and are an ancient treasure of Roman Laws. They embellish as much as the civil law and are rightfully shaped, moulded and intellectually structured. Sometimes, maxims are compared with axioms in geometry. They are the principle and authorities and part of general customs and Law of Land. Hence maxims are sort of legal capsules useful in dispensing justice.

Maxims have a contemporary significance in Statutory Constructions. Before proceeding further, let us understand what statutory construction is, in brief.

Statutory Construction is an act or process of interpreting a statute and collectively the principles developed by courts for interpreting statutes.

Let us look at a few important Latin maxims

1. Assentio Mentium / Consensus ad idem

Literal Meaning: Meeting of the minds i.e each of the parties mean the same thing, in the same sense    and at the same time or mutual consent of the parties

Legal Significance: It is a phrase under Section 13 of Indian Contract Act, 1872 which is used to describe the intentions of the parties forming a contract. In particular, it refers to the situation where there is a common understanding in the formation of the Contract.

Formation of a Contract is initiated with a Proposal or Offer. Consensus ad idem is a pre- requisite for the formation of a Memorandum of Understanding, which is the primary stage prior to entering into a Contract. A Memorandum of Understanding is a non- binding agreement between two or more parties outlining the terms and details of an understanding, including thee requirements and responsibilities of each of the parties

There is no hard and fast rule to determine whether that common understanding exists. Such an inquiry is unique to each contract.

IMPORTANCE OF THE LEGAL MAXIM :

As discussed above, Consensus ad-idem is an essential element of a valid contract. Hence, if there is absence of “free consent” i.e if the agreement is induced by:

(i)                 Coercion; or

(ii)               Undue Influence; or

(iii)              Fraud; or

(iv)              Misrepresentation; or

(v)               Mistake

the contract is voidable in the nature and cannot be enforced by the party guilty of it. The other party i.e the aggrieved party can either reject the contract or accept it.

For a better understanding of the maxim, let us go through the Case Law :

 Name of the Case Law : Smith v/s Hughes (1871) LR 6 QB 597

(Mutual and Unilateral Mistake – Misrepresentation, Fraud – Condition, Warranty)

Petitioner: Mr.Smith

 Respondent : Mr. Hughes

Facts :

Mr. Hughes was a racehorse trainer. Mr. Smith, who was a farmer, offered to sell Mr. Hughes, a parcel of oats by sample. Hence Mr. Smith brought him a sample of oats and Mr. Hughes ordered forty to fifty quarters of oats at 34 shillings a quarter. When the parcel arrived, Mr. Hughes said that they were not the same oats, he intended to purchase. According to Mr. Hughes, Mr. Smith described the oats as “good old oats” but Mr. Smith denied that the word “old” had been used. Hence Mr. Hughes refused to pay and Mr. Smith sued him for breach of Contract, for the amount delivered and for the damages for the amount for the oats that were yet to be delivered.

Issue :

Whether the jury was to found for Mr. Hughes, if the word “ old” was not used and they were of the opinion that Mr.Smith believed Mr. Hughes to believe or to be under the impression that he was contracting for old oats?

Judgement :

It would not sufficiently bring to the mind of the jury, the distinction between agreeing to take the oats under the belief that they were old and agreeing to take the oats under the belief that Mr. Smith contracted that they were old. The decision of the jury was based on whether the word “old” was used or not, and the jury were of the opinion that Mr. Smith caused Mr. Hughes to believe or to be under the impression that he was contracting for old oats .

Mere silence isn’t fraudulent unless a special trust or confidence exists between the parties or is implied from the circumstances of the case. In this case, the buyer persuaded himself that they were old oats, when they were not so; but the seller neither said nor did anything to contribute to his deception. Therefore, passive acquiescence of the seller in the self - deception of the buyer did not entitle the latter to avoid the contract. If the buyer has the full opportunity of inspecting the products, contracted for and thereupon form his judgement, and if he relies only on his own judgement, the rule “Caveat Emptor” * applies.

*Note : The Latin maxim “Caveat Emptor” means “Let the buyer beware”. Hence it is a principle that the buyer alone is responsible for checking the quality and suitability of goods before a purchase is made.

Unless there is a warranty suggesting a particular quality of the product as a part of the bargain or there is any fraudulent misrepresentation on part of the seller to that effect, the buyer must accept the goods as he contracted for , even if the product was lacking of that quality. Hence, if a unilateral mistake is made on the part of the buyer, unless induced by the seller, it will not result in avoidance of the contract.

OBJECTIVITY TEST TO DETERMINE THE INTENTION OF THE PARTIES

 If a man conducts himself in such a way that a reasonable man would believe that he is assenting to the terms proposed by the other party, and that other party upon that belief enters into a contract with him, then the man thus conducting himself will be equally bound by the contract.

However, law will not allow one party to hold the other to a contract where that party knows that the other party does not intend to agree on the same terms i.e Consensus ad idem, which means that if one of the parties intends to make a contract on one set of terms, and the other intends to make a contract on another set of terms, or , as it is sometimes expressed, if the parties are not ad-idem , there is no contract unless the circumstances are such as to preclude one of the parties from denying that he has agreed to the terms of the other.

Thus, in the present case, if Mr. Smith knew that Mr. Hughes, in dealing with him for old oats, did so on the assumption that Mr. Smith was contracting for old oats, he was aware that Mr. Hughes apprehended the contract in a different manner to that which he meant, and he is thereby deprived of the right to insist that Mr. Hughes should be bound by that bargain.

However, if it were not so and Mr. Hughes was “unilaterally mistaken” ** about the age of oats without any inducement of seller (even if Mr. Smith knew about that mistake), and not about Mr. Smith’s offer, then the contract was valid as there was consent as to the same thing in the sense. In this case, applying the objective test – any reasonable person in the place of the buyer would understand the seller’s offer to sell oats of good quality and not old oats, in the absence of any representation on active concealment. Any reasonable person in the position of the seller would have understood the buyer’s acceptance to be that for good oats & not for old oats without any express or implied warranty sought. Therefore, a unilateral mistake is in principle no ground for recission of contract.

** Note : The term “Unilateral Mistake” means an error that is held by only one party and not shared by the other party. In other words, a unilateral mistake occurs when either of the parties is mistaken as to the subject matter on the terms contained in the contract.

Hence, the conclusion that can be arrived upon is that the two minds were not idem as to the age of oats; they certainly were ad- idem to the sale and purchase of them .

Thus, if there is no consensus ad idem during the formation of contract, the contract is voidable at the option of the other party.

2. Audi Alteram Partem/ Audiatur Et Altera Pars

 Literal Meaning : It means “listen to the other side” or “let the other side be heard as well”.    

According to this maxim, no person should be judged without being given a fair chance of being heard, i.e each party ought to be given an opportunity to respond to the evidence against them.

Legal Significance : This maxim is considered as a principle of natural justice or fundamental justice, as a person is given a fair opportunity to defend himself. The words“ Natural Justice” are derived from the Roman words ‘Jus Naturale’ which means principle of Natural Law, justice , equity , good conscience, fairness, reasonableness, and equality. Every administrative agency must follow the principle of Natural Justice in taking any decision which adversely affects the right of an individual. There are two main principles of Natural Justice which are stated below :

(a) Nemo in Propria causa judex, essedebet -It means no one should be made a judge in his own cause , or the rule against bias.

 (b) Audi Alteram Partem : It means no one should be condemned unheard.

 In India, the principle of Natural Justice is enshrined in Article 14 and 21 of the Indian                 Constitution***. Principles of Natural Justice are attracted whenever a person suffers a civil consequence or a prejudice is caused to him in any administrative action.

 *** Note: (i) Article 14- This Article provides for equality before the Law & equal protection within the territory of India. It prohibits discrimination on grounds of religion, race, caste, sex or place of birth, or any of them.

(ii) Article 21– This Article provides for protection of Life and Personal Liberty i.e no person shall be deprived of his life or personal liberty except according to the procedure established by law.

IMPORTANCE OF THE LEGAL MAXIM:

As discussed above, this maxim is of paramount importance as it serves as a hedge against blatant discrimination of the rights of individuals. This maxim aims to ensure delivery of justice to the parties. The rules of Natural Justice are not codified anywhere nor are they embodied in any statute. What particular rule of Natural Justice should be applied solely depends on the facts, issues and circumstances of the case. With the passage of time and evolution of society, the concept of Natural Justice has undergone a significant change. The rules are quite flexible in nature and they tend to change with the exigencies of time.

EXCEPTIONS TO THE MAXIM:

As discussed above, the principles of Natural Justice deals with fairness, hence the Courts have been cautious enough in extending these principles to situations where it would cause more injustice rather than justice. Thus, despite the significant increase in the range of applicability of Natural Justice, there still have been a few instances where the Courts have denied the right of hearing to the affected persons.

(a) Emergency - In the case of extreme emergencies or exigencies or urgencies, if the interest of the public at large can be jeopardized by the delay or the publicity of the hearing or in the exceptional cases of emergencies where prompt action, whether it be preventive or remedial, is needed, then the requirement of notice or hearing may be precluded.

(b) Impractibility -  The principles of Natural Justice can be applied and followed as and when it is practicable to do so, but at times there are situations, where it is impracticable to apply the principle of Natural Justice. Hence in the cases of certain impracticable situations, the principles of Natural Justice can be excluded.

Case Law: Bihar School Examination Board v/s Subhash Chandra:-

In this case, allegations of mass copying in the tenth standard examinations conducted by the Board were levelled. During the time of evaluation, it was found that most of the students received the same marks as most of the answers were identical. Hence, for the aforesaid reason, the Board cancelled the exam without giving the students an opportunity of being heard and ordered for re-scheduling of the fresh examination, whereby all the students were directed to appear for the same. Thus, most of the students approached Patna High Court, challenging the decision of the Board, as no opportunity of being heard was given to them. Keeping in mind the violation of Audi Alteram Partem, the High Court struck down the decision of the Board. Then the Board filed an appeal in the Supreme Court against the decision passed by the High Court. The Supreme Court overturned the decision passed by the High Court and held that, in this situation, conducting hearing is impossible as thousands of notices have to be issued and to give an opportunity of hearing to each one of them, is totally impracticable.

Thus, in a nutshell, Supreme Court held that on the ground of impracticability, hearing can be excluded.

3. Adjournment Sine Die

The term “adjournment” is derived from the word “adjourn”. The literal meaning of the word ‘adjourn’ is “to have a pause or rest during a formal meeting or trial” or “to defer or suspend a meeting to a future date or time, another place or indefinitely (sine die) or as decided by the members present at the scheduled time of meeting”.

In the context of the Companies Act, 2013, the term “adjournment” is a process whereby a meeting is suspended to a future date due to failure in meeting the requirements of the Act or any other reasonable grounds as may be determined by the Board. For instance, the meeting can be adjourned for the want of quorum.

A common misconception is that the word “adjournment” and “postponement” are used interchangeably. But, there is a thin line of difference between these two words.

Let us understand the difference between the two :

Sr. No

Particulars

Adjournment

Postponement

1

Meaning

“Adjournment” is a process whereby a meeting is suspended to a future date due to failure in meeting the requirements of the Act or any other reasonable grounds as may be determined by the Board.

“Postponement” is a process whereby the original meeting is deferred to a later date than originally planned.

2

Nature

In this meeting, the transactions that are left unfinished in the original meeting are conducted. Therefore, adjourned meeting is the continuation of the original meeting.

In this type of meeting, the meeting is not conducted at all. Therefore, postponed meeting is not the continuation of the original meeting.

3

Types

Adjournment of the meeting can be of two types. It can be either “sine die” or “non sine die”.

Postponement of the Meeting do not have any types.

4

 Notice

In case of Sine Die Adjournment, for a period of thirty days or more, a notice of the adjourned meeting shall be given in accordance with the provisions relating to Notice of a meeting .

In this case, the Board may reconvene the meeting, to transact the business, as specified in the Original Notice.

The Latin phrase “sine die” means without any future day being designated for resumption i.e indefinite period.

The Latin phrase “non sine die” means a future day has been designated for resumption of a meeting. Hence, if there is a non sine die adjournment of the meeting, then the adjourned meeting is held on the same day at the same time in the next week.

Literal Meaning: “Sine Die Adjournment” means the meeting is suspended or deferred to a future time with no appointed date i.e for an indefinite period. When a meeting is sought to be adjourned, a motion to that effect must be moved. It may be moved either by the Chairman of the meeting or by any member present at the meeting.

Legal Significance : Adjournment of the meeting is covered under point no. 15 of the Secretarial Standards – 2 on “General Meetings” issued by the Council of the Institute of the Company Secretaries of India and approved by the Central Government.

A duly convened meeting shall not be adjourned unless the circumstances so warrant. A meeting shall be adjourned either for the want of quorum or in the event of disorder or other situations when it becomes impossible to conduct the meeting and complete its business.

Case Law : Chandrakant Khaire v/s Dr. Shantaram Kale & Ors

Petitioner : Chandrakant Khaire

Respondent: Dr. Shantaram Kale & Ors

Facts :

 The first Meeting of Aurangabad Municipal Corporation was going to be held on 6th May, 1983 at 2:00 p.m and the Municipal Commissioner announced that the polling of the offices of Mayor, Deputy Mayor and members of the Standing Committee would commence from 2:30 p.m . However, some of the Councilors from the opposition party sat on the ballot boxes and some of them surrounded the Municipal Commissioner and demanded that the meeting be adjourned to a subsequent date, whereas the Councilors belonging to the ruling party demanded that the meeting and election be held later that day. Total confusion prevailed and the rival groups started throwing chairs at each other, leading to pandemonium. Hence, as and when the situation was brought under control, the Municipal Commissioner announced that the meeting would continue and elections will be held at 4:30 p.m.

The petitioner filed a protest at 4:15 p.m stating that the meeting had been adjourned by the Municipal Commissioner for the day and, therefore, the holding of the meeting later on the same day would be improper and illegal. Thereafter, the opposition group refrained from participating in the meeting in which Respondent No .1 and Respondent No.2 were declared elected as Mayor and Deputy Mayor respectively and Respondents No. 3 till Respondent No.8 were declared elected as the members of the Standing Committee.

Therefore, the respondents filed a writ petition before the High Court, questioning the invalidity of the meeting in which the election was held.

The High Court passed the order in favour of the respondents and held that the meeting was only postponed and not adjourned sine die. The meeting was postponed as there was total bedlam in the meeting hall and it was to be held as soon as peace was restored on the very same day and upheld the election of the Respondents No.1 to 8.

Thus, petitioner filed a Special Leave petition against the order of High Court and contended that the meeting was not adjourned to a definite point of time and therefore must be regarded as adjourned for the day or adjourned sine die.

The Respondents contended that the meeting had not been adjourned sine die but the proceeding had merely been suspended at 2:45 p.m and the adjourned meeting held at 4:30 p.m was a continuation of the original meeting and no new notice had to be given for adjourned meeting.

Issue:

 Whether the special leave petition filed by the petitioner is maintainable as per the Case Law? Further, the jury has to decide whether the first meeting of the Corporation called for that day at 2:45 p.m by the Municipal Commissioner was adjourned for the day or adjourned sine die and therefore had to be called on some subsequent date to be fixed by him? Whether this necessitated the giving of seven days clear notice as required under the Bombay Municipal Corporation Act, 1949?

Judgement:

As per the given facts of the case, it was held that a properly convened meeting cannot be postponed. The proper course of action to adopt is to hold the meeting as originally planned and then adjourn it to a more suitable date. If the aforesaid course is not adopted, members will be entitled to ignore the notice of postponement, and if sufficient to form a quorum, hold the meeting as originally convened and validly transact the business thereat. The Chairman may, in the event of disorder, adjourn the meeting.

In this case, High Court made the correct decision by holding that the first meeting of the Municipal Corporation fixed by the Municipal Commissioner was not adjourned for the day or adjourned sine die but had only been put off at a later hour i.e the proceedings had only been suspended and were to re-commence when peace and order were restored.

In the existing scenario, the Municipal Commissioner had no other alternative but to adjourn the meeting. Under Section 6(2) of the Bombay Provincial Corporation Act, 1949, the term of the elected Councilors is deemed to commence on the date of the first meeting; therefore, the Municipal Commissioner could not adjourn the meeting for another day or adjourn it sine die. The effect of adjourning the first meeting to another day would imply the coming into existence of another deemed date for commencement of the term of the Councilors. The very fact that the Municipal Commissioner did not leave the House or vacate the seat lends support to the version that he had merely suspended the proceedings till peace and order was restored. 

Shri Kacker, the learned counsel for the petitioner contended that when the affidavits filed by the officers who were on the respondents’ side showed that utter confusion prevailed, then it must necessarily follow that no business could be transacted that day.

Shri Vinod Bobde, the learned counsel appearing for the Municipal Commissioner, placed the minute books written in Marathi along with a translation thereof in English, and it was found that the word used in the minutes is “sthagit” but in the translation furnished, the word used is “adjourned”. Further, the learned counsel has produced photographs showing the presence of a large number of policemen wielding lathis inside the hall.

Dr. Y.S. Chitale, appearing for respondentsNo.1 to 8 contended that the meeting had not been adjourned sine die but the proceedings had merely been suspended at 2:45 p.m, and that since the adjourned meeting was a continuation of the original meeting, no new notice of the adjourned meeting had to be given.

However, the passage in Shackleton on the Law and Practice of Meetings, on page 44, upon which the learned counsel relies, reads that an adjournment, if bonafide, is only a continuation of the original meeting and the notice given for the first meeting holds good for and includes all the other meetings following it. However, if a meeting is adjourned sine-die, a fresh notice must be given.

The learned author of the book, also sets out different causes which can give rise to an adjournment of the meeting . They are as follows:

(a) Resolution of the Meeting

(b) Action of the Chairman

(c) Failure to achieve or maintain a Quorum

Hence, taking an overall view of the facts and circumstances, the learned judges of the Supreme Court had no hesitation in upholding the finding that the first meeting of the Municipal Commissioner was not adjourned for the day or adjourned sine die, but had only been put off to a later hour i.e the proceedings had only been suspended and were to recommence as and when peace and order was restored.

As a result, the Special Leave Petition was dismissed.

CONCLUSION: 

In a nutshell, Latin maxims play a great role in understanding legal principles and related Case Laws in an in-depth manner. They can be compared to of legal capsules, useful in dispensing justice. These maxims are time-tested and have been in vogue for many a century. It is important for one to know the basic essence of a maxim in order to ensure its utility and maximize its advantage.