Legal Maxims: the Remaining Seven

Illustration. A landlord locks the gate so that the tenant cannot reach the office to deposit the rent, and then applies for eviction for non-payment. The application fails: the default he relies on is his own doing.

In this book. The principle is the reason for the last of MU's six presumptions in [Presumptions in Statutory Interpretation], which is the presumption against a construction that would permit a person to take advantage of their own wrong.

The exception. Like every maxim it yields to a statute. Where an Act attaches a consequence to a state of affairs and does not care how it came about, the court applies the Act.

11. Cessante ratione legis, cessat ipsa lex

MU prints it as "Cessante retione legis cessat ipsa lex". The maxim is cessante ratione legis, cessat ipsa lex.

Literally: when the reason for a law ceases, the law itself ceases.

As a rule: a rule of law that exists for a particular reason has no application where that reason does not apply. Used carefully, it is a rule of construction and of the development of the common law.

Where it operates. Chiefly in the growth of judge-made law. A court which finds that the justification for an old rule has disappeared may decline to apply the rule.

Authority, and it is the clearest illustration on this syllabus. In M.C. Mehta v. Union of India, AIR 1987 SC 1086, the Court refused to apply a rule of 1868. Facts. Oleum gas escaped from the caustic chlorine plant of Shriram Foods and Fertilizer Industries in a densely populated part of Delhi on 4 and 6 December 1985, and the Court, hearing a petition under article 32, had to decide on what principle such an enterprise is liable. Held. The Court declined to be bound by the rule in Rylands v. Fletcher with its exceptions, saying it would not hold its hands back merely because the English courts had not gone further, and laid down that an enterprise engaged in a hazardous or inherently dangerous activity owes an absolute and non delegable duty to the community, is absolutely liable for harm resulting, and cannot answer that it took all reasonable care; and that compensation must be correlated to the magnitude and capacity of the enterprise. Why it matters here. The reasoning is the maxim: the conditions that produced the nineteenth century rule no longer obtain, so the rule no longer governs.

The exception, and it is a serious one. The maxim has no application to a statute. A court cannot refuse to apply an Act of Parliament on the ground that the reason for it has passed; only the legislature can repeal. A student who writes that an outdated Act ceases to bind has made the standard error on this maxim.

12. Acta exteriora indicant interiora secreta

Literally: external acts indicate internal secrets.

As a rule: what a person intended is proved by what they did. Since intention cannot be observed directly, the law infers it from conduct and from the surrounding circumstances.

Where it operates. Everywhere that a state of mind has to be established, which is most of the criminal law and a great deal of the civil law.

The statutory hook is section 2(1)(f) of the Bharatiya Sakshya Adhiniyam 2023, which provides that "fact" means and includes any thing, state of things or relation of things capable of being perceived by the senses, and any mental condition of which any person is conscious. Because a mental condition is a fact, it can be proved; and because it cannot be perceived, it is proved by inference from other facts. That definition is worked in [Fact, Person, Offence and State].

Illustration. Nobody can see dishonest intention. What can be seen is that the accused bought a ticket for another city on the morning of the transfer, that he used a false name, and that he closed the account the same day. The intention is inferred from those acts.

The exception. An inference is not a presumption of guilt. The conduct must be capable of supporting the inference, and where the conduct is equally consistent with innocence the inference cannot be drawn, because in a criminal case guilt must be proved beyond reasonable doubt.

13. Domus sua cuique est tutissimum refugium

Literally: to everyone, his house is his safest refuge. The idea is more familiar in the English form: an Englishman's home is his castle.

As a rule: the home has a special protection in law. Entry into it, and search of it, are permitted only in the manner the law allows.

Where it operates. In the right of private defence of property, which is at its strongest in the home. In the requirements for a lawful search: the Bharatiya Nagarik Suraksha Sanhita 2023 requires a search of a closed place to be conducted in the presence of independent and respectable witnesses of the locality, requires a list of the things seized to be prepared and signed, and gives the occupant a right to be present and to a copy of the list. In article 21, from which the right to privacy has been developed. And in the rule that a person residing in a house may refuse entry to anybody who has no legal right to enter.

Illustration. Police officers wish to search a flat. They must comply with the safeguards the Sanhita lays down. A search conducted in defiance of them does not automatically make the evidence inadmissible in India, and it exposes the officers to consequences and weakens the prosecution's case.

The exception. The protection is not absolute. It yields to a lawful warrant, to the specific powers of search and seizure the codes confer, and to the requirements of public safety. The maxim describes a presumption in favour of the occupant, not an immunity.

14. Nemo est haeres viventis

Literally: no one is the heir of a living person.

As a rule: nobody has any right of inheritance in the property of a person who is still alive. Until death, what an heir apparent has is a spes successionis, a mere hope or chance of succeeding, and that is not property and cannot be transferred.

Where it operates. In the law of succession and in the law of transfer of property. Section 8 of the Hindu Succession Act 1956 speaks of the property of a male Hindu dying intestate; nothing devolves before that. And a transfer of a mere chance of an heir apparent succeeding to an estate is void under the Transfer of Property Act 1882.

Illustration. Kiran's father is alive and owns a house. Kiran sells "his share" in that house to a purchaser. The sale conveys nothing, because Kiran has no share; he has a chance of becoming an heir, and only if he survives his father and the father dies intestate and the property is still there.

The exception, and it is important in family law. Under the Hindu Succession Act 1956 as amended in 2005, a daughter, like a son, becomes a coparcener by birth in a Hindu undivided family. A coparcenary interest is not a spes successionis: it exists during the father's lifetime. So the maxim governs succession, and not the coparcenary interest that arises by birth.

15. Ignorantia facti excusat, ignorantia juris non excusat

MU prints it as "Ignorantia facti excusat, ignorantia lex non excusat". The maxim is ignorantia facti excusat, ignorantia juris non excusat.

Literally: ignorance of fact excuses, ignorance of law does not excuse.

As a rule: a person who acts under a mistaken belief about a fact may be excused; a person who acts in ignorance of what the law is, is not.

Where it operates. Directly in the criminal law.

Section 14 of the Bharatiya Nyaya Sanhita 2023: nothing is an offence which is done by a person who is, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be, bound by law to do it.

Section 17: nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it.

Both sections put the maxim into statutory words, and both contain the phrase that carries it: mistake of fact, and not mistake of law.

Illustration. A soldier fires on a mob on the order of his superior officer, in conformity with the commands of the law. He has committed no offence. Contrast a person who takes another's property believing that the law allows him to do so: that is a mistake of law and it excuses nothing.

Why ignorance of law does not excuse. Not because everyone is assumed actually to know every statute, which nobody does, but because a legal system in which a person could escape liability by pleading ignorance of the rule would be unworkable: the plea would always be available and could rarely be disproved.

The qualifications. The mistake of fact must be in good faith and must be reasonable. And where a statute makes knowledge of a fact or of an order an ingredient of the offence, an accused who did not know it is not guilty, because the prosecution has failed to prove an ingredient rather than because ignorance excuses.

Companion maxim. Ignorantia juris quod quisque scire tenetur non excusat, ignorance of the law which everybody is bound to know does not excuse, is the fuller form and is worth a line.

A worked example

In 2019 Nikhil, whose father is alive, executes a document selling his "share" in the family house to Priyanka, who pays him. In 2026 the father dies, and Priyanka sues for possession.

Nemo est haeres viventis. In 2019 Nikhil had no share. He had a spes successionis, a chance of succeeding, which is not property and cannot be transferred.

Quod ab initio non valet, in tractu temporis non convalescit. The document was ineffective when made, and the father's death seven years later does not breathe life into it. What was void at the beginning does not become valid with time.

Nullus commodum capere potest de injuria sua propria. Nikhil, having taken Priyanka's money on a document he knew conveyed nothing, cannot rely on his own conduct to keep both the money and the property. Priyanka's remedy lies in restitution of the price rather than in the conveyance.

Acta exteriora indicant interiora secreta. If Priyanka alleges that Nikhil acted dishonestly, she will prove it not by asserting his state of mind but by pointing to what he did: that he described himself as an owner, that he produced a copy of the mutation entry, that he took the money in cash.

Ignorantia juris non excusat. Nikhil's plea that he did not know a chance of succession could not be sold does not assist him.

And a variation. Suppose Nikhil is prosecuted for cheating and says he genuinely believed his father had already gifted him a share, because he had seen a document that turned out to be a draft. That is a mistake of fact, and if it is in good faith and reasonable, sections 14 and 17 of the Bharatiya Nyaya Sanhita 2023 are engaged.

Distinctions table

What these maxims do NOT mean

"Void never becomes valid" does not mean a claim about it never becomes time barred. Validity and remedy are different questions, and section 27 of the Limitation Act 1963 can extinguish a right to property.

Cessante ratione legis does not apply to a statute. A court cannot decline to apply an Act on the ground that its reason has passed. This is the standard error on the maxim.

Acta exteriora does not reverse the burden of proof. Conduct is evidence from which intention may be inferred; where the conduct is equally consistent with innocence, no inference can be drawn.

Domus sua cuique is not an immunity from search. It is a protection that operates through the safeguards the codes prescribe.

Nemo est haeres viventis does not defeat a coparcenary interest, which arises by birth and exists during the father's lifetime, and since 2005 belongs to a daughter as it does to a son.

Ignorance of law does not excuse, and that is not the same as saying everyone knows the law. It is a rule about what may be pleaded, adopted because the contrary rule would be unworkable.

Limits and criticism

The maxims are English and Roman in origin and are used in a codified system. Once a principle is in an Act, quoting the Latin adds nothing to a court's reasoning, which is why modern judgments cite the section and mention the maxim in passing.

"Ignorance of law is no excuse" is defended on necessity rather than on fairness, and it is uncomfortable in a country with a very large body of subordinate legislation. The answer the law gives is that the alternative is worse.

Cessante ratione legis is unstable. Given a free hand, it lets a court set aside any rule it thinks has outlived its purpose, which is why it is confined to judge-made law and why even there it is used sparingly.

Quick revision

Quod ab initio non valet, in tractu temporis non convalescit: void stays void; void against voidable; but the remedy can still be barred by limitation, s.27.

Nullus commodum capere potest de injuria sua propria: no advantage from one's own wrong; suppression of facts in a writ petition; the sixth presumption in statutory interpretation.

Cessante ratione legis, cessat ipsa lex: the reason gone, the rule goes; M.C. Mehta refusing Rylands v. Fletcher; and NO application to a statute.

Acta exteriora indicant interiora secreta: conduct proves intention; BSA 2023 s.2(1)(f) makes a mental condition a fact.

Domus sua cuique est tutissimum refugium: the home is protected; safeguards on search; private defence; article 21 and privacy; not an immunity.

Nemo est haeres viventis: spes successionis is not property and cannot be transferred; Hindu Succession Act s.8 speaks of a person dying intestate; a coparcenary interest by birth is different.

Ignorantia facti excusat, ignorantia juris non excusat: BNS 2023 ss.14 and 17, mistake of fact and not mistake of law, in good faith.

Test yourself

1. Explain the maxim about void transactions, and state its limit.

Quod ab initio non valet, in tractu temporis non convalescit means that what is not valid from the beginning does not become valid by the passage of time. A void transaction is a nullity when made and remains one, whatever the parties do later, which is why a decree of a court without subject matter jurisdiction stays a nullity however long it goes unchallenged. The limit is that the maxim goes to validity and not to remedy: a suit to set aside a void transaction can itself become time barred, and section 27 of the Limitation Act 1963 can extinguish a right to property altogether.

2. Give three applications of "no one may take advantage of his own wrong".

A party who himself prevents performance of a contract cannot complain of the other side's non-performance. A petitioner who suppresses material facts in a writ petition is refused relief on that ground alone, without the merits being reached. And a party who has caused the delay in a proceeding cannot rely on that delay to defeat the opposite party. The principle also appears among the presumptions of statutory interpretation, as a presumption against a construction that would let a person profit from their own wrong.

3. Why can cessante ratione legis not be applied to a statute?

Because repeal is for the legislature and not for a court. The maxim says that where the reason for a rule has ceased the rule ceases, and it works in the development of judge-made law, where the court that made the rule may decline to apply it once its justification has gone. An Act of Parliament remains in force until it is repealed or is held unconstitutional, and a court has no power to disapply it on the ground that the circumstances that produced it have passed.

4. How is intention proved, and what statutory provision supports the maxim?

By inference from external acts and surrounding circumstances, which is what acta exteriora indicant interiora secreta expresses. The supporting provision is section 2(1)(f) of the Bharatiya Sakshya Adhiniyam 2023, which defines a fact as including any mental condition of which any person is conscious. Because a state of mind is a fact it may be proved, and because it cannot be perceived by the senses it is proved indirectly, by evidence of conduct from which the inference can be drawn.

5. Can an heir apparent transfer his expected share during the owner's lifetime?

No. Nemo est haeres viventis means that nobody is the heir of a living person, so before the death the expectant heir has only a spes successionis, a chance of succeeding, which is not property and is not transferable; a transfer of it is void. Section 8 of the Hindu Succession Act 1956 confirms the timing, since it deals with the property of a male Hindu dying intestate. The exception is a coparcenary interest in a Hindu undivided family, which arises by birth and belongs since 2005 to a daughter as it does to a son.

6. Distinguish a mistake of fact from a mistake of law, with the provisions.

A mistake of fact is a wrong belief about a factual matter and it may excuse; a mistake of law is ignorance or misunderstanding of what the law is and it does not. Sections 14 and 17 of the Bharatiya Nyaya Sanhita 2023 both state the distinction in terms, protecting a person who, by reason of a mistake of fact and not by reason of a mistake of law, in good faith believes himself bound, or justified, by law in doing what he did. The mistake must be in good faith and reasonable, and where a statute makes knowledge an ingredient of the offence, the absence of knowledge defeats the charge because an ingredient is missing.