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Maxims of Law

## MAXIMS OF LAW:

1.  CLAIM.    A maxim of law, (not actual law, but a view that has stood the test of time) is, one has a valid claim if stated prior to claiming ownership. For example, a claim of ownership over a gold mine will not be recognised before the claim is lodged at a Department of Mines. Another is, You have no rights unless you state them prior and especially in writing. Claim of Right for example.

2.  INTENT.   This is describing your mindset by the actions you display. Either one has honourable or dishonourable intent and these are reflected in our daily actions. The public system thoroughly records our intent by the actions we display.             A court registrar once declared to me in a fearful tone, in his private office, ‘we did a search on you and you’ve done a few things haven’t you’.

3.  BREAKING PRESUMPTIONS.    If one does not 'rebut a presumption' from any source either by verbal or written notice, then the presumption stands.

**A verbis legis non est recedendum**                                                                  

You must not vary the words of a statute.

**Absoluta sententia expositore non indiget**                                                    

When you have plain words capable of only one interpretation, no explanation of them is required.  

**Abundans cautela non nocet**                                                                                

There is no harm done by great caution.      

**Accusare nemo se debet; accusare nemo se debet nisi coram Deo**    

No one is bound to accuse himself except to God.

**Acta exteriora indicant interiora secreta**                                                        

External actions show internal secrets, i.e., intention may be inferred from a person's actions.

**Actus curiae neminem gravabit**                                                                            

An act of the Court shall prejudice no one.

**Adversus extraneos vitiosa possessio prodesse solet**                                

Prior possession is a good title of ownership against all who cannot show a better.

**Aedificatum solo, solo cedit**  

What is built on the land is to be regarded as having become part of the land.  

**Aequitas sequitur legem**

Equity follows the law.

**Affirmanti non neganti incumbit probatio**

The burden of proof is upon him who affirms, not upon him who denies.

**Ambulatoria est voluntas defuncti usque ad vitae supremum exitum**

The will of a deceased person is ambulatory [revocable] until the last moment of life.

**Audi alteram partem**

Hear the other side.

**Clausulae inconsuetae semper inducunt suspicionem**

Unusual clauses always excite suspicion.

**Consuetudo est altera lex**

A custom has the force of law.

**Contemporanea exposito est optima et fortissima in lege**

The best way to construe a document is to read it as it would have read when made.

**Cujus est dare ejus est disponere**

He who gives anything can also direct how the gift is to be used.

**Cujus est solum ejus est usque ad coelum**

Whose is the soil, his is also that which is above it.

**De minimis non curat lex**

The law does not concern itself with trifles.

**Debitor non praesumitur donare**

A debtor is not presumed to give.

**Delegatus non potest delegare**

A delegate cannot delegate.

**Domus sua cuique est tutissimum refugium**

To everyone his house is his surest refuge.

**Dona clandestina sunt semper suspiciosa**

Clandestine gifts are always to be regarded with suspicion.

**Eodem modo quo oritur, eodem modo dissolvitur**

What has been effected by agreement can be undone by agreement.

**Ex dolo malo non oritur actio**

No right of action can have its origin in fraud.

**Ex maleficio non oritur contractus**

A contract cannot arise out of an illegal act.

**Ex nudo pacto non oritur actio**

No right of action arises from a contract entered into without consideration.

**Ex turpi causa non oritur actio**

An illegal contract cannot be enforced.

**Expedit reipublicae ut finis sit litium**

It is in the public interest that the decision of cases should be final.

**Expressio unius personae vel rei, est exclusio alterius**

The express mention of one person or thing is the exclusion of another.

**Fractionem diei non recipit lex**

The law does not recognize any fraction of a day.

**Fraus omnia vitiat**

Fraud vitiates everything.

**Frustra legis auxilium quaerit qui in legem comittit**

He who offends against the law vainly seeks the help of the law.

**Generalia specialibus non derogant**

General things do not derogate from special things.

**Ignorantia juris quod quisque scire tenetur non excusat**

Ignorance of the law, which everybody is supposed to know, does not constitute an excuse.

**Impotentia excusat legem**

Impossibility of performance of a legal obligation is a good excuse.

**In pari causa potior est condition possidentis**

Everyone may keep what he has got, unless and until someone else can prove a better title.

**Injuria non excusat injuriam**

One wrong does not justify another.

**Interpretatio chartarum benigne facienda est ut res magis valeat quam pereat**

The construction of deeds is to be made liberally, so that the thing may survive rather than perish.

**Lex non requirit verificari quod apparet curiae**

The law does not require verification of that which is apparent to the Court.

**Mala grammatica non vitiat chartam**

Bad grammar does not vitiate a deed.

**Nemo agit in seipsum**

No one can take proceedings against himself.

**Nemo contra factum suum proprium venire potest**

No one can go against his own deed.

**Nemo debet esse judex in propria causa**

No one can be judge in his own cause.

**Nemo potest facere per alium, quod per se non potest**

No one can do through another what he cannot do himself.

**Nemo tenetur ad impossibile**

No one is required to do what is impossible.

**Non aliter a significatione verborum recedi oportet quam cum manifestum est aliud sensisse testatorem**There should be no departure from the ordinary meaning of words except where it appears that the testator meant something different.

**Non videntur qui errant consentire**

Those who are mistaken are not deemed to consent.

**Noscitur a sociis**

The meaning of a word can be gathered from the context.

**Omnia praesumuntur rite et solemniter esse acta**

All acts are presumed to have been done rightly and regularly.

**Qui facit per alium facit per se**

He who acts through another is deemed to act in person, i.e., a principal is liable for the acts of his agent.

**Qui prior est tempore potior est jure**

He who is first in time has the strongest claim in law.

**Res inter alios acta alteri nocere non debet**

A transaction between others does not prejudice one who was not a party to it.

**Rex non potest peccare**

The King can do no wrong.

**Sic utere tuo ut alienum non laedas**

So use your property as not to injure your neighbour's.

**Verba chartarum fortius accipiuntur contra proferentem**

The words of deeds are to be interpreted most strongly against him who uses them.

**Volenti non fit injuria**

That to which a man consents cannot be considered an injury.What is built on the land is to be regarded as having become part of the land.

**The Legal Maxims section of this site has generated much interest. Here are some other terms, however, many of these terms are not considered legal maxims in the strict sense.**

**A fortiori**

"With stronger reason".

**Ab initio**

"From the beginning".

**Accord and satisfaction**

Agreement for release from an obligation, for valuable consideration, without the performance of the obligation itself. For example, an agreement between two contracting parties for one of them to give and the other to accept, something different from that which the contract required.

**Act of God**

An event arising from natural causes and without any human input.

**Ad hoc**

"For this purpose".

**Ad idem**

"Of the same mind".

**Ad medium filum**

"To the middle line", for example, of a road or watercourse.

**Ad valorem**

"According to the value".

**Adverse possession**

Occupation of land contrary to the rights of the legal owner. **Affidavit**

A written statement of facts by a person who has sworn to, or affirmed, the truth of those facts.

**Alibi**

"Elsewhere": a defence by an accused person to the effect that he was elsewhere when the offence was committed.

**All fours**

When a lawyer says that his case is "on all fours" with a previous case, he means that his case is wholly analogous with the previous case, such that the legal principles that were applied in the previous case should be applied in the present case.

**Allocatur**

"It is allowed": the certificate of the court of the amount of costs which one party is allowed to recover from another. An allocatur is usually issued after the [taxation](http://www.davidthomas.com.au/miscwords.htm#taxation) of the successful party's costs, or after the parties have agreed the amount of the costs.

**Amicus curiae**

"A friend of the court": someone, not a party to the proceedings, who appears before the court to assist the court in some way.

**Animus revocandi**

"Intention of revoking".

**Animus testandi**

"Intention of making a will".

**Approbate and reprobate**

Attempt to claim the benefit of an agreement, and at the same time to avoid the obligations imposed by that agreement.

**Arguendo**

"In the course of argument".

**Arms length**

Parties are at arms length when they have no relationship to each other which would give rise to any special duty or obligation to each other, apart from the duties and obligations imposed on them by the legal arrangement to which they are parties.

**Attest**

To witness any act or event, for example, the signature of a will.

**Autrefois acquit**

"Formerly acquitted": a defence to criminal proceedings, to the effect that the accused has previously been tried for the same offence and acquitted.

**Autrefois convict**

"Formerly convicted":a defence to criminal proceedings, to the effect that the accused has previously been tried for the same offence and convicted. **Beneficiary**

A person for whose benefit property is held by a trustee or an [executor](http://www.davidthomas.com.au/miscwords.htm#executor).

**Bequeath**

To give personal property, e.g., chattels or money, by will.

**Bequest**

A gift of personal property by will.

**Bona fide**

"In good faith".

**Bona vacantia**

"Vacant goods": the legal name for ownerless property that passes to the Crown, e.g., the estates of persons who die intestate without known kin and the assets of dissolved companies and failed trusts.

**Cause of action**

The facts which give rise to a right of legal action.

**Caveat**

"He warns": an entry made in the records of a public registry or a court which prohibits certain action being taken without prior notice being given to the person who entered the caveat.

**Caveat emptor**

"Let the buyer beware".

**Cestui que trust** [Beneficiary](http://www.davidthomas.com.au/miscwords.htm#beneficiary). **Champerty**

"A particular form of [maintenance](http://www.davidthomas.com.au/miscwords.htm#maintenance), namely where the person who maintains takes as a reward a share in the property recovered": *Ellis v Torrington* (1920).

**Chattel**

Any form of property other than land.

**Codicil**

A document, executed by a testator, which amends, explains or confirms his will. A codicil must be executed with the same formalities as a will and becomes part of the will.

**Commorientes**

Two or more persons who have died simultaneously or in circumstances rendering it uncertain which of them survived the other or others.

**Consideration**

"Some right, interest, profit or benefit accruing to one party, or some forebearance, detriment, loss or responsibility given, suffered or undertaken by the other": *Currie v Misa* (1875). Consideration is an essential element of an enforceable contract.

**Corpus delicti**

"The body of the offence": the facts which constitute an offence.

**Curia advisari vult**

"The court wishes to be advised": these words appearing in the report of a case mean that the court took time for consideration before delivering its judgment.

**De facto**

"In fact".

**Deed poll**

A deed which is "polled" (cut straight) rather than indented (see [Indenture](http://www.davidthomas.com.au/miscwords.htm#indenture)): usually a deed made by one person only.

**Devise**

A gift of real property (land) by will.

**En ventre sa mere**

"In the womb of its mother": an unborn child.

**Ex abundanti cautela**

"From an excess of caution".

**Ex gratia**

"Out of grace (or kindness)": voluntarily; without any legal obligation.

**Ex officio**

"By virtue of his office".

**Ex parte**

"By or for one party".

**Ex post facto**

"By a subsequent act": retrospectively. **Executor**

A person appointed by a [testator](http://www.davidthomas.com.au/miscwords.htm#testator) to carry out the terms of his will.

**Fee simple**

Ancient term for an estate of freehold in land.

**Feme sole**

An unmarried woman.

**Fiduciary**

A relationship by which one person is obliged to act in the interests of another, e.g., the relationship between a trustee and a [beneficiary](http://www.davidthomas.com.au/miscwords.htm#beneficiary).

**Flotsam**

Goods lost at sea which remain afloat and, if unclaimed, belong to the Crown. See also [Jetsam](http://www.davidthomas.com.au/miscwords.htm#jetsam).

**Functus officio**

"Having performed his office": once a judicial officer has entered judgment, he is *functus officio* and cannot rescind his judgment and re-open the case.

**In loco parentis**

"In the place of a parent": a person who assumes the obligations to provide for a child as a parent would.

**In specie**

"In its own form".

**Indemnify**

Make good a loss which one person has suffered as a result of the act of another.

**Indenture**

A document which was written in duplicate on one sheet of parchment, after which the parts were separated by cutting the parchment in a wavy line (indented). The two parts could be compared by fitting them together at the cut. A match of the wavy cut would establish that the two parts were "counterparts" of the same document.

**Injunction**

An order of a court by which a person is required to do something or to refrain from doing something.

**Inter alia**

"Among others".

**Inter vivos**

"Between living persons".

**Intestacy**

The result of a person dying without leaving a valid will.

**Ipso facto**

"By that very fact". **Issue** In the context of will-making, a person's children, grandchildren and all other lineal descendants. **Jetsam**

Goods lost at sea which sink and remain underwater. See also [Flotsam](http://www.davidthomas.com.au/miscwords.htm#flotsam).

**Joint and several liability**

A liability which is owed by two or more persons such that all are liable jointly as well as each being liable severally (separately).

**Jurat**

The memorandum at the end of an [affidavit](http://www.davidthomas.com.au/miscwords.htm#affidavit) which states where and when the affidavit was sworn, followed by the signature of the person who swore the affidavit and the signature of the person before whom the affidavit was sworn.

**L.S. (Locus sigilli)**

"The place of the seal": a mark on a copy document indicating where an official or legal seal was placed on the original.

**Libel**

A defamatory statement made in writing or in some other permanent form.

**Lien**

A right to hold the property of another as security for the performance of an obligation. **Maintenance**

"The act of improperly stirring up litigation and strife by giving aid to one party to bring or defend a claim without just cause or excuse": *In re Trepca Mines Ltd (No 2)* (1963). See also [Champerty](http://www.davidthomas.com.au/miscwords.htm#champerty).

**Mala fides**

"Bad faith".

**Mens rea**

"Guilty mind".

**Mutatis mutandis**

"Things being changed which are to be changed": the necessary changes being made.

**Obiter dictum**

"A statement made in passing": an observation made by a judge in the course of a judgment, but which is not a necessary part of the reasoning which leads to the decision.

**Pari passu**

"With equal step": impartially or without preference.

**Per capita**

"By heads": individually; per person.

**Per stirpes**

"By branches": refers to the method of distribution of property, usually by will, by which each branch of the deceased person's family receives an equal share of the estate, regardless of how many people are in that branch.

**Prima facie**

"Of first appearance": a prima facie case is one supported by evidence which will be sufficient to prove the case unless it is displaced by evidence to the contrary.

**Puisne judge**

A judge of a court other than the chief judge.

**Quantum meruit**

"As much as he has deserved": the principle that, when a person has engaged the services of another without specifying or agreeing a price, but it is to be inferred that the services are to be paid for, the law implies a promise to pay reasonable remuneration for the work done.

**Quid pro quo**

"Something for something": [consideration](http://www.davidthomas.com.au/miscwords.htm#consideration).

**Ratio decidendi**

"Reason for deciding": the reason for a judicial decision.

**Res ipsa loquitur**

"The thing speaks for itself": the circumstances of an accident are such that there can be no other explanation than the negligence of the defendant.

**Right of way**

The right to pass over land whch belongs to another.

**Rule of law**

A fundamental principle of English law which asserts the supremacy of the law over all persons - individuals, institutions and governments.

**Semble**

"It seems": a term used in judgments to introduce a proposition which may be open to doubt.

**Sine die**

"Without day": indefinitely.

Adjournment *sine die* (from the Latin "without day") means "without assigning a day for a further meeting or hearing". To adjourn an assembly *sine die* is to adjourn it for an indefinite period. A legislative body adjourns *sine die* when it adjourns without appointing a day on which to appear or assemble again.

**Slander**

A defamatory statement made verbally or by gesture.

**Stare decisis**

"To stand by things decided": the doctrine of precedent, that previous decisions are authoritative and binding.

**Status quo** "

The present state of things".

**Sub judice**

"Under judgment": used to describe a case which is before a court and has not been decided.

**Subpoena**

"Under a penalty": an order issued by a court requiring a person to attend at a specified place and time and for a specified purpose, and making that person subject to a penalty for disobedience.

**Taxation of costs**

The procedure by which a court scrutinises the costs claimed by a successful party in a case, or by a solicitor against a client. **Testator**

A person who makes a will.

**Tort**

A civil wrong for which the remedy is usually an award of damages.

**Tortfeasor**

A person who commits a tort.

**Uberrimae fidei**

"Utmost good faith": a term used to describe certain classes of contract in which the promisee is obliged to communicate to the promisor all information which may be relevant to the promisor in deciding whether or not to enter into the contract. Contracts of insurance are contracts *uberrimae fidei*.

**Ultra vires**

"Beyond power": a term used to describe an act by a body (usually a company or a branch of government) which is in excess of the power conferred on that body by law.

**Vis major**

"Irresistible force": for example, storm, earthquake, military action.

**Void**

Of no legal effect.

**Voidable**

Of full legal effect until rendered of no effect.

**Without prejudice** A term used to protect statements made in settlement negotiations from being used as admissions or from being given in evidence.