Question of law and question of

fact
Introduction

INTERPRETATION OF TERM’S

QUESTIONS WHICH ARISE BEFORE A COURT

Question of law

• Definition of question of Law

• CHARACTERISTICS OF QUESTION OF LAW:
• SENSES IN QUESTION OF LAW:

QUESTION OF FACT:

• DEFINITION OF QUESTION OF FACT:

• CHARACTERISTICS OF QUESTION OF FACT:
• SENSES IN QUESTION OF FACT

MIXED QUESTION OF LAW AND FACT:

DIFFERENCES BETWEEN QUESTION OF LAW AND FACT:

Conclusion:

Introduction
It is commonly said that all questions which arise for
consideration in a Court of justice are of two kinds. They are either question of
law or question of fact. It becomes very difficult to create difference between
question of law and question of fact. Question of law consisted on the
theoretical rules and it is answered by judges by using different rules of law to
determine the case. And question of fact consisted on facts and it is
determined by jury in the light of facts and evidences relevant to case. In
question of fact burden of proof on plaintiff and such proof shows that
violation is occurred.

Matters and questions, which come before a court of Justice are of

three kinds.

➢ Matters and Question of law

➢ Matters and Question of Judicial Discretion
➢ Matters and Question of Facts

INTERPRETATION OF TERM “LAW”:

According To Oxford Dictionary:

Decree, statute, command, ordinance.

INTERPRETATION OF TERM “FACT”:

According To Oxford Dictionary:

Facts and figures, truth

QUESTIONS WHICH ARISE BEFORE A COURT:

Kinds of
Questions

Mixed questions Questions of Questions of

Questions of law Questions of fact
of law & facts opinion judicial Discretion
Definition of question of Law
“Question of law is such question which is answered by
judges by applying relevant legal principles in order to determine the rights of
parties”

DEFINITION OF QUESTION OF LAW:

According To Salmond:
A question which is authoritatively answered based on
legal affairs are question of law.

CHARACTERISTICS OF QUESTION OF LAW:

Following are the characteristics of question of fact:

i. No need to prove the fact.
ii. Authoritatively answered by law.
iii. Priority is given what the law is?
iv. Decisions are clear.
v. Answer is given with the help of law.
vi. Question of law is decided by judges.

SENSES IN QUESTION OF LAW:

According To Salmond:
The term question of law is used in three distinct senses:

I. Answer Of Question of Law Is Authoritatively Answered:

In the first sense, it means a question which the court is
bound to answer in according with a rule of law which has already
been authoritatively answered by the court. All other questions are
questions of fact.
Explanation
• In a legal contract, if one of the parties fails to establish the
terms and conditions of the contract, this is a question of law which
will be dealt by court under the fixed principles of that contract act
 Examples:
i. Article 129 Qanun-e-Shahadat Order, 1984
“Bill of Exchange”
ii. Section 302 Pakistan Penal Code
“Punishment of Qatl”

II. Question Which Means What The Law Is On A Particular Point:

In the second sense, a question of law is a question as to
what the law is. An appeal on a question of law means an appeal in
which the question for decision is what the true rule of law is on a
certain matter.
Example:
Section 82 Pakistan Penal Code
i. Transformation Of Second Sense Into First Sense:
Once the provision has been authoritatively interpreted by the
judge. It becomes a judicial precedent and a settled question of
law. The question as to meaning of that provision is thus
transformed from the second into first sense.
III. The Answer Of Question Of Law Is Always Given By The Judges And
Not By Jury:
As regards the third sense in which the term question of law is
used, there is a general rule:
i. General Rule:
Question of law are for the judges and questions
of fact are for the jury to decide.
ii. Exception:
It is true that question of law is never referred to
the jury, but questions of fact can be referred to a judge.
The interpretation of a particular document is a question of
fact but very often it is done by the judge himself.
QUESTION OF FACT:
According To Black’s Law Dictionary:
An issue that has not been pre-determined and
authoritatively answered by the law.

DEFINITION OF QUESTION OF FACT:

According To Salmond:

A question of fact means either any question which is not pre-

determined by a rule of law, or any question except the question as to
what the law is or any question which is to be answered by the jury.

CHARACTERISTICS OF QUESTION OF FACT:

Following are the characteristics of question of fact:

i. It relates to factual position.
ii. Answer not prescribed by law
iii. Answer is given by the jury and not by the judges.
iv. No need to prove question of fact.
v. Courts seeks to find out the truth.

SENSES IN QUESTION OF FACT:

The term question of fact is also two different senses:

I. Wider sense
II. Narrow sense
EXPLANATION:
I. Wider Sense:
In a wider sense, it includes all questions which are
not questions of law. Everything is a matter of fact which is
not a matter of law.
II. Narrow Sense:
In a narrow sense, a question of fact is opposed to a
question of judicial discretion which includes questions as
to what is right, just, equitable or reasonable.
1. EXAMPLE:
• Section 53 Pakistan Penal Code
 • Section 11 Contract Act
Illustration:
The question as to whether the accused has committed the
criminal act with which he is charged is a question of fact.

MIXED QUESTION OF LAW AND FACT:

There are also some questions which are partly questions of fact and
partly law. Such questions are called mixed questions of law and fact.
Thus, the question whether a partnership exists between parties calls for
the determination of two questions:
i. What agreement has been made between them
(question of fact)
ii. Whether such agreement is sufficient to constitute the
legal relationship of partnership (question of law).

TRANSFORMATION OF QUESTION OF FACT INTO QUESTION OF LAW:

According To Salmond:
The existence and development of a legal system represents the
transformation of questions of fact and judicial discretion into questions
of law. As more and more cases are decided, identical decisions are
given by the judges in those cases which have similar facts. If the facts of
the two cases are identical, the discretion of the judge disappears and he
is bound to give his decision according to the precedent on the subject.

DIFFERENCES BETWEEN QUESTION OF LAW AND FACT:

According to Paton, however difficult it may be to define exact

difference between law and fact, the distinction itself is fundamental for
any legal system.
 I. Relation:
Question Of Law:
Question of law is purely related with the law.
Question Of Fact:
Question of fact is not related with the law.
II. As To Proof:
Question Of Law:
There is no need to prove question of law.
Question Of Fact:
Question of fact is needed to prove.
III. As To Conversion:
Question Of Law:
Question of law cannot be converted into question of fact.
Question Of Fact:
Question of fact may be converted into question of law.
IV. Duty of Judge:
Question Of Law:
In a question of law, is the duty of the Court to ascertain the
law and decide to case accordingly.
Question Of Fact:
In a question of fact, it is the duty of the Court to weigh the
evidence and then come to its conclusion.
V. As To Authoritatively Answered:
Question Of Law:
Every question which has been authoritatively answered by
the law is a question of law.
Question Of Fact:
Every question which has not been determined before and
authoritatively answered by the law is a question of fact.
VI. Nature:
Question Of Law:
Law consists of abstract rules which attempt to reduce to
order the teeming facts of life.
 Question Of Fact:
Facts are the raw materials on the basis of which the law
creates certain rights and duties.

Conclusion:
To conclude that, all matters and questions which come before
court of justice either are question of law or question of fact or judge’s
discretion. Interpretation of a particular provision of law is a question of law
but once it has been interpreted by a superior court, it becomes a question of
law, in such cases the judicial opinion is excluded and discretion of the judge
ruled out question of law has to be decided according to a given rule of law
and question of fact has to be decided according to the facts of each case.