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Law and Fact
Law and fact
It is commonly said that all questions which arise for consideration and determination in a court of justice are of two kinds, being either questions of law or questions of fact.
Thursday, October 28, 2010 Dr. Tabrez Ahmad, KLS KIIT. 2
The term question of law
A question which the court is bound to answer in accordance with a rule of law-A question which the law itself has authoritatively answered, to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to the truth and justice of the matter.
Thursday, October 28, 2010
Dr. Tabrez Ahmad, KLS KIIT.
4 . Tabrez Ahmad. Thus.The term question of law 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 argument and determination is what the true rule of law is on a certain matter. KLS KIIT. 2010 Dr. Thursday. October 28.
Thursday.The term question of law Question of law in this sense arise. there would be no questions of law in this sense. 2010 Dr. but out of its uncertainty. If the whole law could be definitely ascertained. 5 . not out of the existence of law. KLS KIIT. Tabrez Ahmad. but all questions to be answered in accordance with that law would still be questions of law in the former sense. October 28.
KLS KIIT. Tabrez Ahmad.The term question of law When a question first arises in a court of justice as to the meaning of an ambiguous statutory provision the question is one of law in this second sense . 6 . 2010 Dr. but a question of fact.it is a question as to what the law is. October 28. Thursday. But it is not a question of law in the first sense.
Tabrez Ahmad. But when this question has once been judicially determined. Thursday. 7 . in its own judgment and in fact. KLS KIIT. is the true meaning of the words used by the legislature.The term question of law The business of the court is to determine what. 2010 Dr. October 28. the authoritative answer to it becomes a judicial precedent which is law for all other cases in which the same statutory provision comes in question.
8 . for it has in all future cases to be answered in accordance with the authoritative interpretation so judicially placed upon the enactment. therefore. KLS KIIT.The term question of law The question as to the meaning of the enactment has been transformed from one of fact into one of law in the first sense. October 28. represents a progressive transformation of the various questions of fact as to the meaning of that statute into questions of law (in the first sense ) to be answered in conformity with the body of interpretative caselaw so developed. Tabrez Ahmad. The judicial interpretation of a statute. 2010 Dr. Thursday.
Tabrez Ahmad. 9 . In this sense. October 28. every question which has not been predetermined and authoritatively answered by law is a question of fact. KLS KIIT. 2010 Dr.The term question of fact All other questions are question of fact-using the term fact in its widest possible sense to include everything that is not law. Thursday.
Legal Methods Part II Law logic and reasoning Determining the Ratio Decidendi of a case .
Law logic and reasoning Sources of Law Precedent and Statutes .
KLS KIIT. 2010 Dr. 12 . Tabrez Ahmad. October 28.How to find the Law 3 Important Sources of Law Custom Precedent Legislation Thursday.
Tabrez Ahmad.Determining the law Examining the sources of the law The language in which they are expressed Nature of the reasoning process by which they are applied to the facts Thursday. 2010 Dr. 13 . KLS KIIT. October 28.
KLS KIIT. 2010 Dr. Statutes. October 28. 14 . for what a court declares the law to be in one case has ´ authorityµ in the sense that it must be taken into account by other judges when they are determining what law should apply to other similar fact situations. Thursday.Interpretation of the statute Judgments in cases are sources of law. Case decisions-Precedent-Ratio DecidendiObiter Dicta 2. Tabrez Ahmad.Two main sources of our law are: 1.
where judicial precedents are regarded as formal sources of law. 15 . Here codes are the chief source of law and Judges are to respect them. 2010 Dr. a precedent is considered a less authoritative source of law than a statute. Thursday. where judicial precedent is not considered a formal source of law. Tabrez Ahmad. not precedents." This still governs the Civil Law Countries. KLS KIIT. However. In contrast to this stands the Anglo-American legal tradition. October 28. Justinian issued a mandate: "Cases should be decided on the basis of laws.
an earlier case when directly in point must be followed in a subsequent case. stare decisis et non quieta movere (to stand by precedents and not to disturb settled points). 16 . October 28. Tabrez Ahmad. Generally speaking stare decisis means that a point of law once settled by a judicial decision is not to be departed from. Thursday. KLS KIIT. The term commonly used for the doctrine of precedent is called stare decisis. In other words. This is an abbreviation of the Latin phrase. 2010 Dr.
The binding authority A court is bound by statute or by the decisions of superior courts. KLS KIIT. Now. Tabrez Ahmad. Thus the reason behind the Child Marriage Restraint Act. It is here that the ratio decidendi differs from ratio legis. 2010 Dr. 19 of 1929 is social. However. The 'doctrine of the case' or ratio decidendi as it is called immortalises a case and it differs from ratio legis or the reason behind the law. ratio legis applies to statutory law and the ratio for a statute may be social or economic. 17 . whereas that behind the Monopolies and Restrictive Practices Act. 54 of 1969 is economic. Thursday. October 28. these reasons though stated in the preambles of the Acts do not affect the operation of the enactments.
Thursday. On the other hand. KLS KIIT. but only ask what the statute means. It does not apply to statute law. Here one has to consider the maxim. A decision involves a legal principle. since the statute continues to exist until it is repealed by another statute. cassante ratione legis. Judges do not enquire what the legislature means. Tabrez Ahmad. the law itself ceases). October 28. the decision ceases to be authority and no judge is bound to follow it. when the principle behind a decision disappears. cessat ipsa lex (the reason of the law ceasing. 18 . 2010 Dr. but the application of a statute is not concerned with the reasons given for its enactment.
courts are called upon to fill the gaps in law. they can never cover every possible case. This is how a customary rule of law is established. or of the inadequacy of the law. 19 . Thus Article 4 of the French Civil Code runs thus: "The judge who shall refuse to give judgment under pretext of the silence. Tabrez Ahmad. a decision can become an authority only if followed in other cases. of the obscurity. On the Continent of Europe the authoritative sources of law are statutes and customs." Thursday. shall be subject to prosecution as guilty of a denial of justice. However. 2010 Dr. Hence. KLS KIIT. October 28.
20 . Tabrez Ahmad. 2010 Dr. And Article 1 of the Swiss Civil Code of 1907 says: "The statute governs all matters within the letter or spirit of any of its mandates. October 28. KLS KIIT. and in default of a custom according to the rules which he would establish if he were to assume the part of a legislator. In default of an applicable statute. the Judge is to pronounce judgment according to the customary law. however. from the solution consecrated by the doctrine of the learned and the Thursday. He is to draw his inspiration.
21 . In England customary law is nothing but judiciary law based on anterior custom and custom is regarded as binding because it is a part of Judge-made law." Here Austin notices a point of distinction between the Continental and English views on customary law. October 28. Tabrez Ahmad. the judiciary law of the Continent is binding because it is the evidence of a customary law.jurisprudence of the courts. On the other hand. 2010 Dr. Thursday. KLS KIIT.
Article 145 confers on the Supreme Court rule-making powers. Under Article 141 of the Constitution of India the law declared by the Supreme Court is binding on all courts in India. 22 . At the apex stands the Supreme Court. Tabrez Ahmad. From these provisions and the framework of the hierarchy the rules binding one court to another by way of subordination are deduced. KLS KIIT. India follows the English practice. Similarly the High Courts are empowered under Article 227. Besides. Thursday. 2010 Dr. October 28. Courts are imperatively bound by decisions of higher courts in the hierarchy. It is empowered also to give advisory opinion under Article 143.
2010 Dr. Tabrez Ahmad. Thus Section 3 of the Code of Civil Procedure. KLS KIIT. 1908 provides that a District Court is subordinate to the High Court and every Civil Court inferior to a District Court and every Court of Small Causes is subordinate to the High Court and the District Court. 23 . October 28. 1973 also makes similar provisions with regard to the jurisdiction of Sessions Judges and Magistrates Thursday. The Code of Criminal Procedure.
Thursday. Tabrez Ahmad. State 1955 ALT 53 "A Single Judge shall not differ from the judgment of another Judge of the Court. The decision of a superior Court is binding on an inferior court and not the other way round. If he does not agree he shall refer the matter to a Bench of two Judges. As observed by Subba Rao. October 28.J. of the AP High Court in Subbarayudu v. A Single Judge must follow the decision of a Division Bench and the latter must follow a Full Bench decision of the same Court. 2010 Dr. 24 . He is bound by the decision of a Divisional Bench exercising appellate jurisdiction. KLS KIIT. C.
October 28. Thursday. A Divisional Bench must ordinarily respect another Divisional Bench but if it differs the case should be referred to a Full Bench. If there is a conflict of Bench decisions." All these provisions relate to "absolutely authoritative" precedents. A Single Judge cannot differ from the Divisional Bench unless a Full Bench or the Supreme Court has overruled that decision specifically or laid down different law on the same point. KLS KIIT. 2010 Dr. he should refer the case to a Bench of two Judges who may refer it to a Full Bench. Tabrez Ahmad. 25 .
26 . it is because the social and economic problems of the twentieth century have demanded more sophisticated legal techniques than can be provided by case law alone. Until the nineteenth century. But today their roles are reversed. Partly. October 28. The reasons for the growth of the statutes as a source are several. case law was the main source of law. indeed some would say that statutes are too dominant. KLS KIIT. Tabrez Ahmad. that our system is ´ Choking on statutesµ many of which are in need of repeal or amendment if only the legislature had time. statutes being of relatively minor importance. Thursday. 2010 Dr.
They are ordinarily binding on the Court before which they are cited. The second category is that of "conditionally authoritative" precedents. Thus the decision of a Single Judge of a High Court is absolutely authoritative on the subordinate Courts. Tabrez Ahmad. Thursday. KLS KIIT. but is conditionally authoritative if cited before a Division Bench of the same High Court. This disregard may take either of the two forms ³ overruling or dissenting ³ according as the disregarding court is one of superior jurisdiction or of co-ordinate authority. but are liable to be disregarded in certain circumstances. 2010 Dr. 27 . October 28.
Thus the decision of a Single Judge of the High Court is only conditionally authoritative and may be dissented from by another Single Judge or overruled by a Division Bench. KLS KIIT. Tabrez Ahmad. However. Rao 1940) 1 MLJ 400 (412). 28 . 2010 Dr. v. a Division Bench cannot dissent from another Division Bench decision. Thursday. N. October 28. The correct rule on the point has been laid down by Sir Lionel Leach in Seshamma v.
and one Division Bench should not regard itself bound by the decision of another Division Bench on a question of law. thus: "While a Judge of a High Court sitting alone is not bound on a question of law by the decision of another Judge sitting alone. If a Division Bench does not accept as correct the decision on a point of law of another Division Bench. this principle goes no further." Where a Full Bench takes a view contrary to that of another Full Bench of equal strength the matter should be referred to a larger Bench Thursday. 29 . KLS KIIT. 2010 Dr. October 28. the only right and proper course to adopt is to refer the matter to a Full Bench. The Division Bench is thefinal court of appeal in an Indian High Court unless the case is referred to a Full Bench. Tabrez Ahmad.
Thus the decisions of one High Court are only persuasive precedents in other High Courts. And this is not a legal source of law ³ it may be styled a historical source of law. It is said that a previous case is binding only as to its ratio decidendi and the ratio is distinguished from obiter dicta which do not bind. KLS KIIT. To this category belong the rulings of English and American courts. 2010 Dr. A third category of precedents is called "persuasive". October 28. All the same it is entitled to high respect and may be followed by a court if its reasoning commends itself as sound and cogent. Tabrez Ahmad. 30 . Thursday.
Dean and Canons of Windsor : 8 HL 369 "Observations made by members of the House (of Lords) beyond the ratio decidendi may be entitled to respect (but) are only to be followed insofar as they may be considered agreeable to sound reason and to prior authorities. Thus obiter dicta have persuasive influence. KLS KIIT. 31 . October 28." Thursday. Tabrez Ahmad. In the words of Lord Campbell in AttorneyGeneral v. An obiter dictum is always something said by a judge. 2010 Dr.
the courts other than the Supreme Court. that is. 32 . And the Supreme Court is thus free to depart from a prior decision of the court. However. 2010 Dr. KLS KIIT. it does not mean that it would readily do so on every case: "Accepting that this Court is not bound by its own decisions and may reverse a previous decision. Finally. Tabrez Ahmad. the Court will surely be slow to do so unless such previous decision appears to be obviously erroneous." Thursday. Article 141 of the Constitution uses the words "all courts". October 28.
33 . they propose to modify their present practice and to depart from a previous decision when it appears right to do so." Thursday. October 28. 1966 by the House of Lords that it would no longer be absolutely bound by its own decisions: "Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. KLS KIIT. This finds an echo in the announcement in England on July 26. Tabrez Ahmad. 2010 Dr. (Since) too rigid adherence to precedent may lead to injustice in a particular case and unduly restrict the proper development of the law.
October 28. Tabrez Ahmad. The expression. Thursday. ratio decidendi is "the reason for (or of) deciding". 2010 Dr. And knowing the law in this context means knowing how to extract the rationes decidendi from cases. 34 . The Ratio Decidendi of a case What is "law" in a precedent is its ruling or ratio decidendi in respect of instant and future litigants. it may mean the ultimate order made by the Court to determine the case and on the strength of this one party or another may seek execution. First. KLS KIIT.The word "decision" has four shades of meaning.
it may refer loosely to the reason for reaching such a determination. KLS KIIT. Fourth. And G. Paton prefers the third meaning. In this context. it may mean the determination of a particular issue. Third.W. it may refer to the whole case. "order" refers to the final order made by the court and binding the parties to the proceedings. 2010 Dr. while "judgment" refers to the reasons given by the judgment to explain and justify its order. Second. that is. 35 . October 28. Tabrez Ahmad. Thursday. the decision of any issue in the course of judicial proceedings.
2010 Dr. 36 . Thursday. But there is an important limitation on the rulemaking power vested in Judges. which a later court cannot generally question. Tabrez Ahmad. There is thus a distinction between the rule-making of Judges which is intra vires a power to make binding rules and the rulemaking of Judges which is ultra vires this power. And a defining technique is to elucidate the judicial power to make binding rules and a rule made within the ambit of this power will constitute the ratio of the case. October 28. KLS KIIT. The expression ratio decidendi is normally used to refer to some binding rule found in decided cases.
KLS KIIT. Thursday. As a result obiter dicta grew up ³ they are in a sense ultra vires enunciations of law. And this is the principle which denies them the power to make binding rules unless they are relevant to the determination of actual litigation before the court. namely. October 28. 37 . a principle reducing the importance of communications of the law delivered by Judges. either accidentally or deliberately upon hypothetical issues. The distinction between ratio decidendi and obiter dictum is in essence a distinction between relevance and irrelevance. In the wake of this connection came a corollary. Tabrez Ahmad. 2010 Dr.
KLS KIIT. "the basis of the decision". 38 . And this is expressed in a variety of ways. "the rule applied". e.g. They may restrict the way in which rules are made and they may also restrict what rules are made. that a rule acted upon in court can rank as a binding rule. Of course. October 28. The fact that the rule has been acted upon is the hallmark of relevance. ratio deddendi has only a formal limitation. And a Judge's power is subject to both kinds of limitation. the per incuriam rule. for example. there may be an exception. 2010 Dr. Tabrez Ahmad. Thursday. A rule-making power may have two limitations. However. formal or substantial. namely. "the reason for the decision".
The former operates on a text. (b) he decides that the rule is applicable. some fact or set of facts should be subsumed under the rule. 39 . KLS KIIT. Tabrez Ahmad. and Thursday. Here one may notice the difference between the rule-making procedure of Parliament and the case-law. The minimum required for a Judge to act upon a legal rule consists of three things: (a) he should have a rule in mind while deciding to act. 2010 Dr. October 28. without a precise formulation of a rule. And Judges decide cases by acting upon rules. that is. while the Judges in case-law do not draft the rules to act upon.
KLS KIIT. 40 . It should be remembered that case-law rules are incomplete: Judges do never claim completeness for the statements of rules and exceptions. In the judicial process the Judge should show that he is acting upon a rule. 2010 Dr. But this must be a rule acceptable as a rule of the legal system. October 28. Tabrez Ahmad. The reason why a Judge enunciates the rule of law to act upon is that the rule justifies his action. Thursday. (c) his conduct should conform to the prescriptions of the rule.
The former is precise. In Osborne v. 41 . Rowlett." This brings out the distinction between the binding nature of a decision on a particular issue and the binding nature of a principle "upon which the case was decided". Sir George Jessel says: "The only thing in a Judge's decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided. 2010 Dr. KLS KIIT. Thursday. Tabrez Ahmad. while the latter is not. October 28.
October 28. This principle is called the ratio decidendi of the decision. 42 ." And this is not correct. KLS KIIT. Thursday. Unfortunately Paton uses "proposition" in place of "principle": "A course of reasoning establishes a general proposition of law (for the court) to justify its decision. And its binding nature is of a different kind. Ordinarily such precise decisions are supported by a course of reasoning which establishes a general principle of law used by the court to justify its decisions. 2010 Dr. Tabrez Ahmad.
If I say 'X is a man' that is a propositional function." Thursday. The distinction between a "principle" and a "proposition" may be likened to that between a "propositional function" and a "proposition". KLS KIIT. and becoming a proposition as soon as the undetermined constituents are determined. In the words of Bertrand Russell: "A propositional function is any expression containing an undetermined constituent or several undetermined constituents. 43 . Tabrez Ahmad. 2010 Dr. October 28.
44 ." Since propositions of law are akin to rules of law. If we substitute "Robinson" for X in "X is a man". 2010 Dr. Russell explains this in his Principia Mathematica thus: "By a 'propositional function' we mean something which contains a variable X. it differs from a proposition solely by the fact that it is ambiguous: it contains a variable of which the value is unassigned. Tabrez Ahmad. The values of the function are propositions. principles differ from rules Thursday. KLS KIIT. October 28. That is to say. Ronald Dworkin distinguishes between "principles" and "rules" in two ways. and expresses a proposition as soon as a value is assigned to X. First. then "Robinson is a man" expresses a true proposition.
2010 Dr. Thursday. October 28. Tabrez Ahmad. principles have a dimension of weight or importance which rules do not. 45 . KLS KIIT. in the character of the direction they give ³ while rules are applicable in an all-or-nothing fashion. principles State "a reason that argues in one direction but (do) not necessitate a particular decision". Second.
Tabrez Ahmad. No Judge ever lays down any general proposition of law and therefore one has to discover or abstract a ratio or principle from the facts of the case decided. Markby realised this flexibility while speaking about the "judiciary law". Hence with the introduction of new facts. Thursday. 2010 Dr. KLS KIIT. though the authority of the previous cases is not thereby disavowed. 46 . an extension of the ratio or principle takes place. October 28. And in this way the case-law has developed from precedent to precedent so as to keep pace with the changing needs of society.
KLS KIIT. The law being stated in distinct propositions. would be easily ascertained. 2010 Dr. altogether separate from the facts. He said: "Were the judges in England compelled. 47 . coupled with our notions as to the authority of prior Thursday. and Spanish lawyers the points of their decisions ³ their findings in fact and the rules of law ³ there would be a complete revolution in the history of English case-law. Tabrez Ahmad. October 28. France and Spain to State separately and fully what French lawyers call the motives. This. as in Italy.
that our law remains bulky and uncertain. KLS KIIT. but has also. decisions. it would become much more rigid. The law would soon become clear and precise enough. It is because English Judges are absolved from the necessity of stating general propositions of law and because. 2010 Dr. remained for a long period flexible. October 28. Tabrez Ahmad. but so far as judicial decision was concerned. 48 ." Thursday. they are always read as being qualified by the circumstances under which they are applied. in spite of our respect for precedent. even when these are stated. would render a conflict almost impossible.
Rather the sources frequently overlap and on occasions conflict. it being left to the courts to resolve their competing claims to be applied to the situation in question.The sources do not provide a neatly ordered legal framework under which one particular fact situation is covered by one particular source of law. October 28. There may occasionally be a conflict between their provisions or the way they have been interpreted. Statutes may also overlap in a particular context. Tabrez Ahmad. may be potentially applicable to the same fact situation. Thursday. 2010 Dr. 49 . Different case law sources. Both statutory and case law sources may overlap. KLS KIIT.
lawyers and judges often have a choice as to how they will move the concepts. Tabrez Ahmad. The way in which they are moved and are applied to facts involves a process of reasoning. October 28.Concepts of law are more likely chess pieces. Similarly. 50 . KLS KIIT. 2010 Dr. Thursday. They can be used to produced certain results but the players have a choice as to the move.
2010 Dr. KLS KIIT. All living things are mortal Katrina Kaif and Salman Khan are living things Therefore Katrina and Salman are mortal Thursday. When we refer to a logic we are often thinking of the deductive form of argument known as the syllogism (drawing a conclusion from two statements). This gives the impression that legal reasoning itself is or should be governed by logic. 51 .Legal reasoning and logic Lawyers are often thought of as having logical minds. October 28. Tabrez Ahmad.
Types of reasoning There are two types of reasoning 1. Tabrez Ahmad. 52 . the lawyer identifies his case as falling within the statute and then deduces as the conclusion the way in which it applies to his client. Deductive reasoning Inductive reasoning Deductive reasoning A lawyer advising his client as to the application of a detailed statutory provision will employ deductive type of reasoning. KLS KIIT. 2. 2010 Dr. Deductive logic is only applicable once a clear major premise has been established. October 28. Thursday. The statute is a major premise.
Inductive reasoning If the source is not a statute but case law. October 28. Instead. no major premise is likely to be clear from just one case decision. Tabrez Ahmad. 53 . the lawyer will have to examine several cases to find a major premise which underlies them all. Judges too make use of inductive and deductive logic when deciding cases. 2010 Dr. KLS KIIT. He will have to reason from particular case decisions to a general proposition.This form of reasoning is often referred to as inductive logic as opposed to deductive logic where the reasoning is from the general proposition to the particular conclusion in the case itself. Thursday.
But how does the judge make this decision? Obviously will be influenced by the rhetoric of the parties counsel. Perhaps the most important influence on his choice is the knowledge that he will have to justify his decision in a reasoned judgment.Cases which involve a question of what law should be applied come before the courts precisely because there is no purely logical answer to the question. by the way in which they have framed the issue and the analogies they have suggested. 2010 Dr. Tabrez Ahmad. although on legal matters these are likely to have become ´ institutionalisedµ over the years of practice before the courts. Instead there is a choice which. Thursday. October 28. 54 . according to Lord Diplock. He may have his own personal views. is exercised by making a policy decision. KLS KIIT.
KLS KIIT. 2010 Dr.Thanks Thursday. 55 . October 28. Tabrez Ahmad.
decisis. Legal Reasoning and Justification .Precedent or stare decisis.
The term commonly used for the doctrine of precedent is called stare decisis. This is an abbreviation of the Latin phrase, stare decisis et non quieta movere (to stand by precedents and not to disturb settled points). Generally speaking stare decisis means that a point of law once settled by a judicial decision is not to be departed from. In other words, an earlier case when directly in point must be followed in a subsequent case.
Thursday, October 28, 2010
Dr. Tabrez Ahmad, KLS KIIT.
Legal Reasoning and Justification
Professor Neil Mac Cormick in his book Legal Raeasoning and Legal Theory, suggests that two factors in particular may be considered by judge when justifying his decision. The first is the extent to which a proposed decision will cohere with existing principles and authorities: the greater the inconsistency with the existing legal framework that will result from a proposed decision, the less likely it is to be adopted.
Thursday, October 28, 2010
Dr. Tabrez Ahmad, KLS KIIT.
The second concerns the broader consequences of the decision for potential litigants, the legal system and indeed the role of law in society. Judges may refer to common sense, the supposed view of the common man or they may refer to notions of justice and fairness.
Thursday, October 28, 2010
Dr. Tabrez Ahmad, KLS KIIT.
µ challenges conventional thinking but to some extent depends upon setting up an easy target: if legal reasoning purported to provide a scientific route to the truth one would have more sympathy with the critics. Tabrez Ahmad. They argue that if judgments are ´deconstructed by unravelling the linguistic devices. Some critics see some times arguments as merely playing with language. the emptiness of legal reasoning will be revealed. often associated with the movement known as ´ critical legal studies. 2010 Dr. This view. Thursday. KLS KIIT. 60 . but that is not its nature. October 28.
µ It is important to realise that a judge can only properly take into account those considerations which can be adequately argued before a court of law.Rather as Professor John Wisdom has put it. 2010 Dr. Thursday. Tabrez Ahmad. 61 . legal reasoning is ´ not a chain of demonstrative reasoning. KLS KIIT. October 28. It is a presenting and re-presenting of those features of those cases which severally cooperate in favour of the conclusion «« The reasons are like the legs of a chair not the links of a chain .
Tabrez Ahmad. 62 . 2010 Dr. KLS KIIT. Thanks Thursday.. October 28.We will continue«.
Salmond says: A precedent is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large.
Thursday, October 28, 2010
Dr. Tabrez Ahmad, KLS KIIT.
John Chipman Gray
It must be observed that at the common law not every opinion expressed by a judge forms a judicial precedent. In order that an opinion may have the weight of a precedent, two things must concur: it must be, in the first place, an opinion given by a judge, and in the second place, it must be an opinion the formation of which is necessary for the decision of a particular case, in other words, it must not be obiter dictum.
Thursday, October 28, 2010
Dr. Tabrez Ahmad, KLS KIIT.
Both the learned authors, on reaching this point of safety, stop. Having explained to the student that it is necessary to find the ratio decidendi of the case, they make no further attempt to state any rules by which it can be determined. It is true that Salmond says that we must distinguish between the concrete decision and the abstract ratio decidendi, and gray states that the opinion must be a necessary one, but these are only vague generalisations.
Thursday, October 28, 2010
Dr. Tabrez Ahmad, KLS KIIT.
the statement of the historical background may all be demonstrably incorrect in a judgment. 66 . The logic of the argument. October 28. KLS KIIT. the analysis of the prior cases. but a case remains a precedent nevertheless. 2010 Dr. Tabrez Ahmad. Thursday. for the reason which the judge gives for his decision is never the binding part of the precedent.Phrase ratio decidendi is one of the most misleading expression of English law.
Tabrez Ahmad. both ancient and modern. these cases contain valid and definite principles which are as binding as if the reasons on which they are based were correct. 2010 Dr. KLS KIIT. Thursday. 67 . but in spite of this.It would not be difficult to cite a large number of leading cases. in which one or more of the reasons given for the decision can be proved to be wrong. October 28.
October 28. 68 .It may be laid down as a general rule that that part alone of a decision of a court of law is binding upon courts of co-ordinate jurisdiction and inferior courts which consists of enunciation of the reason or principle upon which the question before the court has really been determined. KLS KIIT. Tabrez Ahmad. Thursday. 2010 Dr. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi .
in his valuable book The study of Law says: Those portion of the opinion setting forth the rules of law applied by the court. Tabrez Ahmad. Thursday. are to be considered as decision and as primary authority in later cases in the same jurisdiction. 2010 Dr. October 28. 69 . the application of which was required for the determination of the issues presented. KLS KIIT.Professor Morgan of the Harvard Law School.
although the court has given judgment without delivering an opinion. a case may be presented.Thus. KLS KIIT. Thursday. we rarely find a case of any importance in which there is not a statement of the reasons on which the judgment is based. although occasionally an appellate court will affirm without opinion a case which involves an interesting point. October 28. At the present time. 70 . involving an important principle of law. 2010 Dr. Tabrez Ahmad.
KLS KIIT. 2010 Dr. 71 .We will continue«««. October 28. Thanks Thursday. Tabrez Ahmad.
KLS KIIT. Tabrez Ahmad.How to determine ratio of a case Thursday. 2010 Dr. October 28. 72 .
Any legal system using precedent has to consider the way in which they are relevant. Since the ratio decidendi of a case has the nature of a propositional function. October 28. 2010 Dr. KLS KIIT. But the question is: how is this to be ascertained? Classical theory has regarded the binding part of a decision as the legal principle formulated. And jurists have even been in search of it. it is variable and becomes elusive. Tabrez Ahmad. Thursday. To this end the relevancy is found in the fact that decisions involve some principle of general application. 73 .
Tabrez Ahmad. October 28. While the ratio consists of the very reasoning necessary to explain the holding on "the material facts" found by the precedent judge. he suggests that the better way to approach the problem is to elucidate the ratio of a case from the facts themselves rather than from the principle enunciated by the Cour. 74 . Thursday. KLS KIIT. 2010 Dr. him the ratio decidendi is controlled by the relation between "the material facts" of the case and the holding on these facts.
requiring us to choose a particular. This may be sought at various levels. that is. Stone's argument is that Goodhart's theory yields indeterminate results because the "principle" derivable from a case by the Goodhart method of "material facts plus decision" is entirely dependent on the level of generality at which one chooses to describe the facts. historical and even psychological inquiry. Thursday. Descriptively the phrase imports an explanation of the court's reasoning to its conclusion based on sociological. 75 . Julius Stone challenges Goodhart and distinguishes between "descriptive" and "prescriptive" ratio decidendi to conclude that facts may be of many possible "levels of generalisation". Prescriptively the phrase refers to a normative judgment. 2010 Dr. In other words. KLS KIIT. And the finding from such an inquiry is true or untrue as a matter of fact. Tabrez Ahmad. October 28. binding ratio decidendi.
2010 Dr. Thursday. October 28. In this context R. Hence. 76 . all other statements of law are obiter dicta. KLS KIIT. Now. It seems Cross supports Goodhart. And a binding principle may be sketched as follows. Tabrez Ahmad. Cross defines "the ratio decidendi of a case" as "any rule of law considered necessary by the Judge for the decision of the case: it is that part of the decision which has binding effect and the facts of the case play a large part in its identification". the word "necessary" is used in the sense of "essential to the working of a judicial system".
Thus the ruling in P can be summarised as: P: a. g/A. 2010 Dr. 77 . Tabrez Ahmad. b. October 28.B. g and a reported decision is P. b. C then X should be decided. d. e. etc. d. the decision is said to be based on the rule that whenever A. KLS KIIT. e. Thursday. Where the facts are a. B. Here the lower case letters stand for the particular circumstances of the case and capital letters for general properties of facts so that a is an instance of A. c.C X. c.
in case the court decides to follow P. The novel case. is a case of a1. b1. October 28. 1. KLS KIIT. Thursday. c1. its ruling will be: N: a1.B. 1.C X. 2010 Dr. Tabrez Ahmad. not ³ e1). /A. And the rules for finding the ratio or principle may be summed up as follows: (1) The principle of a case is not found in the reasons given in the opinion. f1 and it is governed by P. c1. 78 . d1. (i. f1. Now. In spite of some difficulties Goodhart's definition of ratio decidendi may be taken as a working rule. According to him the ratio is equated with the material facts of the case plus the decision thereon. b1. which is binding on the court. N.e.
79 . Thursday. October 28. (3) The principle is not necessarily found by a consideration of all the ascertainable facts of the case. and the Judge's decision. 2010 Dr. (2) The principle is not found in the rule of law set forth as the opinion. (4) The principle of the case is found by taking account (a) of the facts treated by the Judge as material. KLS KIIT. Tabrez Ahmad. for the principle may depend as much on exclusion as it does on inclusion. and (b) his decision as based on them. (5) In finding the principle it is also necessary to establish what facts were held to be immaterial by the Judge.
Secondly. It may be pointed out that the whole doctrine of precedent is based on the theory that generally Judges do not make mistakes either of fact or of law. Thus the consideration in a contract is a single material fact but the kinds of consideration are unlimited. Thursday. The first is that the facts are "infinitely various". can be actually non-existent. stated by the Judge to be real and material. October 28. 80 . though the material facts are strictly limited. it may happen that the facts. 2010 Dr. KLS KIIT. Tabrez Ahmad. This is a hypothetical case. As pointed out by Simpson: "The ratio of a case is only binding if it is not inconsistent with statute. or inconsistent with the ratio of another decision. A case may be wrongly decided or decided for the wrong reason. In other words a decision given per incuriam is an exception that confirms the general rule. Goodhart himself mentions that his definition suffers from two infirmities.
2010 Dr. B and C the defendant is liable. In case the several judgments agree in the result. though the third Judge had held that the facts B and C were material ones. KLS KIIT. however. but differ in the material facts on which they are based the principle is limited to the sum of all the facts considered material by the various judges. two of the three judges had agreed that fact A was the only material one and that the others were immaterial. the third that C is material. 81 . October 28. Tabrez Ahmad. If. the second that B is material. The principle of the case is therefore. Thursday. The determination of the ratio decidendi becomes easier if there is only a single opinion or all the opinions are in agreement. that on the material facts A. Now cases may differ according as they contain a single opinion or several opinions. Thus a case involves facts A. then the case would be a precedent one on this point. B and C and the defendant is held liable. The first judge finds that fact A is the only material fact.
2010 Dr. 82 . And the position would be like this: the Subba Rao block of five. and (5) Ramaswami. C. Bharagava and Mitter. (3) the Wanchoo block of Wanchoo. Six propositions seem to have been laid down by the judgments as follows: Thursday. Tabrez Ahmad. JJ. Five judgments were delivered in the Golaknath case by (1) the Subba Rao block of Subba Rao. JJ... KLS KIIT.. and the lone judgment of Hidayatullah. J. J. as decided by the Indian Supreme Court. October 28. the Wanchoo block of five. State of Punjab. Shah. Sikri. (2) Hidayatullah. They may be reduced to three if the joint dissenting judgments of the Wanchoo block are equated with the separate dissenting judgments of (4) and (5). This may sound too mechanical and may be seen in the case of Golak Nath v. (4) Bachawat. J.J. Shelat and Vaidialingam.. J.
1967 remains valid and operative as part of the law of India. though made prior to February 27. (c) the effect of the first. (e) the seventeenth amendment expanding the list of statutes in the Ninth Schedule is similarly valid and operative. fourth and seventh amendments on the "right to property". (b) all amendments made prior to February 27. October 28. 83 . KLS KIIT. Tabrez Ahmad. (d) the seventh amendment to Article 31-A(2) is similarly valid and operative. and Thursday. 1967 and affecting fundamental rights other than the "right to property" have full validity. (a) Parliament cannot amend Part III of the Constitution of India so as to "take away or abridge" the fundamental rights. 2010 Dr.
though it necessarily follows from the view of the Wanchoo block comprising (3). (b) is held by (2) only. (a) is held by the majority comprising (1) and (2). Cross: Thursday. J. Tabrez Ahmad. (f) the impugned land reform legislation of Punjab and Mysore (Karnataka) is wholly valid. It is interesting to note how these propositions are established. and (e) is held by ten Judges with Hidayatullah. As observed by R. (4) and (5). (d) and (f) are held unanimously. dissenting. The answer is that the tangle of five separate judgments cannot possibly yield any single ratio. KLS KIIT. 2010 Dr. (c). October 28. 84 . And the question is how to extract a single ratio out of these judgments.
October 28. KLS KIIT. 85 . Tabrez Ahmad. it is probably impossible to avoid something in the nature of arbitrary rules to meet cases in which several judgments are delivered. "The ratio decidendi is a conception peculiarly appropriate to a single judgment. The main trouble is that it is impossible to formulate these rules with anything like complete precision. 2010 Dr. Accordingly." Thursday.
Interpretation. ascertainment and evolution are parts of the process. thus: "The expression 'declared' is wider than the words 'found or made'. Tabrez Ahmad. The first approach takes the phrase itself as a sufficient guide to the ratio. Article 141 uses the expression "declared" and this is explained by Subba Rao. while the former expresses result. 2010 Dr. ascertained or evolved is declared as law. KLS KIIT. October 28. To declare is to announce opinion. 86 . Indeed the latter involves the process. C. The law declared by the Supreme Court is the law of the land." Thursday. Three approaches may be considered in this connection. Thus in the Golaknath case one is to look for those propositions of law which were necessary and sufficient to base the "declaration" made by the Supreme Court. while that interpreted.J.
or (iii) by the 5-man Wanchoo block and by Justice Hidayatullah. and the one wholly immaterial and this might be any one of the three. On any of these hypotheses. However. But this equally applies to either of the two sets of "majority" reasons. 87 . or (ii) by the 5-man Subba Rao block and by Justice Hidayatullah. these reasons can be ignored only on the ground that there was sufficient majority to base the decision without them. And what was necessary for the decision was the conjunction of the reasons given either (i) by the 5-man Subba Rao block and the 5-man Wanchoo block. Tabrez Ahmad. The Wanchoo block was in a minority in regard to proposition (a) and this does not mean that its reasons were not "necessary to the decision". 2010 Dr. two sets of reasons would be necessary. Thursday. KLS KIIT. October 28.
Thursday. this gives binding force only to proposition (f). It is evident that the reasons of the Wanchoo block are inconsistent with those of either the Subba Rao block or Justice Hidayatullah. 88 . the choice is not wholly insoluble. KLS KIIT. In the narrowest sense of "decision". the actual "decision" is "binding". that even if a case has no apparent ratio decidendi. October 28. The result is that the first supposed test of the ratio decidendi would lead to an insoluble choice amongst three pairs of sets of reasons with each pair comprising two different sets of ideas. But the last two reasonings are not necessarily inconsistent. Here one may hold with Chief Justice Centlivres in the South African case of Fellner v. In practice. Their compatibility tends to assume that these two judgments form the source of the ratio. of course. but on a wider meaning of "decision" all the propositions are binding. Tabrez Ahmad. 2010 Dr. Minister of the Interior.
KLS KIIT. q. 89 . Tabrez Ahmad. On the looser version p had more support than any of the others and it would be part of the ratio. On a strict version of "counting heads" none of the four views would be established. r and s and in a court of 11 Judges ³ p is supported by 4 judges. But this violates Article 145(5) of the Indian Constitution. October 28. and s. 2010 Dr. Let us take a case with four views. q and r by 3 each. p. the search is for a majority of the participating judges. since none had a clear majority. Thursday. by the remaining one. requiring that the "judgment" and "opinion" need be "delivered with the concurrence of a majority of the Judges present at the hearing of the case". The second approach may be formulated in terms of "counting heads". Here one simply adds up the number of Judges giving the propositions. Of course.
Tabrez Ahmad. "counting heads" in its looser version would help us only as to the acceptance of "prospective overruling". Thursday. Insofar as the law is built up by judicial (precedent). in the Fellner case: "The object of the enquiry is to ascertain what is the ratio decidendi and not what are the opinions of Judges. 90 . October 28. the reasons of the dissenting Judges being irrelevant for this purpose" In this context. 2010 Dr. As observed by Greenbery S. It is in the reasons of the majority of the Court for the order that the ratio decidendi is to be sought. it is not built up on a counting of heads of all the members of the Court.A. KLS KIIT.
Tabrez Ahmad. By equating the ratio with the reasons given by "the majority of the majority". The third approach may be termed "the majority of the majority". 2010 Dr. Golaknath is confined to the single judgment delivered by Chief Justice Subba Rao with Justice Hidayatullah concurring with him. KLS KIIT. October 28. And the difficulties involved in extracting a ratio from Golaknath lead one to prefer a pragmatic approach to precedent ³ construction to rationes Thursday. it is supported by 6 of the 11 Judges and 5 support it for identical reasons. If the Golaknath decision is proposition (a). 91 .
Analysing of the "Common Cause .
Besides. the petitioners sought for a direction asking the Government to rationalise its scheme of commutation. 93 . Thursday. KLS KIIT. The Single Judge of theSupreme Court has delivered two judgments ³ one relating to the civilian employees and the other relating to the defence personnel ³ and tried to make it a single judgment. Under Article 32 of the Indian Constitution the Common Cause and three retired government servants asked for striking down certain provisions of the Commutation of Pension Rules applicable to civilian and defence pensioners. since they permit the Union of India to recover more than what is paid to the pensioners upon commutation. October 28. The "Common Cause" is a registered Society. 2010 Dr. Tabrez Ahmad.
Tabrez Ahmad. (3) some Governments including State and Union have formulated a 15-year rule for restoration of the commuted pension. (2) there is the risk factor involved in case the pensioner dies before full recovery. 2010 Dr. 94 . KLS KIIT. The court has considered facts (1). (2) and (3) as material and ignored fact (4) in coming to the decision that restoration would take place on the expiry of 15 years from retirement. 1872. During the course of the hearing the Union Government agreed to restore the commuted portion of the pension in respect of "all civilian employees at the age of 70 years or after 15 years whichever is later". The facts are: (1) commutation makes available a lump sum to a pensioner. October 28. since it abets "unjust enrichment" banned by Section 70 of the Indian Contract Act. But this decision is given per incuriam. and (4) the 15-year formula is not justifiable because it permits recovery of more than the dues. Thursday.
2010 Dr.K. it goes out. of the Supreme Court in State of West Bengal v. Thursday." In this context. 95 . October 28. As observed by Gajendragadkar. In the result. KLS KIIT. Mondal: "What Section 70 prevents is unjust enrichment and it applies as much to individuals as to Corporations and Government. Tabrez Ahmad." And since the 15-year rule in the Common Cause violates both it cannot be the ratio of the case. or inconsistent with the ratio of another decision. Simpson observes: "The ratio of a case is only binding if it is not inconsistent with statute. J. B.
It may be noted that this addition of two years is not justifiable because of the existence of the "multiplier effect" involved in the "years of purchase". October 28. In other words. Thursday. We are now concerned with the defence personnel judgment. the multiplier of investment (monthly payment because of commutation) to obtain capital value (lump sum given by way of commutation) is known as the years' purchase. J. A multiplier is the number by which the amount of a specific capital investment is multiplied to give the resultant total amount by which the income has increased. 2010 Dr. Here Misra. then the multiplier K = Y/1 or KI = Y. And the number of years' purchase is found by dividing the capital value (lump sum) by investment (monthly payment by pensioner). Let us take a concrete example. 96 . Y = income or capital value. Tabrez Ahmad. KLS KIIT. comes to the right point and adopts the "years of purchase" basis and goes back to the 15-year rule by adding two years to the period necessary for the recovery on the basis of years of purchase. If I-Investment.
"less" by < . while equality by =. It is a mathematical paradox. it is most respectfully submitted. it cannot be equated with the fixed 15year rule by the addition of two years to the multiplier. Moreover. 2010 Dr. Therefore. Now. because of the variability of I and Y involved in the commuted pension. Finally. This. KLS KIIT. Tabrez Ahmad." Thursday. 97 . Mathematically this is absurd. October 28. this multiplier is a variable in respect of each pensioner. For "more" is denoted by the sign > . but some animals are more equal than others. The total amount obtained by a pensioner at a time is the product of the monthly payment out of the pension and the number of years necessary for full recovery by Government. But there is absolutely no scope for the addition of two years to the multiplier as is evident from the above equation. sounds like an Orwellian paradox: "All animals are equal. if > or < remains = cannot take the field. the judgment makes "equity" or equality stand on "the more or less basis". In the judgment this has been ignored and the "multiplier" widened so as to make it equal to 15 years.
J. This. In this context we are to extract the ratio from the Common Cause. 98 . KLS KIIT." Here Section 70 banning "unjust enrichment" is violated and the Court is blissfully ignorant of this. it is submitted. 2010 Dr. The 15-year rule has been challenged by the Common Cause because it abets the commission of this offence. Tabrez Ahmad. For Misra. We do not think we would be justified in disturbing the 15-year rule so far as civilian pensioners are concerned. The Court's decision is the restoration of the commuted portion of the pension on the expiry of 15 years from retirement. This applies to civilian and defence pensioners and is made effective from April 1. concludes: "Many of the State Governments have already formulated schemes accepting the 15-year rule. Thursday. October 28. This is the justification for the Court's intervention in the matter. cannot be called a judicial decision. 1985. And the question is: what is the ratio decidendi of the case? It has already been shown that the court has accepted the 15-year rule since the Governments have accepted it.
The equal treatment guaranteed in Article 14 is wholly violated inasmuch as the pension rules accord differential and discriminatory treatment to equals in the matter of commutation of pension. it is submitted. 2010 Dr. the correct yardstick has been evolved by the court in respect of the defence pensioners: "the 'years of purchase' basis". However. Unfortunately. in adopting two bases on commutation according as the pensioners are civilian or defence while coming to the same decision as to the restoration of the commuted portion of pension. This is wrong.S. Union of India: "The pensioners for the purpose of pension benefits form a class. Nakara v. Tabrez Ahmad. KLS KIIT." Thursday. 99 . Division is thus both arbitrary and unprincipled. the court has erred. October 28. As pointed out by the Supreme Court in D.
while the defence yardstick is "the years purchase' basis". Yet the Court claims that this is 'equitable'. The civilian yardstick is the 15-year rule. Tabrez Ahmad. Thereafter. October 28. 100 . But this does more injustice than justice. The Court has proceeded from the start on the two yardsticks ³ one for the civilian pensioners and the other for the defence personnel. This is. KLS KIIT. the latter has been equated with the former by the addition of two years. 2010 Dr. unfair. to say the least. Thursday.
the question is: what is the ratio? It has already been shown that there has been a double-think in the adoption of two yardsticks on the restoration of the commuted portion of pension. Now. And the concurrent judgment has been arrived at without any legal reasoning. Here the Judge decides by feeling. It is the function of the "hunch" in judicial decision. Tabrez Ahmad. double-talk appears in lengthening the procrustian bed of the years of purchase basis so as to make it fit in with the 15-year rule. KLS KIIT. and not by judgment. concurrent and dissentient. As observed by Hutcheson Thursday. 101 . For. Secondly. 2010 Dr. by "hunching" and not by ratiocination. October 28. Thirdly. the case gives the impression of two judgments. the 15-year rule and "the 'years of purchase' basis" are two contradictory ideas and they remain irreconcilable.
"the 'years purchase' basis" remains and attains the status of concurrent judgment. motivating impulse for the decision is an intuitive sense of what is right and wrong for that cause. it has no binding effect at all. Fourthly. but to make it pass muster with his critics. October 28. not only to justify that intuition to himself. the other remains. Thursday. "The vital. the dissentient judgment. Tabrez Ahmad. And that Judge having so decided enlists his every faculty and belabours his laggard mind." Since the decision on the 15-year rule is given per incuriam. 2010 Dr. namely. Judges really do try to select categories or concepts into which to place a particular case so as to produce what the judge regards as a righteous result. KLS KIIT. 102 . in case the one goes out. Hence.
"the 'years purchase' basis" becomes the ratio decidendi leading to the order for restoration of the commuted portion of pension to the pensioners. Thursday. 103 . And the question of its expansion into the 15-year rule does not arise. the number of years necessary to repay the total lump sum would govern the recovery and no pensioner can be made to pay more than what is paid to him. 2010 Dr. And the 15 years' limitation does not apply. In other words. Tabrez Ahmad. KLS KIIT. Finally. October 28. And this is what the Common Cause has asked for. since the latter violates Section 70 of the Contract Act and is not enforceable.
ratio in the "Common Cause" .
This is applicable where "the estate of one person being enriched without lawful cause at the expense of another person. 105 . delict or quasi-delict". which "is founded on the principle of equity which forbids one man to enrich himself at the expense of another". Tabrez Ahmad. October 28. the latter. Theories falling under quasi-contract are founded on a broad principle that unjust enrichment should not be retained at the expense of one who has suffered. In French law this principle is known by the name of actio de in rem verso. quasi-contract. 2010 Dr. Thursday. in order to obtain what is due to him. KLS KIIT. does not enjoy the benefit of any action based on contract.
This may be seen in Article 123 of the Polish Code. where it is unreasonable and unjust for the defendant to retain the benefit he has received. Article 812 of the German Civil Code and Article 179 of the Chinese Code. 1937 at p. The American Restatement of the Law of Restitution. 2010 Dr. KLS KIIT. Lord Wright in England has pleaded for a new law of restitution in place of the fiction of the implied contract. Some recent codes provide for the return of unjust benefit. Thursday. October 28. Articles 399-402 of the Civil Code of Soviet Russia. 634 provides for an accounting by the plaintiff as a condition for restitution. Tabrez Ahmad. Article 703 of the Japanese Civil Code. 106 . Article 62 of the Swiss Federal Code of Obligations.
P. October 28." In this connection the Supreme Court has quoted with approval the observations of Lord Wright in Fibrosa v. Fairbairn Thursday. namely. Subsequently. quasi-contract or restitution. The doctrine of unjust enrichment flowing from quasicontract was partially stated in Section 70 of the Indian Contract Act. State The Court has held that Section 70 is based on a different kind of obligation: "The juristic basis of the obligation in such a case is not founded upon any contract or tort but upon a third category of law. KLS KIIT.K. 1872. B. Mondal in which it was applied to Government. M. the concept of unjust enrichment has suffered a sea change at the hands of the Supreme Court in Mulamchand v. Tabrez Ahmad. And the Supreme Court noticed it in State of West Bengal v. 2010 Dr. 107 .
108 . to prevent a man from retaining the money or some benefit derived from another which it is against conscience that he should keep. thus: "Any civilised system of law is bound to provide remedies for unjust enrichment or unjust benefit. Such remedies in English law are different from remedies in contract or in tort and fall within a third category of the common law called quasi-contract or restitution. October 28." The concept has been further widened so as to include both law and equity. Tabrez Ahmad. 2010 Dr. Hence the Indian Supreme Court has been pleased to note the latest development of the law by quoting the observations of Lord Denning in Nelson v. that is. KLS KIIT. Larholt Thursday.
KLS KIIT. "It is no longer appropriate to draw a distinction between law and equity. though the Court has not uttered a single word in this regard. Tabrez Ahmad. And the Common Cause v. 109 . And the Indian Supreme Court has approved of this in Mulamchand. Lord Denning's expression summarises the law: "restitution if the justice of the case so requires". 2010 Dr. This means according to the Supreme Court that "a person (seeking) restitution has a duty to account to the defendant for what he has received in the transaction from which his right to restitution arises". not on whether they can be fitted into a particular framework. October 28. The right here is not peculiar to equity or contract or tort. Union of India has been decided on this law. Principles have now to be stated in the light of their combined effect. Remedies now depend on the substance of their right. This is the present position of the law of restitution since Section 70 of the Contract Act started on its journey in 1872. but falls naturally within the important category of cases where the court orders restitution if the justice of the case so requires. Thursday." And the principle of restitution has been brought on a par with the American Restatement of the Law of Restitution.
J. 110 . In other words. obiter dictum is more or less extraneous. or sentiment. the vitals. Since the law of restitution is applicable to commutation. October 28. the former constitutes the legal rule to be followed and adhered to below. the necessary core of the decision. KLS KIIT. Tabrez Ahmad. has no binding effect Thursday. the latter is an expression of a brief viewpoint. 2010 Dr. Here it is necessary to bring out the distinction between ratio decidendi and obiter dictum. presumably unnecessary-to-the decision point made by the author of an opinion. Abraham: "Ratio decidendi refers to the essence. which at least in theory. the 15-year rule is arbitrary and it causes injustice. As observed by H.
"the 'years' purchase' basis" is "the necessary core of the decision: (it) constitutes the legal rule to be followed and adhered to below". KLS KIIT. Hence. this is the ratio decidendi. the 15-year rule is an "unnecessary to the decision point made by the author of an opinion: (it) is an expression of a brief sentiment (having) no binding effect". As pointed out by Simpson: "the reason why a judge enunciates the rule of law upon which he acts is that the rule justifies his action: not any rule will serve as a justification. it is an obiter dictum. 2010 Dr. but only a rule which is acceptable as a rule of the legal system. In other words. October 28. 111 . having the binding effect. On the other hand." Thursday. In other words. Tabrez Ahmad. Of the two reasons ³ "the 15-year rule" and "the 'years of purchase' basis" ³ the first cannot be justified since it incarnates injustice in the shape of unjust enrichment.
In case of conflict of principles. 2010 Dr. the ratio decidendi. 112 . Tabrez Ahmad. J. one may point to one conclusion and another may point to a second conclusion. has not in the Common Cause followed the salutory advice given by Cardozo. This is illustrated by the case of Riggs v. A judge is to choose between two paths. selecting one or the other and in some cases he is to hit upon a third. There is perpetual flux in the total push and pull of the universe and a judge faces a twofold task: (1) he must first extract from the precedents the underlying principle. which will be the resultant of the two forces in combination or will represent the mean between the extremes. (2) he must then determine the path or direction along which the principle is to move and develop. Palmer Thursday. KLS KIIT. Unfortunately Misra. October 28.
2010 Dr. This pushed to the limit of its logic seemed to uphold his title. namely. Over against these two was the third principle rooted in justice. October 28. In the words of the Supreme Court: "A decision is binding not because of its conclusion but in regard to its ratio and the principle laid down therein. And the ratio decidendi of the case is "the 'years purchase' basis". And the logic of this principle prevailed over the logic of the other two. This pushed to the limit of its logic seemed to uphold the title of the murderer. In the Common Cause also the same may be noticed. KLS KIIT." Thursday. The first was the principle of the binding force of a will disposing of the testator's estate in conformity with law. 113 . Three principles contended for mastery. The second principle was that Civil Courts might not add to the pains and penalties of crimes. Tabrez Ahmad. that no man should profit from his own iniquity. The logic of "the years' purchase basis" is to prevail over the logic of the 15-year rule. since the former is rooted in justice while the latter is not. wherein it was decided that a legatee murdering his testator would not be permitted to enjoy the benefits of the will.
Generally there is a choice Thursday. October 28. whereas (it) is not always logical at all. It is obvious that the Judge has in every case to decide for himself which of the circumstances of the alleged precedent were relevant to the decision and whether the circumstances of his own case are in their essentials similar. KLS KIIT. Such a mode of reasoning assumes that the law is necessarily a logical code. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Tabrez Ahmad. But there cannot always be a principle which imposes itself or an absolutely inescapable logical deduction. Once he has decided which principle to apply.Conclusion In a famous dictum Lord Halsbury said: "A case is only authority for what it actually decides. 2010 Dr. But what Halsbury meant is that there is more to the law than a mechanical process of logical deduction. a bit of logic may enter into his application of principles." Literally interpreted it would be fatal to any system of precedents. 114 .
is an authority for what it decides. C. 115 . Lever Bros thus Thursday. And this has been explained by Chandrachud. October 28. even a locus classicus. It is permissible to extend the ratio of a decision to cases involving identical situations. 2010 Dr. in Deena v. but care must be taken to see that this is not done mechanically. without a close examination of the rationale of the decision cited as a precedent.J. Tabrez Ahmad. Union of India thus: "Any case. factual and legal. that is. KLS KIIT." In this context the role of the Judge is described by Lord Wright while discussing Bell v.
and by his perception of what was just or convenient. KLS KIIT. Then he would have to decide whether the same result followed when the prior contract was indeed existing. October 28. Thursday. The judge could go step by step with previous authorities to the point that an agreement based on mistake (is) unenforceable. and the judge had to make up his mind by analogical reasoning. 2010 Dr. but could be cancelled without compensation and was voidable. leaves much to be desired insofar as the "analogical reasoning" and the "perception of what was just" are concerned." And the Common Cause. Tabrez Ahmad. it is submitted. 116 . Here the ways parted.
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