Obiter

[Latin: from the stronger].¹ An a fortiori argument is an ‘argument from a stronger reason’, meaning, for an even stronger reason than one that has already been accepted.²

[Latin: from table and bed]. Divorce a mensa et thoro indicates legal separation without legal divorce; a decree of divorce a mensa et thoro was the forerunner of the modern judicial separation order.³ See also a vinculo matrimonii.

[Latin: from the later (i.e. from effect to cause)]. Describing or relating to reasoning based on deductions from observation or known facts, i.e. inductive reasoning.⁴ Cf a priori.

[Latin: from the previous (i.e. from cause to effect)]. An argument derived before an event, without needing to have the knowledge about the event. Deductive reasoning from general principles.⁵

Describing or relating to reasoning that is based on abstract ideas, anticipates the effects of particular causes, (more loosely) makes a presumption that is true as far as is known, i.e. deductive reasoning.⁶ Cf a posteriori.

[Latin: from which]. Used as a point of departure, as for an idea or plan.⁷ In respect of a court below in an appeal, either a court of first instance or an appellate court, known as the court a quo.

[Latin: from the bond of marriage]. A decree of divorce a vinculo matrimonii allowed a spouse to remarry and was the forerunner of the modern divorce decree.⁸

[Latin: from outside]. Concerning a case, a person may have received some funding from a 3rd party, e.g. ‘This funding may have been considered ab extra‘, ‘The [UN General] Assembly can only exercise powers conferred upon it or derived’.⁹

[Latin: for the case]. Indicates that the parties to a transaction are in agreement.¹⁰

[Latin: from the beginning]. Ab initio refers to something being the case from the start or from the instant of the act rather than from when the court declared it so.¹¹

[Latin: from an intestate]. Describing an inheritance from someone who dies without leaving a valid will.¹² 

[Latin: without this].¹³

[Latin: no one is bound to accuse himself/herself].¹⁴

[Latin: an action at law is not given to one who is uninjured]. A maxim meaning that an injury must meet certain legal criteria to give rise to a right of recovery against the alleged wrongdoer.¹⁵

[Latin]. Latin maxim meaning that a personal right of action dies with the person.¹⁶

[French: clear point]. A matter so obvious as not to need legal argument.¹⁷

[French]. A thing done out of court and not a matter of record.¹⁸

[Latin: an act is not necessarily a guilty act unless the accused has the necessary state of mind required for that offence].¹⁹

The maxim that, generally, a person cannot be guilty of a crime unless two elements are present: the actus reus (‘guilty act’) and the mens rea (‘guilty mind’). Most criminal offences require (1) an actus reus (conduct ‘external’ to the defendant’s thoughts and intentions) and (2) a mens rea (a specific state of mind on the part of the accused).²⁰

[Latin: a guilty act]. The prohibited conduct or behaviour that the law seeks to prevent. Actus reus includes all aspects of the crime except the accused’s mental state (see mens rea).²¹

[Latin] To collect the goods.²²

[Latin: for this]. For a particular purpose, case, or occasion only.²³

[Latin: at the person]. Marked by or being an attack on an opponent’s character rather than by an answer to the contentions or their argument made.²⁴

[Latin: towards the same]. Indicates that the parties to a transaction are in agreement.²⁵

[Latin: as regards the action]. A grant ad litem is the appointment by a court of a person to act on behalf of an estate in court proceedings, when the estate’s proper representatives are unable or unwilling to act e.g. children, incapacitated adult.²⁶

[Latin: adjournment without a day]. Without any future date being designated (as for resumption).²⁷

[Latin: plural amici curia, friend of the court]. A person or organisation, not a party to the proceedings.²⁹

[Latin: intention]. The term is often used in combination; for example, animus furandi— the intention to steal; animus manendi— the intention to remain in one place; animus donandi— the intention to transfer property.³⁰

[Latin: contractual intent]. An intention to be bound by contractual, treaty, or other legal obligations.³¹

[Latin: intention to harm]. An intention to commit a harmful act against another.³² In jurisprudence, animus nocendi (from animus ‘mind’ and noceo ‘to harm’) is the subjective state of mind of the perpetrator of a crime, with reference to the exact knowledge of illegal content of their behaviour, and of its possible consequences.³³

[Latin]. A mind to make a will.³⁴

[Latin: a year and a day]. At common law, the Crown was entitled to take possession of the lands of a person convicted of felony and to exploit them without reserve for a year and a day.³⁵

[Latin: before controversy moved]. Denoting things written or said before litigation commenced.³⁶

Doctrine calling the ecclesiastic authority to ascertain the conformity of customs to the principles of justice and divine law—where positive, the review led the ecclesiastical authority to declare the customs licitae, bonae, rationales—where negative, the ecclesiastical authority would declare them instead malae, pravae, illicitae and would consequently strike them down.³⁷ 

[Latin: for the sake of argument]. A term sometimes used by lawyers and judges when they wish to explore the implications that follow from a particular point (often a fact asserted by a hostile part) without accepting that the point at issue is indeed true.³⁸

[Latin: he has undertaken]. Historically, action at common law for the recovery of damages arising from a person’s failure to do something he/she promised to do (expressly or implicitly), thus, an early form of suit (breach of contract).³⁹

[Latin]. Literally meaning the authority of the jurisconsults or of the magistrates, the expression refers to the creative power of jurisprudence.⁴⁰ 

[French: previously acquitted]. A special plea in bar of arraignment claiming that the defendant has previously been acquitted by a court of competent jurisdiction of the same offence as that which he is now charged or that he could have been convicted on an earlier indictment of the same (or substantially the same) offence.⁴¹

[French: previously convicted]. A special plea in bar of arraignment claiming that the defendant has previously been convicted by a court of competent jurisdiction of the same (or substantially the same) offence as that with which he or she is now charged.⁴²

[Latin: empty goods]. Ownerless property.⁴³

[Latin: senseless thunderbolt]. An empty threat; any judgement or decree that is unenforceable or void.⁴⁴

[Latin]. A circumstance not provided for by common law or statutes, a gap in the law.⁴⁵

[Latin: cause causing]. The real, proximate, or main cause of something; the final link of the chain of causation. Not to be confused with causa sine qua non — the cause without which something could not have occurred.⁴⁶

[from Latin: let him/her beware]. A notice, usually in the form of an entry in a register.⁴⁷

[Latin: let the buyer beware]. A common law maxim warning a purchaser that he or she could not claim that his/her purchases were defective unless he/she protected him/herself by obtaining express guarantees from the vendor.⁴⁸

[Latin: to be informed].⁴⁹ Or ‘to be made more certain’.⁵⁰ In English common law, certiorari was a supervisory writ, serving to keep ‘all inferior jurisdictions within the bounds of their authority […] [protecting] the liberty of the subject, by speedy and summary interposition’.⁵¹ Certiorari evolved into an important rule of law remedy. In Australia, the power to issue certiorari is part of the inherent jurisdiction of the superior courts.⁵²

[French]. Another word for a beneficiary of a trust: the person entitled to an equitable, as opposed to a legal, ownership of trust assets.⁵³  

Latin maxim (‘against who proffers’) expressing the rule that an ambiguous term in a contract should be construed in favour of the party against whom it is relied upon or asserted, rather than in favour of the person asserting or relying on it.⁵⁴

[Latin: the body of the offence]. The proof that the crime has been committed. Originally this referred literally to the corpse of a murdered person. It now refers to the factual evidence of the crime.⁵⁵ Cf in flagrante delicti.

[Latin: the court wished to be advised]. Cur. adv. vult or CAV are abbreviations for curia advisari vult.⁵⁶ It is used in a law report to indicate that the court’s judgment was reserved, as opposed to being given extempore.⁵⁷

[Latin: King’s council]. A practice developed (namely William I in the 1300’s) of sending judges throughout the English countryside to hear and settle disputes, instead of requiring subjects to travel to the king’s court (curia regis) to have a matter settled.⁵⁸ See also curia regis rolls.

[Latin: there may be damage or injury inflicted without any wrong being done]. The principle that a claimant who has suffered damage in consequence of the act of another may not be entitled to recover compensations because of the defendant’s act was not in law wrongful.⁵⁹

[Latin] Often shortened to de minimis, this Latin phrase means that the law does not take account of trifling matters or matters of little or no value or importance.⁶⁰

[Latin: dialogues of the exchequer]. Richard FitzNeal (d 1198) describes the officers, functions and working methods of the Court of the Exchequer, which was both a court and a Crown auditing office.⁶¹

[Latin: a saying]. An observation by a judge with respect to a point of law arising in a case before him/her.⁶² See also obiter dictum.

[Latin] incapable of wrong. A child under the age of 10 is deemed incapable of committing any crime. There is a rebuttable presumption that a child between the ages of 10 and 14 is doli incapax (incapable of wrong).⁶³ See section 29 of the Criminal Code Act 1899 (Qld).⁶⁴

[Latin: a gift on account of death].⁶⁵ 

[French: on the bench]. Describing a hearing, often of an appeal, that is heard by all the judges of a court rather than a panel.⁶⁶

[Latin: of the same kind]. If words of particular meaning are followed by general words, the general words are limited to the same kind as the particular words.⁶⁷

[Latin: error law injures]. A legal maxim sometimes used to distinguish mistakes of law from mistakes of fact.⁶⁸

[from Norman French estoppel, to stop up]. A rule of evidence or a rule of law that prevents a person from denying the truth of a statement he/she has made or from denying the existence of facts that he/she has alleged to exist.⁶⁹ The denial must have been acted upon by the person who wishes to take advantage of the estoppel or his/her position must have been altered as a result.⁷⁰ There are several varieties of estoppel, see for example, estoppel by conduct; estoppel by deed; estoppel by record.⁷¹

[Old French: an excuse for non-appearance at court].⁷² Attorneys justified their absence through an essoin, which was essentially a legal excuse or reason for non-attendance in court.⁷³ This procedural aspect underscored early complexities in legal processes and representation during the Middle Ages.⁷⁴

[Latin: done as a matter of favour]. An ex gratia payment is one not required to be made by a legal duty.⁷⁵

[Latin: from the office]. By virtue of holding an office (see also ex officio plea, ex officio indictment, ex officio oath).⁷⁶

[Latin] (1) On the part of one side only (an ex parte hearing).⁷⁷ (2) On behalf of. An application made ex parte is made by one party only or may be made by an interested person who is not a party.⁷⁸ See also ex parte orders in the absence of the other party in Family Law.

[Latin: the inclusion of the one is the exclusion of the other].⁷⁹

[Latin: by a subsequent act]. Describing any legal act, such as a statute, that has retrospective effect.⁸⁰

[Latin: of or from the time]. The expression is more loosely understood to mean something spoken or done without preparation, spontaneously, on the spot or ‘off the cuff’, hence, also, ‘extemporise’ and ‘extemporaneously’.⁸¹

[Latin] An extempore judgment is one given orally at the conclusion of a hearing, as opposed to being reserved and delivered (usually in writing) at a later date.⁸²

[Latin] (1) A fact or statement of facts, for example, a factum probans (pl. facta probantia) is a fact offered in evidence as poof of another fact, and a factum probandum (pl. facta probanda) is a fact that needs to be proved.⁸³ (2) An act or deed.⁸⁴ See also non est factum.

[Latin: let there be justice, though the heavens fall]. A maxim stating that justice must be done, whatever the consequences.⁸⁵

[from Latin: fiducia, trust]. (1) A person, such as trustee, who holds a position of trust or confidence with respect to someone else.⁸⁶ (2) In a position of trust or confidence i.e. trustees and their beneficiaries, solicitors and their clients.⁸⁷

[Latin: in the commission of an offence]. Formally, certain types of arrest could only be made when a person was in the act of committing an offence. ⁸⁸

[Latin: forum of the thing]. The court of the country in which to bring a legal case through the courts on the basis of which country’s laws are most favourable; in some instances, there is a choice of jurisdiction.⁸⁹

[Latin: General things do not derogate from specific things]. A maxim meaning that specific or detailed provisions of a legal instrument should prevail over more general, conflicting provisions.⁹⁰

[Latin: literally, have the body]. A prerogative writ used to challenge the validity of a person’s detention.⁹¹ In Australia, habeas corpus (‘produce the person’) is the name of the writ, or legal order, that requires a prisoner to be brought before a court, for the court to determine whether the prisoner is being legally detained and, if not, to order the prisoner’s release.⁹²

[Latin: we do not know]. Jurors declared ‘ignoramus‘, when lacking evidence.⁹³ This term reflected the use of Latin in medieval English courts, emphasising the dual educative and functional purpose of language in delivering verdicts.⁹⁴

[Latin: ‘in court’ or ‘on the bench’]. See en banc.

[Latin: in the chamber]. In private. A court hearing must usually be public, but the public may be barred from the court or the hearing in certain circumstances; for example, to protect the identity of the witness unwilling to give evidence in public.⁹⁵

[Latin: in blazing offence]. Caught in the act of committing an offence (cf corpus delicti).

[Latin: against the person]. Describing a court action or a claim against a specific person or a right affecting a particular person.⁹⁶

[Latin: against the thing]. (1) Describing a right that should be respected by other people generally, such as ownership of property as distinct from a right, in personam.⁹⁷ (2) Describing a court action that is directed against an item of property, rather than against a person (i.e. land, marital status).⁹⁸

[Latin: among other things]. The phrase is used to make it clear that a list is not exhaustive.⁹⁹

[Latin: by that very fact].¹⁰⁰

[Latin: by the law itself]. A phrase used to describe legal consequences that arise by the mere operation of the law, e.g. an existing will is usually revoked ipso jure if the testator marries after executing it.¹⁰¹

[Latin: law, Latin plural: iura]. Ius also meant justice and the place where justice was sought. In civil law, the term used to describe: a particular right. the law as a whole; an aggregate or a coherent body of laws; or a particular right.¹⁰²

[Latin]: (1) General law, literally ‘common law’, with the Latin being frequently used to distinguish it from Anglo-American Common law;¹⁰³ (2) by extension, the compound body of universal law–both spiritual and secular–deposited in the two main compilations used throughout the high Middle Ages and beyond.¹⁰⁴

[Latin: of law and from law]. An irrebuttable presumption is so described.¹⁰⁵

[Latin] A law or right.¹⁰⁶

[Latin: Later laws abrogate earlier, contrary ones]. A maxim meaning that, where two laws or legal instruments conflict, the one adopted later in time, rather than the one adopted earlier, is considered binding on the relevant parties. In treaty law, this rule applies only to states that are parties to both the earlier and later treaty.¹⁰⁷

[via Old French from Latin ligamen, a binding]. A right of one person to retain possession of goods owned by another until the possessor’s claims against the owner have been satisfied.¹⁰⁸

[Latin] A case (lis) awaiting determination or pending lawsuit.¹⁰⁹ It may be used as a notice or warning that title to an asset, e.g. land, is subject to an unresolved dispute.¹¹⁰

The expression is also shorthand for the rule (in conflicts of laws cases) that the first party in time to issue proceedings at court secures the jurisdiction of the court in a particular country.¹¹¹

[Latin: the place in which]. The place where an event took place – fact finders may visit the locus in quo in order to understand the evidence and the judge and jury may inspect it as part of court proceedings.¹¹²

[Latin: a place to stand]. The right to bring an action or challenge some decision.¹¹³

[Latin: bad faith]. Describing an act performed fraudulently or dishonestly.

[Latin: a guilty mind, intention]. The state of mind that the prosecution must prove a defendant to have had at the time of committing a crime in order to secure a conviction.¹¹⁴ Mens rea varies from crime to crime; it is most likely defined in the statue or established by precedent – the essence of the principle of mens rea is that criminal liability should be imposed only on persons who are sufficiently aware of what they are doing.¹¹⁵

[Latin: manner of working]. The individual, possibly unique, way in which a person carries out an undertaking.¹¹⁶

[Latin]. The writ of mesne pertained to estate legalities and implied an intermediary entitlement between a lord and tenant – addressing disputes over right and service rooted deeply in feudal societal structures and responsibilities.

[Latin: no one is bound to incriminate himself]. A maxim reflecting the policy underlying the privilege against self-incrimination.¹¹⁷

[Latin: to be unwilling to prosecute]. It refers to a formal notice by the prosecution to signify that the plaintiff or prosecution will proceed no further.¹¹⁸

[Latin: not permitted].¹¹⁹

[Latin: it is not clear]. An instance in which statute and previous case law seem to produce no clear legal answer to a new problem.¹²⁰

[Latin] The meaning of a word is known from the words that accompany it.¹²¹

[Latin]. To settle ownership over land. Novel disseisin and other possessory actions were legal reforms created to resolve ownership disputes regarding land, thereby clarifying lawful possession and title-holding, crucial elements sustaining feudal tenure and property right.

[Latin: a new intervening act (or cause)].¹²²

[Latin: no punishment without a law]. The principle that a person can only be punished for a crime if the punishment is prescribed by law.¹²³

[Latin: no crime without a law]. The principle that conduct does not constitute crime unless it has previously been declared to be so by the law; it is sometimes known as the principle of legality.¹²⁴

[Latin: a remark in passing]. Something said by a judge while giving judgement that was not essential to the decision in the case. In contrast to ratio decidendi. For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter dicta are persuasive only.¹²⁵

[Latin: said in passing]. Usually used in the plural, obiter dicta. Legal principle expounded by a judge which is not necessary for the judge’s decision in the case; in contrast to ratio decidendi. It does not form part of the ratio decidendi of the case and therefore creates no binding precedent but may be cited as persuasive authority in later cases.¹²⁶

[Latin: hearing all kinds of pleas]. Both itinerant justices and local justiciars had the right of hear cases omnia placita regis. Legal activity covered both criminal and civil spheres, and local justiciars heard pleas of the Crown.¹²⁷

[Latin]. The proper sequence of procedural steps to be followed in court.¹²⁸

[Latin: to show why]. A family of common law writs from which actions of trespass emerged in the English royal courts, demanding that the defendant come before the King’s justices and show why (‘ostensurus quare’) they had acted in a way which was injurious to the plaintiff.¹²⁹

[Law French: to hear and determined]. In England, a commission for a justice on circuit to hold (‘to hear and determine’) criminal trials.¹³⁰

[Law French: hard and forceful punishment]. Method of torture used formerly in the common law legal system.

[Latin: by the court]. Describing the situation in which one judge in a court of multiple judges speaks on behalf of the entire bench. It is frequently abbreviated to per cur.¹³¹

[Latin]. Literally ‘through want of care’. A judgement made in ignorance of existing law.¹³²

[Latin: for the public good]. (1) Describing legal work that is carried out unpaid for the good of the general community. See pro bono. (2) The principle that when the courts are engaged in the act of interpretation of statutes, they should always do so for the public good.¹³³

[from Latin prima facies, first appearance]. At first appearance; on the face of things.¹³⁴

[Law French]. The right to take soil, minerals, or produce (such as wood, turf, or fish) from another’s land.¹³⁵

[Latin]. That any action was for purely private gain.¹³⁶

[Latin: ‘for so much’; or ‘to the extent required’].¹³⁷

[Latin: he who acts though another, acts through himself]. The traditional basis of vicarious liability. See frolic of his own.¹³⁸

[Latin]. The writ of quo minus enabled plaintiffs to claim that their case indirectly involved the King’s interests, giving jurisdiction to the Exchequer Court. This allowed for increased access to royal justice through legal fictions that expanded the conceptual reach of this court.

[Latin: by what warrant].

[Latin: the reason for deciding]. The principle or principles of law on which the court reaches its decision. The ratio of the case has to be deduced from its facts, the reasons the court gave for reaching its decision, and the decision itself. It is said to be a statement of law applied to material facts. Only the ratio of a case is binding on inferior courts, by reason of the doctrine of precedent. Cf obiter dicta.¹³⁹

[Latin: restoration to the original position].¹⁴⁰

[Latin: the thing speaks for itself]. A principle often applied in the tort of negligence. If an accident has occurred of a kind that usually only happens if someone has been negligent, and the state of affairs that produced the accident was under the control of the defendant, it may be presumed in the absence of evidence that the accident was caused by the defendant’s negligence, see Scott v London and St Katherine Docks Co (1885) 3 Hurl & C 596.¹⁴¹

[Latin: a matter that has been decided]. The principle that when a matter has been finally adjudicated upon by a court of competent jurisdiction it may not be reopened or challenged by the original parties or their successors in interest. It is also known as action estoppel.¹⁴² See also estoppel.

[Latin]: the necessity of proof always lies with the person who lays charges]. Latin maxim and principal burden of proof.

[Latin: without a date]. To adjourn a case sine die is to adjourn it without setting a date for a future hearing.¹⁴³

[Latin: of one’s own accord]. Referring to an order made by the court on its own initiative, rather that the request of one of the parties, see i.e. when the court dismisses an action or transfers it to another jurisdiction.¹⁴⁴

[Latin]. The doctrine of precedent, from a Latin maxim stare decisis et non quieta movere: ‘to stand by a decision and not disturb the undisturbed’.¹⁴⁵

[Latin]. Use your own property in such a way that you do not injure other people’s: maxim often used in cases of nuisance. It is misleading, since only an unreasonable interference with a neighbour’s property is actionable as a nuisance.¹⁴⁶

[Latin: ‘of its own kind’ or ‘unique’].¹⁴⁷ Forming a class of its own.

[Latin: above; upon].

[Latin: land belonging to no one].¹⁴⁸

[Latin: from the beginning]. A form of trespass that occurs when a person enters land with authority given by law, e.g. to arrest a criminal.¹⁴⁹

[from Latin: of his own wrongdoing]. A person unconnected with a trust who takes it upon himself/herself to act as a trustee. Is thereafter liable as if he/she had been appointed a trustee.¹⁵⁰

[Norman French: to speak the truth]. (1) In criminal proceedings, the preliminary examination by a judge of a witness to determine his/her competence of a juror to determine his/her qualification for jury service. (2) An inquiry conducted by the judge in the absence of the jury into admissibility of an item of evidence (e.g. a confession).¹⁵¹

[Latin: no wrong is done to one who consents]. The defence that that the claimant consented to the injury or (more usually) to the risk of being injured; in negligence cases it is more often expressed as voluntary assumption of risk.¹⁵²