- Broom's maxims -- Law of Contracts
- 17/01/2015 Make a Comment
- Contributed by: Charlie_Potts ( 1 article in 2015 )
A) Modus et conventio vincunt legem
The form of agreement and the convention of parties overrule the law.
The above may be regarded as the most elementary principle of law relative to contracts, and may be thus stated in a somewhat more comprehensive form. (p.689)
Following is from Net (taken from Brooms):
meaning ‘manner and agreement overrule the law’ is the elementary principle of law relating to contract.
The conditions annexed to a deed, lease or any instrument, whether written or verbal entered into between the parties, when duly executed and performed, have the force of law over the parties to the instrument.
Where a right, duty or liability would arise under a contract of sale of goods by implication of law it may be negatived or varied by express agreement, or by the course of dealing between the parties. The parties to an agreement may renounce, diminish, or increase their rights by the terms in the agreement. However, the parties to an agreement must abstain from illegal contract. An agent acting for his/her principal binds the principal and not himself/herself. However, s/he can contract as to make himself/herself personally liable.
B) Quilibet potest renunciare juri pro se introducto
Any one may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favor.
C) Qui sentit commodum sentire debet et onus
He who derives the advantage ought to sustain the burden. ie. Onus probandi
D) In aequali jure melior est conditio possidentis
Where the right is equal, the claim of the party in actual possession shall prevail.
The general rule is, that possession constitutes a sufficient title against every person not having a better title.
E) Ex dolo malo non oritur actio
A right of action cannot arise out of fraud.
...that an action cannot be maintained which is founded in fraud..
F) Ex nudo pacto non oritur actio
No cause of action arises from a bare promise.
"A consideration of some sort or other is so necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay something on one side, without any compensation on the other, will not at law support an action; and a man cannot be compelled to perform it."
G) Caveat emptor
Let a purchaser beware.
H) Quicquid solvitur, solvitur secundum modum solventis—quicquid recipitur, recipitur secundum modum recipientis
Money paid is to be applied according to the intention of the party paying it; and money received, according to that of the recipient.
According to the law of England, the debtor may, in the first instance, appropriate the payment — solvitur in modum solventis; if he omit to do so, the creditor may make the appropriation — reeipitur in modum recipientis; but if neither make any appropriation, the law appropriates the payment to the earlier debt;"
"where a creditor receives without objection, what is offered by his debtor, solvitur in modum solventis, and it must be implied that the debtor paid it in satisfaction; where " the party to whom the money is offered does not agree to apply it according to the expressed will of the party offering it, he must refuse and stand upon the rights which the law gives him.' And again—" Wherever there is an intention expressed by the payer that the money is paid upon a particular account, and the payee receives it under a different intention, it is the duty of the latter to give the former an opportunity to retract."
I) Qui per alium facit per seipsum facere videtur
He who does an act through the medium of another party is in law considered as doing it himself.
The above maxim enunciates the general doctrine on which the law relative to the rights and liabilities of principal and agent depends.
It can, however, in this volume be but briefly and cursorily considered. Where a contract is entered into with A., as agent for B., it is deemed, in contemplation of law, to have been entered into with B., and the principal is, in most cases, the proper party to sue or be sued for breach of *such contract,— the agent being viewed simply as the medium through which it was effected :' Qvi facit per alium facit per se.
ie. Notice to Principal is Notice to Agent -- Notice to Agent is Notice to Principal.
J) Respondeat superior
Let the principal be held responsible.
The above maxim is, in principle, almost identical with that immediately preceding, but is more usually and appropriately applied with reference to actions ex delicto, than to such as are founded in contract. Where, for instance, an agent commits a tortious act, under the direction or with the assent of his principal each is liable at suit of the party injured: the agent is liable, because the authority of the principal cannot justify his wrongful act; and the person who directs the act to be done is likewise liable, according to the maxim, Respondeat superior. "If the servant commits a trespass by the command or encouragement of his master, the master shall be guilty of it, though the servant is not thereby excused, for he is only to obey his master in matters that are honest and lawful;"' and "all persons directly concerned in the commission of a fraud are to be treated as principals."
K) Omnis ratihabitio retrotrahitur et mandate priori sequiparatur
A subsequent ratification has a retrospective effect, and is equivalent to a prior command.
For instance, if the goods of A. are wrongfully taken and sold, the owner may either bring trover against the wrong-doer, or may elect to consider him as his agent, may adopt the sale, and maintain an action for the price.' So, if a principal ratifies the purchase by his agent of a chattel which the vendor had no right to sell, the principal is guilty of a conversion, although at the time of the ratification he had no knowledge that the sale was unlawful.
L) Nihil tam conveniens est naturali aequitati quam unumquodque dissolvi eo ligamine quo ligatum est
Nothing is so consonant to natural equity as that every contract should he dissolved by the same means which rendered it binding.
Every contract or agreement ought to be dissolved by matter of as high a nature as that which first made it obligatory. [My interpretation: only the authority that created it (the thing), can dissolve it.]
Hence it is laid down, that, "an obligation is not made void but by a release ; for Naturale est quidlibet dissolvi eo modo quo ligatur : a record by a record; a deed by a deed; and a parol promise or agreement is dissolved by parol; and an Act of Parliament
by an Act of Parliament. This reason and this rule of law are always of force in the common law."'
M) Vigilantibus, non donuientibus, jura subveniunt
The laws assist those who are vigilant, not those who sleep over their rights.
Statute of limitations + so forth.
N) Actio personalis moritur cum person
A personal right of action dies with the person.
Law of Evidence
The form of agreement and the convention of parties overrule the law.
The above may be regarded as the most elementary principle of law relative to contracts, and may be thus stated in a somewhat more comprehensive form. (p.689)
Following is from Net (taken from Brooms):
meaning ‘manner and agreement overrule the law’ is the elementary principle of law relating to contract.
The conditions annexed to a deed, lease or any instrument, whether written or verbal entered into between the parties, when duly executed and performed, have the force of law over the parties to the instrument.
Where a right, duty or liability would arise under a contract of sale of goods by implication of law it may be negatived or varied by express agreement, or by the course of dealing between the parties. The parties to an agreement may renounce, diminish, or increase their rights by the terms in the agreement. However, the parties to an agreement must abstain from illegal contract. An agent acting for his/her principal binds the principal and not himself/herself. However, s/he can contract as to make himself/herself personally liable.
B) Quilibet potest renunciare juri pro se introducto
Any one may, at his pleasure, renounce the benefit of a stipulation or other right introduced entirely in his own favor.
C) Qui sentit commodum sentire debet et onus
He who derives the advantage ought to sustain the burden. ie. Onus probandi
D) In aequali jure melior est conditio possidentis
Where the right is equal, the claim of the party in actual possession shall prevail.
The general rule is, that possession constitutes a sufficient title against every person not having a better title.
E) Ex dolo malo non oritur actio
A right of action cannot arise out of fraud.
...that an action cannot be maintained which is founded in fraud..
F) Ex nudo pacto non oritur actio
No cause of action arises from a bare promise.
"A consideration of some sort or other is so necessary to the forming of a contract, that a nudum pactum, or agreement to do or pay something on one side, without any compensation on the other, will not at law support an action; and a man cannot be compelled to perform it."
G) Caveat emptor
Let a purchaser beware.
H) Quicquid solvitur, solvitur secundum modum solventis—quicquid recipitur, recipitur secundum modum recipientis
Money paid is to be applied according to the intention of the party paying it; and money received, according to that of the recipient.
According to the law of England, the debtor may, in the first instance, appropriate the payment — solvitur in modum solventis; if he omit to do so, the creditor may make the appropriation — reeipitur in modum recipientis; but if neither make any appropriation, the law appropriates the payment to the earlier debt;"
"where a creditor receives without objection, what is offered by his debtor, solvitur in modum solventis, and it must be implied that the debtor paid it in satisfaction; where " the party to whom the money is offered does not agree to apply it according to the expressed will of the party offering it, he must refuse and stand upon the rights which the law gives him.' And again—" Wherever there is an intention expressed by the payer that the money is paid upon a particular account, and the payee receives it under a different intention, it is the duty of the latter to give the former an opportunity to retract."
I) Qui per alium facit per seipsum facere videtur
He who does an act through the medium of another party is in law considered as doing it himself.
The above maxim enunciates the general doctrine on which the law relative to the rights and liabilities of principal and agent depends.
It can, however, in this volume be but briefly and cursorily considered. Where a contract is entered into with A., as agent for B., it is deemed, in contemplation of law, to have been entered into with B., and the principal is, in most cases, the proper party to sue or be sued for breach of *such contract,— the agent being viewed simply as the medium through which it was effected :' Qvi facit per alium facit per se.
ie. Notice to Principal is Notice to Agent -- Notice to Agent is Notice to Principal.
J) Respondeat superior
Let the principal be held responsible.
The above maxim is, in principle, almost identical with that immediately preceding, but is more usually and appropriately applied with reference to actions ex delicto, than to such as are founded in contract. Where, for instance, an agent commits a tortious act, under the direction or with the assent of his principal each is liable at suit of the party injured: the agent is liable, because the authority of the principal cannot justify his wrongful act; and the person who directs the act to be done is likewise liable, according to the maxim, Respondeat superior. "If the servant commits a trespass by the command or encouragement of his master, the master shall be guilty of it, though the servant is not thereby excused, for he is only to obey his master in matters that are honest and lawful;"' and "all persons directly concerned in the commission of a fraud are to be treated as principals."
K) Omnis ratihabitio retrotrahitur et mandate priori sequiparatur
A subsequent ratification has a retrospective effect, and is equivalent to a prior command.
For instance, if the goods of A. are wrongfully taken and sold, the owner may either bring trover against the wrong-doer, or may elect to consider him as his agent, may adopt the sale, and maintain an action for the price.' So, if a principal ratifies the purchase by his agent of a chattel which the vendor had no right to sell, the principal is guilty of a conversion, although at the time of the ratification he had no knowledge that the sale was unlawful.
L) Nihil tam conveniens est naturali aequitati quam unumquodque dissolvi eo ligamine quo ligatum est
Nothing is so consonant to natural equity as that every contract should he dissolved by the same means which rendered it binding.
Every contract or agreement ought to be dissolved by matter of as high a nature as that which first made it obligatory. [My interpretation: only the authority that created it (the thing), can dissolve it.]
Hence it is laid down, that, "an obligation is not made void but by a release ; for Naturale est quidlibet dissolvi eo modo quo ligatur : a record by a record; a deed by a deed; and a parol promise or agreement is dissolved by parol; and an Act of Parliament
by an Act of Parliament. This reason and this rule of law are always of force in the common law."'
M) Vigilantibus, non donuientibus, jura subveniunt
The laws assist those who are vigilant, not those who sleep over their rights.
Statute of limitations + so forth.
N) Actio personalis moritur cum person
A personal right of action dies with the person.
Law of Evidence
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