Injuria sine damno or Injuria sine Damnum

[Law of Torts] – In cases of injuria sine damno, i.e., the infringement of an absolute private right without any actual loss or damage, the person whose right is infringed has a cause of action. Every person has an absolute right to his property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. In India, the same principles have been followed. The Privy Council has observed that “there may be, where a right is interfered with, injuria sine damno sufficient to found an action: but no action can be maintained where there is neither damnum nor injuria. In the leading case of Ashby v. White, the defendant, a returning officer, wrongfully refused to register a duly tendered vote of the plaintiff, a legally qualified voter, at a parliamentary election and the candidate for whom the vote was tendered was elected, and no loss was suffered by the rejection of the vote, nevertheless it was held that an action lay. In this case the returning officer has acted maliciously.

This maxim ‘ Injuria sine Damnum ‘ is just opposite to the maxim ‘ damnum sine injuria’ .

The word  ‘ damnum ‘ means damage . This damage may be loss of health , loss of service , physical hurt and loss of money or the like . The word ‘ injuria’ means a legal injury or tortuous act or an infringement of legal right . And the word ‘sine ‘means without . So the maxim means that an infringement of any legal right without  damage. Where there is  infringement of legal right ,   action lies against that act . Therefore ,if any legal right is infringed , it is immaterial whether any loss is suatained or not , this maxim ‘injuria sine damnum ‘affords right to sue for legal remedy .

Lis pendens

For the concept of staying proceedings, when a law suit is pending elsewhere, see Lis alibi pendens.

In US law, a lis pendens is a written notice that a lawsuit has been filed concerning real estate, involving either the title to the property or a claimed ownership interest in it. The notice is usually filed in the county land records office. Recording a lis pendens against a piece of property alerts a potential purchaser or lender that the property’s title is in question, which makes the property less attractive to a buyer or lender. After the notice is filed, anyone who nevertheless purchases the land or property described in the notice takes subject to the ultimate decision of the lawsuit.

Lis pendens is Latin for "suit pending." This may refer to any pending lawsuit or to a specific situation with a public notice of litigation that has been recorded in the same location where the title of real property has been recorded. This notice secures a plaintiff's claim on the property so that the sale, mortgage, or encumbrance of the property will not diminish plaintiff's rights to the property, should the plaintiff prevail in its case. In some jurisdictions, when the notice is properly recorded, lis pendens is considered constructive notice to the other litigants or other unrecorded or subordinate lienholders. The term is sometimes abbreviated as "lis pend".

The recording office will record a lis pendens upon request of anyone who claims to be entitled to do so (e.g. because he has filed a lawsuit). If someone else with an interest in the property (e.g. the owner) believes the lis pendens is not proper, he can then file suit to have it expunged.

Some states’ lis pendens statutes require the filer of the notice, in the event of a challenge to the notice, to establish that it has probable cause or a good likelihood of success on the merits of its case in the underlying lawsuit; other states do not have such a requirement.

lis pendens applies in matters of parental responsibility as well.

History

Under the common law, the mere existence of a lawsuit potentially affecting the title to real property had the legal effect of putting the entire world on constructive notice of the suit; anyone acquiring an interest in real property which was the subject of a pending suit took that interest subject to the litigants’ rights as they might be eventually determined, no matter how much later. In effect, nothing relating to the ownership of the subject matter of the suit could be definitively changed while the suit was pending. Innocent buyers might discover the existence of a lawsuit too late.

The harsh effect of this rule, and especially its effect on innocent purchasers (particularly vis-à-vis not-so-innocent sellers), led many jurisdictions to enact lis pendens statutes requiring a written notice, usually recorded in the land records where the real estate is located, for the notice provisions of the rule to be effective. Typically, a separate recorded instrument is required by statute if the lawsuit in question affects title to real property. If the statutory requirements are met, the world is put on "constructive notice" of the existence of the suit, and any person acquiring an interest later does so subject to the outcome of the suit.

Effect

Lis pendens is taken as constructive notice of the pending lawsuit, and it serves to place a cloud on the title of the property in question until the suit is resolved and the notice released or the lis pendens is expunged. Careful buyers will be unwilling to purchase land subject to a "lis pendens" or will only purchase the land at a discount, prudent lenders will not lend money on the security of the land and title insurance companies will not insure the title to such land: title is taken subject to the outcome of the lawsuit. Because so much real property is purchased with borrowed money, this usually keeps the owner from selling the property. It also may keep the owner from borrowing money secured by the property (such as to pay the costs of defending the suit).

It is important to note that the presence of a lis pendens does not prevent or necessarily invalidate a transfer of the property, although it makes such a transfer subject to the outcome of the litigation. Thus, the owner is not prevented from selling the land for (non-borrowed) cash, pledging it as security for a speculative loan, or giving it away—subject to the outcome of the lawsuit. However, once the lis pendens is recorded, the recipient (a "purchaser" or "grantee pendente lite") would be deemed to have notice of the litigation and might lose their title to the property if the plaintiff's suit prevails.

While it is generally thought of in connection with real property (land, buildings, and the like), the doctrine of lis pendens also applies to personal property. Frequently, lis pendens statutes only apply to real property, so the common-law doctrine probably still applies to personal property.

Ratio decidendi

Ratio decidendi (Latin plural rationes decidendi) is a Latin phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the point in a case that determines the judgment" or "the principle that the case establishes".

In other words, ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends.

It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis. Certain courts are able to overrule decisions of a court of coordinate jurisdiction—however, out of interests of judicial comity, they generally try to follow coordinate rationes.

The process of determining the ratio decidendi is a correctly thought analysis of what the court actually decided—essentially, based on the legal points about which the parties in the case actually fought. All other statements about the law in the text of a court opinion—all pronouncements that do not form a part of the court's rulings on the issues actually decided in that particular case (whether they are correct statements of law or not)—are obiter dicta, and are not rules for which that particular case stands.

Synopsis

The ratio decidendi is one of the most powerful tools available to a lawyer. With a proper understanding of the ratio of a precedent, the advocate can in effect force a lower court to come to a decision which that court may otherwise be unwilling to make, considering the facts of the case.

The search for the ratio of a case is a process of elucidation; one searches the judgment for the abstract principles of law which have led to the decision and which have been applied to the facts before the court. As an example, the ratio in Donoghue v. Stevenson would be that a person owes a duty of care to those who he can reasonably foresee will be affected by his actions.

All decisions are, in the common law system, decisions on the law as applied to the facts of the case. Academic or theoretical points of law are not usually determined. Occasionally, a court is faced with an issue of such overwhelming public importance that the court will pronounce upon it without deciding it. Such a pronouncement will not amount to a binding precedent, but is instead called an obiter dictum.

Ratio decidendi also involves the holding of a particular case, thereby allowing future cases to build upon such cases by citing precedent. However, not all holdings are given equal merit; factors that can strengthen or weaken the strength of the holding include:

• Rank of the court (Supreme Court versus an appellate court)
• Number of issues decided in the case (multiple issues may result in a so-called "multi-legged holdings")
• Authority or respect of the judge(s)
• Number of concurring and dissenting judges
• New applicable statutes
• Similarity of the environment as opposed to the age of the holding

The ability to isolate the abstract principle of law in the pragmatic application of that abstraction to the facts of a case is one of the most highly prized legal skills in the common law system. The lawyer is searching for the principles which underlined and underlay the court's decision.

Challenges

The difficulty in the search for the ratio becomes acute when unlike in the decisions of the Court of Appeal or the House of Lords, more than one judgment is promulgated. A dissenting judgment on the point is not binding and cannot be the ratio. However, one will sometimes find decisions in which, for example, five judges are sitting the House of Lords, all of whom purport to agree with one another but in each of whose opinions one is able to discern subtly different ratios. An example is the case of Kay v Lambeth LBC, on which a panel of seven of their Lordships sat and from whose opinions emerged a number of competing ratios, some made express by their Lordships and others implicit in the decision.

Another problem may arise in older cases where the ratio and obiter are not explicitly separated, as they are today. In such a case, it may be difficult to locate the ratio, and on occasion, the courts have been unable to do so.

Such interpretative ambiguity is inevitable in any word-bound system. Codification of the law, such as has occurred in many systems based on Roman law, may assist to some extent in clarification of principle but is considered by some common lawyers anathema to the robust, pragmatic, and fact-bound system of English law.

Ultra vires

Ultra vires is a Latin phrase meaning "beyond the powers". If an act requires legal authority and it is done with such authority, it is characterised in law as intra vires ("within the powers"). If it is done without such authority, it is ultra vires. Acts that are intra vires may equivalently be termed "valid" and those that are ultra vires "invalid".

Corporate law

In corporate law, ultra vires describes acts attempted by a corporation that are beyond the scope of powers granted by the corporation's objects clause, articles of incorporation or in a clause in its Bylaws, in the laws authorizing a corporation's formation, or similar founding documents. Acts attempted by a corporation that are beyond the scope of its charter are void or voidable.

1. An ultra vires transaction cannot be ratified by shareholders, even if they wish it to be ratified.
2. The doctrine of estoppel usually precluded reliance on the defense of ultra vires where the transaction was fully performed by one party.
3. A fortiori, a transaction which was fully performed by both parties could not be attacked.
4. If the contract was fully executory, the defense of ultra vires might be raised by either party.
5. If the contract was partially performed, and the performance was held to be insufficient to bring the doctrine of estoppel into play, a suit for quasi contract for recovery of benefits conferred was available.
6. If an agent of the corporation committed a tort within the scope of his or her employment, the corporation could not defend on the ground the act was ultra vires.

Several modern developments relating to corporate formation have limited the probability that ultra vires acts will occur. Except in the case of non-profit corporations (including municipal corporations), this legal doctrine is obsolescent; within recent years, almost all business corporations are chartered to allow them to transact any lawful business. The Model Business Corporation Act of the United States states that: "The validity of corporate action may not be challenged on the ground that the corporation lacks or lacked power to act." The doctrine still has some life among non-profit corporations or state-created corporate bodies established for a specific public purpose, such as universities or charities.

According to American laws, the concept of ultra vires can still arise in the following kinds of activities in some states:

1. Charitable or political contributions
2. Guaranty of indebtedness of another
3. Loans to officers or directors
4. Pensions, bonuses, stock option plans, job severance payments, and other fringe benefits
5. The power to acquire shares of other corporations
6. The power to enter into a partnership

 

United Kingdom

See also: United Kingdom company law

In the United Kingdom, the Companies Act 2006 sections 31 and 39 greatly reduced the applicability of ultra vires in corporate law, although it can still apply in relation to charities and a shareholder may apply for an injunction, in advance only, to prevent an act which is claimed to be ultra vires.

In many jurisdictions, such as Australia, legislation provides that a corporation has all the powers of a natural person plus others; also, the validity of acts which are made ultra vires is preserved.

Constitutional law

Under constitutional law, particularly in Canada and the United States, constitutions give federal and provincial or state governments various powers. To go outside those powers would be ultra vires; for example, although the court did not use the term in striking down a federal law in United States v. Lopez on the grounds that it exceeded the Constitutional authority of Congress, the Supreme Court still declared the law to be ultra vires.

According to Article 15.2 of the Irish constitution, the Oireachtas (parliament) is the sole lawmaking body in the Republic of Ireland. In the case of CityView Press v AnCo, however, the Irish Supreme Court held that the Oireachtas may delegate certain powers to subordinate bodies through primary legislation, so long as these delegated powers allow the delegatee only to further the principles and policies laid down by the Oireachtas in primary legislation and not craft new principles or policies themselves. Any piece of primary legislation that grants the power to make public policy to a body other than the Oireachtas is unconstitutional; however, as there is a presumption in Irish constitutional law that the Oireachtas acts within the confines of the Constitution, any legislation passed by the Oireachtas must be interpreted in such a way as to be constitutionally valid where possible.

Thus, in a number of cases where bodies other than the Oireachtas were found to have used powers granted to them by primary legislation to make public policy, the impugned primary legislation was read in such a way that it would not have the effect of allowing a subordinate body to make public policy. In these cases, the primary legislation was held to be constitutional, but the subordinate or secondary legislation, which amounted to creation of public policy, was held to be ultra vires the primary legislation and was struck down.

In UK constitutional law, ultra vires describes patents, ordinances and the like enacted under the prerogative powers of the Crown that contradict statutes enacted by the King-in-Parliament. Almost unheard of in modern times, ultra vires acts by the Crown or its servants were previously a major threat to the rule of law.

Boddington v British Transport Police is an example of an appeal heard by House of Lords that contested that a bylaw was beyond the powers conferred to it under section 67 of the Transport Act 1962.

Administrative law

In administrative law, an act may be judicially reviewable for ultra vires in a narrow or broad sense. Narrow ultra vires applies if an administrator did not have the substantive power to make a decision or it was wrought with procedural defects. Broad ultra vires applies if there is an abuse of power (e.g., Wednesbury unreasonableness or bad faith) or a failure to exercise an administrative discretion (e.g., acting at the behest of another or unlawfully applying a government policy) or application of discretionary powers in irrational and wrong way.^[5] Either doctrine may entitle a claimant to various prerogative writs, equitable remedies or statutory orders if they are satisfied.

United Kingdom

In the seminal case of Anisminic v Foreign Compensation Commission, Lord Reid is accredited with formulating the doctrine of ultra vires. However, ultra vires, together with unreasonableness, was mentioned much earlier by Lord Russell in the well known case, Kruse v Johnson, regarding challenging by-laws and other rules. Anisminic is better known for not depriving courts of their jurisdiction to declare a decision a nullity, even if a statute expressly prevents the decision being subject to judicial review. Further cases such as Bromley LBC v Greater London Council and Council of Civil Service Unions v Minister for the Civil Service^[9] have sought to refine the doctrine.

In Hammersmith and Fulham London Borough Council v Hazell^[10] the House of Lords held that interest rate swaps entered into by local authorities (a popular method of circumventing statutory restrictions on local authorities borrowing money at that time) were all ultra vires and void, sparking a raft of satellite litigation.