Friday, 20 September 2019

Good legal article on precedent

1)Precedent is statement of law found in the decision of superior court  which is to be followed by same court and inferior court.Precedent are principles laid down by court while interpreting statute.Following previous decisions in similar future cases, the court may save time and avoid conflicting decisions, bringing uniformity to law. 
2) Doctrine of stare decisis
The doctrine of stare decisis means 'to stand by decided case ' or 'to uphold precedents'.It states that when a point of law has been decided, it takes form of precedent which is to be followed subsequently and should not normally departed from. The rule of stare decisis means a principle of law settled by courts long ago and followed by series of decisions for long period where the facts are substantially the same.

3)Obiter dicta
Obiter dicta means remark by the way in judgment.It is an expression of opinion on a point which was not necessary for decision of case.Literally means something said by the Judge by the way which does not have any binding authority.But obiter dicta of supreme court carries weight.

4) Sub silentio means under silence. This term mostly refers to matters that are not expressed but implied. Sub silentio means a situation when an action is forwarded without taking notice. For example, if a case is decided against precedent, the newer case is said to have over-ruled the previous decision sub silentio. decision is sub silentio if  an important issue was ignored or was not argued by counsel. That point or issue may turn the decision of the court. Such decision is not an authority on the point which is not fully argued is sub silentio.

5) Per incuriam is a Latin terms which means "through lack of care". A court decision made per incuriam is one which ignores a contradictory statute or binding authority, and is therefore wrongly decided and of no force. A judgment that's found to have been decided per incuriam does not then have to be followed as precedent by a lower court.

6) Ratio decidendi means reasons for decision

Print Page

No comments:

Post a Comment