CONTRACTS & OBLIGATIONS

Consent makes the law.

Consensus facit legem.

Source: Branch, Princ.; BL4 "Consent"; Weisman, 21b

No law, contract, or obligation binds a man without his consent — the foundation of every lawful agreement.

Nothing is so contrary to consent as force and fear.

Nihil consensui tam contrarium est quam vis atque metus.

Source: Dig. 50, 17, 116; Broom, Max. 278

Consent procured by threats, violence, or duress is no consent at all — any agreement so obtained is void from the beginning.

He who can exercise his will has the right to refuse to consent.

Qui potest velle, jus habet nolendi.

Source: Dig. 50, 7, 3

The power to consent necessarily includes the power to withhold consent — no man can be compelled to agree, and any purported consent obtained through coercion, deception, or duress is void. Cite this to challenge government programs or corporate terms that treat silence or participation as consent when no genuine choice was offered.

He who may consent expressly may also consent tacitly.

Qui potest consentire expresse, potest consentire tacite.

Source: Dig. 50, 17, 3

Silence or inaction, where a man has the duty and opportunity to speak, may be construed as consent.

Silence implies consent where the interest of the silent party is at stake.

Qui tacet consentire videtur, ubi tractatur de ejus commodo.

Source: Jenk. Cent. p. 32, case 64; Broom, Max. 138, 787; 9 Mod. 38

When a man's rights are being dealt with and he has knowledge and opportunity to object, his silence operates as acquiescence.

He who has altered anything under the command of one threatening is not regarded as having retained his consent.

Non videtur consensum retinuisse, qui ad imperium minantis aliquid immutavit.

Source: Broom, Max. 278; Bacon, Max. reg. 22

An act performed under compulsion carries no consent — the coerced party retains every right to challenge the transaction.

Those who are mistaken are not considered as consenting.

Non videntur qui errant consentire.

Source: Bracton, fol. 44; Dig. 50, 17, 116, s. 2; Broom, Max. 262

Consent must rest on accurate knowledge — agreement founded on mistake or deception binds no one.

He who does not forbid what he can forbid is taken to assent.

Qui non prohibet quod prohibere potest, assentire videtur.

Source: 2 Inst. 308; 1 Bl. Comm. 430

An officer or trustee who stands by while a wrong is committed, having the power to prevent it, is deemed to have consented to it.

To a willing person, no injury is done.

Volenti non fit injuria.

Source: Broom, Max. 268, 269, 271, 395; Wing. Max. 482; Plowd. 501

He who freely and knowingly consents to an act cannot afterwards complain of it as an injury — but the consent must be truly free.

Consent is the united will of several persons to whom a matter pertains.

Consensus est voluntas plurium ad quos res pertinet, simul juncta.

Source: Davis, 48; Branch, Princ.; Lofft, 514; Weisman, 21o

True consent requires the united assent of all parties whose rights are affected — partial assent by some does not bind the rest.

Consent removes error; acquiescence in error takes away the right of objecting to it.

Consensus tollit errorem.

Source: Co. Litt. 126; 2 Inst. 123; Broom, Max. 129; Rogers v. Cruger, 7 Johns. 611; Wharton

A party who consents to or acquiesces in an error, knowing of it and having the opportunity to object, waives his right to later challenge it — consent cures defects, but only where the acquiescence itself is free and informed.

Those who act and those who consent to the act are visited with equal punishment.

Agentes et consentientes pari poena plectentur.

Source: 5 Co. 80; Jackson 43

An officer who consents to a trespass on the rights of the People is equally liable with the officer who executes it.

It matters not whether a man gives his assent by his words, or by his acts and deeds.

Non refert an quis assensum suum praefert verbis, an rebus ipsis et factis.

Source: 10 Co. 52; Jackson; Weisman, 21i; Weisman, 84b

Consent may be manifested by conduct as effectively as by spoken or written words — the law reads assent from actions where they clearly indicate agreement.

Written obligations are superseded by writings, and an obligation of naked assent is dissolved by assent to the contrary.

Scriptae obligationes scriptis tolluntur, et nudi consensus obligatio contrario consensu dissolvitur.

Source: Jur. Civ.; Jackson

An obligation is dissolved by the same mode that created it — a written contract requires a written release, and a verbal agreement is undone by verbal agreement to the contrary.

Advice, unless fraudulent, does not create an obligation.

Consilii non fraudulenti nulla est obligatio.

Source: Bouvier, *Law Dictionary* (1856)

A man who gives honest counsel is not bound by it — liability arises only where the advice is fraudulently given to induce reliance and cause injury.

One cannot complain of having been deceived when he knew the fact and gave his consent.

Nemo videtur fraudare eos qui sciunt et consentiunt.

Source: Dig. 50, 17, 145; Bouvier, *Law Dictionary* (1856)

Knowledge and consent together bar a claim of fraud — he who enters a transaction with full awareness of the facts cannot afterwards cry deception.

Every consent involves a submission; but a mere submission does not necessarily involve consent.

Source: Black's, 2d. 249; Weisman, 21a

(English-origin maxim.) Consent implies an act of the will; mere submission under compulsion does not — a man who yields to force has not consented, and no obligation arises from coerced compliance.

He who can will [exercise volition,] has a right to refuse to will, [to withhold consent.].

Source: Dig. 50, 7, 3; Weisman, 21d; Weisman, 21c

(English-origin maxim.) The right to consent necessarily includes the right to withhold consent — volition is meaningless unless refusal is equally available.

Consent-A concurrence of wills.

Source: Black's, 2d. 249; Weisman, 21e; Weisman, 95jj

(English-origin maxim.) True consent requires a meeting of two wills — the concurrence must be mutual, voluntary, and informed for any obligation to arise.

What I accept I do not reject.

Source: Broom, Max. 3d Lond. ed. 636; Weisman, 21g; Weisman, 21f

(English-origin maxim.) Acceptance and rejection are incompatible — a party who accepts a benefit or condition cannot simultaneously disclaim it, and acceptance binds.

Long sufferance is construed as consent.

Source: Fleta, lib. 4, c. 26, s. 4; Weisman, 21h

(English-origin maxim.) Prolonged toleration of another's act without objection is treated as consent — silence and inaction over time raise a presumption that the party acquiesced.

He who mistakes is not considered as consenting.

Source: Bract. fol. 44; Dig. 50, 17, 116, s. 2; Broom, Max. 262; 1 Bouv. Inst. n. 581; 2 Kent, Comm. 477; Greerv. Caldwell, 14 Ga. 207; Weisman, 21m; Weisman, 21l

(English-origin maxim.) Consent procured through mistake is no consent — a party who agrees under a material misunderstanding of the facts has not truly consented, and the agreement may be avoided.

Silence shows consent.

Source: Wharton, III-317

(English-origin maxim.) Silence in the face of a claim or assertion, when the party had opportunity and duty to speak, is construed as consent — the law imputes agreement to those who stand mute when they should object.

He who consents cannot receive an injury.

Source: Broom, Max. 268, 269, 271, 395; Wing. Max. 482; 2 Bouv. Inst. n. 2279; Plowd. 501; Weisman, 21j

One who freely consents to an act cannot later claim injury from it — voluntary agreement extinguishes the right to complain. This maxim does not apply where consent was obtained by fraud or duress.

Consent removes mistake or error.

Source: Co. Litt. 126; 2 Inst. 123; Broom, Max. 3d Lond. ed. 129; Weisman, 21r

When a party consents to a transaction despite a known error, the consent cures the defect — acquiescence waives the right to later challenge on grounds of mistake.

The agreement gives the law to the contract.

Pactum legem dat contractui.

Source: Halk. Max. 118; Story, Ag. s. 368; Weisman, 5d

The terms agreed upon by the parties — not external impositions — define the obligations of a contract.

An agreement procured by fraud cannot stand.

Conventio quae inducitur ex fraude, stare non potest.

Source: Dig. 2, 14, 7, s. 9; Weisman, 5b

Fraud vitiates everything it touches — an agreement born of deception confers no rights and imposes no duties.

Things impossible to give, or which do not exist in nature, are treated as though they were not part of the agreement.

Quae sunt impossibilia dari, vel quae in rerum natura non sunt, pro non adjectis habentur.

Source: Dig. 50, 17, 135

No man can be bound to perform the impossible — such clauses are void and sever from the agreement without destroying the whole.

Where there is disagreement on the substance of the thing, there is no acceptance.

Cum de substantia rei dissentitur, apparet nullam esse acceptationem.

Source: Gardner v. Lane, 12 Allen (Mass.) 44; Weisman, 5a

Without consensus ad idem — a meeting of the minds on the essential terms — no agreement exists, whatever words have been exchanged.

There is no doubt that the rights of others cannot be impaired by private agreements.

Privatis pactionibus non dubium est non laedi jus caeterorum.

Source: Dig. 2, 15, 3, pr.; Broom, Max. 623; Jackson 819; Weisman, 5h; Weisman, 86g

Two parties cannot agree between themselves to destroy the rights of a third — private agreements bind only the parties to them.

Public right cannot be diminished by private agreements.

Pactis privatorum juri publico derogari non potest.

Source: Dig. 50, 17, 45, 1; 7 Co. 23; Broom, Max. 695; Wing. Max. 201

No contract between private parties — or between private parties and government officers — can take away rights belonging to the People at large.

The express agreement of the parties overcomes the law, because the agreement of the parties makes the law of the contract.

Expressa partium conventio vincit legem, quia conventio partium facit legem contractus.

Source: Story, Ag. s. 368; Dig. 16, 3, 1, 6; 2 Co. 73; Weisman, 5l

Between competent parties dealing with their own rights, the agreement controls — but this maxim yields where public right is at stake (see 6.2.6).

An agreement that there shall be no accountability for fraud has no effect.

Nihil actum efficitur de dolo non praestando.

Source: Dig. 2, 14, 27, 3; Broom, Max. 622, 188n

No man can contract away liability for his own fraud — such a stipulation is void as against public policy.

Those things which agree in substance do not differ, though they be not expressed in the same words.

Non differunt quae concordant re, tametsi non in verbis iisdem.

Source: Jenk. Cent. p. 70, case 32; Weisman, 5n

The law regards substance, not form — agreements that achieve the same effect by different words are treated alike.

Where it is unclear what was agreed, we follow the usage of the place where the agreement was made.

Si non apparet quid actum est, erit consequens ut id sequamur quod in regione in qua actum est frequentatur.

Source: Dig. 50, 17, 34

Local custom fills the gaps where the parties have been silent on a term — the law presumes they intended what is customary.

A contract and agreement overcome the law.

Conventio et modus vincunt legem.

Source: 2 Co. Rep. 73; Jackson

Between competent parties dealing with their own private rights, the terms of their agreement prevail over default rules of law — the parties' will is sovereign within the bounds of public right.

The part which does not agree with its whole is entitled to small or no consideration.

Source: Plowd. 101; Shep. Touch. 87; Weisman, 5f

(English-origin maxim.) A clause or provision that is inconsistent with the whole agreement is given little or no weight — the parts must conform to the whole, and an outlier term yields to the dominant intent.

By special agreement, things are allowed which are not otherwise permitted.

Source: Co. Litt. 166; Weisman, 5j

(English-origin maxim.) Parties may agree by special contract to terms that would not otherwise be permitted by default rules — private agreement can override directory law where no public right is invaded.

One of two opposite positions being affirmed, the other is denied.

Source: 3 Rolle, 422; Weisman, 5k; Weisman, 64s

(English-origin maxim.) The affirmation of one of two contradictory propositions necessarily denies the other — a party cannot assert both sides of a contradiction.

A naked agreement does not beget an obligation.

Source: Dig. 2, 14, 7, 4; Broom, Max. 746; Weisman, 5m

An agreement without consideration creates no enforceable obligation — bare promises are insufficient to bind in law.

The contract makes the law for the parties.

Contractus legem dat contractui.

Source: BL4 "Contractus"; Bouv. 135; Allen v. Merch. Bank of N.Y., 22 Wend. (N.Y.) 215, 233

Within the bounds of law and public right, the contract is the supreme authority governing the parties — and only the parties.

A contract is, as it were, act for act — a reciprocal exchange.

Contractus est quasi actus contra actum.

Source: 2 Co. 15; Jackson 146; Weisman, 24b

Every valid contract requires mutuality — each party gives and each party receives. One-sided compulsion is not contract.

Words of mouth are to be received with practical effect — where words and intent agree, no interpretation is needed.

Verba oris cum effectu accipi debent.

Source: BL4 "Verba"; cf. 10 Co. 52 (assent by words or deeds)

When the words and the minds of the parties agree on essential terms, the contract is formed and no further construction is necessary.

From a bare agreement without consideration, no action arises.

Ex nudo pacto non oritur actio.

Source: Bracton, fol. 99; Plowd. 305; Fleta, lib. 2, c. 56, s. 3; 2 Bl. Comm. 445; Jackson 246; Weisman, 5m

No obligation is created where nothing of value passes between the parties — consideration is the life of a contract.

A naked contract exists where there is no consideration besides the agreement itself; but where there is consideration, an obligation is created and an action lies.

Nudum pactum est ubi nulla subest causa praeter conventionem; sed ubi subest causa, fit obligatio, et parit actionem.

Source: Plowd. 309; Broom, Max. 745, 750; Dig. 2, 14, 7, 4; 2 Bl. Comm. 445; Jackson 721; Weisman, 24bb

The dividing line between an enforceable contract and a mere promise is consideration — something of value exchanged. Without it, no court will compel performance.

Private contracts cannot derogate from public right.

Conventio privatorum non potest publico juri derogare.

Source: Wing. Max. 201; 7 Co. 23; Co. Litt. 166a; Dig. 50, 17, 45, 1; Broom, Max. 695; Jackson 149; Weisman, 24i

This is the master rule of contract law in the constitutional order. No contract — whether between private parties or between a citizen and the government — can bargain away the rights of the People. Government cannot contract away the constitution.

A contract founded on a base consideration, or against good morals, is null.

Contractus ex turpi causa, vel contra bonos mores, nullus est.

Source: Hob. 167; Broom, Max. 730, 732; Dig. 2, 14, 27, 4; Code 2, 3, 6; Weisman, 24p

An agreement rooted in illegality or immorality confers no rights and creates no duties — the law will not enforce what it forbids.

In contracts, the truth of the matter ought to be regarded rather than the writing alone.

In contractibus, rei veritas potius quam scriptura perspici debet.

Source: Code 4, 22, 1; Weisman, 24j

Courts look through the written form to the true nature of the transaction — relabeling an agreement does not change its substance.

In contracts, matters of custom and usage are tacitly implied.

In contractibus tacite insunt quae sunt moris et consuetudinis.

Source: Story, Bills, s. 143; 3 Kent, Comm. 260n; Broom, Max. 842; Weisman, 24n

The parties are presumed to contract with reference to known customs of their trade or locality — these become part of the agreement by implication.

No contract can arise from an act radically wrong and illegal.

Ex maleficio non oritur contractus.

Source: 1 Term 734; 3 Term 422; Broom, Max. 734; Jackson 247; Weisman, 24z

An agreement rooted in illegality is void ab initio — no man gains rights by his own wrongdoing.

A madman can make no contract.

Furiosus nullum negotium contrahere potest.

Source: Dig. 50, 17, 5; 1 Story, Contr. 76

Capacity to consent is essential to contract — where the mind cannot assent, no binding obligation can be formed.

Written words remain — a written contract cannot be varied by parol proof.

Verba scripta manent.

Source: Broom, Max. 594

Once parties reduce their agreement to writing, the writing is the contract — prior oral negotiations merge into the instrument and cannot contradict it.

In ambiguous terms, interpretation runs against the party who proposed them.

In ambiguis contra stipulatorem est interpretandum.

Source: Dig. 45, 1, 38, 18; 2 Kent, Comm. 721

He who drafts the contract bears the burden of unclear language — ambiguity is resolved in favor of the party who did not write the terms.

Debt and contract are of no place.

Debitum et contractus sunt nullius loci.

Source: 7 Co. 3; Jackson

Debts and contractual obligations are transitory in nature — they follow the person and may be enforced wherever the debtor is found, regardless of where the agreement was made.

Agreements constitute the law of the contract.

Pacta dant legem contractui.

Source: Halk. 118; Jackson

The terms agreed upon by the parties are the governing law of their contract — no external authority may rewrite what the parties have freely settled between themselves.

In the agreements of contracting parties, the rule is to regard the intention rather than the words.

In conventionibus contrahentium voluntatem potius quam verba spectari placuit.

Source: Dig. 50, 16, 219; Bouvier, *Law Dictionary* (1856)

Where the intention of the parties is clear, the law gives effect to that intention even though the words employed are imperfect — substance governs form.

By a contract something is permitted which, without it, could not be admitted.

Pacto aliquod licitum est, quod sine pacto non admittitur.

Source: Co. Litt. 166; Bouvier, *Law Dictionary* (1856); Weisman, 24r

The parties may lawfully agree to terms that would not otherwise exist by operation of law — the contract creates its own permissions within the bounds of public right.

Unless a mandate is gratuitous, it is not a mandate.

Mandatum nisi gratuitum nullum est.

Source: Dig. 17, 1, 4; Inst. 3, 27; 1 Bouv. Inst. n. 1070; Bouvier, *Law Dictionary* (1856)

A true mandate at civil law is a gratuitous commission — if compensation is required, the arrangement is not a mandate but a contract for hire, with different obligations.

The mandate of an illegal thing is void.

Rei turpis nullum mandatum est.

Source: Dig. 17, 1, 6, 3; Bouvier, *Law Dictionary* (1856); Weisman, 62f

No man can lawfully commission another to do what the law forbids — an unlawful mandate creates no obligation on either party.

Contracts have no locality. The obligation of a contract is purely personal, and actions to enforce it may be brought anywhere.

Source: 2 Inst. 231; 1 Smith, Lead. Cas. 340, 363; Story, Confl. Laws, s. 362; Weisman, 24e

(English-origin maxim.) A contract is a personal obligation that travels with the parties and may be enforced in any jurisdiction where the defendant can be found — the obligation has no fixed locality.

The place of the contract governs the act.

Source: 2 Kent, Comm. 458; Weisman, 24g

(English-origin maxim.) The law of the place where the contract was made governs its validity and interpretation — the parties are presumed to have contracted with reference to the law of that place.

In stipulations [within contracts,] the time when we contract is regarded.

Source: Dig. 50, 17, 144, 1; Weisman, 24h; Weisman, 24t

(English-origin maxim.) The terms and conditions of a contract are interpreted as of the date of execution — subsequent changes in law or circumstance do not alter the original bargain.

That which is the less is held to be imported into the contract; (i.e., A. offers to hire B.'s house at six hundred dollars, at the same time B. offers to let it for five hundred dollars; the contract is for five hundred dollars.).

Source: Dig. 50, 17, 9; 1 Story, Cont. 481; Weisman, 24s

(English-origin maxim.) When the parties' offers differ, the contract is formed at the lower figure — the law resolves an ambiguity of amount by imputing the lesser obligation.

An individual's power to contract is unlimited.

Source: Hale v. Henkel, 201 U.S. 43, 74; Weisman, 24u

(English-origin maxim.) A natural person's freedom to enter contracts is unlimited — the power to bind oneself by agreement is an inherent right that no government may abridge without due process of law.

The beginning and cause of every contract must be considered.

Source: Dig. 17, 1, 8; Story, Bailm. s. 56; Weisman, 24v

(English-origin maxim.) In construing a contract, the court must look to the origin and cause of the agreement — the circumstances at formation illuminate the parties' intent.

That which bars those who have made a contract will bar their successors.

Source: Dig. 50, 17, 143; Weisman, 24y

(English-origin maxim.) Defenses that bar the original contracting parties also bar their successors and assigns — the successor steps into the shoes of his predecessor and takes subject to the same limitations.

In all contracts, whether nominate or innominate, an exchange [of value, i.e., a consideration] is implied.

Source: Gravin. lib. 2, s. 12; 2 Bl. Comm. 444, note; Weisman, 24aa

(English-origin maxim.) Every contract, whether named or unnamed, must be supported by consideration — an exchange of value is the essential element that distinguishes a binding agreement from a bare promise.

In the contract of loan, a stipulation not to be liable for fraud is not valid.

Source: Dig. 13, 7, 17, pr; Weisman, 24kk

(English-origin maxim.) A borrower cannot contractually exempt himself from liability for fraud in the loan — the law will not enforce a clause that shields a party from the consequences of his own deceit.

An agreement under seal can only be dissolved ea ligamine quo ligatur.

Source: Wharton, III-21

(English-origin maxim.) A contract made under seal can only be dissolved by an instrument of equal solemnity — what is bound by deed must be released by deed.

The contract gives the law.

Legem enim contractus dat.

Source: Allen v. Merchants' Bank; Wharton, III-165; Weisman, 22e

The contract gives the law to the transaction — the terms agreed upon by the parties, not external default rules, govern the rights and obligations arising from their agreement.

The reason is that a statute is always understood to apply to contracts made within, and not outside, its territory.

Ratio est, quia statutum intelligit semper disponere de contractibus factis intra, et non extra territorium suum.

Source: Wharton, III-292

A statute is understood to govern contracts made within its territory, not those made outside it — legislative power over contractual obligations stops at the territorial border.

Words spoken vanish, words written remain. A written contract cannot be varied by parol proof.

Source: Broom, Max. 3d Lond. ed. 594; Weisman, 24d

(English-origin maxim.) Written instruments supersede oral agreements — a contract reduced to writing cannot be contradicted or varied by prior or contemporaneous oral statements. This is the foundation of the parol evidence rule.

A contract without consideration, or upon a false consideration, or upon unlawful consideration, cannot have any effect.

Source: Code 3, 3, 4; Chit. Cont. (11th Am. ed.) 25, note; Noy, Max. 24; 2 Bl. Comm. 445; 1 Story, Cont. s. 525; Weisman, 24f

(English-origin maxim.) Three fatal defects void a contract: no consideration at all, consideration based on falsehood, or consideration that is unlawful. Any of these renders the contract unenforceable from inception.

A condition precedent must be fulfilled before the effect can follow.

Conditio praecendens adimpleri debet priusquam sequatur effectus.

Source: Co. Litt. 201; Jackson 121; Weisman, 19d

No obligation arises under a conditional agreement until the condition is satisfied — government cannot demand performance while its own conditions remain unfulfilled.

A beneficial condition, which creates an estate, ought to be construed favorably according to the intention of the words.

Conditio beneficialis, quae statum construit, benigne, secundum verborum intentionem, est interpretanda.

Source: 8 Co. 90; Jackson 120; Weisman, 19a

Conditions that vest rights are read broadly and liberally — the law favors the creation and preservation of rights.

An unlawful condition is deemed as not annexed.

Conditio illicita habetur pro non adjecta.

Source: BL4 "Conditio"; cf. Co. Litt. 206; Weisman, 19c

A condition that requires something unlawful is struck from the grant without destroying the grant itself — the grantor cannot poison his own gift.

All conditions are odious, but especially those which restrain marriage and commerce.

Conditiones quaelibet odiosae; maxime autem contra matrimonium et commercium.

Source: Lofft, App. 644; Jackson 122; Weisman, 19e

The law disfavors conditions that restrict natural liberty — conditions restraining the fundamental rights of the People are construed most strictly against the one imposing them.

A repugnant condition in a grant does not destroy the grant; the condition is rejected, and the gift stands.

Repugnans conditio in testamento non vitiatur; rejicitur autem conditio, et stat donatio.

Source: Co. Litt. 206; Broom, Max. 535

Where a condition contradicts the very nature of what is granted, the condition falls and the grant survives — the grantor cannot give and take away in the same breath.

No man can come against his own act.

Nemo potest contra factum suum venire.

Source: 2 Inst. 66; Broom, Max. 219

A man who has conferred a right by grant cannot later impose conditions that destroy it — he is bound by what he has done.

No man should be in a better position by reason of his own wrong than he would have been without it.

Nemo debet melioris conditionis esse per delictum quam sine illo.

Source: Dig. 50, 17, 134, 1; Broom, Max. 279

He who breaks a condition or commits a wrong gains no advantage from it — the law restores the injured party, not the wrongdoer.

There is no obligation to perform the impossible.

Impossibilium nulla obligatio est.

Source: Dig. 50, 17, 185; Broom, Max. 249; Jackson 351

No contract, statute, or condition can bind a man to do what cannot be done — the law does not command absurdities.

The church can make its condition better, but not worse.

Ecclesia meliorari non deteriorari potest.

Source: 2 Eden, 313; Jackson; Weisman, 80a

Those who hold ecclesiastical property in trust may improve it but cannot alienate or diminish it — the same principle applies to any trustee who holds for the benefit of others.

To interpret and to reconcile laws with laws is the best mode of interpretation.

Interpretare et concordare leges legibus est optimus interpretandi modus.

Source: 8 Co. 169; Jackson; Weisman, 22o

Laws should be construed in harmony with one another rather than in conflict — the best interpretation is one that reconciles all provisions into a coherent whole. (Duplicate maxim — see also 10.1.18.)

The place for payment of rent or money, according to the condition of the lease or obligation, is to be strictly observed.

Locus pro solutione reditus aut pecuniae secundum conditionem dimissionis aut obligationis est stricte observandus.

Source: 4 Co. 73; Jackson

When a contract or lease specifies a place of payment, that term must be strictly followed — tender at a different location does not satisfy the obligation.

An unjust condition ought not to be imposed upon one by another.

Non debet alteri per alterum iniqua conditio inferri.

Source: D. 50, 17, 74; Jackson; Weisman, 61s

No man has the right to impose inequitable terms upon another — conditions that are inherently unjust are void, whether imposed by private party or government officer.

The condition of the defendant is the better one.

Potior est conditio defendentis.

Source: Jackson; Weisman, 65r; Weisman, 99i

In cases of doubt, the defendant holds the stronger position — the burden lies on the plaintiff to prove his case, and the defendant is presumed innocent until overcome by evidence.

He who contracts with another either is, or ought to be, acquainted with the condition of that person.

Qui cum alio contrahit, vel est, vel debet esse, non ignarus conditionis ejus.

Source: D. 50, 17, 19; Jackson; Weisman, 24ff

Every party has the duty to know the legal capacity and standing of the person with whom he deals — ignorance of a counterparty's condition is no defense.

It is called a "condition," when something is given on an uncertain event, which may or may not come into existence.

Source: Co. Litt. 201; Weisman, 19b

(English-origin maxim.) A condition in law is a provision tied to an uncertain future event — until the contingency occurs or fails, the rights dependent on it remain in suspense.

An instrument of debt found in the debtor's possession is presumed paid.

Chirographum apud debitorem repertum praesumitur solutum.

Source: Halk. Max. 20; BL4 "Chirographum"; Jackson 107

Possession of the evidence of debt by the debtor raises a presumption of satisfaction — the creditor who surrenders the instrument is taken to have been paid. (Duplicate maxim — see also 11.2.12.)

An instrument of debt not in existence is presumed discharged.

Source: Tray. Leg. Max. 73; BL4 "Debt"; Weisman, 28b

(English-origin maxim.) When the evidence of a debt cannot be produced, the law presumes satisfaction — the burden shifts to the alleged creditor.

Under the term "creditors" are included not only those who have lent money, but all to whom, from any cause, a debt is owed.

Sub nomine creditorum veniunt non tantum qui pecuniam crediderunt, sed omnes quibus ex qualibet causa debetur.

Source: Dig. 50, 16, 11; Weisman, 28c

The word "creditor" extends beyond lenders to every person who holds a lawful claim — including the People as beneficiaries of the public trust.

Nothing can be demanded before the time when, by the nature of things, it can be paid.

Nihil peti potest ante id tempus quo per rerum naturam persolvi possit.

Source: Dig. 50, 17, 186; Weisman, 13j; Weisman, 28d

A debt is not due before its appointed time — premature demands are without force in law. (Duplicate maxim — see also 8.7.4.)

He does not pay who pays too late; by the delay he is judged not to have paid.

Non solvit qui non debet, nisi solverit in tempore.

Source: Dig. 50, 16, 12, 1; Bouv. 139; Weisman, 28t

Timely performance is essential to discharge — a government's delayed remedy is no remedy at all.

No one is considered solvent unless he can pay all that he owes.

Nemo solvendo esse intelligitur nisi qui solidum potest solvere.

Source: Dig. 50, 16, 114; Weisman, 28f; Weisman, 59j

Partial ability to pay is not solvency — the debtor's entire obligation determines his status.

The refusal of money tendered releases him who tenders it.

Recusatio oblati liberat offerentem.

Source: 9 Co. 79a; Weisman, 28u

A lawful tender discharged and refused extinguishes the obligation — the creditor who refuses lawful payment loses his claim to compel it.

Whatever is paid is applied according to the intention of the payer.

Quicquid solvitur, solvitur secundum modum solventis.

Source: 2 Vern. 606; Bouv. 152; Weisman, 28s; Weisman, 35d; Weisman, 48j

The payer directs the application of his payment — the creditor cannot redirect it to a different obligation without the payer's consent.

The rights of creditors can neither be taken away nor diminished by agreements among the debtors.

Debitorum pactionibus creditorum petitio nec tolli nec minui potest.

Source: Broom, Max. 697; Jackson 175; Weisman, 28z

Debtors cannot conspire to defeat their creditors' claims — private arrangements among those who owe do not bind those who are owed.

A debtor is not presumed to make a gift.

Debitor non praesumitur donare.

Source: 1 Kames, Eq. 212; Dig. 50, 16, 108; Ersk. Inst. 3, 3, 93; Weisman, 28y

When a debtor transfers money or goods to his creditor, the natural presumption is that he intends to discharge his debt, not to confer a gratuity.

The thing passes with its burden.

Res transit cum suo onere.

Source: Bracton, fols. 47b, 48; Weisman, 28r

An encumbrance follows the property wherever it goes — the purchaser takes subject to existing obligations, and cannot claim ignorance as a defense.

No one can owe a debt to himself.

Nemo sibi debet.

Source: Cycl. Dict. 689; Weisman, 28aa

Obligation requires two distinct parties — a man cannot be both creditor and debtor of the same claim.

A church ought not to pay tithes to a church.

Ecclesia ecclesiae decimas solvere non debet.

Source: Cro. Eliz. 479; Jackson

Ecclesiastical bodies of equal standing do not owe tithes to one another — the obligation of tithe runs from the laity to the church, not between churches.

He who has not the means to pay with his purse must suffer in his person.

Qui non habet in aere, luat in corpore.

Source: 2 Inst. 173; Jackson

At common law, a debtor who could not satisfy a judgment in money was subject to imprisonment for debt — a harsh rule largely abolished but reflecting the principle that obligations must be answered.

Where damages are given, the losing party ought to be condemned to pay the costs of the victor.

Ubi damna dantur, victus victori in expensis condemnari debet.

Source: 2 Inst. 289; Jackson

The prevailing party is entitled to recover his costs — the loser bears the expense of litigation he wrongfully compelled.

In all obligations when no time is fixed for the payment, the thing is due immediately.

In omnibus obligationibus in quibus dies non ponitur, praesenti die debetur.

Source: Dig. 50, 17, 14; Bouvier, *Law Dictionary* (1856); Weisman, 28p

Where the parties fix no date for performance, the obligation is presently due — the debtor cannot shelter behind silence on the question of time.

A delegated debtor is hateful in law.

Source: 3 Bulstr. 148; Weisman, 28e

(English-origin maxim.) The law disfavors the delegation of debts — substituting a new debtor in place of the original is viewed with suspicion and requires clear proof of the creditor's consent.

That which is due unconditionally is due now.

Source: Tray. Leg. Max. 519; Weisman, 28h

(English-origin maxim.) An unconditional debt is presently due and payable — the debtor cannot delay payment by claiming no time for performance was specified.

That which is paid by the order of another is the same as though it were paid by him who ordered it.

Source: Dig. 50, 17, 180; Weisman, 28i

(English-origin maxim.) Payment made at the direction of a third party is treated as payment by the person who ordered it — the source of the funds is immaterial when the order is clear.

In alternatives, the debtor has the election.

Source: Black's, 599; Weisman, 28j

(English-origin maxim.) When a debt may be satisfied in alternative ways, the choice of method belongs to the debtor, not the creditor — the obligor selects which performance to render.

The principal should always be exhausted before coming upon the sureties.

Source: 2 Inst. 19; Weisman, 28l

(English-origin maxim.) The creditor must first exhaust his remedy against the principal debtor before pursuing the surety — the guarantor's liability is secondary, not primary.

Novation (the substitution of a new debt or obligation for an existing one) is not presumed in law.

Source: Halk. Lat. Max. 109; Weisman, 28m

(English-origin maxim.) The law does not presume that a new obligation has replaced an old one — novation must be clearly proved, and the intent to extinguish the prior debt must be unambiguous.

Naked reason and naked promise do not bind any debtor.

Source: Fleta, 1, 2, C. 60, S. 25; Weisman, 28q

(English-origin maxim.) Bare argument or a naked promise, unsupported by consideration or formality, creates no binding obligation on a debtor — the law requires something more than words.

A debt is a legal relation between two parties.

Source: Safe Dep. & Tr. Co. v. Virginia, 280 U.S. 83, 97; Weisman, 28v

(English-origin maxim.) A debt is not a thing but a legal relation between two determinate parties — the debtor-creditor bond is personal and exists only between those bound by the obligation.

What one has paid knowing it not to be due, with the intention of recovering it back, he cannot recover back.

Source: Dig. 2, 6, 50; Weisman, 28w; Weisman, 35x

(English-origin maxim.) One who pays money knowing it is not owed, intending to reclaim it, cannot recover — the voluntary payment with knowledge of the facts bars restitution.

A fire does not release a debtor from his debt.

Source: Code. 4, 2, 11; Weisman, 28x

(English-origin maxim.) The accidental destruction of evidence or property by fire does not extinguish the underlying debt — the obligation survives independent of the physical instruments that evidence it.

Let him who has nothing in his purse pay in his person, lest he who offends should go unpunished.

Source: C.L.M.; 2 Inst. 173; 4 Bl. Comm. 20; Weisman, 28g

(English-origin maxim.) Where a wrongdoer cannot make monetary restitution, the law requires satisfaction in his person — historically through imprisonment or corporal punishment — so that no offense goes without remedy. The principle secures the injured party's right to redress: inability to pay does not extinguish the obligation, and the law will not suffer a wrong without a remedy.

A privilege is a personal benefit and dies with the person.

Privilegium est beneficium personale, et moritur cum persona.

Source: 3 Bulstr. 8; Weisman, 12a

Unlike rights, which are inherent and perpetual, privileges are grants that attach to the individual — they do not pass to heirs or successors.

A benefit is not conferred upon one who is unwilling to receive it.

Invito beneficium non datur.

Source: Dig. 50, 17, 69; Broom, Max. 699n; Weisman, 12b

No man can be compelled to accept a benefit against his will — and acceptance of an unrequested benefit cannot be used to impose conditions retroactively.

A privilege avails not against the commonwealth.

Privilegium non valet contra rempublicam.

Source: Bacon, Max. 25; Broom, Max. 17; Noy Max. 34; Weisman, 12c

No private privilege can override the public interest — the rights of the People as a body always prevail over grants to individuals.

Every man has liberty to renounce those privileges which have been conferred for his benefit.

Cuilibet licet renuntiare juri pro se introducto.

Source: Code 1, 3, 51; Code 2, 3, 29

A man may freely waive a personal privilege — but he cannot waive a right that belongs to the People, because it is not his alone to surrender.

He who receives the benefit should also bear the burden.

Qui sentit commodum, sentire debet et onus.

Source: 1 Co. 99; Broom, Max. 706-713; 1 Kames, Eq. 289; 1 Story, Const. 78

Benefit and burden are inseparable — a government that claims the benefit of authority must also bear the burden of its fiduciary duties.

He who bears the burden should also enjoy the benefit.

Qui sentit onus, sentire debet et commodum.

Source: 1 Co. 99a; Broom, Max. 638; Weisman, 12g

The People who bear the burden of taxation, obedience, and civic duty are entitled to the benefit of protection and liberty — the equation must balance.

A privilege is, as it were, a private law.

Privilegium est quasi privata lex.

Source: 2 Bulstr. 189; Weisman, 12h

Privileges create exceptions to general law for specific persons — and because they are exceptions, they are to be construed strictly, never expanded beyond their terms.

What I approve I do not reject.

Quod approbo non reprobo.

Source: Broom, Max. 712; Weisman, 12i

A man cannot take the benefit of an instrument or transaction while simultaneously repudiating its burdens — he must accept the whole or reject the whole.

He who does a benefit for another on my behalf is considered as doing it for me.

Qui facit per alterum pro me, facit per se.

Source: 2 Inst. 501; Weisman, 12j

The acts of an authorized agent bind the principal — but the agency must trace to a lawful grant of authority.

He who uses his own right injures no one.

Qui jure suo utitur nemini facit injuriam.

Source: Broom, Max. 379; Jackson

A man exercising a right that belongs to him by nature or by law does no legal injury to another — cite this to defend against claims that the lawful exercise of a recognized right (property, speech, arms, travel) constitutes harm to a third party.

He justly loses the benefit of the law who purposes to overturn the law itself.

Merito beneficium legis amittit, qui legem ipsam subvertere intendit.

Source: 2 Inst. 58; Jackson

One who seeks to destroy the legal order forfeits its protections — the law does not shield those who would undermine the very system that grants them standing.

Private good yields to public.

Privatum commodum publico cedit.

Source: Jenk. Cent. 223; Jackson

Under the monarchy, private advantage yielded to the Crown's public interest without limit. In the American system, this principle still applies — but it is bounded by the reserved rights of the People. No claim of public necessity can override a constitutionally secured right, and the government bears the burden of proving genuine public necessity rather than mere administrative convenience.

To confirm is to make firm that which was before infirm.

Confirmare est id quod prius infirmum fuit firmare.

Source: Co. Litt. 295; Jackson 125; Weisman, 20a

Confirmation gives strength to what was previously weak or defective — but it cannot create a right where none existed.

No one can confirm a right before the right accrues to him.

Confirmare nemo potest priusquam jus ei acciderit.

Source: 10 Co. 48; Jackson 126; Weisman, 20b

A man cannot ratify or confirm what he has no authority over — premature confirmation is a nullity.

He who does not disapprove when he can, approves.

Qui non reprobat, approbat.

Source: 3 Inst. 27; Weisman, 21q

Silence in the face of a known wrong, where one has the power and duty to object, operates as ratification — the People's silence on constitutional violations confirms them.

Confirmation is null where the preceding gift is invalid.

Confirmatio est nulla ubi donum praecedens est invalidum.

Source: Co. Litt. 295; Moore 764; Jackson 127; Weisman, 20h

A void act cannot be made valid by subsequent ratification — if the original grant was beyond the power of the grantor, no amount of confirmation can cure it.

Confirmation supplies all defects, even though what was done may not have been valid from the beginning.

Confirmatio omnes supplet defectus, licet id quod actum est ab initio non valuit.

Source: Co. Litt. 295b; Jackson 128; Weisman, 20i

This maxim applies only to voidable acts (defective but not void) — true nullities remain beyond the reach of confirmation (see 6.7.4).

He who confirms gives nothing.

Qui confirmat nihil dat.

Source: 2 Bouv. Inst. no. 2069

Confirmation is not a new grant — it strengthens what already existed. The confirmer creates no new right; he merely removes doubt about an existing one.

Confirmation is valid only where the confirmer is in possession of the thing itself or of the right to be confirmed.

Confirmatio is tantum firma est ubi possessor aut rei aut juris sit.

Source: Co. Litt. 295

Only the holder of a right can confirm it — a stranger's ratification is without effect.

There are two instruments for confirming or impugning all things: reason and authority.

Duo sunt instrumenta ad omnes res confirmandas aut impugnandas — ratio et auctoritas.

Source: 8 Co. 16; Weisman, 20e

Every legal proposition must withstand the test of both reason and authority — neither alone is sufficient, and what fails both is law in name only.

He confirms the use of a thing who removes the abuse of it.

Source: Moore, 764; Weisman, 20c; Weisman, 62a

(English-origin maxim.) Correcting an abuse of a right is not an attack on the right itself — removing the misuse strengthens and confirms the lawful use.

An exception which confirms the law explains the law.

Source: 2 Bulst. 189; Weisman, 20d; Weisman, 40f

(English-origin maxim.) An exception to a rule confirms the rule's general applicability — the very existence of a stated exception proves that the rule governs all other cases.

He who confirms does not give.

Source: Inst. no. 2069; 2 Bouv; Weisman, 20f; Weisman, 11t

(English-origin maxim.) Confirmation does not constitute a new grant — to confirm is merely to strengthen what already exists, not to create a new right.

When the required form is not observed, the act is inferred to be annulled.

Cum forma non observatur, infertur nullatio actus.

Source: 12 Co. 7; Weisman, 7a

Substance requires form — a contract, grant, or government act that fails to observe the prescribed form is void, not merely voidable.

It matters not whether a revocation is by words or by acts.

Non refert an quis revocet verbis aut factis.

Source: Cro. Car. 49; Branch, Princ.; Weisman, 7b

Conduct inconsistent with a prior grant operates as revocation just as effectively as express words — the People's withdrawal of consent need not be formal.

A clause which excludes the power of abrogation is void from the beginning.

Clausula quae abrogationem excludit ab initio non valet.

Source: Broom, Max. 27; Bacon, Max. reg. 19; Jackson 111

No law or contract can make itself perpetual and irrevocable — the People always retain the sovereign power to alter or abolish what they have created. (Duplicate maxim — see also 11.3.1.)

What was done without due consideration, upon better consideration we should revoke.

Quod inconsulto fecimus, consultius revocemus.

Source: Jenk. Cent. 116; Weisman, 7f; Weisman, 24f

Hasty or improvident acts carry their own remedy — reflection and revocation are always available to cure what recklessness created.

Whose it is to institute, his it is also to abrogate.

Cujus est instituere, ejus est abrogare.

Source: Broom, Max. 785; Wing. Max.; Weisman, 7k; Weisman, 77e

The power to create includes the power to destroy. The People who established the constitution and government retain the exclusive power to alter or abolish both — no creature of the constitution can claim that power for itself.

A thing is dissolved in the same manner by which it was created.

Eodem modo quo quid constituitur, eodem modo destruitur.

Source: 2 Rolle 21, 39; Jenk. Cent. 74; Broom, Max. 884, 891; 6 Co. 53; Weisman, 24jj

An obligation created by words is dissolved by words; an obligation of consent is dissolved by withdrawal of consent — the remedy mirrors the creation.

To derogate from a law is to take away part of it; to abrogate a law is to abolish it entirely.

Derogatur legi, cum pars detrahitur; abrogatur legi, cum prorsus tollitur.

Source: Dig. 50, 17, 102; 1 Bouv. Inst. n. 91; Weisman, 7h

The distinction matters: partial repeal preserves the remainder; total abrogation eliminates the whole — government officers who exceed their authority abrogate the trust that created their office.

All have liberty to renounce those things which have been established in their favor.

Omnes licentiam habere renuntiare his quae pro se introducta sunt.

Source: Code 2, 3, 29; Broom, Max. 625; Weisman, 7i

A man may renounce a personal privilege — but this maxim does not extend to the renunciation of inalienable rights, which are not his alone to surrender.

That which is null produces no effect.

Quod nullum est, nullum producit effectum.

Source: Tray. Leg. Max. 519; Weisman, 7j; Weisman, 14q

A void act is as though it never occurred — it needs no revocation because it never had force. Ultra vires contracts, unconstitutional statutes, and acts without authority fall under this maxim.

The cause being removed, the effect ceases.

Sublata causa tollitur effectus.

Source: 2 Bl. Comm. 203; Broom, Max. 160

When the foundation of an obligation is destroyed — by repeal, by breach, by withdrawal of consent — the obligation itself falls. No effect survives its cause.

Laws may be abrogated by the same authority by which they are made.

Leges eodem modo abrogari possunt quo constituuntur.

Source: Broom, Max. 785; Weisman, 7e

What the legislature enacted, the legislature may repeal. What the People established by constitution, only the People may alter — no lesser authority suffices.

By the same mode by which a thing is bound, by that it is also released or dissolved.

Source: 2 Rolle, 21, 39; Jenk. Cent. 74; Broom, Max. 884, 891; 6 Coke, 53; Weisman, 7g

(English-origin maxim.) An obligation must be dissolved by the same form or authority by which it was created — what is bound by deed is released by deed; what is bound by consent is released by consent.

An amendment [to the original instrument] is not a repeal. [Fundamental principles are not annulled by amendment.].

Source: Mass. Bond & Ins. Co. v. U.S., 352 U.S. 128, 139; Weisman, 7l

(English-origin maxim.) An amendment modifies but does not repeal — the fundamental principles of the original instrument survive amendment unless expressly abrogated.

Implied repeals are not favored in Law.

Source: United States v. Noce, 268 U.S. 613, 619; Weisman, 7m

(English-origin maxim.) The law disfavors implied repeals — a later statute is not presumed to repeal an earlier one unless the two are irreconcilably in conflict, and every effort is made to harmonize them.