contract

Nature desires perfection; so does law.

Natura appetit perfectum; ita et lex.

Source: Hobart 144; Jackson 605; Wharton; Weisman, 74n

Both nature and law aim at completeness — a legal proceeding that falls short of its natural object is defective and should be corrected.

Nature takes little heed.

Parum cavet natura.

Source: Vandenheuvel v. United Ins. Co., 2 Johns. Cas. (N.Y.) 127, 166; Weisman, 74g; Wharton, III-248

Nature operates by fixed principles indifferent to human convenience — courts invoke this maxim to explain why legal fictions cannot override natural facts such as birth, death, or biological parentage.

Custom is another law.

Consuetudo est altera lex.

Source: Coke, 4 Co. 21; Co. Litt. 113; Weisman, 27d; Weisman, 27e; Weisman, 27n

Custom operates with the force of enacted law — a party who violates an established custom faces the same consequences as one who violates a statute.

Equity acts upon the person.

Aequitas agit in personam.

Source: Bouvier, Inst. n. 3733; Weisman, 36c; Weisman, 36n

Equity directs its decrees to the person of the defendant, commanding or forbidding specific acts — this is its distinctive power over courts of law, which act only on property and money.

Extreme law is extreme injury.

Summum jus, summa injuria.

Source: Hobart 125; Cicero, De Officiis 1.10.33

The rigid application of a legal rule to its utmost extreme produces the greatest injustice — this maxim is the classical warrant for equity's intervention wherever strict law would work manifest wrong.

Laws derived from the pure source of equity and justice must be founded on the consent of those whose obedience they require.

Source: C.L.M.; Weisman, 36s

(English-origin maxim.) No law is legitimate unless it rests on the consent of the governed — invoke this maxim to challenge any regulation, ordinance, or statute imposed upon the People without their genuine consent, as all just authority flows upward from the sovereign People, not downward from government.

All law has either been derived from the consent of the people, established by necessity, confirmed by custom, or introduced by Divine Providence.

Omne jus aut consensus fecit, aut necessitas constituit, aut firmavit consuetudo, aut quod his defecit Providentia Divina introduxit.

Source: Dig. 1.3.40; Broom, Max. 616; Weisman, 71gg

There are only four sources of law — consent, necessity, custom, and divine decree. Any purported law that cannot trace its origin to one of these is no law at all.

That is perfect which consists of all its parts.

Illud perfectum est quod ex omnibus suis partibus constat.

Source: Coke, 9 Co. 9; Weisman, 95p

A legal proceeding, instrument, or right must include every essential element — remove one necessary part and the whole fails.

Application is the life of a rule.

Applicatio est vita regulae.

Source: 2 Bulst. 79; Weisman, 95q

A rule that is never applied is dead letter — rules exist to govern actual cases, and their meaning is known only through their application to real facts.

Legal actions do not admit a limitation.

Actus legitimi non recipiunt modum.

Source: Hob. 158; Jackson

Acts required by law must be performed absolutely and completely — they cannot be qualified by conditions or limitations that the law does not authorize.

That which, if proved, would not be relevant, ought not to be heard.

Allegari non debuit quod probatum non relevat.

Source: 1 Chan. Cas. 45; Jackson; Weisman, 99o

Irrelevant allegations waste the court's time — a party should not be permitted to allege what, even if proved, would have no bearing on the outcome.

An alternative petition is not to be heard.

Alternativa petitio non est audienda.

Source: 5 Co. 40; Jackson; Weisman, 65bb; Weisman, 87f

A party must state his claim with certainty — a petition that asserts one thing or another in the alternative lacks the definiteness the law requires.

A human body is not susceptible of appraisement.

Corpus humanum non recipit aestimationem.

Source: Hob. 59; Jackson

The body of a free person cannot be reduced to a monetary value — this principle forbids treating human beings as commodities and underlies the prohibition against involuntary servitude.

A weak foundation destroys the superstructure.

Debile fundamentum fallit opus.

Source: Noy, Max. 20; Jackson

A legal argument, proceeding, or claim built on a defective premise will inevitably fail — the soundness of the foundation determines the soundness of the whole.

Debts follow the person of the debtor.

Debita sequuntur personam debitoris.

Source: Halk. Max. 18; Jackson; Weisman, 28k

A debtor cannot escape his obligations by changing location or residence — his debts attach to his person and may be pursued wherever he goes.

A luxurious debtor is odious in law.

Delicatus debitor est odiosus in lege.

Source: 2 Bulst. 148; Jackson

A debtor who lives extravagantly while refusing to pay his creditors receives no sympathy from the court — the law disfavors those who indulge themselves at the expense of those to whom they owe.

A thing is said to be given when it is yielded otherwise than by virtue of a right.

Donari videtur, quod nullo jure cogente conceditur.

Source: D. 50, 17, 82; Jackson; Weisman, 48l

What is yielded without legal compulsion is treated as a gift — the distinction between what is owed by right and what is given freely determines the nature of the transfer.

To refer errors to their principles is to refute them.

Errores ad sua principia referre, est refellere.

Source: 3 Inst. 15; Jackson; Wharton; Weisman, 37j

The surest way to expose a legal error is to trace it back to the principle from which it claims to derive — when the principle does not support the conclusion, the error is laid bare.

A fee is that which anyone holds, from whatever cause, whether it be a tenement or a rent.

Feodum est quod quis tenet ex quacunque causa, sive sit tenementum sive reditus.

Source: Co. Litt. 1; Jackson

The term "fee" encompasses all inheritable interests, whether in land or in rent — it is defined by the nature of the holding, not by its physical form.

The law does not regard the fraction of a day.

Fractionem diei non recipit lex.

Source: Lofft, 572; Jackson

For purposes of legal computation, a day is treated as an indivisible unit — the law does not generally inquire into what hour of the day an act was performed.

The frequency of an act operates much.

Frequentia actus multum operatur.

Source: 4 Co. 78; Jackson; Weisman, 2a

Repeated acts carry greater legal weight than isolated ones — habitual conduct tends to establish custom, usage, or pattern of intent.

Homicide, or the slaughter of a man, is the killing of a man by a man.

Homicidium vel hominis caedium, est hominis occisio ab homine facta.

Source: 3 Inst. 54; Jackson

Homicide is defined by its essential elements — the killing of one human being by another — and includes all degrees from justifiable to criminal.

Wicked rumours spread abroad are the forerunners of rebellion.

Improbi rumores dissipati sunt rebellionis prodromi.

Source: 2 Inst. 226; Jackson

False and malicious reports, when circulated among a people, breed discontent and lawlessness — this maxim warns that seditious falsehood is a harbinger of insurrection, not a harmless exercise of speech.

In everything is born that which destroys the thing itself.

In omni re nascitur res quae ipsam rem exterminat.

Source: 2 Inst. 15; Jackson

Every right, power, or institution carries within it the seeds of its own limitation or destruction — overuse of authority tends to its eventual overthrow.

In the delivery of deeds, not what is said but what is done is regarded.

In traditionibus scriptorum, non quod dictum est sed quod gestum est inspicitur.

Source: 9 Co. 137; Jackson

The legal effect of a conveyance is determined by the act of delivery, not by the words spoken at the time — substance prevails over accompanying declarations.

A later Act takes away the effect of an earlier one.

Lex posterior derogat priori.

Source: Mackeld. Civ. L. 5.; Jackson

Where two statutes conflict, the later enactment prevails — the legislature is presumed to have known the earlier law and intended to supersede it.

The law punishes a lie.

Lex punit mendacium.

Source: Jenk. Cent. 15; Jackson; Weisman, 71m

Falsehood before a tribunal — whether by perjury, fraud, or suppression of truth — is punishable because the administration of justice depends on truthful testimony.

Natural allegiance is restrained by no barriers, reined by no bounds, stopped by no limits.

Ligeantia naturalis nullis claustris coercetur, nullis metis refrenatur, nullis finibus premitur.

Source: 7 Co. 10; Jackson

The natural-born allegiance a man owes to the land of his birth is universal and cannot be confined by territorial boundaries or artificial distinctions.

A person may not be punished otherwise than according to what the sentence enjoins.

Non alio modo puniatur aliquis, quam secundum quod se habet condemnatio.

Source: 3 Inst. 217; Jackson

Punishment must conform exactly to the sentence imposed — no officer may inflict a penalty beyond what the judgment prescribes.

There is no rule but what may fail.

Non est regula quin fallit.

Source: Plow. Com. 162; Jackson

Every legal rule admits of exceptions — blind adherence to a rule without regard to the circumstances of the case may produce injustice.

It matters not what is known to the Judge, if it be not known judicially.

Non refert quid notum sit judici, si notum non sit in forma judicii.

Source: 3 Buls. 115; Jackson

A judge's private knowledge may not substitute for evidence properly before the court — only facts established through the judicial process may be relied upon for decision. (Duplicate maxim — see also 9.4.9.)

A new law ought to impose form on what is to follow, not on the past.

Nova constitutio futuris formam imponere debet, non praeteritis.

Source: 2 Inst. 292; Jackson

Legislation operates prospectively — a new law governs future conduct and cannot retroactively alter rights or obligations that have already vested.

All things are presumed legitimately done, until the contrary be proved.

Omnia praesumuntur legitime facta donec probetur in contrarium.

Source: Co. Litt. 232; Jackson

Official acts and completed transactions enjoy a presumption of regularity — the burden of proving irregularity falls on the party who alleges it.

All things which are contracted by law perish by a contrary law.

Omnia quae jure contrahuntur, contrario jure pereunt.

Source: D. 50, 17, 100; Jackson

An obligation created by one law may be dissolved by a subsequent law of equal or greater authority — what the law creates, the law may destroy.

The origin of a thing ought to be inquired into.

Origo rei inspici debet.

Source: 1 Co. 99; Jackson

Understanding the source of a right, title, or obligation is essential to determining its present scope and validity — tracing a claim to its origin exposes both its strength and its defects.

Compacts which are not illegal, and do not originate in fraud, must in all respects be observed.

Pacta conventa quae neque contra leges neque dolo malo inita sunt omnimodo observanda sunt.

Source: C. 2, 8, 29; Jackson; Weisman, 24m

Lawful agreements freely made are binding and must be honored — only illegality or fraud in the formation of the contract furnishes ground for non-performance.

It is undoubted law that agreements which are contrary to the laws and constitutions, or contrary to good morals, have no force.

Pacta quae contra leges constitutionesque vel contra bonos mores fiunt, nullam vim habere, indubitati juris est.

Source: C. 2, 3, 6; Jackson

A contract that violates the law, the constitution, or public morality is void ab initio — no court will enforce an agreement founded on illegality.

Money (pecunia) is so called from cattle (pecus), because the wealth of our ancestors consisted in cattle.

Pecunia dicitur a pecus, omnes enim veterum divitiae in animalibus consistebant.

Source: Co. Litt. 207; Jackson; Weisman, 35w

This etymological maxim reminds us that “money” in law is not limited to coined currency — historically and legally, any medium of exchange recognized by the community may serve as money.

Protection begets subjection, and subjection protection.

Protectio trahit subjectionem, et subjectio protectionem.

Source: Co. Litt. 65; Jackson

The duty of allegiance and the right to protection are reciprocal — when the sovereign protects, the subject owes obedience; when the sovereign fails to protect, the obligation of allegiance is correspondingly diminished.

That which was a useless institution at the commencement cannot gain strength from an after-fact.

Quae ab initio inutilis fuit institutio, ex post facto convalescere non potest.

Source: D. 50, 17, 210; Jackson

A void act cannot be validated retroactively by subsequent events — if the foundation was defective from the start, no later development can cure it.

Those things which are spoken to one end, ought not to be perverted to another.

Quae ad unum finem loquuta sunt, non debent ad alium detorqueri.

Source: 4 Co. 14; Jackson; Weisman, 104dd

Words in a statute or instrument must be applied to the purpose for which they were intended — twisting language to serve a purpose foreign to its original design is a perversion of the law. (Duplicate maxim — see also 10.2.33.)

Every grant is to be most strongly taken against the grantor.

Quaelibet concessio fortissime contra donatorem interpretanda est.

Source: Co. Litt. 183; Jackson

Ambiguities in a grant are resolved against the party who drafted it — the grantor had the opportunity to express himself clearly and bears the consequence of any uncertainty.

Things bad in the commencement seldom achieve a good end.

Quae mala sunt inchoata in principio vix est ut bono peragantur exitu.

Source: 4 Co. 2; Jackson

An enterprise begun in fraud, illegality, or injustice rarely produces a lawful result — the taint of the origin infects the whole proceeding.

He who succeeds to the right or property of another ought to be clothed with his right.

Qui in jus dominiumve alterius succedit jure ejus uti debet.

Source: D. 50, 17, 177; Jackson

A successor in interest takes the right exactly as the predecessor held it — he steps into the same legal position, with the same powers and the same limitations.

He who does not prevent what he can prevent, is regarded as doing the thing.

Qui non obstat quod obstare potest facere videtur.

Source: 2 Inst. 146; Jackson

One who has the power and duty to prevent a wrong and fails to act is treated as if he committed the wrong himself — passive acquiescence in preventable harm creates liability.

What is inconvenient, or contrary to reason, is not permitted in law.

Quod est inconveniens, aut contra rationem, non permissum est in lege.

Source: Co. Litt. 178; Jackson

An interpretation or application of law that produces absurd or unreasonable results is presumptively wrong — the law never intends what reason condemns.

What is understood is not lacking.

Quod subintelligitur non deest.

Source: Ld. Raym. 832; Jackson

An implied term need not be expressly stated to be effective — what the parties or the law necessarily understood to be part of the agreement is treated as included.

Money refused frees the debtor.

Reprobata pecunia liberat solventem.

Source: 9 Co. 79; Jackson

A lawful tender of payment that is refused by the creditor discharges the debt — the debtor who offers what he owes in good faith cannot be held liable for the creditor’s refusal to accept.

In the course of events many things arise which at the beginning could not be guarded against or foreseen.

Rerum progressu ostendunt multa, quae in initio praecaveri seu praevideri non possunt.

Source: 6 Co. 40; Jackson; Weisman, 38d

The law does not demand perfect foresight — parties and legislators are not held to have anticipated every contingency that later events reveal.

The grant of a right comes to an end on the termination of the right of the grantor.

Resoluto jure concedentis resolvitur jus concessum.

Source: Mackeld. 179; Jackson

A grant cannot outlive the grantor’s own interest — when the grantor’s right expires, the grantee’s derivative right expires with it.

A term of years ought to be certain and determinate.

Terminus annorum certus debet esse et determinatus.

Source: Co. Litt. 45; Jackson; Weisman, 100i

A lease for years must specify a definite beginning and end — an estate of uncertain duration cannot exist as a valid term of years.

That part is bad which accords not with its whole.

Turpis est pars quae non convenit cum suo toto.

Source: Plow. 161; Jackson; Weisman, 78g

A clause in a document that contradicts the overall purpose of the instrument is to be rejected or construed into harmony — the parts must serve the whole.

In the same manner in which anything is bound it is loosened.

Unumquodque eodem modo quo colligatum est dissolvitur.

Source: 2 Rolle Rep. 39; Jackson

An obligation may be discharged only by the same formality that created it — what was established by deed must be released by deed, what was created by statute must be repealed by statute.

In default of the law, the maxim rules.

Regula pro lege, si deficit lex.

Source: Bouvier, Max.

Where no statute or precedent directly governs, the maxims of law fill the gap — they are the distilled wisdom of the common law and the court's guide when all else is silent.

Form gives being.

Forma dat esse.

Source: Black's 514 (called "the old physical maxim"); Weisman, 46a

A thing has legal existence only when it has assumed its proper form — without the prescribed form, it is a nullity regardless of intent.

The law regards the substance of a thing more than its form.

Lex respicit substantiam rei magis quam formam.

Source: Wing. Max. p. 382, max. 101; Finch, Law, b. 1, c. 3

Where the essential form has been observed, minor defects in form do not vitiate the act — the law looks through form to substance, punishing sham and rewarding reality.

The law looks forward, not backward.

Lex prospicit, non respicit.

Source: Jenk. Cent. 284; Jackson 524; Weisman, 71pp

Laws operate prospectively — they govern future conduct, not past acts. A new law cannot punish what was lawful when done.

An argument follows necessarily in the negative from the not possible to the not being, though not in the affirmative.

A non posse ad non esse sequitur argumentum necessarie negative, licet non affirmative.

Source: Hob. 336; Jackson

If a thing is impossible, it necessarily does not exist — but the reverse does not hold, because the mere absence of a thing does not prove its impossibility.

As usurpation is the exercise of power, which another has a right to; so tyranny is the exercise of power beyond right, which no body can have a right to.

Source: Locke, Treat. 2, 18, 199; Weisman, 51r

(English-origin maxim.) Usurpation is exercising power that belongs to another; tyranny is exercising power beyond any lawful right — both are unlawful, but tyranny is the graver offense because no one can ever have a right to it.

Money being restored does not set free the party offering.

Liberata pecunia non liberat offerentem.

Source: Co. Litt. 207; Jackson; Weisman, 94r

The return of money does not discharge a person from the obligation that gave rise to the payment — the underlying duty survives the refund.

Right is threefold,-of property, of possession, and of possibility.

Source: Black's, 681; Weisman, 86f

(English-origin maxim.) Right exists in three forms: the right of ownership (property), the right of actual holding (possession), and the right of future claim (possibility) — correctly identifying which type of right is at issue is essential to selecting the proper remedy.

Capacity is the attribute of a person by which he may exercise civil rights.

Capacitas est attributum personae per quod jura civilia exercere potest.

Source: Sargent v. Burdett, 96 Ga. 111, 22 S.E. 667; Bouvier, Law Dict.; Weisman, 76d

A party who lacks legal capacity — whether by reason of age, unsoundness of mind, or legal disability — cannot bind himself or others by his acts.

A madman has no will.

Furiosi nulla voluntas est.

Source: Dig. 50, 17, 5; Broom, Max. 99; Weisman, 24x; Weisman, 103u

One who is insane cannot form the legal intent necessary to make a binding contract, execute a deed, or commit a crime requiring mens rea.

Equal knowledge on both sides makes the contracting parties equal.

Scientia utrinque par pares contrahentes facit.

Source: 3 Burr. 1910; Broom, Max. 774; Jackson, Lat. for Law. no. 959; Weisman, 24o

A contract formed where one party withholds material knowledge from the other is not a contract between equals — and may be voidable for that disparity.

No one is bound to give information about things he is ignorant of, but everyone is bound to know that which he gives information about.

Nemo tenetur informare quod nescit, sed quisquis scire quod informat.

Source: Branch, Princ.; Black's Law Dict. (2d) 815; Weisman, 69q

One who volunteers information warrants its truth. Ignorance excuses silence — it does not excuse affirmative misrepresentation.

Not to believe rashly is the sinew of wisdom.

Non temere credere est nervus sapientiae.

Source: 5 Co. 114; Weisman, 69r

The law distrusts credulity. A party who acts on unverified assertions bears the risk of their falsity.

No one can properly understand a part until he has read the whole.

Nemo aliquam partem recte intelligere potest antequam totum perlegit.

Source: 3 Co. Rep. 59; Jackson; Weisman, 69d

A statute, contract, or instrument must be read in its entirety before any single clause can be properly construed — isolated reading of provisions leads to misinterpretation.

Ignorance of fact excuses.

Ignorantia facti excusat.

Source: 2 Co. 3b; 2 Kent, Comm. 491; Code 1, 18, 10; Broom, Max. 253; Weisman, 57c; Weisman, 57d

Acts done and contracts made under a material mistake of fact are voidable. The distinction between ignorance of law (no excuse) and ignorance of fact (grounds for relief) is fundamental.

The law aids the ignorant.

Lex succurrit ignoranti.

Source: Jenk. Cent. 15; Weisman, 44i; Weisman, 57h

Equity steps in where strict law would punish a party who acted in genuine ignorance of a material fact — particularly where the other party possessed superior knowledge.

It is a general rule that ignorance of law prejudices, but not ignorance of fact.

Regulae generalis est quod omnis ignorantia legis praejudicat, non facti.

Source: Code 1, 18, 10; 2 Kent, Comm. 491; 4 Bl. Comm. 27

This is the master rule from which the two branches — law and fact — flow. A mistake of law furnishes no ground to rescind agreements or reclaim money paid; a mistake of fact may.

An error which is not resisted is approved.

Error qui non resistitur, approbatur.

Source: Doct. and Stud. c. 70; Jackson; Weisman, 37d

A party who has knowledge of an error and fails to object or correct it in a timely manner is deemed to have accepted it — silence in the face of a known mistake operates as ratification.

Error lurks in general expressions.

In generalibus latet error.

Source: Jackson; Weisman, 37m

Broad or vague language in statutes, contracts, and pleadings is more likely to contain or conceal error than precise and particular language — specificity is the safeguard against hidden mistakes.

A minor is to be assisted: a mistake of youth is easy.

Succurritur minori: facilis est lapsus juventutis.

Source: Jenk. Cent. 47; Jackson

Courts extend relief to minors who err in legal transactions because youth naturally lacks the judgment to avoid such mistakes — the law protects against the consequences of immaturity.

He is not deceived who knows himself to be deceived.

Non decipitur qui scit se decipi.

Source: 5 Co. 60; Bouvier, Max.; Weisman, 29k

One who enters a transaction knowing the other party's deception cannot later claim injury from the fraud — knowledge of the trick negates the harm.

A mistake in point of law is, in criminal cases, no sort of defense.

Source: 4 Bl. Comm. 27; 4 Steph. Comm. 81; Broom, Max. 253; 7 Car. P. 456; 2 Kent, Comm. 491, and note; Weisman, 57g

(English-origin maxim.) In criminal prosecutions, a defendant cannot escape liability by claiming he did not know his act was illegal — the law presumes knowledge of its own commands, and mistake of law is no defense to a criminal charge.

An act done against my will is not my act.

Actus me invito factus non est meus actus.

Source: Bract. fol. 101b; Peloubet, Legal Maxims no. 62; Broom, Max. 270; Weisman, 2q

No man can be charged with the consequences of an act to which he did not consent. Compelled acts are not voluntary acts — and only voluntary acts give rise to legal liability.

A hidden intention is bad and disfavored in law.

Intentio caeca mala est et in jure odibilis.

Source: 2 Bulstr. 179

The law disfavors secret reservations. One who conceals his true purpose while inducing another to act on a false representation acts fraudulently.

He does not appear to have retained consent who has changed anything under the direction of a threatening party.

Non videtur consensum retinuisse si quis ex praescripto minantis aliquid immutavit.

Source: Bouvier, Max.; Weisman, 21n

Consent extracted by threat or coercion is no consent — a man who acts under duress acts not from his own will but from the will of his oppressor.

Every consent removes error.

Omnis consensus tollit errorem.

Source: 2 Inst. 123; Bouvier, Max.; Weisman, 37c

When a party, fully informed, freely consents to the terms of a transaction, his consent cures any prior defect of error — knowing ratification validates the act.

He who is silent appears to consent.

Qui tacet consentire videtur.

Source: Jenk. Cent. 32; Bouvier, Max.

Silence in the face of an assertion or claim, where one has the duty and opportunity to speak, is treated as acquiescence — the law imputes consent to him who could object but does not.

That which is first in intention is last in operation.

Source: Bacon, Max; Weisman, 60b

(English-origin maxim.) The ultimate purpose of an act is conceived first but accomplished last — in construing a statute or trust, look to the end the maker intended, understanding that the final result is the true measure of the design.

Right and obligation are correlative terms.

Jus et obligatio sunt correlata.

Source: Ogden v. Saunders, 25 U.S. 213, 281; cf. Blackstone, 1 Comm. 123

Every right held by one person implies a corresponding duty in another to respect it. Where there is no duty, there is no right — and where there is a right, there must be a remedy for its violation.

No one is bound to do what is impossible.

Nemo ad impossibile tenetur.

Source: Black's Law Dict. (2d); Jenk. Cent. 7; Co. Litt. 231b; Weisman, 34g

An obligation that cannot be performed is void. This applies to contractual duties, statutory commands, and court orders alike.

Right and obligation are considered by all ethical writers as correlative terms.

Source: Ogden v. Saunders, 25 U.S. 213, 281; Weisman, 34i

(English-origin maxim.) Every right implies a corresponding obligation and vice versa — cite this to argue that a party who asserts a right must also acknowledge the duty that accompanies it, and one who bears a duty may enforce the correlative right.

A minor has the power to make his condition better, but not worse.

Minor potestatem habet conditionem suam meliorare, non deteriorem facere.

Source: Co. Litt. 337; Broom, Max. 496

An infant may accept a beneficial grant or settle a debt, but cannot bind himself to an onerous contract or convey away his property to his own prejudice.

An infant does not differ much from a lunatic.

Infans non multum a furioso distat.

Source: Bract. l. 3, c. 2, s. 8; Dig. 50, 17, 5, 40; 1 Story, Eq. Jur. ss. 223, 224, 242; Weisman, 76e

Both infants and the insane lack the legal capacity to bind themselves. The law protects both on the same principle — neither can consent with understanding.

A betrothal in the present tense is a mutual promise constituting marriage itself.

Sponsalia de praesenti est repromissio.

Source: Co. Litt. 34; Jackson, *Latin for Lawyers* (1915), Max. 990

At common law, *sponsalia de praesenti* — a present-tense exchange of vows ("I take thee") — constituted an actual marriage, as distinguished from *sponsalia de futuro* (a promise to marry in the future, i.e., an engagement). The mutual present consent of the parties, not the ceremony, made the marriage.

A betrothing is the agreement and promise of a future marriage.

Sponsalia dicuntur futurarum nuptiarum conventio et repromissio.

Source: Co. Litt. 34; Jackson

A betrothal (sponsalia) is a mutual promise of future marriage — it creates a binding obligation at law, distinct from the marriage itself but enforceable as an agreement.

Insanity prevents marriage from being contracted, because consent is needed.

Source: 1 Bl. Comm. 439; Weisman, 79g

(English-origin maxim.) A marriage contracted by a person of unsound mind is void ab initio, because the essential element of consent is absent — cite this to annul a marriage where one party lacked mental capacity at the time of the ceremony.

The act of a servant in those things in which he is ordinarily employed is held to be the act of the master.

Factum a servo in iis in quibus opera ejus communiter adhibita est, factum domini habetur.

Source: Lofft, 227; Weisman, 96a

When a servant does what he is usually directed to do, the master cannot disclaim the act — habitual employment is implied authority.

Personal services follow the person.

Servitia personalia sequuntur personam.

Source: 2 Inst. 374; Fleta, lib. 1, c. 3, § 11; Weisman, 96f

Obligations of personal service are attached to the individual and cannot be transferred to another without consent — a man's labor is his own.

He is not presumed to consent who obeys the orders of his father or his master.

Source: Dig. 50, 17, 4; Weisman, 96d

(English-origin maxim.) One who acts under the command of a father or master is not presumed to have freely consented to the act — invoke this to defeat an argument that the subordinate ratified or volunteered the conduct in question.

A delegate cannot delegate.

Delegatus non potest delegare.

Source: 9 Co. 77; Broom, *Legal Maxims* (1874), p. 840; 2 Kent, Comm. 633; Jackson, *Latin for Lawyers* (1915), Max. 180; Weisman, 4e

One entrusted with authority by another cannot sub-delegate that authority without express permission — confidence is personal, not transferable.

Every ratification relates back and is equivalent to a prior command.

Omnis ratihabitio retrotrahitur et mandato priori aequiparatur.

Source: Co. Litt. 207; Jackson, *Latin for Lawyers* (1915), Max. 766

When a principal ratifies an unauthorized act of his agent, the ratification is treated as though the principal had originally commanded it — approval after the fact binds as fully as instruction before.

Ratification is equivalent to a command.

Ratihabitio mandato comparatur.

Source: Dig. 50, 17, 60; Jackson, *Latin for Lawyers* (1915), Max. 916

To ratify is to adopt — once the principal assents to what was done in his name, he is as bound as though he had ordered it from the beginning.

What one cannot do by himself, he cannot do through another.

Quod quis non potest per se, non potest per alium.

Source: 4 Co. 24b; 11 Co. 87a; Jenk. Cent. 237; Weisman, 4c

No man may enlarge his own authority by the artifice of employing an agent — the agent's power can never exceed the principal's.

When the principal does not hold, the incidents thereof ought not to obtain.

Quum principalis causa non consistit, ne ea quidem quae sequuntur locum habent.

Source: D. 50, 17, 129; Jackson

When the principal cause or right fails, all subsidiary rights and incidents that depend upon it also fail — the accessory cannot survive the principal.

The principal being taken away, its adjunct is also taken away.

Sublato principali tollitur adjunctum.

Source: Co. Litt. 389; Jackson

When the principal thing is removed or destroyed, everything attached to or dependent upon it is likewise extinguished — the adjunct has no separate existence.

No one is compelled against his will to remain in a partnership.

Nemo invitus compellitur ad communionem.

Source: Dig. 10, 3, 28; Jackson, *Latin for Lawyers* (1915); Selden v. Vermilya, 2 Sandf. (N.Y.) 568, 593

Partnership rests on mutual consent — the moment any partner withdraws that consent, the association is dissolved.

The partner of my partner is not my partner.

Socii mei socius meus socius non est.

Source: Dig. 50, 17, 47, 1; Jackson, *Latin for Lawyers* (1915), Max. 984; Weisman, 85e

Partnership is a personal relation — it does not extend by implication to persons with whom one has no direct agreement.

A thing done between others ought not to injure a person who is a stranger to it.

Res inter alios acta alteri nocere non debet.

Source: Co. Litt. 132, 182; Broom, *Legal Maxims* (1874), pp. 954, 967; Jackson, *Latin for Lawyers* (1915), Max. 932

Transactions between strangers may benefit but cannot bind or injure those who are not parties — no man's rights are diminished by the acts of others done without his consent.

Personal things follow the person.

Personalia personam sequuntur.

Source: Flanders v. Cross, 10 Cush. (Mass.) 516; Weisman, 61p

Rights and obligations that are personal in nature are attached to the individual and cannot be separated from him.

A burden ought not to be imposed upon one man by the act of another.

Gravamen non concedendum est alicui per factum alterius.

Source: Dig. 50, 17, 74; 2 Kent, Comm. 646

No man may be saddled with obligations he did not assume — liability requires either personal action or personal consent.

A personal connection is equivalent to one's own interest; nearness of blood is as good a consideration as one's own interest.

Source: Bacon, Max. 72, reg; Weisman, 61n

(English-origin maxim.) A close blood relationship is treated as equivalent to a personal stake — cite this to establish standing or interest when a parent, child, or spouse seeks to act on behalf of a family member.

Possession is the best title where no better title appears.

Possessio est optimus titulus ubi alius non apparet.

Source: 20 Vin. Abr. 278; Bouvier, Max. 148; Weisman, 91w

Actual possession establishes a presumptive right that prevails against all the world except a claimant with superior title.

What belongs to us cannot be transferred to another without our consent.

Id quod nostrum est sine facto nostro ad alium transferri non potest.

Source: Dig. 50, 17, 11; Bouvier, *Law Dictionary* (1856)

The right of property includes the exclusive power of disposition — no transfer is lawful without the owner's act or agreement.

Buildings pass by a grant of the land.

Source: Fleta, lib. 3, c. 2, s. 12; Weisman, 70o

(English-origin maxim.) A conveyance of land includes all structures upon it — buildings are part of the realty and pass with the soil unless expressly excluded.

No man can transfer to another a greater right than he himself has.

Nemo plus juris ad alienum transferre potest quam ipse haberet.

Source: Dig. 50.17.54; Broom, Max. 499n; Noy, Max. 9th ed.; Weisman, 86l

This is the universal limit on all transfers — a grantor cannot convey what he does not own, whether it be property, power, or privilege.

One who gives and yet retains does not give effectually. Or, one who gives, yet retains, gives nothing.

Source: Tray. Leg. Max. 129; Weisman, 48b

(English-origin maxim.) A purported gift where the giver retains possession or control is no gift at all — delivery must be complete and unconditional to perfect the transfer.

No man can give that which he has not.

Source: Fleta, lib. 3, c. 15, s. 8; Jenk. Cent. 250; Broom, Max. 499n; Jackson v. Bradford, 4 Wend. (N.Y.) 619; Shep. Touch. 243; Weisman, 48d

(English-origin maxim.) No man can give away what does not belong to him — the donor must have title to the thing given, or the gift is a nullity.

That is considered to be given which is granted when no law compels.

Source: Dig. 50, 17, 82; Weisman, 48e

(English-origin maxim.) A voluntary transfer made without legal compulsion is treated as a gift — the absence of obligation distinguishes a gift from a payment or a performance.

A bequest is not rendered void by an erroneous description.

Source: Inst. 2, 20, 30; Broom, Max. 645; Weisman, 48g

(English-origin maxim.) A bequest that incorrectly describes the thing given is not thereby voided — if the intended subject can be identified despite the error, the gift is upheld.

A gift is said to be pure and simple when no condition or qualification is annexed.

Source: Bract. 1; Bouv. 158; Weisman, 48i

(English-origin maxim.) A gift made without conditions or qualifications is absolute and irrevocable from the moment of delivery — no strings may be implied where none were expressed.

He gives nothing who has nothing.

Nihil dat qui non habet.

Source: Cycl. Diet. 693; Weisman, 48m

A person who owns nothing has nothing to give — the purported gift or conveyance of another's property passes no title and confers no right on the recipient.

That which one has given, knowing it not to be due, with the intention of redemanding it, he cannot recover back.

Source: Dig. 12, 6, 50; Walker v. Hill, 17 Mass. 388; Weisman, 48n

(English-origin maxim.) One who knowingly pays what is not owed, intending to demand it back later, cannot recover — the deliberate payment with knowledge forecloses the claim for restitution.

To present is no more than to give or offer on the spot.

Source: Co. Litt. 120; Weisman, 48p

(English-origin maxim.) To present a thing is to deliver it on the spot — presentment is an immediate, in-person act of giving or offering, not a future promise.

Among other methods of acquiring property, a great, much-used, and celebrated method is that of gift.

Source: Bract. fol. 11; Weisman, 48r

(English-origin maxim.) Gift is one of the principal modes of acquiring property recognized at law — voluntary transfer without consideration is as valid a conveyance as sale or exchange.

He who has a right to give has the right to dispose of the gift.

Source: Wing. Max. 53; 2 Coke, 71; Broom, Max. 459, 461; Weisman, 48t

(English-origin maxim.) The power of disposition follows the power of giving — he who may give freely may also direct the terms and manner of the gift.

It is necessary that a certain thing be brought into the gift, or made the subject of the conveyance.

Source: Bract. fol. 15b; Weisman, 48v

(English-origin maxim.) Every gift or conveyance must identify a definite thing as its subject — an attempt to give or convey something uncertain or indeterminate is void for want of a subject.

Permission is a license to do a thing or an authority to do an act, without such authority, would have been unlawful.

Source: Black's, 893; Weisman, 52d

(English-origin maxim.) A license or permission authorizes what would otherwise be unlawful — absent such authority, the act remains a trespass or wrong.

He who is permitted to do the greater may with greater reason do the less.

Source: Dig. 50, 17, 21; Broom, Max. 3d Lond. ed. 165; Shep. Touch. 429; Weisman, 52f

(English-origin maxim.) He who is authorized to do the greater thing is by necessary implication authorized to do the lesser — a grant of broad power includes every narrower power within it.

That which is granted or reserved in a certain specified form must be taken as it is granted, and will not be permitted to be made the subject of any adjustment or compensation on the part of the grantee.

Source: Ex parte Miller, 2 Hill (NY) 423; Bacon, Max. 26, reg. 4; Weisman, 52i

(English-origin maxim.) A grant made in a specific form must be taken exactly as stated — the grantee may not adjust, compensate, or substitute terms that were fixed by the grantor.

That which is permitted only at a loss is not permitted to be done.

Source: Co. Litt. 127; Weisman, 52j

(English-origin maxim.) An act that can only be performed at a loss is not truly permitted — the law does not grant permission that would destroy the very right it purports to allow.

To permit is to allow by passive consent or not hindering; or to grant leave to by express consent or authorization.

Source: Hill v. Montgomery, 176 S.W.2d 284, 287, 352 Mo. 147; Weisman, 52k

(English-origin maxim.) Permission may be given either expressly by words of authorization or impliedly by passive acquiescence — silence in the face of another's act may constitute permission.

If a man grant that which is not his, the grant is void.

Source: Shep. Touch. 243; Watk. Conv. 191; Weisman, 52l

(English-origin maxim.) A grant of what the grantor does not own is void ab initio — no interest passes, and the grantee acquires nothing regardless of the form of the conveyance.

Measure gives validity to the grant.

Source: C.L.M.; Weisman, 52a

(English-origin maxim.) A grant must specify with certainty the quantity, bounds, or measure of what is conveyed — without definite measure, the grant is void for uncertainty. This applies equally to delegations of governmental power: authority not defined in scope and measure by the People's constitutions is authority never granted.

The wrong-doer shall never be heard in court to claim that his felony, or other wrong, gives him any advantage as a defense.

Source: Wharton, III-346

(English-origin maxim.) A wrongdoer cannot invoke his own crime or tort as a shield in court — no man profits from his own wrong, and the law will not hear a defense built on the defender's own misconduct.

A grant must be construed with certainty as to the thing granted.

Concessio per regem fieri debet de certitudine.

Source: Bract. fol. 15b; 9 Co. 46; Bacon, Max.

No grant is valid unless the subject of the grant can be identified with certainty — vagueness defeats a conveyance.

Let the buyer beware; the buyer ought not to be ignorant that he is purchasing the rights of another.

Caveat emptor; qui ignorare non debuit quod jus alienum emit.

Source: Hob. 99; Co. Litt. 102a; Broom, Max. 690; 1 Bouv. Inst. 383; Barnard v. Kellogg, 10 Wall. (77 U.S.) 388; Weisman, 13b

The buyer purchases at his own risk — he is bound to examine the title and quality of what he buys, and ignorance is no defense.

Let the seller beware.

Caveat venditor.

Source: Lofft. 328; Hargous v. Stone, 5 N.Y. 73, 82; Weisman, 13p

The seller is equally bound to deal honestly — misrepresentation or concealment of defects lies at the seller's door.

To sell is one thing; to consent to a sale is another.

Aliud est vendere, aliud vendenti consentire.

Source: Dig. 50.17.160; Weisman, 13a

The owner's consent is the foundation of every lawful sale — a sale without consent is no sale at all.

In a contract of sale, an ambiguous agreement is to be interpreted against the seller.

In contractu venditionis, ambiguum pactum contra venditorem interpretandum est.

Source: Dig. 50.17.172; Black's, 2d. 64; Weisman, 13q

The seller who drafts the terms bears the risk of unclear language — doubt is resolved in favor of the buyer.

The price stands in the place of the thing sold.

Pretium succedit in locum rei.

Source: 1 Bouv. Inst. n. 939; 2 Bulst. 312; Weisman, 13h

When goods are sold and the price paid, the seller's claim attaches to the money, not the goods — he can no longer reclaim the chattel but must pursue the price. Cite this to defeat a seller's attempt to recover goods after accepting payment, or to establish that the buyer holds full dominion once the exchange is complete.

He is fraudulent who sells the same thing twice.

Fraudulentus est qui rem bis vendit.

Source: Jenk. Cent. 107; Weisman, 13i

Double-dealing in sales is fraud on its face — a man who sells what he has already sold defrauds the second buyer.

Those things which are said for the sake of commendation in sales, if they are plainly apparent, do not bind the seller.

Ea quae commendandi causa in venditionibus dicuntur, si palam appareant, venditorem non obligant.

Source: D. 18, 1, 43; Jackson; Weisman, 13n

Obvious sales puffery — exaggerated praise that no reasonable buyer would take as a guarantee — does not create a warranty binding on the seller.

The payment of the price stands in the place of the purchase.

Solutio pretii emptionis loco habetur.

Source: Jenk. Cent. 56; Jackson; Weisman, 13f

Payment of the agreed price is equivalent to the purchase itself — once the price is tendered, the buyer's right to the thing sold is complete.

The purchaser runs the risk of the loss of a thing sold, though not yet delivered.

Periculum rei venditae, nondum traditae, est emptoris.

Source: 1 Bouv. Inst. n. 939; 4 B. & C. 941; Bouvier, *Law Dictionary* (1856); Weisman, 13e

Once the sale is agreed upon, the risk of loss passes to the buyer even before physical delivery — the buyer's title is complete upon agreement, and the loss falls where the title rests.

In the price of buying and selling, it is naturally allowed to the contracting parties to overreach each other.

Source: 1 Story, Cont. 606; Weisman, 13g

(English-origin maxim.) In arm's-length bargaining over price, each party is naturally permitted to seek the best deal — the law does not police hard bargaining absent fraud or duress.

An act already begun, the completion of which depends on the will of the parties, may be recalled; but if it depend on the consent of a third person, or on a contingency, it cannot.

Actus inceptus cujus perfectio pendet ex voluntate partium revocari potest; si autem pendet ex voluntate tertiae personae vel ex contingenti, revocari non potest.

Source: Bac. Max. Reg. 20; Jackson; Weisman, 7d

A revocable act is one that rests entirely in the hands of the parties — once a third party's rights or an external contingency intervene, the power of revocation is lost.

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Fraud and justice never dwell together.

Fraus et jus nunquam cohabitant.

Source: Wing. Max. 680; Weisman, 29t

Where fraud is found, right cannot coexist — justice demands that every trace of fraud be rooted out before any claim built upon it can stand.

He is not considered to have consented who has altered something under the direction of a threatening party.

Non videtur consensum retinuisse si quis ex praescripto minantis aliquid immutavit.

Source: Dig. 50, 17, 145

Consent procured by threat or coercion is no consent at all — where duress overbears the will, the apparent agreement is void and the party compelled is not bound.

A man cannot validly contract that he shall be irresponsible for his own fraud.

Nulla pactione effici potest ut dolus praestetur.

Source: D. 2, 14, 27; Jackson

No contract clause can exempt a party from liability for his own fraud — an agreement to be held harmless for future deceit is void as against public policy.

No one is considered as deceiving those who know and consent to his acts.

Source: Dig. 50, 17, 145; Bouv. 141; Weisman, 29w

(English-origin maxim.) Volenti non fit injuria — a person who enters a transaction with full knowledge of the other party's conduct and consents to it cannot afterward claim to have been deceived.

The king cannot confer a favour on one subject to the injury and damage of others.

Non potest rex gratiam facere cum injuria et damno aliorum.

Source: 3 Inst. 286; Jackson

Sovereign favor extended to one person cannot lawfully come at the expense of another's rights — the crown's grace must not operate as a trespass upon the people.

No one should be injured by that which has taken place between other parties.

Source: Dig. 12, 2, 10; Weisman, 59u

(English-origin maxim.) A stranger to a transaction or proceeding cannot be prejudiced by it — no man should suffer injury from the acts of parties with whom he had no dealing.

Impossibility is an excuse in law.

Impotentia excusat legem.

Source: Co. Litt. 29b; Broom, Max. 223; Weisman, 44o

Where performance is genuinely impossible, the law excuses — but the impossibility must be objective, not self-created.

When both parties are equally at fault, the position of the possessor (or defendant) is the stronger.

In pari delicto potior est conditio possidentis (vel defendentis).

Source: Dig. 50, 17, 154; 4 T.R. 270; Broom, Max. 325

Where both parties are equally guilty, the court will not intervene to shift the advantage — it leaves the loss where it finds it.

The act of the law does no one wrong.

Source: 5 Coke, 116; 2 Bl. Comm. 123; Weisman, 105q

(English-origin maxim.) What the law itself commands or permits cannot constitute a legal wrong — an act done by operation of law injures no one in the eyes of the law.

He who cannot pay with his purse must answer with his person, lest any offend with impunity.

Qui non potest solvere in aere, luat in corpore, ne quis peccetur impune.

Source: 2 Inst. 173; 4 Bl. Comm. 20; Weisman, 94i

The inability to pay a judgment does not extinguish the obligation — the law ensures that no wrong goes entirely unremedied, even when the wrongdoer lacks the means for monetary satisfaction.

Arbitrators are judges.

Compromissarii sunt judices.

Source: Jenk. Cent. 128; Jackson

Persons chosen by the parties to resolve their dispute exercise a judicial function and are bound by the same principles of impartiality and fairness as judges of the court.

There can be no valid trial jury of less than 12 men, and a consent even by the defendant to a trial by a less number is absolutely void.

Source: Hunt v. State, 61 Miss. 577, 580, 581; Weisman, 67g

(English-origin maxim.) The common law right to trial by jury means a jury of twelve — a trial by fewer than twelve is void, and no party's consent can validate what the law prohibits.

The action in personam is that by which we sue him who is under obligation to us to do something or give something.

Source: Dig. 44, 7, 25; Bract. 101b; Dig. 50, 17, 41; Weisman, 75n

(English-origin maxim.) An action in personam lies against a specific person who is under a personal obligation to do or give something — it follows the debtor, not the property.

When an action is merely criminal, it can be instituted from the beginning either criminally or civilly.

Source: Bract. 102; Weisman, 75p

(English-origin maxim.) Where the same act gives rise to both criminal and civil liability, the aggrieved party may choose to pursue either remedy from the outset.

Whatever is offered by the defendant as sufficient to defeat the cause of action stated in the plaintiffs declaration, either by way of denial, justification, or confession, is a plea.

Source: Jewett Car Co. v. Kirkpatrick, 107 Fed. 622, 624; Weisman, 87j

(English-origin maxim.) Any matter the defendant raises to defeat the plaintiff's claim — whether denial, justification, or confession and avoidance — constitutes a plea and must conform to the rules of pleading.

An award is a judgment.

Arbitrium est judicium.

Source: Jenk. Cent. 137; Jackson; Weisman, 64c

An arbitral award carries the same force as a court judgment — it is binding on the parties and enforceable as law.

Sentence is not given upon matters that are not clear.

Source: Jenk. Cent. p. 7, case 9; Weisman, 64k

(English-origin maxim.) A court will not render judgment on a matter that is unclear or unresolved — the facts must be sufficiently established before sentence can be pronounced.

Facts are more powerful than words.

Facta sunt potentiora verbis.

Source: Bouvier's Law Dictionary; Weisman, 101d

Deeds and circumstances carry greater evidentiary weight than mere declarations — the law looks to what was done, not merely what was said. (Duplicate maxim — see also 11.2.1.)

The names of things ought to be understood according to common usage, not according to the opinions of individuals.

Nomina rerum debent intelligi secundum communem usum, non secundum opiniones privatorum.

Source: Dig. 33, 10, 7, 2; Weisman, 17b

Words in legal instruments are construed by their common and established meaning; a private or idiosyncratic definition cannot override the understanding shared by the community.

The suppression of the truth is the expression of a falsehood.

Suppressio veri, expressio falsi.

Source: Addington v. Allen, 11 Wend. (N.Y.) 374, 417; Wharton, Max.; Weisman, 101e

He who deliberately conceals a material fact is as culpable as one who affirmatively states what is untrue; silence, when there is a duty to speak, is a species of fraud.

Good faith requires that what is agreed upon shall be done.

Bona fides exigit ut quod convenit fiat.

Source: Dig. 19, 2, 21; Dig. 19, 1, 50; Dig. 50, 8, 2, 13; Weisman, 5g; Weisman, 50c

The law demands performance of agreements honestly made; good faith is not merely an aspiration but a binding obligation.

Good faith does not permit the same thing to be demanded twice.

Bona fides non patitur ut bis idem exigatur.

Source: Dig. 50, 17, 57; 9 Co. 53; Broom, Max.; Weisman, 50a; Weisman, 50e

A party who has received satisfaction cannot in good faith demand it again; double recovery is repugnant to equity and conscience.

Good faith must be observed.

Bona fides servanda est.

Source: Coolidge v. Brigham, 1 Mete. (Mass.) 547, 551; Dig.; Weisman, 50d

The principle of good faith pervades every department of law — contracts, property, procedure, and public office alike — and its violation is a ground for relief in all of them.

Fraud corrupts everything it touches.

Fraus omnia corrumpit.

Source: 1 Story, Eq. Jur. §395; Broom, Max.

Where fraud is established, it vitiates the entire transaction — no part of an instrument or proceeding tainted by fraud may stand, for the corruption extends to the whole.

Advice, unless fraudulent, does not create an obligation.

Consilii, non fraudulenti, nulla est obligatio.

Source: Bouvier's Law Dictionary

One who gives honest counsel in good faith incurs no liability for the consequences of that advice — only when advice is given with intent to deceive does it become actionable.

Liberal constructions of written instruments are to be made, on account of the simplicity of the common people, so that the thing may have effect rather than perish; and words should serve the intention, not the intention the words.

Benignae faciendae sunt interpretationes propter simplicitatem laicorum, ut res magis valeat quam pereat; et verba intentioni, non e contra, debent inservire.

Source: Coke, Co. Litt. 36a; Broom, Max. 540; Wharton, Max. no. 13; Weisman, 22x

Instruments are to be read to give them effect, not to defeat them by technicality; intention governs over bare literalism.

The whole is preferred to any single part.

Totum praefertur unicuique parti.

Source: 2 Kent, Comm. 555; 2 Inst. 317; Wing. Max. 238

Every part of an instrument must be read together and harmonized; no single clause may be wrested from its place to defeat the whole.

Usage is the best interpreter of things.

Optimus interpres rerum usus.

Source: 2 Inst. 282; Broom, Max. 917, 930; Weisman, 22ee

When the meaning of a term or provision is doubtful, how it has been understood and applied in practice is the strongest evidence of its true sense.

In contracts, the interpretation is to be liberal; in wills, more liberal; in restitutions, most liberal.

In contractibus, benigna; in testamentis, benignior; in restitutionibus, benignissima interpretatio facienda est.

Source: Co. Litt. 112a; Wharton, Max. no. 255; Weisman, 22g

The degree of liberality in construction increases with the character of the instrument — contracts are read fairly, wills with greater indulgence to the testator's intent, and acts of restoration with the greatest favor toward making the right whole.

Blessed is the exposition by which anything is saved from destruction.

Benedicta est expositio quando res redimitur a destructione.

Source: 4 Co. 25; Jackson

An interpretation that rescues the instrument from nullity is always preferred; the law strives to preserve, not to destroy.

Words are indicators of the mind.

Verba sunt indices animi.

Source: Bacon, Max.; Co. Litt. 68; Weisman, 104h

Words are the outward signs of inward intent; they are the primary — though not the exclusive — evidence of what a party meant.

Words ought to be understood with effect, so that the thing may be preserved rather than destroyed.

Verba debent intelligi cum effectu, ut res magis valeat quam pereat.

Source: 6 Co. 62; Bacon, Max. reg. 3; Plowd. 156; 2 Bl. Comm. 380

No word in an instrument is to be treated as surplusage if any meaning can reasonably be given to it; every term must be read to produce some effect.

Words ought to have some operation.

Verba aliquid operari debent.

Source: 8 Co. 94a; Bacon, Max. reg. 3; Weisman, 104m

An interpretation that renders a word or clause meaningless is disfavored; the drafter is presumed to have used every word for a purpose.

A word is known by the company it keeps.

Noscitur a sociis.

Source: 3 T.R. 87; Broom, Max. 523, 588; Wharton, Max. no. 534; Corning v. McCullough, 1 N.Y. 47, 69

The meaning of an ambiguous word is ascertained by reference to the words associated with it in the same clause or instrument.

A general saying is to be interpreted generally; general words are to be understood generally.

Generale dictum generaliter est interpretandum; generalia verba sunt generaliter intelligenda.

Source: 3 Inst. 76; Jackson; Weisman, 43c

General language is not to be artificially narrowed; where the legislature speaks broadly, its words are given their full natural reach.

In agreements the intention of the parties, rather than the words actually used, should be considered.

In conventionibus contrahentium voluntas potius quam verba spectari placuit.

Source: Jackson; Weisman, 24ee

When the words of a contract are ambiguous or conflict with the evident purpose, courts look to the circumstances, course of dealing, and mutual understanding at the time of agreement — invoke this maxim to defeat a party's attempt to exploit a technical misstatement against the other's known intent.

He who sticks to the letter sticks to the bark; he who considers merely the letter of an instrument cannot comprehend its meaning.

Qui haeret in litera haeret in cortice.

Source: Co. Litt. 289; Jackson; Weisman, 22j

Bare literalism misses the substance of an instrument just as one who examines only the bark of a tree misses the wood within. (Duplicate maxim — see also 1.5.293.)

Whenever in contracts the expression is doubtful, it is most advantageous that that meaning be accepted by which the safety of the subject-matter may be assured.

Quoties in stipulationibus ambigua oratio est, commodissimum est id accipi quo res de qua agitur in tuto sit.

Source: D. 41, 1, 80; Jackson

Ambiguity in a contract is resolved in favor of the reading that best protects the subject matter of the agreement.

Compacts are accustomed to be clothed by the thing itself, by words, by writing, by consent, by delivery, by connection.

Re, verbis, scripto, consensu, traditione, junctura vestes sumere pacta solent.

Source: Plow. Com. 161; Jackson; Weisman, 24l

An agreement may be formed and evidenced in any of these six modes; the law recognizes substance in all its forms, not writing alone.

Words equivocal, and placed in a doubtful sense, are to be taken in their more worthy and effective sense.

Verba aequivoca ac in dubio sensu posita intelliguntur digniori et potentiori sensu.

Source: 6 Co. 20; Jackson; Weisman, 104t

Between a noble and a base meaning of an ambiguous word, the more dignified and operative construction is always preferred.

Subsequent words, added for the purpose of certainty, are to be referred to preceding words which need certainty.

Verba posteriora, propter certitudinem addita, ad priora, quae certitudine indigent, sunt referenda.

Source: Wing.; Jackson; Weisman, 15c

Later qualifying language in an instrument is read as clarifying the earlier, less certain terms — the later words illuminate the earlier.

An ambiguous answer is to be taken against him who offers it.

Ambigua responsio contra proferentem est accipienda.

Source: 10 Co. 58, 59; Broom, Max. 594; Weisman, 6a

He who speaks ambiguously when he could have spoken plainly has only himself to blame; the doubt is resolved against him.

The undefined supplies the place of the whole.

Indefinitum supplet locum universalis.

Source: 4 Co. 77; Weisman, 31f

A term left undefined in an instrument is to be taken in its broadest and most universal sense, covering everything it is capable of embracing.

Nothing is so natural as to dissolve a thing in the same manner in which it was bound.

Nihil tam naturale est, quam eo genere quidque dissolvere quo colligatum est.

Source: Dig. 50, 17, 35; Jenk. Cent. 74

An instrument, obligation, or act is undone by the same method by which it was constituted; what was made by deed is dissolved by deed, what by consent is dissolved by consent.

That which is expressed puts an end to that which is implied.

Expressum facit cessare tacitum.

Source: 4 Co. 80; Broom, Max. 651; Weston v. Davis, 24 Me. 374; Weisman, 43d

When parties reduce their agreement to express terms, no implication inconsistent with those terms may be raised; the express provision governs.

The expression of things that are tacitly implied avails nothing.

Expressio eorum quae tacite insunt nihil operatur.

Source: 2 Inst. 365; Dig. 50, 15, 5

Stating explicitly what the law would already imply adds nothing; the express mention of what was already present by implication neither enlarges nor diminishes the right.

Things expressed may be prejudicial; things not expressed are not.

Expressa nocent, non expressa non nocent.

Source: Dig. 50, 17, 195; Dig. 35, 1, 52; Weisman, 43e

A party is bound by what he has expressed but not by what he has left unsaid; only the expressed terms of a contract or instrument create obligations.

Acts indicate the intention.

Actus indicant intentionem.

Source: 8 Co. 291; Broom, Max. 270; Troy v. Yelle, 176 P.2d 459, 463; Weisman, 2r

Where written intent is ambiguous, the course of conduct of the parties is the surest guide to meaning.

A thing done cannot be undone.

Factum infectum fieri nequit.

Source: 1 Kames, Eq. 96, 259; Weisman, 2x; Weisman, 13o

Once an act is completed — a deed delivered, an instrument executed — the actor cannot recall it by his own will alone.

Prescription and execution do not pertain to the validity of the contract, but to the time and manner of bringing the action.

Praescriptio et executio non pertinent ad valorem contractus, sed ad tempus et modum actionis instituendae.

Source: Wharton, III-255

The statute of limitations and the mode of enforcement affect only procedure, not the underlying validity of the contract — a barred action does not mean the obligation never existed.

Deeds are more powerful than words.

Facta sunt potentiora verbis.

Source: Black's Law Dictionary, 4th ed., 476; Co. Litt. 36; Weisman, 30a

Where a deed and a parol declaration conflict, the deed prevails — written instruments carry greater weight than oral statements. (Duplicate maxim — see also 9.1.18.)

Delivery makes a deed speak.

Traditio loqui facit chartam.

Source: 5 Co. 1a; Weisman, 30m

Until delivery, a deed is a silent instrument — it is the act of delivery that gives life and legal force to the writing.

Writings remain; words fly away.

Scripta manent, verba volant.

Source: Attributed to Caius Titus, Roman Senate; Broom, Max. 312 (principle)

The enduring nature of a written instrument is why the law favors documented evidence over oral testimony — what is written persists; what is spoken vanishes.

An allegation contrary to a deed is not admissible.

Allegatio contra factum non est admittenda.

Source: Jackson; Weisman, 24dd

A party may not contradict by oral allegation what he has solemnly committed to a written instrument; the deed speaks and cannot be gainsaid.

Intention is the soul of an instrument.

Animus hominis est anima scripti.

Source: 8 Bulst. 67; Jackson

The intent of the maker is the animating principle of every written instrument; without ascertaining intent, the instrument is a dead letter.

A charter concerning a thing not in existence is of no avail.

Charta de non ente non valet.

Source: Co. Litt. 36a; Jackson

A deed or grant that purports to convey something that does not exist is a nullity — the law cannot clothe with validity what has no substance.

A deed or bond found with the debtor is presumed to be paid.

Chirographum apud debitorem repertum praesumitur solutum.

Source: Bouvier

The physical possession of an obligation by the debtor raises a presumption that it has been satisfied — if the debt were still owed, the creditor would retain the instrument. (Duplicate maxim — see also 6.5.1.)

In the delivery of writings, not what is said, but what is done, is to be considered.

In traditionibus scriptorum non quod dictum est, sed quod gestum est, inspicitur.

Source: 9 Co. 137; Bouvier; Weisman, 30d

The validity and effect of a written instrument depend on the actual delivery and acts performed, not on the oral declarations accompanying the transfer.

Unusual clauses always excite suspicion.

Clausulae inconsuetae semper inducunt suspicionem.

Source: 3 Co. 81; Broom, Max. (3d Lond. ed.) 264; Weisman, 16d

An uncommon or unexpected provision in an instrument invites close scrutiny — it may signal fraud, overreach, or an attempt to conceal the true bargain.

Words are to be received with effect.

Verba cum effectu sunt accipienda.

Source: Bacon, Max. reg. 3; Plowd. 156; Weisman, 104k; Weisman, 104u

Every clause in an instrument is presumed to have been inserted for a purpose — no provision is to be treated as idle or thrown away if it can be given a sensible operation.

Where the provision of the party is wanting, the provision of the law is at hand.

Ubi defecit remedium partis, ibi adest remedium legis.

Source: 6 Vin. Abr. 49; Weisman, 16g

Where the parties to an instrument have failed to address a contingency, the common law supplies the default rule — silence in a contract is not a void, but an invitation for law to govern.

Surplusage does no harm.

Superflua non nocent.

Source: 3 Bouv. Inst. no. 2949; Broom, Max. 627; Jenk. Cent. 184; Weisman, 41c; Weisman, 41e

Unnecessary words in a deed or statute do not invalidate it — the good part stands even if accompanied by surplus language.

Particular clauses inserted in agreements to avoid doubts and ambiguity do not prejudice the general law.

Source: Dig. 50, 17, 81; Weisman, 16h

(English-origin maxim.) Explanatory clauses inserted in an agreement for the sake of clarity do not override or restrict the general principles of law that would otherwise apply.

That is certain which can be made certain.

Id certum est quod certum reddi potest.

Source: 2 Bl. Comm. 143; 1 Bouv. Inst. 78; 4 Kent, Comm. 462; Broom, Max. 624; Weisman, 15a

An instrument is not void for uncertainty if there exists a means to ascertain its meaning — the law asks only that certainty be attainable, not that it be immediately apparent.

Uncertain things are held for nothing.

Incerta pro nullis habentur.

Source: Dav. Ir. K.B. 33; 1 Rolle 465; Weisman, 15b

An allegation, a grant, or an instrument so vague that its meaning cannot be ascertained is treated as if it does not exist.

That is certain which can be made certain; but that is more certain which is certain of itself.

Certum est quod certum reddi potest; sed id magis certum est quod de se certum est.

Source: 9 Co. 47a; Broom, Max. 624

While both forms satisfy the law, a self-evident term is always preferred over one requiring extrinsic proof — precision in drafting eliminates future dispute.

An uncertain quantity vitiates the act.

Incerta quantitas vitiat actum.

Source: 1 Roll. R. 465; Bouvier

Where the subject matter of an instrument — the quantity conveyed, the sum promised, the obligation undertaken — is left uncertain, the act is void; the law requires that what is done be done with sufficient definiteness to be enforceable. (Duplicate maxim — see also 1.5.96.)

What is necessarily understood is not wanting.

Quod necessarie intelligitur, id non deest.

Source: 1 Bulst. 71; Jackson; Weisman, 69c

What the law necessarily implies need not be expressly stated; an instrument is not defective for omitting what every reasonable reader would understand to be included.

A fortuitous event is not to be expected, and no one is bound to foresee it.

Casus fortuitus non est sperandus, et nemo tenetur divinare.

Source: 4 Co. 66; Hardr. 82 arg.; Broom, Max. 260; Weisman, 1b

The law does not charge a man with anticipating the unforeseeable — liability attaches only to events within the range of reasonable expectation.

No one is held to answer for the effects of a superior force or of a fortuitous event, unless his own fault has contributed.

Nemo tenetur ad impossibile; nec casus fortuitos praestat.

Source: Fleta, lib. 2, c. 72, s. 16; 4 Co. 66; Weisman, 1c

Acts of God, storms, insurrection, and irresistible forces excuse performance — but only where the party's own conduct did not invite or amplify the disaster.

An uncertain day is held as a condition.

Dies incertus pro conditione habetur.

Source: Black's Law Dictionary, 4th ed., 367; cf. Dig. 36, 2, 5; Weisman, 100d

Where an obligation is fixed to a day that may or may not arrive, the day is treated as a condition precedent — the obligation does not mature until the uncertain event occurs.

A man may be capable and incapable at different times.

Homo potest esse habilis et inhabilis diversis temporibus.

Source: 5 Co. 98; Jackson

Legal capacity is not fixed; a person's competence to act may vary with age, condition, or circumstance, and the law judges capacity at the time the act was performed.

Delay on the part of a debtor ought not to be injurious to a creditor.

Mora debitoris non debet esse creditori damnosa.

Source: Pothier; Jackson

The creditor must not suffer loss because the debtor is slow to perform; the debtor bears the cost of his own delay, including interest and consequential damages.

International law is affected by positive (written) law, founded on usage, consent, and agreement.

Source: 1 Kent, Comm. 2; Weisman, 102i

(English-origin maxim.) The rules governing relations among nations derive much of their operative force from established practice, usage, and express agreement (treaties and conventions). This maxim describes the mechanism by which international law functions in practice — it does not diminish the supremacy of natural law, which remains the foundation against which all positive law, domestic or international, is measured.

A bishop need not obey any mandate save the king’s.

Episcopus alterius mandato quam regis non tenetur obtemperare.

Source: Co. Litt. 134; Jackson

A bishop’s temporal allegiance runs to the sovereign alone; no inferior officer or magistrate may command the bishop’s obedience in matters of governance.

A workman for hire promises the skill of his art; he who receives payment for his art must deliver workmanlike performance.

Artifex debet esse peritus artis suae; qui mercedem pro arte sua accipit, peritiam artis praestare debet.

Source: 2 Kent, Comm. 588; Story, Bailm. s. 428; Weisman, 35j

Every hired craftsman impliedly warrants competence — payment for professional services carries with it the obligation of professional quality.

Usury is odious in law.

Usura est odium in lege.

Source: Bouv. 161; 3 Inst. 151; Weisman, 35s

The exaction of excessive interest is condemned at common law as a species of oppression — the lender who extracts more than a just return perverts the purpose of money.

An insane person who knows not what he does cannot make a bargain, nor transact any business.

Furiosus stipulare non potest, nec aliquid negotium agere, qui non intelligit quid agit.

Source: 4 Coke, 126; Weisman, 35c

A person who lacks the mental capacity to understand the nature of a transaction cannot be bound by it — contracts and bargains require a meeting of minds, and an insane person has no mind to give.

A simple recommendation does not bind the party offering it.

Simplex commendatio non obligat.

Source: Dig. 4, 3, 37; 2 Kent, Comm. 485; Broom, Max. (3d Lond. ed.) 700; Weisman, 3d

A mere endorsement or suggestion — as distinguished from a warranty or guarantee — imposes no obligation on the recommender.