Table of Contents

1. Ab initiO:............................................................................... 1
Etymology:...........................................................................1
Uses:...................................................................................1
Law:................................................................................. 2
2. Damnum absque injuria:......................................................3
Categories of damnum absque injuria:........................................3
Reference Case:.....................................................................4
3. INJURIA SINE DAMNUM:
4. CONSENSUS AD IDEM: Meeting of the minds:.......................7
History:...............................................................................7
Concept in academic work:......................................................7
Use in case law:.....................................................................8
Vices of consent:....................................................................9
5. Audi alteram partem:.........................................................10
History:.............................................................................10
Other Uses:......................................................................... 11

1. Ab initiO:
Ab initio (/bni.o/ AB-i-NISH-ee-oh) is a Latin term meaning "from the
beginning"
and
is
derived
from
the
Latin ab ("from")
+ initio, ablative singular of initium ("beginning").

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Etymology:
c.1600, from L., lit. "From the beginning", from ablative case
of initium "entrance, beginning", related to verb inire "to go into, enter upon,
begin".

Uses:
Abbr.: Ab init. Ab initio is used in several contexts:
When describing literature: told from the beginning as opposed to in Medias
res (meaning starting in the middle of the story).
when describing a subject or a module, say when a person is learning French
from the beginning, he is said to be a student of French ab initio
As a legal term: refers to something being the case from the start or from
the instant of the act, rather than from when the court declared it so. A
judicial declaration of the invalidity of a marriage ab initio is a nullity.
In science: A calculation is said to be ab initio (or "from first principles") if
it relies on basic and established laws of nature without additional
assumptions or special models. For example, an ab initio calculation of the
properties of liquid water might start with the properties of the constituent
hydrogen and oxygen atoms and the laws of electrostatics and quantum
mechanics. From these basics, the properties of isolated individual water
molecules would be derived, followed by computations of the interactions of
larger and larger groups of water molecules, until the bulk properties of
water had been determined.
In chemistry: an abbreviation referring to ab initio quantum chemistry
methods.
In biophysics: a method for the prediction of protein structures in protein
folding
In aviation: The very first stage of flight training.
As part of some educational qualifications: foreign languages may be
taken ab initio (for beginners, of a language) during the two year IB period.
This as compared to level B which assumes some level of proficiency.

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In bioinformatics: ab initio is a term used to define methods for making

predictions about biological features using only a computational model
without extrinsic comparison to existing data. In this context, it may be
sometimes interchangeable with the Latin term de novo.

Law:
In law, void means of no legal effect. An action, document or transaction
which is void is of no legal effect whatsoever: an absolute nullity - the law
treats it as if it had never existed or happened.
The term "void ab initio", which means "to be treated as invalid from the
outset", comes from adding the Latin phrase "ab initio" as a qualifier. For
example, in many jurisdictions where a person signs a contract under duress,
that contract is treated as being "void ab initio".
A proposition in law that a court's jurisdiction, a certain document which
purports to affect legal rights, or an act which purports to affect legal rights,
is or was null and void from the start, from its beginning, because of some
vitiating element.
Typically, documents or acts which are void ab initio cannot be fixed and
where a jurisdiction, a document or an act is so declared at law to be void ab
initio, the parties are returned to their respective positions at the beginning of
the event.
"Void ab initio" is often contrasted with "voidable", such documents which
become void only as of the date of the judicial declaration to this effect and
not, as with void ab initio, as if they ever existed.
An insurer facing a claim from an insured that had deceived the insurer on a
material fact, would claim that the insurance contract was void ab initio; that
it was null and void from the beginning and that since there was no legally
enforceable contract, the insurer ought not to have to pay.

2. Damnum absque injuria:

In law, damnum absque injuria (Latin for "loss without injury") is a phrase
expressing the principle of tort law in which some person (natural or legal)
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causes damage or loss to another, but does not injure them, and thus the latter
has no legal remedy. For example, opening a burger stand near someone else's
may cause them to lose customers, but this in itself does not give rise to a cause
of action for the original burger stand owner.

Categories of damnum absque injuria:

Edward Weeks identified three categories of damnum absque injuria: the
absence of legal protection for some interests, the general limits to legal
protection of interests, and the varying extent of legal protections of interests.
Absence of legal protection for some interests: Weeks and Oliver Wendell
Holmes, Jr. identified several interests that lacked legal protection altogether.
At the time of Weeks' treatise, there was no legal protection for emotional
distress unconnected to a physical injury. Holmes also cited the example of
an easement for light and air - if a neighbor built up a tall structure that
overshadowed your house, you would have no legal remedy.
General limits to legal protection of interests: Weeks and Holmes also
identified that there could be damage without legal remedy based on some
doctrines that limited liability. Contributory negligence, for example, could
deprive a plaintiff of a legal remedy against a negligent defendant.
Varying extent of legal protections of interests: Weeks and Holmes also
recognized that there could be damage without legal remedy if the damage
occurred outside the scope of protection for legally recognized
interests. Riparian owners, for example, could suffer damage from their
neighbors upstream use of the water, but as long as the use was considered
reasonable there would be no legal remedy.

Reference Case:
John Rylands and Jehu Horrocks v Thomas Fletcher (1868) House of
Lords1, Lord Chancellor (Lord Cairns), Lord Cranworth:
Where the owner of land, without wilfulness or negligence, uses his land in the
ordinary manner of its use, though mischief should thereby be occasioned to his
neighbour, he will not be liable in damages.
In the 1938 decision in Alabama Power Co. v. Ickes2, the U.S. Supreme
Court ruled:
1 L.R. 3 H.L. 330
2 (302 U.S. 464)
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The term 'direct injury' is there used in its legal sense, as meaning a wrong
which directly results in the violation of a legal right. 'An injury, legally
speaking, consists of a wrong done to a person, or, in other words, a
violation of his right. It is an ancient maxim, that a damage to one, without
an injury in this sense (damnum absque injuria), does not lay the foundation
of an action; because, if the act complained of does not violate any of his
legal rights, it is obvious, that he has no cause to complain. ... Want of right
and want of remedy are justly said to be reciprocal. Where therefore there
has been a violation of a right, the person injured is entitled to an action.'
Parker v. Griswold3. the converse is equally true, that where, although there
is damage, there is no violation of a right no action can be maintained.

3. INJURIA SINE DAMNUM:

3 17 Conn. 288, 302, 303, 42 [Link]. 739
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This maxim Injuria sine Damnum is just opposite to the maxim damnum
sine injuria.
The word damnum means damage. This damage may be loss of health,
loss of service, physical hurt and loss of money or the like. The word
injuria means a legal injury or tortuous act or an infringement of legal right.
And the word sine means without. So the maxim means that an
infringement of any legal right without damage. Where there is infringement
of legal right, action lies against that act. Therefore, if any legal right is
infringed, it is immaterial whether any loss is sustained or not, this maxim
injuria sine damnum affords right to sue for legal remedy.
According to this maxim whenever there is an invasion of a legal right, the
person in whom the right is vested, is entitled to bring an action though he
has suffered no actual harm and may recover damages. It is sufficient to
show that there is violation of a legal right and the law will presume damage.
On the strength of this maxim the libel, assault, battery, false imprisonment
and trespass on land or the mere wrongful acts are actionable without proof
of special damage.
In India, the same principles have been followed. It is not necessary to show
any damage if the legal right is infringed. Violation of a legal right gives rise
to a legal action.
As for example, in an interesting American case of Morningstar Vs.
Fafayette Hotel Company, the plaintiff, who was a guest at the defendants
hotel, was fed up with the food served at the hotel, and so, he purchased
some spare ribs outside the hotel, and gave them to the hotel chef to be
cooked and brought to his room. This was done. But the spare ribs were
accompanied by a bill for one dollar which the plaintiff refused to pay. On
the following morning, the plaintiff was publicly informed at the table of
breakfast that he would not be served. The plaintiff sued for wrongful refusal
to serve breakfast to him and the Court held that his legal right had been
infringed.

In the famous leading case of Ashbay vs. White, the defendant, a returning
officer at a voting booth, wrongfully refused to register a duly tendered vote
of the plaintiff, who was a qualified voter. The candidate for whom the vote
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was sought to be tendered was elected. So no loss was suffered by the

plaintiff for rejection of his vote. The Court held that violation of the
plaintiffs right was an injury to him for which he must have a remedy
without proof of actual damage.
In another interesting case of Marzetti vs. Williams, a Banker having
sufficient funds in his hands belonging to a customer refused to honour his
cheque .The customer sustained no actual loss or damage. The Court held
that the customers legal right was infringed and was entitled to damages.

4. CONSENSUS AD IDEM: Meeting of the

minds:
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Meeting of the minds (also referred to as mutual agreement, mutual

assent or consensus ad idem) is a phrase in contract law used to describe the
intentions of the parties forming the contract. In particular it refers to the
situation where there is a common understanding in the formation of the
contract. This condition or element is often considered a necessary requirement
to the formation of a contract.

History:
Richard Austen-Baker has suggested that the perpetuation of the idea of
'meeting of minds' may come from a misunderstanding of the Latin term
'consensus ad idem', which actually means 'agreement to the [same]
thing'. There must be evidence that the parties had each, from
an objective perspective, engaged in conduct manifesting their assent, and a
contract will be formed when the parties have met such a requirement.

Concept in academic work:

German jurist, Friedrich Carl von Savigny is usually credited with developing
the will theory of contract in his work System des heutigen Rmischen
Rechts (1840).
Sir Frederick Pollock is one person known for expounding the idea of a contract
based on a meeting of minds, at which time it gained much support in the
courts.
Oliver Wendell Holmes wrote in 1897 that a meeting of minds was really a
fiction.
"In the law of contract the use of moral phraseology led to equal confusion, as I
have shown in part already, but only in part. Morals deal with the actual
internal state of the individual's mind, what he actually intends. From the time
of the Romans down to now, this mode of dealing has affected the language of
the law as to contract, and the language used has reacted upon the thought. We
talk about a contract as a meeting of the minds of the parties, and thence it is
inferred in various cases that there is no contract because their minds have not
met; that is, because they have intended different things or because one party
has not known of the assent of the other. Yet nothing is more certain than that
parties may be bound by a contract to things which neither of them intended,
and when one does not know of the other's assent. Suppose a contract is
executed in due form and in writing to deliver a lecture, mentioning no time.
One of the parties thinks that the promise will be construed to mean at once,
within a week. The other thinks that it means when he is ready. The court says
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that it means within a reasonable time. The parties are bound by the contract as
it is interpreted by the court, yet neither of them meant what the court declares
that they have said. In my opinion no one will understand the true theory of
contract or be able even to discuss some fundamental questions intelligently
until he has understood that all contracts are formal, that the making of a
contract depends not on the agreement of two minds in one intention, but on the
agreement of two sets of external signs not on the parties' having meant the
same thing but on their having said the same thing."
The English contracts scholar Richard Austen-Baker has suggested that the
perpetuation of the concept into current times is based on a confusion of it with
the concept of a consensus ad idem ("agreement to the [same] thing") which is
an undoubted requirement of synallagmatic contracting, and that this confusion
may be the result of recent ignorance of Latin.

Use in case law:

In Household Fire and Carriage Accident Insurance Co Ltd v Grant 4,
Thesiger LJ said, in the course of a judgment on the postal rule,
"Now, whatever in abstract discussion may be said as to the legal notion of its
being necessary, in order to the effecting of a valid and binding contract, that
the minds of the parties should be brought together at one and the same
moment, that notion is practically the foundation of English law upon the
subject of the formation of contracts. Unless therefore a contract constituted by
correspondence is absolutely concluded at the moment that the continuing offer
is accepted by the person to whom the offer is addressed, it is difficult to see
how the two minds are ever to be brought together at one and the same
moment... But on the other hand it is a principle of law, as well established as
the legal notion to which I have referred, that the minds of the two parties must
be brought together by mutual communication. An acceptance, which only
remains in the breast of the acceptor without being actually and by legal
implication communicated to the offerer, is no binding acceptance.
In Carlill v Carbolic Smoke Ball Company5, Bowen LJ said, "One cannot
doubt that, as an ordinary rule of law, an acceptance of an offer made ought to
be notified to the person who makes the offer, in order that the two minds may
come together. Unless this is done the two minds may be apart, and there is not
4 (1879) 4 Ex D 216
5 [1893] 1 QB 256
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that consensus which is necessary according to the English law - I say nothing
about the laws of other countries - to make a contract."
In Baltimore & Ohio R. Co. v. United States (1923) the US Supreme Court said
an implied in fact contract is, "an agreement ... founded upon a meeting of
minds, which, although not embodied in an express contract, is inferred, as a
fact, from conduct of the parties showing, in the light of the surrounding
circumstances, their tacit understanding."
The reasoning is that a party should not be held to a contract that they were not
even aware existed. A mutual promise between friends over simple personal
matters should not be a situation where legal remedies are to be used. Equally,
any such agreement where the obligation is primarily a moral one rather than a
legal one should not be enforceable. It is only when all parties involved are
aware of the formation of a legal obligation is there a meeting of the minds.
However, the awareness of a legal obligation is established, not through each
party's subjective understanding of the terms, but on "objective indicators,"
based on what each party said and did.
Under the formalist theory of contract, every contract must have six
elements: offer, acceptance, consideration, meeting
of
the
minds, capacity and legality. Many other contracts, but not all types of
contracts, also must be in writing and be signed by the responsible party, in an
element called form.

Vices of consent:
Mutual
assent
is
vitiated
by
such
actions
as fraud, undue
influence, duress (see per minas), mutual mistake, or misrepresentation. This
may render a contract void or unenforceable.

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5. Audi alteram partem:

Audi alteram partem (or audiatur et altera
pars) is a Latin phrase that means "hear the
other side too", or "hear the alternative party
too". It is most often used to refer to the
principle that no person should be judged
without a fair hearing in which each party is
given the opportunity to respond to the
evidence against them.

Decorative 18th century door piece

from the Vierschaar (city tribunal)
in City Hall of The Hague, by Jacob
de Wit, illustrating Audi alteram
partem.

"Audi alteram partem" is considered a principle

of fundamental justice or equity in most legal systems.
The principle includes the rights of a party or his lawyers
to confront the witnesses against him, to have a fair
opportunity to challenge the evidence presented by the other party, to summon
one's own witnesses and to present evidence, and to have counsel, if necessary
at public expense, in order to make one's case properly.

History:
As a general principle of rationality in reaching conclusions in disputed matters,
"Hear both sides" was treated as part of common wisdom by the ancient
Greek dramatists. A similar principle can also be found in Islamic law, based on
a Hadiths indicating that in litigation, both parties must be heard.
The principle was referred to by the International Court of Justice in
the Nuclear Tests case, referring to France's non-appearance at judgment.
Today, legal systems differ on whether individuals can be convicted in absentia.
The principle is highly used in labour law matters in countries like South Africa
and Zimbabwe.

Other Uses:
The Political Interest Society of the University of Melbourne uses the phrase
as its motto.
The All-Campus Judicial Council of the University of Rochester has used the
phrase as its motto since 2001.

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PRINCIPLE OF NATURAL JUSTICE: AUDI ALTERM PARTEM:

Principle of natural justice is based on the two legal maxims "Nemo debet
essa judex in propria cause" which means no one can be judge of his own
cause. Audi Alteram Partem" which means opportunity of fair hearing to
the other side must be afforded.
This is a rule which generally applies in disciplinary proceedings against an
employee charge of misconduct or any guilt. As per the rule of principle of
natural justice, an enquiry into the allegation labelled against the employee
must be initiated and a fair opportunity of bearing heard must be afforded to
such employee. Thus this rule requires that:
i. charged employee should be given notice of the charges he is called upon
to explain and the allegations on which those are based;
ii.

evidence should be taken in the presence of the charged employee;

iii.

he should be given opportunity to cross-examine the prosecution

witnesses;

iv.

he should have the opportunity of adducing all relevant evidence on

which he relies;

v.

no material should be relied on against him without giving him an

opportunity of explaining such material.

The first principle is that 'No man shall be a judge in his own cause' i.e. to say,
the deciding authority must be impartial and without bias. It implies that no
man can act as a judge for a cause in which he himself has some interest, may
be pecuniary or otherwise. Pecuniary interest affords the strongest proof against
impartiality. The emphasis is on the objectivity in dealing with and deciding a
matter. Justice Gajendragadkar, as then he was, observed in a case reported in,
M/s Builders Supply Corporation v. The Union of India and others,6 it is
obvious that pecuniary interest, however small it may be, in a subject matter of
the proceedings, would wholly disqualify a member from acting as a judge".
Lord Hardwick observed in one of the cases, In a matter of so tender a nature,
even the appearance of evil is to be avoided." Yet it has been laid down as
principle of law that pecuniary interest would disqualify a Judge to decide the
matter even though it is not proved that the decision was in any way affected.
This is thus a matter of faith, which a common man must have, in the deciding
authority.
6 AIR 1965 SC 1061
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Status in India:
As per the Constitution of India under Article 14, 19, 21 lay down the
cornerstone of natural justice in India. In the case of E P Royappa v. State of
Tamilnadu, the apex court held that a properly expressed and authenticated
order can be challenged on the ground that condition precedent to the
making of order has not been fulfilled or the principles of natural justice
have not been observed.
In another landmark case of Maneka Gandhi v. Union of India , the apex
court held that law which allows any administrative authority to take a
decision affecting the rights of the people, without assigning the reason for
such action, cannot be accepted as a procedure, which is just, fair and
reasonable, hence violative of Articles 14 and 21.

The Rules of Principle of Natural Justice/ Audi Alteram

Partem are as follows :

a) The Hearing Rule- This rule requires that a person must be allowed an
adequate opportunity to present their case where certain interests and rights
may be adversely affected by a decision-maker.
To ensure that these rights are respected, the deciding authority must give
both the opportunity to prepare and present evidence and to respond to
arguments presenting by the opposite side.
When conducting an investigation in relation to a complaint it is important
that the person being complained against is advised of the allegations in as
much detail as possible and given the opportunity to reply to the
allegations.

b) The Bias Rule- This second rule states that no one ought to be judge in
his or her case. This is the requirement that the deciding authority must be
unbiased when according this spelling the hearing or making the decision.
Additionally, investigators and decision-makers must act without bias in all
procedures connected with the making of a decision.
A decision-maker must be impartial and must make a decision based on a
balanced and considered assessment of the information and evidence
before him or her without favouring one party over another.
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Even where no actual bias exists, investigators and decision-makers should

be careful to avoid the appearance of bias. Investigators should ensure that
there is no conflict of interest which would make it inappropriate for them
to conduct the investigation.

c) The Evidence Rule- The third rule is that an administrative decision

must be based upon logical proof or evidence material.
Investigators and decision makers should not base their decisions on mere
speculation or suspicion.
Rather, an investigator or decision maker should be able to clearly point to
the evidence on which the inference or determination is based. Evidence
(arguments, allegations, documents, photos, etc...) presented by one party
must be disclosed to the other party, who may then subject it to scrutiny.

d) Audi Alteram Partem or Rule of Fair Hearing- The principle of

audi alteram partem is the basic concept of principle of natural justice. The
expression audi alteram partem implies that a person must be given
opportunity to defend himself. This principle is sine qua non of every
civilized society. This rule covers various stages through which
administrative adjudication passes starting from notice to final
determination. Right to fair hearing thus includes:i. Right to notice
ii. Right to present case and evidence
iii. Right to rebut adverse evidence
Right to cross examination
Right to legal representation
iv. Disclosure of evidence to party
v. Report of enquiry to be shown to the other party
vi. Reasoned decisions or speaking orders

e) Post Decisional Hearing- Post decisional hearing means hearing after

the decision is reached. The idea of post decisional hearing has been
developed by the SC in Maneka Gandhi vs. UOI to maintain the balance
between administrative efficiency and fairness to the individual.
Maneka Gandhi Vs. Union of India:
Facts: In this case the passport dated 01.06.1976 of the petitioner, a
journalist, was impounded Rsin the public interest' by an order dated
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02.07.1977. The Govt. declined to furnish her the reasons for its decision.
She filed a petition before the SC under article 32 challenging the validity
of the impoundment order. She was also not given any pre-decisional
notice and hearing.
Argument by the Govt: The Govt. argued that the rule of audi alteram
partem must be held to be excluded because otherwise it would have
frustrated the very purpose of impounding the passport. However the
Supreme Court held that though the impoundment of the passport was an
administrative action yet the rule of fair hearing is attracted by the
necessary implication and it would not be fair to exclude the application
of this cardinal rule on the ground of administrative convenience. The
court did not outright quash the order and allowed the return of the
passport because of the special socio-political factors attending the case.
The technique of post decisional hearing was developed in order to
balance these factors against the requirements of law, justice and fairness.
The court stressed that a fair opportunity of being heard following
immediately the order impounding the passport would satisfy the
mandate of natural justice. The court validated the order of the govt.
which had been passed in violation of the rule of audi alteram partem
because the govt. had agreed to give post-decisional hearing. The ratio of
the majority decision was as follows: i. Pre-decisional hearing may be dispensed with in an emergent situation
where immediate action is required to prevent some imminent danger or
injury or hazard to paramount public interest.
ii. Mere urgency is, however, no reason for exclusion of audi alteram
partem rule. The decision to exclude pre-decisional hearing would be
justiciable.
iii. Where pre-decisional hearing is dispensed with, there must be a
provision for post-decisional remedial hearing.
In [Link] Vs. UOI, a circular was issued by the Govt. on taking over the
company prejudicially altering the terms and conditions of its employees w/o
affording an opportunity of hearing to them. The SC observed that "In our
opinion, the post decisional opportunity of hearing does not sub serve the rules
of natural justice. The authority that embarks upon a post-decisional hearing
will normally proceed with a closed mind and there is hardly any chance of
getting proper consideration of the representation at such a post decisional
hearing." Thus in every case where pre-decisional hearing is warranted, postdecisional hearing will not validate the action except in very exceptional
circumstances.

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Pre-decisional hearing is the standard norm of rule of audi alteram partem. But
post-decisional hearing atleast affords an opportunity to the aggrieved person
and is better than no hearing at all. However, post-decisional hearing should be
an exception rather than rule. It is acceptable in the following situations: _
i.
ii.
iii.

where the original decision does not cause any prejudice or detriment to the
person affected;
where there is urgent need for prompt action;
where it is impracticable to afford pre-decisional hearing.
The decision of excluding pre-decisional hearing is justiciable.

f) Requirement of Cross Examination- Cross-examination is used to

rebut evidence or elicit and establish truth. In administrative adjudication,
as a general rule, the courts do not insist on cross-examination unless the
circumstances are such that in the absence of it, an effective defence cannot
be put up. The SC disallowed cross-examination in State of J&K vs.
Bakshi Gulam Mohammed on the ground that the evidence of witness
was in the form of affidavits and the copies had been made available to the
party.
Where, however, witnesses depose orally before the authority, the refusal to
allow cross examination would certainly amount to violation of principles
of natural justice. It can thus be concluded that right to cross-examine is an
important part of the principle of fair hearing but whether the same should
be allowed in administrative matters mainly depends on the facts and
circumstances of the case.

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1. [Link]
2. [Link]
3. Legal Glossary book
4. Law Dictionary

LEGAL TERMS- EXPLANATION WITH CASES