Greek and Latin – DDT’s new feature

By Vijay Kumar

As such the laws made by our babus are Greek and Latin not only to the victims of the laws but to the babus themselves who make those laws. But what do those original Latin phrases which our Lordships use regularly and which our babus are also fond of using once in a while. A judgement or order, a circular or even an article for us is not authentic unless there are a couple of Latin phrases strewn in. Obviously the language is rich in Legal theories and all students of Law are required to know a few of them. Starting today DDT will try to bring you some of these phrases and explain them in English. We hope our new feature will be of some use to our esteemed netizens.

Today’s phrase: sub silentio.

This phrase has been used in a High Court order carried by us today. This basically means a point not fully argued and so cannot be taken as a precedent. Extracts from Salmond on Jurisprudence will perhaps best explain the concept:

“A decision passes sub silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to its mind. The court may consciously decide in favour of any party because of point A, which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome, the decision is not an authority on point B. Point B is said to pass sub silentio.

A good illustration is Gerard v. Worth of Paris Ltd. There, a discharged employee of a company, who had obtained damages against the company for wrongful dismissal, applied for a garnishee order on a bank account standing in the name of the liquidator of the company. The only point argued was on the question of the priority of the claimant’s debt, and, on this argument being heard; the Court of Appeal granted the order. No consideration was given to the question whether a garnishee order could properly be made on an account standing in the name of the liquidator. When, therefore, this very point was argued in a subsequent case before the Court of Appeal, the court held itself not bound by its previous decision. Sir Wilfrid Greene, M.R. said that he could not help thinking that the point now raised had been deliberately passed sub silentio by Counsel in order that the point of substance might be decided. He went on to say that the point had to be decided by the earlier court before it could make the order which it did; nevertheless, since it was decided “without argument, without reference to the crucial words of the Rule, and without any citation of authority”, it was not binding and would not be followed.

In the case of Arnit Das v. State of Bihar, 2000 (5) SCC 488 it was observed, “A decision not expressed, not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141. That which has escaped in the judgment is not the ratio decidendi. This is the rule of sub silentio, in the technical sense when a particular point of law was not consciously determined.”

Nearly every decision sub silentio can be regarded, from another point of view, as a decision per incuriam, because the failure of Counsel to argue the point will generally mean that relevant cases or statutes are not brought to the attention of the court. The concept of sub silentio is not complete without the other concept of per incuriam and for this, please wait till Monday.

Incidentally what is a garnishee order? It is a kind of attachment. If (Defendant) A owes (Plaintiff) B a certain sum of money as a judgment in a lawsuit against A that B won, and A does not pay it to B, and (Garnishee) C owes A some money, B may have a court issue a garnishee order to C, and then C has to pay the money directly to B. (C is often A's employer but could be anyone who owes A money, including someone who had borrowed from A.)

Law is really intriguing if not interesting and what is really surprising is “how could lawyers come up with such brilliant ideas?”