From Virgil’s Aeneid to the Da Vinci Code
English law is replete with Latin doctrines whilst judgments are often embellished and explicated with literary references. But you don’t need to have a degree in classics or have the general knowledge of a top University Challenge contestant to get your head around what you need to know.
Legal Cheek has compiled a non-exhaustive list of some Latin phrases and literary references that should help incoming law students to impress their professors and tackle tricky judgments.
Nemo dat quod non habet
This translates to “no-one can give what he or she does not have”. This phrase makes clear that having physical possession of something does not necessarily mean that it belongs to you in the eyes of the law. What matters is who holds the legal title — otherwise it would simply be a case of ‘finders keepers, losers weepers’!
Meaning “let the buyer beware”, this doctrine refers to situations where the onus is on a buyer to reasonably inspect the thing they are buying. This is not to be confused with ‘cave canem’ (translated to “beware the dog”). Such a warning sign certainly does not have the same power to place liability on someone entering a property with a guard dog or an aggressive canine as the doctrine of caveat emptor does to place liability on buyers!
Actus reus and mens rea
These Latin terms will be essential to your study of criminal law. They refer to a “guilty act” (actus reus) and a “guilty mind” (mens rea), more commonly referred to as act and intention. Expect to face some curious scenarios in which you will debate the mens rea of certain individuals who have committed criminal acts.
Non haec in foedera veni
We owe this gem of a literary reference to Lord Radcliffe’s 1956 judgment in Davis Contractors Ltd v Fareham, that seeks to get to the essence of the doctrine of frustration. The line meaning “it was not this that I promised to do” is the excuse the protagonist Aeneas gives to his lover Dido, Queen of Carthage, when he decides to desert her in Book IV of Virgil’s Aeneid and continue his conquest to found a city that will eventually become Rome. Today, the line of Latin poetry is an important citation for understanding when a contract has been frustrated and can no longer be performed due to unforeseen circumstances and so on.
Meaning “utmost good faith”, this Latin phrase is a contrasting doctrine to caveat emptor. It refers to situations where parties to a contract must fully disclose all the material facts to ensuring that they are contracting in good faith. Developed by Lord Mansfield in the 1766 case Carter v Boehm, the doctrine remains the standard required in insurance contracts today.
Crossing the Rubicon
This classical reference is known to crop up in various contexts, most notably in Lord Diplock’s assertion in the 1978 case DPP v Stonehouse that “the offender must have crossed the Rubicon and burnt his boats” to meet the threshold to be guilty of attempting to commit theft. The idiom refers to when Caesar along with a Roman legion crossed the river Rubicon that marked the border between Cisalpine Gaul and Italy. The act marked the beginning of a civil war as it was clear that, by crossing the Rubicon, Caesar intended to illegally march on Rome.
The tyrant of Temures
One of the more obscure references you may come across is the story of the tyrant of Temures. It was memorably referred to by Lord Steyn in the 2004 case of Sirius International Insurance Co v FAI General Insurance in order to highlight the importance of not interpreting contracts too literally. He wrote: “The tyrant of Temures promised the garrison of Sebastia that no blood would be shed if they surrendered to him. They surrendered. He shed no blood. He buried them alive. This is literalism.”
The Da Vinci Code
Judges have long been known to explain themselves through idioms, references and anecdotes, perhaps to the detriment of clarity. Some are more creative than others though. Despite bearing no legal significance to the case concerning the popular book the Da Vinci Code, Mr Justice Peter Smith decided to show his appreciation for the themes of encryption by sneaking a secret message into his judgment.
This one won’t get you any extra marks at uni but goes some way to illustrate the broad way in which a judgment should be approached. They are not always just a set of instructions but rather works of literature in their own right! Be prepared to be lured in by arguments that “in summertime village cricket is the delight of everyone” and shocked by the events of 19th April 1964 when “it was bluebell time in Kent.”