Actio personalis moritur cum persona
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Actio personalis moritur cum persona is a Latin expression meaning "a personal right of action dies with the person".
Effect of the maxim
[edit]Some legal causes of action can survive the death of the claimant or plaintiff, for example actions founded in contract law. However, some actions are personal to the plaintiff, defamation of character being one notable example. Therefore, such an action, where it relates to the private character of the plaintiff, comes to an end on his death, whereas an action for the publication of a false and malicious statement which causes damage to the plaintiff's personal estate will survive to the benefit of his or her personal representatives.
The principle also exists to protect the estate and executors from liability for strictly personal acts of the deceased, such as charges for fraud.
Origins of the maxim
[edit]It has been argued by academics[1] and acknowledged by the courts[2] that notwithstanding the Latinate form in which the proposition is expressed its origins are less antiquated. It has been described by one Lord Chancellor (Viscount Simon) as:
...not in fact the source from which a body of law has been deduced, but a confusing expression, framed in the solemnity of the Latin tongue, in which the effect of death upon certain personal torts was inaccurately generalised.[2]
The maxim is first quoted in a case[a] from 1496, where a woman against whom a defamation judgment was issued died before paying the damages and costs.[3]
The Kings Bench first used the maxim in Cleymond v Vincent (1523) but it was popularised by Edward Coke,[4] with cases like Pinchons Case (1616), [5] and Bane's Case,[6] and to some extent with Slade's Case. (1605)
Judicial discussions of the term followed Pinchon's case[7] in Hambly v Trott[8] and later Phillips v Homfray.[9]
In England, the Law Reform (Miscellaneous Provisons) Act 1934 effectively overturned this rule for all actions in tort except defamation.[10] Other common law jurisdictions have also passed legislation overturning or strongly limiting the rule.[11]
See also
[edit]Notes
[edit]References
[edit]- ^ Goudy Two Ancient Brocards in Essays in Legal History Vinogradoff (ed.) and Winfield Textbook of the Law of Tort 2nd edn. p.201
- ^ a b cf. the remarks of Viscount Simon in Stewart v. London, Midland and Scottish Railway Co. 1943 SC (HL) 19 at 26
- ^ a b Simpson, A. W. B. (26 February 1987). A History of the Common Law of Contract: The Rise of the Action of Assumpsit. Oxford University Press. pp. 558–573. doi:10.1093/acprof:oso/9780198255734.003.0015. ISBN 978-0-19-825573-4.
Thus the maxim is quoted in a case in 1496, in somewhat peculiar circumstances. A woman had been cited in an ecclesiastical court for defamation and costs and damages had been awarded against her, so that by the judgment she owed a certain, quantified sum of money.
- ^ Alfred William Brian Simpson, A History of the Common Law of Contract, Volume 1 (Clarendon Press, 1987) p572.
- ^ Alfred William Brian Simpson, A History of the Common Law of Contract, Volume 1 (Clarendon Press, 1987) p564.
- ^ Alfred William Brian Simpson, A History of the Common Law of Contract, Volume 1 (Clarendon Press, 1987) p443.
- ^ Pinchon's case (1611) 9 Rep. 86
- ^ Hambly v Trott (1776) 1 Cowper 371
- ^ Phillips v Homfray [1892] 1 Ch 465 (CA).
- ^ "Law Reform (Miscellaneous Provisions) Act 1934: Section 1", legislation.gov.uk, The National Archives, 1934 c. 41 (s. 1)
- ^ WorkCover Queensland v Amaca Pty Ltd [2010] HCA 34 at 39, High Court (Australia)
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