This article has been written by Meera Patel, a B.A. L.L.B student from the Maharaja Sayajirao University, Faculty of Law, Vadodara. The legal maxim, actio personalis moritur cum persona refers to a personal right of action that dies with the person.This article explains and illustrates everything you need to know about the aforementioned legal maxim. 

Introduction

When it comes to law and legal literature, a very short and to-the-point expression that signifies the fundamental principle of any law or a legal policy is known as a legal maxim. These legal maxims are pedagogy and often used by the people to make the literature easier to understand and as precise as possible. The word Maxim has been derived from the Latin term ‘Maxima’. Usually, these legal maxims we come across are in the Latin language as most of these maxims originated from different European States during the medieval era. These states used Latin as their legal language. Various features of the Constitution of India have been borrowed from countries around the world and majority of those countries are from Europe. This explains why most of the legal maxims are in Latin language.

These rules/principles are universal and have the same meaning everywhere. Courts all over the globe are guided by these legal maxims as they help them to understand the applicability of the laws in a more clear sense. These maxims create a good basis for sound judgment. The reason behind this is that as these maxims are not authoritative laws and applying these maxims in cases may be vain, they automatically become a good support system for the judgments that are produced by the courts. This article talks about the legal maxim “actio personalis moritur cum persona” and how it has been used in various cases all over the world.

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What does it mean

Actio personalis moritur cum persona in bold and literal terms means ‘a personal right of action dies with the person’. 

  • Actio stands for ‘an act’ or ‘an action’
  • Personalis stands for ‘personal’
  • Moritur stands for ‘death’
  • Cum stands for ‘with’ 
  • Persona stands for ‘person’

In layman’s terms, a personal right and/or cause of action dies with the death of the person. Earlier, all types of actions which specifically include actions for unliquidated damages, or we can say actions of torts and contracts are terminated as soon as the person dies. Their duties, as well as remedies, are terminated upon their death but since the laws of the Miscellaneous Provisions Act, 1934 were reformed, it has been put out that, “On the death of any person, all causes of actions vested in him shall survive for the benefit of his estate. Thus, all causes of actions in torts say for defamation and the claim for damages for bereavement survived the deceased.”

Thus, we now know that the main rule of this maxim is that all duties and remedies die with the person but defamation, attacking/ assaulting and personal damages are the three big exceptions of this legal maxim.

Explanation

To explain the entire concept of the legal maxim actio personalis moritur cum persona, we need to understand the roots of this principle.

  • This maxim was quoted and found in the literature of a case that was heard in a court in the year 1496 in Europe. In this case, a judgment was ruled against a woman and she was held guilty under the charges of defamation. Before she could pay the dues for the damage she had done to the tortfeasor, she died. 
  • As per the legal maxim, actions of torts or contracts are destroyed as soon as the person dies of either an injury or by the injuring party. Even though defamation was not an exception earlier, it now is a legal cause of action that can be brought after a person dies if the person is held guilty of defamation, attacking/assaulting, or personal damages.
  • Applying the same rule as above, it has also been stated that this maxim can be applied to actions that are to be done as per the contracts and are purely based on personal nature. For example, a promise made to someone to marry them. But one thing to keep in mind is that its application has been narrowed down and its effects are only limited to the actions that arise out of libel. 
  • Apart from the statutory exceptions mentioned above, there is a provision where personal representatives of a deceased person have the right to take action if the personal property of the deceased has been injured during their lifetime. The only rule here is that the relatives who take an action for the deceased person may receive compensation only if the deceased was killed negligently or by trespassing.
  • As per English law, the doctrine of this legal maxim is incorporated and it is not in any way odd or unusual to the common legal system. The entire concept of this maxim is based on the primary strata under the universal law. As time passes by, we have seen the laws change and the main thing to notice is that the judicial support for the same has gradually been limited and now it is further being restricted by the legislation. The only rule that is like an umbrella rule for this maxim which is used by the legislation is that if an injury was caused by the deceased to another person or the property of someone else, it is only fair that all the unliquidated damages be compensated to the satisfaction of the sufferer. Even with this rule, it is only fair to say that the action will die with the person to whom or by whom the wrong was done.

Illustrations

  • In a situation where Tithi commits battery on Saumya and if either of the parties dies during the incident, the right of actions of Saumya arose due to the fact that Tithi committed the offense of battery on her, Saumya will not get the right to take any action against Tithi. But if Tithi commits the offense of battery on Saumya and manages to cause other injuries to her, the right of action that the third person will get will not be affected at all and the legal maxim “Actio personalis moritur cum persona” shall be used in this case.
  • In the month of January, person A agrees and signs a contract to perform a dance show at the wedding of person B which will take place in the month of July. A was in an accident in June and could not make it to the wedding. This way, B cannot execute an action against A or their legal representatives for the breached contract.
  • Saloni betrays and wrongfully appropriates land from Brijesh. Saloni dies right after this and that is why Brijesh has the right of action against the legal representatives of Saloni.

Case law references

Listed below are a few important case laws in which this principle was used:

  • In the case of Girja Nandini Devi & Ors. v. Bijendra Narain Choudhury (1966), the court observed and stated that the personal action dies with the person and when actio personalis moritur cum persona was applied, it was held that this legal maxim shall have limited application. It was made clear that due to the cast that this principle operates in a limited class of action ex-delicto which means from a wrong which includes action for damages against defamation, assault or any other personal injuries that does not cause the death of any individual that does not amount to other actions where after the death of the individual, the granted relief cannot be enjoyed. 

The Court also stated, “An action for the account is not an action for damages and it does not fall among the enumerated classes. Nor is it such that the relief claimed being personnel could not be enjoyed after death, or granting it would be nugatory.”

  • The case of Hambly v. Trott (1776) is one of the founding cases for the principle of the maxim actio personalis moritur cum persona. In this case, the defendant died after appropriating some farm animals from the plaintiff. The plaintiff then looked for a way to retrieve those animals from the estate of the deceased but the plaintiff was not able to do as he wished but at the same time, the Court drew some rules by which any claim against an estate shall be successful. This was because of the fact that trespass would fail as it was against the person and not a property therefore any action for a contract would be successful. 
  • In the case Shri Rameshwar Manjhi v. Management of Sangramgarh Colliery (1993) which was heard by the Supreme Court, it was held that this maxim has been under a lot of criticism under the common law as well as in England. This is due to the fact that it has been categorized as an unjust legal maxim because its expression is inaccurate and obscure in nature which in the end makes its application uncertain. The Court also said that this maxim has caused grave injustice to the people.
  • In the case of Vatsala Srinivasan v. Shyamala Raghunathan (2016), the Court stated that in an event where the executor of a will dies, this maxim will not be applicable to probate the proceedings that shall be initiated by the executor before their death. In such situations, if an executor fails to comply with his duties, the beneficiaries of the will or anyone who represents the will are entitled to intervene and carry on the remaining proceedings that are required to carry on the proceedings with an official modification prayer in the letters of administration with the will with the annexed. 
  • In the case of Nurani Jamal & Ors v. Naran Srinivasa Rao & Ors (1993), the applicability of this maxim in the context of motor vehicle accidents was discussed in front of the Andhra Pradesh High Court. The single bench judge was confronted with questions like whether the claims for the damages survive even after the death or injury during a motor vehicle accident and can the legal representatives take any action if there happens to be a loss to the property of the deceased. The Court stated that the actions for damage claiming for personal injuries shall not die with the deceased person. The maxim shall not be used where there is a loss of property/estate of the deceased person.
  • A similar example case law that is related to motor vehicle accidents is Gujarat State Road Transport Corporation Ahmedabad v. Ramanbhai Prabhatbhai (1987) where the factor of negligence weighs in. Due to the negligent driving skills of the petitioner’s driver, a fourteen-year-old boy had to suffer the consequences and die. The brother of the deceased filed a suit and asked for compensation in front of the Motor Accidents Claim Tribunal and this case was later on affirmed and backed up by the Gujarat High Court as well as the honorable Supreme Court of India. The Courts held that the contention of compensation that the right of a person to die with the person is not recognized by the rule of law and that is why the corporation is liable to pay compensation to the brother of the deceased teen.
  • In the case of Prabhakara Adiga v. Gowri & Ors (2017), the Court stated that, “normally, personal action dies with a person but this principle has application to limited kinds of causes of actions.” The Court also observed that actio personalis moritur cum persona is a principle that is used as a conjecture that states that the personal action dies with the person and has a limited application. The Girja Nandini Devi & Ors. v. Bijendra Narain Choudhury case was cited in this case as well and that is why the Court also stated that this principle operates in a limited class of action which includes class for damages, assault and other types of personal injuries that does not amount to other actions where after the death of the individual, the granted relief cannot be enjoyed. 

Conclusion

To sum it all up, the maxim actio personalis moritur cum persona in literary terms means that the personal right to an action dies with the person as we have discussed above through various case laws but many courts have made it clear that due to various factors pointed out by the courts in the aforementioned case laws, the literal meaning is different from its application and that is the reason why this maxim is considered unjust and unfair as a whole.

References

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