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A Brocard is a legal principle expressed in Latin (and often derived from past legal
authorities), which is traditionally used to express concisely a
wider legal concept or rule. The name comes from the Latinized name
of Burchard (died 1025), bishop of Worms, Germany,
who compiled 20 volumes of Ecclesiastical Rules.
History
Begun in 1008, the materials took Burchard four years to
compile. He wrote it while living in a small structure on top of a
hill in the forest outside Worms, after his defeat of Duke Otto and
while raising his adopted child. The collection, which he called
the "Collectarium canonum" or "Decretum", became the primary source
for canon law.
Along with numerous documents from a variety of sources,
including the Old
Testament and Augustine of Hippo, Burchard
included the Canon
Episcopi in this collection, under the belief that it dated
from a bishop's "Council of Anquira" in 314, but no other evidence
of this council exists. Because of this inclusion, Burchard has
been described as something of a rationalist. As the source of
canon law, Burchard's Decretum was supplanted around 1150 by the Decretum
Gratiani, a much larger collection that further attempted to
reconcile contradictory canon law.
Burchard spent the years 1023 to 1025 promulgating "Leges et
Statuta familiae S. Petri Wormatiensis", a collection of religious
laws he endorsed as fair and hoped to see adopted with official
approval.
Examples
- Inadimplenti non est adimplendum
- "One has no need to respect his obligation if the counter-party
has not respected his own." This is used in civil
law to briefly indicate a principle (adopted in some systems)
referred to as the synallagmatic contract [1].
- Dura lex, sed lex
- "The law [is] harsh, but [it is]
the law". It follows from the principle of the rule of law that even
draconian
laws must be followed and enforced; if one disagrees with the
result, one must seek to change the law.
- Ignorantia legis non
excusat
- "Ignorance of the law is no excuse." Not knowing that one's
actions are forbidden by the law is not a defense.
- In claris non fit interpretatio
- When a rule is clearly intelligible, there is no need of
proposing an (usually extensive) interpretation.
- Iura novit curia
- The judge knows the law (technically, there is no need to
"explain the law" or the legal system to a judge/justice in any
given petition).
- Nullum
crimen, nulla poena sine praevia lege poenali
- There can be neither crime
nor punishment unless
there is a penal law
first.
- Pacta sunt servanda
- Contracts are the law or Contracts establish
obligations (between those who sign them).
- Quod non est in registro, non est in Mundo
- What is not reported in the (related, referring) registry, has
no legal relevance. Used when a formal act (usually a recording or
a transcription) is required in order to give consistence, content
or efficacy to a right.
- Res inter alios vel iudicata, aliis nec nocet nec
prodocet
- What has been agreed/decided between people (a specific group)
can neither benefit nor harm a third party (meaning: two or more
people cannot agree amongst each other to establish an obligation
for a third party who was not involved in the negotiation;
furthermore, any benefit that may be established will have to be
accepted by the third party before it can be implemented).
- Sententia quae in rem iudicatam transit, pro veritate
habetur
- When a definitive sentence is declared, it is considered
to be the truth. In the case of a sentence in rem
iudicatam (that finally consents to consider completed a
judgement), its content will then be the only legally relevant
consideration of a fact.
- Solve et repete
- Respect your obligation first, then you can ask for
reimbursement. Used in those situations in which one of the two (or
more) parties needs to complete his obligation before being allowed
to ask for the opposite obligation to be respected by his counter
party. Usually this principle is used in fields and subjects in
which a certain general steadiness or uniformity of the system has
been considered a relevant value by the legislator. The case is
typical of service contracts with repeated obligations (like with
gas, water, electricity providers and similars), in which
irregularities on one side cannot be balanced if not in a regular
situation (i.e., of payments) on the other side. The customer, for
example, might be asked to pay regularly the new bill, before
contesting the previous one in which he found irregular
calculations, and asking for a balancement with newer bills; he
thus cannot by himself determine a discount in the next
payment.
- Ubi lex voluit, dixit; ubi noluit, tacuit
- When the law wanted to regulate the matter in further detail,
it did regulate the matter; when it did not want to regulate the
matter in further detail, it remained silent (in the interpretation
of a law, an excessively expansive interpretation might perhaps go
beyond the intention of the legislator, thus we must adhere to what is
in the text of the law and draw no material consequences from the
law's silence).
See also
References
- ^
http://www.jusbelli.com/Bouvier/bouvier1856_sw.html
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