1Section 16 of Indian Contract Act, 18722(1889) 14 App Cas 3373http://www.
duhaime.org/LegalDictionary/M/MensRea.aspxInsimple words the given phrase is explicitly elaborates the role of intention inany law, it clarifies the psychological status of a person. It avoids any lossto the innocent person who is not aware about the fraudulent intention of theperson.
And it, sometimes, provide ajudgemental reason to, or not to, punish an accused person, because under therule of natural justice it would be the failure of Law or legislation if itpunishes an innocent person. It is the duty of the state to safeguard theinterest of public and endeavour to restore the person’s rights and loss asmuch as possible.Conclusion Mensrea was an essential ingredient of an Offence. An application of the rule ofconstruction to this principle meant that there was no presumption that mensrea was excluded form statutory offences. Under common law “It is a sound rule to construe a statute in conformitywith the common law rather than against it, except where and so far the statuteis plainly intended to alter the course of the common law. Let me conclude thisarticle with observation of the Hon’ble Full Bench of Andhra Pradesh HighCourt, in Additional, Commissioner,Income Tax v.
Durga Pandari Nath Tulijayya & Co., where it was observedas under: – “The doctrine of mens rea is of common law origin developed byJudge-made law. It has no place in the Legislator’s law. It has no place in theLegislator’s law where offences are defined with sufficient accuracy…. Mensrea is an essential ingredient of an offence.
However, it is a rule ofconstruction. If there is a conflict between the common law and the statutorylaw, it has always been held that it is a sound rule to construe a statute inconformity with the common law. But it cannot be postulated that statute cannotalter the course of the common law. The parliament, in exercise of itsconstitutional powers makes statutes and in exercise of those powers it canaffirm, alter or take away the common law altogether.
Therefore, if it is plainfrom the statute that it intends to alter the course of the common law, thenthe plaint meaning should be accepted. The existence of mens rea as anessential ingredient of an offence has to be made out by the construction ofthe statute.”Mens rea is the Latin for “guilty mind”; guilty knowledge or intentionto commit a prohibited act. Also: “a particular state of mind such as theintent to cause, or some foresight of, the results of the act or the state ofaffairs.” (R v Daviault 1994 3 SCR 63 atpara. 74) Many serious crimesrequire the proof of Mens rea before a person can be convicted. Inother words, the prosecution must prove not only that the accused committed theoffence (actus reus) but that he (or she) did it knowing that it was prohibited; that theiract (or omission) was done with an intent to commit the crime.
A maximrich in tradition and well known phrase “actus non facit reum, nisi mens sit rea” or “a person cannot be convicted and punished in a proceeding ofa criminal nature unless it can be shown that he had a guilty mind”. Notall offences require proof of mens rea such as many statutory orregulatory offences3.The Apex Court in the case of Director of Enforcement vs. M.C.T.
– observed that: “Mens rea” is a state of mind. Under thecriminal law, Mens rea is considered as the “guilty intention” andunless it is found that the accused had the guilty intention to commit thecrime he cannot be held guilty of committing the crime.”In criminal law: In Toto thisphrase is not wholly applicable on criminal but “intention” part of this phrase is applicable.
The “evil intention”in not only plays important role in civil but as well as in criminal law. InEnglish law act can be said a crime when there is wrongful intention, or “mens rea” is present. The mens rea isthe one of the major element of crime under the criminal law. Underthe Section 53 of Transfer of Property Act, the fraudulent is defined.
Theprinciple of this section is based on rule of natural justice. In Latin phraseit is wee said, “Salus populi est SupremeLex” means “the welfare of society is the supreme law” and hence thissection is been introduced. Because this section provides the rights, to therestore the sale deed, or transfer deed, of deceived person who has beendeceived by the fraudulent transfer of his property.Incertain cases the consent for the contract induced by the misrepresentation andat that point it is voidable at the point of deceived party. There is very thinline in differentiating “fraud” and “misrepresentation”.
In misrepresentationthe person who is making a statement believes himself to be true and there isno such intention to deceive the person. The basic difference between ‘fraud’and ‘misrepresentation’ is that, the in fraud there is intention to deceive theperson for wrongful gain, while misrepresentation is innocent.Nowin the above precedent the term “false statement is used”, any statement,whether, written or orally said, in which the true facts of any condition wasconcealed, so that the pact can signed by the party. For example, A is theowner of the car, B wanted to purchase that car, but A gives the statementthat, “This car was serviced 2 month ago”. But after sale, B discovered thatengine of the car was ceased. Here the statement made by the car owner is falseand the motive behind in making such statement is to sell out his broken car.Here the intention is of wrongful gain.InDerry v Peek2 the interpretation of word fraud was made by the court.
One of theessentials of fraud is “false statementof facts”, and when such statement is given with the wrongful intention,believing that statement is not true, to deceive or induce the party to entrein the contract, can be said as fraud.Ifwe try to look deep for the scope of this maxim then again this maxim can beillustrated in the sense of fraud, which is the core sense of this maxim. Underthe section 17 of India Contract Act, 1872 the term fraud is defined, which is”intention to deceive” and contractby such intention is voidable at the option of the party whose consent was madeby fraud. Theabove legal maxim explicitly says that, “anypact or agreement which is induced by fraud is not enforceable” under theeyes of law. If such agreements are enforced then it would be the violation ofPrinciple of Natural Justice. This maxim also indicates towards the consent ofparties, and it can be interpreted in other sense i.e. if any person induces the person with the fraudulent intention suchpacts are not valid.
Under Indian Contract Act, 1872 all the contracts madeunder the consent induced by undueinfluence1may make the contract voidable. The undue influence is said to be the subtlespecies of fraud, and it can be brought by fear, coercion or other dominatingcircumstances. For example, where spiritual (guru) adviser induced theplaintiff, his devotee, to gift his whole of property to secure benefits of hissoul in the next world. Here, the will of the person is induced under thefiduciary relationship of guru and his devotee. Butunder Indian law of contract there is not requirement for intention and this isonly applicable on English law.
In English law of contract, intention of theparties are important. Here the intention is to ascertain legal obligation oneach other. When these legal obligations are not fulfilled, the parties who isaggrieved due to non-fulfilment of legal obligations may filed a suit in thecourt for the enforcement of the legal obligation.· Lawful consideration· Lawful object· Parties must be Competent to contract· Free consent of parties· Intention to get in legal contract· Mutual consent of parties· Offer and acceptance Thepurpose of using this maxim in law is to avoid wrongful gain by any person, whois having wrongful intention to cause harm, or loss, or to deceive otherperson, with whom he/she is entering into contract or agreement.
The intentionplays very important role in signing any contract or agreement. There arevarious terms which is related to the intention for contract. According to thelaw there are following major elements are required for the valid contract,i.
e. “Dolo Malo Pactum se non Servabit” is theLatin maxim, which means “A pact madewith evil intent will not be upheld”. This maxim is sometimes writtenas, “Dolo Malo Pactum se non servantium” which means, “an agreement induced by fraud will not stand”.This maxim is applicable in certain laws related to Contracts, Sales of goodand Transfer of property or any such civil law in which the role of intentionwas explicitly provided. Dolo Malo Pactum Se Non Servabit