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Section 16 of Indian Contract Act, 1872

(1889) 14 App Cas 337

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simple words the given phrase is explicitly elaborates the role of intention in
any law, it clarifies the psychological status of a person. It avoids any loss
to the innocent person who is not aware about the fraudulent intention of the
person.  And it, sometimes, provide a
judgemental reason to, or not to, punish an accused person, because under the
rule of natural justice it would be the failure of Law or legislation if it
punishes an innocent person. It is the duty of the state to safeguard the
interest of public and endeavour to restore the person’s rights and loss as
much as possible.




rea was an essential ingredient of an Offence. An application of the rule of
construction to this principle meant that there was no presumption that mens
rea was excluded form statutory offences. 
Under common law “It is a sound rule to construe a statute in conformity
with the common law rather than against it, except where and so far the statute
is plainly intended to alter the course of the common law. Let me conclude this
article with observation of the Hon’ble Full Bench of Andhra Pradesh High
Court, in Additional, Commissioner,
Income Tax v. Durga Pandari Nath Tulijayya & Co., where it was observed
as under: – “The doctrine of mens rea is of common law origin developed by
Judge-made law. It has no place in the Legislator’s law. It has no place in the
Legislator’s law where offences are defined with sufficient accuracy…. Mens
rea is an essential ingredient of an offence. However, it is a rule of
construction. If there is a conflict between the common law and the statutory
law, it has always been held that it is a sound rule to construe a statute in
conformity with the common law. But it cannot be postulated that statute cannot
alter the course of the common law. The parliament, in exercise of its
constitutional powers makes statutes and in exercise of those powers it can
affirm, alter or take away the common law altogether. Therefore, if it is plain
from the statute that it intends to alter the course of the common law, then
the plaint meaning should be accepted. The existence of mens rea as an
essential ingredient of an offence has to be made out by the construction of
the statute.”

Mens rea is the Latin for “guilty mind”; guilty knowledge or intention
to commit a prohibited act. Also: “a particular state of mind such as the
intent to cause, or some foresight of, the results of the act or the state of
affairs.” (R v Daviault 1994 3 SCR 63 at
para. 74) Many serious crimes
require the proof of Mens rea before a person can be convicted. In
other words, the prosecution must prove not only that the accused committed the
offence (actus reus) but that he (or she) did it knowing that it was prohibited; that their
act (or omission) was done with an intent to commit the crime. A maxim
rich 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 of
a criminal nature unless it can be shown that he had a guilty mind”. Not
all offences require proof of mens rea such as many statutory or
regulatory offences3.

The Apex Court in the case of Director of Enforcement vs. M.C.T.M.Corporation Pvt.
Ltd. – observed that: “Mens rea” is a state of mind. Under the
criminal law, Mens rea is considered as the “guilty intention” and
unless it is found that the accused had the guilty intention to commit the
crime he cannot be held guilty of committing the crime.”

In criminal law: In Toto this
phrase 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. In
English law act can be said a crime when there is wrongful intention, or “mens rea” is present. The mens rea is
the one of the major element of crime under the criminal law.


the Section 53 of Transfer of Property Act, the fraudulent is defined. The
principle of this section is based on rule of natural justice. In Latin phrase
it is wee said, “Salus populi est Supreme
Lex” means “the welfare of society is the supreme law” and hence this
section is been introduced. Because this section provides the rights, to the
restore the sale deed, or transfer deed, of deceived person who has been
deceived by the fraudulent transfer of his property.

certain cases the consent for the contract induced by the misrepresentation and
at that point it is voidable at the point of deceived party. There is very thin
line in differentiating “fraud” and “misrepresentation”. In misrepresentation
the person who is making a statement believes himself to be true and there is
no such intention to deceive the person. The basic difference between ‘fraud’
and ‘misrepresentation’ is that, the in fraud there is intention to deceive the
person for wrongful gain, while misrepresentation is innocent.

in the above precedent the term “false statement is used”, any statement,
whether, written or orally said, in which the true facts of any condition was
concealed, so that the pact can signed by the party. For example, A is the
owner of the car, B wanted to purchase that car, but A gives the statement
that, “This car was serviced 2 month ago”. But after sale, B discovered that
engine of the car was ceased. Here the statement made by the car owner is false
and the motive behind in making such statement is to sell out his broken car.
Here the intention is of wrongful gain.

Derry v Peek2
 the interpretation of word fraud was made by the court. One of the
essentials of fraud is “false statement
of facts”, and when such statement is given with the wrongful intention,
believing that statement is not true, to deceive or induce the party to entre
in the contract, can be said as fraud.

we try to look deep for the scope of this maxim then again this maxim can be
illustrated in the sense of fraud, which is the core sense of this maxim. Under
the section 17 of India Contract Act, 1872 the term fraud is defined, which is
“intention to deceive” and contract
by such intention is voidable at the option of the party whose consent was made
by fraud.

above legal maxim explicitly says that, “any
pact or agreement which is induced by fraud is not enforceable” under the
eyes of law. If such agreements are enforced then it would be the violation of
Principle of Natural Justice. This maxim also indicates towards the consent of
parties, and it can be interpreted in other sense i.e. if any person induces the person with the fraudulent intention such
pacts are not valid. Under Indian Contract Act, 1872 all the contracts made
under the consent induced by undue
may make the contract voidable. The undue influence is said to be the subtle
species of fraud, and it can be brought by fear, coercion or other dominating
circumstances. For example, where spiritual (guru) adviser induced the
plaintiff, his devotee, to gift his whole of property to secure benefits of his
soul in the next world. Here, the will of the person is induced under the
fiduciary relationship of guru and his devotee.

under Indian law of contract there is not requirement for intention and this is
only applicable on English law. In English law of contract, intention of the
parties are important. Here the intention is to ascertain legal obligation on
each other. When these legal obligations are not fulfilled, the parties who is
aggrieved due to non-fulfilment of legal obligations may filed a suit in the
court 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

purpose of using this maxim in law is to avoid wrongful gain by any person, who
is having wrongful intention to cause harm, or loss, or to deceive other
person, with whom he/she is entering into contract or agreement. The intention
plays very important role in signing any contract or agreement. There are
various terms which is related to the intention for contract. According to the
law there are following major elements are required for the valid contract,

“Dolo Malo Pactum se non Servabit” is the
Latin maxim, which means “A pact made
with evil intent will not be upheld”. This maxim is sometimes written
as,    “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 good
and Transfer of property or any such civil law in which the role of intention
was explicitly provided.


Dolo Malo Pactum Se Non Servabit

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