Actio personalis moritur cum persona

Literal Meaning:

A personal right of action dies with the person.

Origin:

Latin. First quoted in a case from 1496, where a woman against whom a defamation

judgment was issued died before paying the damages to the party.

Explanation:

The maxim states that actions of tort or contract is destroyed by the death of either the injured

or the injuring party. Modern statutes mean that this is rarely the case. However, before the

passing of the Fatal Accidents Act 1846 acceptance of this notion meant that in actions in

negligence it was better for a doctor to kill his patient outright than to injure him. This

situation arose because it was originally believed that the primary function of tort was to

punish and not to compensate for damage caused. The maxim still survives in the law of

defamation ( “you cannot defame the dead”). In modern times it has been gradually limited

by judicial decisions and is now being still further restricted by legislation.

Case laws :

Pinchon’s case [1612]–The judge had said that the debt was dead, like the testator.

Nurani Jamal And Others vs Naram Srinivasa Rao And Others- the single judge bench

held that the action for damages for personal injuries will not die with the death of the injured

and that the above maxim has no application where there is a loss to the estate of the

deceased.

Girja Nandini And Ors vs Bijendra Narain Choudhury- a personal action dies with the

person has a limited application. It operates in a limited class of actions ex delicto such as

actions for damages for defamation, assault or other personal injuries not causing the death of

the party, and in other actions where after the death of the party the relief granted could not

be enjoyed or granting it would be nugatory. An action for an account is not an action for

damages ex delicto and does not fall within the enumerated classes. Nor is it such that the

relief claimed being personal could not be enjoyed after death, or granting it would be

nugatory.

Khuzemabhai Syedna vs Mufaddal Burhanuddin Saifuddin–the bench dubbed this

maxim as an unjust maxim, obscure in its origin, inaccurate in its expression and uncertain in

its application. It has often caused grave injustice.

Ishar Das v. Emperor-it was held that is applicable in matter of defamation since that is

essentially a personal action and the institution of the proceedings depended on the

temperament of the person defamed.

Reference –

[1] https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095348580

[2] http://lawtimesjournal.in/actio-personalis-moritur-cum-persona

credit: YASHASVI,

Clg name:LLOYD LAW COLLEGE

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