Ex dolo malo actio non oritur

Ex dolo malo actio non oritur

Literal Meaning

 A right of action cannot arise out of fraud.

Explanation & Origin

Ex dolo malo non oritur actio is a Latin maxim which means ‘no right of action can have its origin in fraud’. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.

In the first place the word dolus was understood by the Roman jurists to include every intentional misrepresentation of the truth made to induce another to perform an act which he would not else have undertaken. They concluded that dolus malus means every kind of craft , guile or machination , intentionally employed for the purpose of deception , cheating or circumvention.

The maxim lies at the foundation of a general rule of public policy, the rule that the courts will not sustain an action which arises out of the moral turpitude of the plaintiff or out of his violation of a general law enacted to carry into effect the public policy of the state or nation.

This maxim means that a man cannot be permitted to take advantage of his own wrong , he will not be allowed to find any claim upon his own iniquity.

Illustration

A contact was entered into by A and B to murder C. At the last minute B refused to perform the contract. Therefore the court of justice will decline its aid to enforce the contract which was wrongfully entered into.

Case Reference

Holman V. Johnson ([1775] 1 coup. 341]

In this case Lord Mansfield CJ explained this principle as : The objection , sounds at all times very ill in the month of defendant. It is not for his sake , however , that the objection is ever allowed ; but it is founded in general principles of policy , which the defendant has the advantage of , contrary to real justice , as between him and the plaintiff , by accident , if I may say so. The principle of public policy is this : ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. 

Fivaz V. Nicholls [2 C. B. 501]

In this case an action was brought for an alleged conspiracy between B , the defendant and a third party , C to obtain payment of a bill of exchange accepted by the plaintiff in consideration that B would abstain from prosecuting C , for embezzlement ; and it was held that the action would not lie inasmuch as it sprung out an illegal transaction in which proof was essential in order to establish the plaintiff’s claim as stated upon the record. In this case , therefore , the maxim Ex dolo malo non oritur actio , was evidently applicable.

Waman Shriniwas Kini vs Ratilal Bhagwandas [1959 AIR 689]

In this case it was held that ” The principle is indispensable to the purity of its administration. It will not enforce what it has forbidden and denounced. The maxim Ex dolo malo non oritur actio , is limited by no such qualification. The proposition to the contrary strikes us as hardly worthy of serious refutation. Wherever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. No consent of the defendant can neutralise its effect. A stipulation in the most solemn form, to waive the objection, would be tainted with the vice of the original contract, and void for the same reasons. Wherever the contamination reaches, it destroys “.

Montreaux Resorts P.Tld. & Ors. vs Sonia Khosla & Ors  [13 January, 2015]

This case dismissed the arbitration petition in the light of the inviolable judicial principle enshrined in the maxim ex dolo malo non oritur actio.

Edited by Vigneshwar Ramasubramania

Approved & Published – Sakshi Raje

 
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