Casus Omissus Explained | Latin Maxims and Principles in Law

Show Script: 

Ladies and Gentlemen!

 

Imagine you are playing the game of chess in a big Championship. All the rules that are to be followed are mentioned in its Rulebook.

 

Now, while playing a game, your opponent accidentally touches a piece on the board but does not move it, instead he moves some other piece.

 

You immediately object to this and tell the Organizers that when a player has touched a piece, he must move that piece only and no other piece.

 

The organizers start looking for such a rule in the Rulebook, but to their surprise, they discover that no such rule exists.

 

So, in absence of such a rule, the Organizers will dismiss your objection and will allow your opponent to touch pieces without moving them.

 

 

My dear friends, this is what Casus Omissus is.

 

It is a Latin term that literally means “case omitted” or in legal sense, “a matter which should have been but has not been provided for in a statute”.

 

It is used by the judges as a tool of statutory interpretation.

 

To explain further, there is another example for you.

 

Imagine the law of your country prohibits smoking in public places like parks, roads and restaurants.

 

But the law doesn't mention whether electronic cigarette or e-cigarettes could be smoked in public places or not.

 

Again, such an omission in the law is a Casus Omissus and to clarify such a confusing situation, the lawmakers should amend or change the law to explicitly include e-cigarettes in it in order to protect public health.

 

However, due to some unforeseen reason, the lawmakers do not amend or change the law.

 

So, if you are caught by the Police tomorrow smoking an e-cigarette in a public place and if the matter goes to the court, what should the courts do?

 

Can the Courts fill in the gap that has been left consciously by the lawmakers or the legislature?

 

The answer is No.

 

But it is not as straightforward as it seems to be.

 

There are certain exceptions to the Principle of Casus Omissus that I will tell you in the next few minutes.

 

Generally speaking, such omissions or defects in a law cannot be filled in by the courts.

 

But what you need to understand is that the courts may interfere in some situations where the words were accidentally omitted, or the omission of the words is making the law useless or without purpose.

 

And in such situations, the Court should supply some words to that law to the extent of achieving the purpose for which the law has been framed.

 

Now, let’s come back to the example of e-cigarettes.

 

If you are caught by the Police smoking an e-cigarette, the Court may say that the purpose of the law prohibiting smoking was to protect public health and by smoking e-cigarettes in public places, the intent and the spirit of such law is being blatantly violated.

 

Therefore, by applying the Principle of Casus Omissus, the Court may hold that even if e-cigarettes are not explicitly mentioned in the law, but if someone is found smoking an e-cigarette in a public place, such conduct would be squarely covered or punishable under the law that prohibits smoking in general.

 

Thus, if a defect appears in a law, the judge cannot simply fold his hands and blame the lawmakers.

 

He must find the intention of the Lawmakers in making of that law and thereafter he must provide additional or supplementing words to the law so as to give meaning, force and life to that law and its purpose.

 

I will give one last example to explain some related aspects.

 

Suppose there is a law that prohibits sale of certain products in shops without a license, but that law is silent on online sale of such a product.

 

In such a situation of Casus Omissus, the Court cannot and should not say that online sale of products is exempted from the ambit of licensing law because that law does not mention anything about it.

 

Basically, the courts should avoid creating a Casus Omissus where there is none as it would lead to unregulated e-commerce that was never the intention of the law makers.

 

Therefore, what you need to know is that while adding or supplementing the words in a statute, the court should not change the nature of that law and the original purpose or intent of that law must be kept intact.

 

That is all about Casus Omissus. Let me know your thoughts in the comments section.

 

See you next time.