Duhaime's Law Dictionary


De Non Apparentibus Et De Non Existentibus Eadem Est Ratio Definition:

Latin: What is not juridically presented cannot be judicially decided.

An ancient Latin maxim standing for the principle that unless an issue or matter of fact or of law is properly set before the Court, the Court ought not to decide that issue.

You have to allege and prove a fact before a Court will confirm or grant judgment upon it - the Court will not contrive facts out of thin air.

Things that are not before the court may as well be non-existent.

As Albert Mayrand wrote in his 2007 book on the Latin maxim:

"Facts which have not been proven have no more value than if they did not exist at all or were not alleged."

Some authors flesh the maxim out as follows:

"What is not juridically presented cannot be judicially decided, considered or determined."1

Herbert Broom's rendering:

"De non apparentibus et non existentibus eadem est ratio: Where the Court cannot take judicial notice of a fact, it is the same as if the fact had not existed.

"The above maxim is usually applied in law where reliance is placed by a party on deeds or writings which are not produced in court, and the loss of which cannot be accounted for or supplied in the manner which the law has prescribed, in which case they are to be treated precisely as if non-existent."

REFERENCES:

  • Broom, Herbert, A Selection of Legal Maxims, Classified and Illustrated (1845), page 69-70.
  • Donald H. Bain Ltd. v. Maddison, [1930] SCR 299
  • Mayrand, A., Dictionnaire de maximes et locutions latines utilisée en droit (Montréal: Editions Yvon Blais, 2007), page 122
  • NOTE 1: Hughes, William, T., The Law Restated. The Roots of the Law, Where they are Found and Best Illustrated in Both the Old and the Latest Cases, the Great Maxims, General Principles and Leading Cases, the Six Leading Subjects in Miniature (1915), at page 66.
  • Shapleigh v. Mier, 299 US 468 (Supreme Court of United States, 1937)

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