Law of Torts
Ubi Jus Ibi Remedium: Meaning, Scope, and the Exceptions to the Maxim
Ubi jus ibi remedium means that where the law confers a right, it also confers the means of enforcing it. Jus is the legal authority to do or to demand something; remedium is the means the law provides to vindicate it when it is violated. The maxim is the reasoning behind injuria sine damno, and Holt CJ stated it in Ashby v. White when he said that it is a vain thing to imagine a right without a remedy. It is a principle of construction and of judicial attitude rather than a guarantee, and it does not mean that every loss will be made good. It presupposes a right; where there is none, as in damnum sine injuria, there is nothing for the maxim to operate on.
What the maxim means, what it does not mean, its scope in India, and the six exceptions
1. The Meaning
- The literal translation is "where there is a right, there is a remedy". The fuller Latin form is ubi jus ibi remedium esse debet, meaning that where there is a right there ought to be a remedy.
- Jus signifies the legal authority to do or to demand something, and remedium the right of action, or the means given by law for the recovery or assertion of a right.
- The proposition behind it is that a right without a remedy is not a legal right at all. What distinguishes a legal right from a moral claim is precisely that the law will enforce it.
- So it operates as a presumption. Where the law has conferred a right, the courts presume that it also intended to confer the means of protecting it.
- It is a maxim of the common law, and it explains why the common law was able to grow new remedies as new rights were recognised.
2. Where It Comes From
📖 Ashby v. White (1703) 2 Ld Raym 938 Facts The plaintiff, a qualified voter, was wrongfully refused his vote by the returning officer. The candidate he supported was elected in any event, so no loss followed. Held The action lay, and damages were awarded. Ratio Holt CJ stated the maxim in its classical form: if the plaintiff has a right he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it. Want of right and want of remedy are reciprocal. It is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. |
3. The Scope of the Maxim
1. It explains injuria sine damno. Since the law gives a right, it must give a remedy for its violation, whether or not loss followed. The two maxims work together.
2. It supports the creation of new remedies for recognised rights. Where a right exists and the existing forms of action do not fit, the maxim is the ground on which the courts have fashioned a remedy.
3. It underlies the doctrine that a statute conferring a right is presumed to give a civil action, unless the statute itself provides otherwise, which is the starting point in breach of statutory duty.
4. In India it has constitutional expression. Article 32 makes the right to move the Supreme Court for the enforcement of fundamental rights itself a fundamental right, which is the maxim written into the Constitution.
5. It is the reasoning behind the constitutional tort. In Rudul Sah v. State of Bihar, (1983) 4 SCC 141 and Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, the Court held that Article 32 extends to awarding compensation where that is the only practicable mode of redress, because a right to move the Court would be empty if the Court could give no effective relief.
6. But it does not tell you which remedy. The law may give damages, an injunction, a declaration, specific restitution, or a public law remedy, and the maxim is indifferent between them.
4. What the Maxim Does Not Mean
- It does not say that every loss has a remedy. That is damnum sine injuria, and it is not an exception to the maxim so much as a case outside it.
- It does not create rights. It presupposes them. The maxim tells you what follows once a right is established; it does not establish one.
- It does not choose between remedies, and it does not entitle a plaintiff to the remedy he prefers.
- It does not override a limitation period or any other procedural bar. Those bar the remedy, not the right, and the maxim has nothing to say about them.
- It is not a rule of law that a court may apply directly. No plaintiff succeeds by pleading the maxim; he succeeds by identifying a right and a violation.
5. The Exceptions
The exception | Why the maxim does not apply |
Damnum sine injuria | There is no jus at all, so the maxim never starts. Loss alone is not a right violated |
Moral and political wrongs | A breach of a merely moral duty, or of a political obligation, is not a legal right violated |
Imperfect obligations | A time barred debt, and a claim which the law recognises but will not enforce. The right survives and the remedy is gone |
Statutory immunities | Judicial officers under the Act of 1850; foreign States under Section 86 of the Code of Civil Procedure, 1908; diplomatic agents; registered trade unions under Section 18 of the Trade Unions Act, 1926 |
An exclusive statutory remedy | Where the statute creating the right provides its own machinery for enforcement, the ordinary civil action is ordinarily excluded |
Where the relief would be nugatory | Where the relief could not be enjoyed or granting it would be nugatory: the closing words of Section 306 of the Indian Succession Act, 1925 |
Acts of State | An act of State is not justiciable in the municipal courts at the instance of the person affected |
Breach of a duty owed to the public at large | Where the duty is owed to the public generally and not to the plaintiff individually, he has no right of his own to enforce |
6. A Procedural Bar Is Not an Exception
⚠ The remedy is barred; the right is not extinguished It is often said that limitation is an exception to ubi jus ibi remedium. That is imprecise, and the imprecision matters. Section 3 of the Limitation Act, 1963 requires a suit instituted after the prescribed period to be dismissed, but Section 27 extinguishes the right itself in only one class of case, that of a suit for possession of property. Elsewhere the right survives and only the remedy is gone, which is why a time barred debt may still be discharged by the debtor, may support a fresh promise under Section 25(3) of the Indian Contract Act, 1872, and may be retained out of money coming lawfully into the creditor's hands. The same is true of res judicata and of want of jurisdiction: they close a door, they do not abolish the right. That is why these are better classed as bars to the remedy than as exceptions to the maxim, and why imperfect obligations are the more accurate heading. |
7. The Maxim in Practice
- Its principal modern use in India is constitutional. It is the reasoning by which the Supreme Court moved from declaring a violation of a fundamental right to compensating for it.
- It informs the construction of statutes. Where a statute confers a right on a class and is silent as to enforcement, the presumption is that a civil remedy was intended.
- It explains why the categories of tort are not closed. A recognised right without a fitting remedy is an anomaly the maxim presses the courts to resolve, which is Winfield's position rather than Salmond's.
- And it sets the limit of the plaintiff's argument. Where no right can be identified, invoking the maxim adds nothing, because it presupposes what the plaintiff is trying to establish.
8. The Position Stated Shortly
1. Ubi jus ibi remedium means that where the law confers a right it also confers the means of enforcing it.
2. Jus is the legal authority to do or demand something; remedium is the means given by law for asserting it.
3. Holt CJ stated the maxim in Ashby v. White, saying that want of right and want of remedy are reciprocal.
4. It is the reasoning behind injuria sine damno, and the two maxims operate together.
5. In India it has constitutional expression: Article 32 makes the right to move the Supreme Court itself a fundamental right.
6. It underlies the award of compensation for the violation of a fundamental right in Rudul Sah and Nilabati Behera.
7. It does not mean that every loss has a remedy, does not create rights, and does not choose the remedy.
8. The principal exceptions are damnum sine injuria, moral and political wrongs, imperfect obligations, statutory immunities, an exclusive statutory remedy, and cases where relief would be nugatory.
9. Statutory immunities include judicial officers, foreign States under Section 86 of the Code, diplomats, and trade unions under Section 18 of the Act of 1926.
10. Limitation, res judicata and want of jurisdiction bar the remedy without extinguishing the right, and are better classed as bars than as exceptions.