Question of law and Question of fact
Question of law vs Question of fact
Introduction:
It is commonly said that all questions which arise for consideration and determination in a court of justice are of two kinds. They are either questions of law or questions of fact.
In a sense, this is true but the matter has to be considered in detail because both the terms questions of law and questions of fact are ambiguous and possess more than one meaning.Questions of Law:
(1) In the First Place "Question which is authoritatively answered by law itself":
It means a question which the court is bound to answer in accordance with a rule of law which has already been authoritatively answered by the court. All other questions are questions of fact. Every question which has not been determined before and authoritatively answered by law is a question of fact. Whether a contractor has been guilty of unreasonable delay in building a house is a question of fact as the law does not contain any rule for its determination. Whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonor is a question of law to be determined in accordance with certain fixed principles laid down in the Bills of Exchange Act. The question whether a child accused of crime has sufficient mental capacity to be criminally responsible for his acts is one of fact if the accused is over the age of 10 years in England and 7 years in Pakistan. It is a question of law if he is under that age.
(2) In the Second Sense "Question as to what the law on a particular point is":
A question of law is a question as to what the law is. An appeal on a question of law means an appeal in which the question for decision is what the true rule of law is on a certain matter. Questions of law in this sense arise out of the uncertainty of law. If the whole law could be definitely ascertained, there would be no question of law in this sense. When a question first arises in a court of justice as to the meaning of an ambiguous statutory provision, the question is one of law in the second sense. It is a question as to what the law is. It is not a question of law in the first sense but a question of fact. The business of the court is to determine what, in its own judgment and in fact, is the true meaning of the words used by the legislature. An authoritative answer to the question becomes a judicial precedent which is law for all other cases in which the same statutory provision is in question. The judicial interpretation of a statute represents a progressive transformation of the various questions of fact as to the meaning of that statute into questions of law to be answered in conformity with the decided cases.
(3) As Regards the Third Sense "Question which relates to the applicability of a provision of law":
In which the term questions of law is used, there is a general rule that questions of law are for the judges and questions of fact are for the jury to decide. It is true that questions of law are never referred to the jury, but questions of fact can be referred to a judge. The interpretation of a particular document is a question of fact but very often it is done by the judge himself. The question of reasonable and probable cause for prosecution in a suit for malicious prosecution is decided by a judge although it is question of fact. Paton points out that although a judge lays down the law and the jury applies it to facts and arrives at a conclusion that is a mixture of law and fact and not fact alone.
Substantial question of law:
The term "substantial question of law" has also been elaborated by Indian superior Courts to means that having substance, essential, real, of sound worth, importance or considerable, in contradistinction with technical, of no substance or consequence, or academic merely, in the cases reported as Boodireddy Chandraiah and others v. Arigela Laxmi and another [2007 AIR (SCW) 7062], Kashmir Singh v. Harnam Singh and another [2008(2) R.C.R. (Civil) 688] and G. Basavaraj v. H.M. Shivappa Patel [2011(19) R.C.R. (Civil) 701].
Questions of Fact:
The term question of fact has more than one meaning. In a general sense, it includes all questions which are not questions of law. Everything is a matter of fact which is not a matter of law. According to Salmond, a question of fact means either any question which is not predetermined by a rule of law, or any question except the question as to what the law is or any question which is to be answered by the jury. In a narrower sense, a question of fact is opposed to a question of judicial discretion which includes questions as to what is right , just, equitable or reasonable. Evidence can be led to prove or disprove a question of fact. It can be proved by evidence whether a particular person lives at a particular place or not and it is a question of fact. However, it is a question of law to decide how much punishment should be inflicted for any particular offence. It is a question of fact whether the offence of adultery has been committed or not but it is a question of law what punishment should be given to the adulterer.
Questions of Fact and Discretion:
Questions of fact are questions of what actually is and questions of discretion are questions of right and what ought to be. In questions of fact, the court tries to find out the truth. In questions of discretion, the court decides what is just. Questions of fact have to be proved by evidence and demonstration but questions of discretion are subjects of reasoning and argument. It is a question of fact whether a particular person has committed a crime or not and this can be proved or demonstrated. However, it is a question of discretion for the court to decide what punishment should be given to a person who has been found guilty of a particular offence. Likewise, it is a question of fact whether a valid contract subsists between the parties or not and whether a breach of the contract has taken place or not. It is a question of discretion how much damages are to be awarded or whether the specific performance of the contract can be enforced.
Mixed Questions of Law and Fact:
Experience shows that in actual practice, questions of law and fact are mixed. In the same case, the court has to decide questions of law and fact. If there is a dispute whether a partnership exists among certain parties or not, it is a question of fact as to what is the basic relationship between the parties. It is a question of law whether the basic relationship between the parties constitutes a partnership in the eye of law or not. Thus, we have a mixed question of law and fact. Very often, in criminal cases, questions of fact are decided by the members of the jury and questions of law are decided by the judge and both of them are involved in the same case.
Transformation of Questions of Fact into Law:
The existence and development of a legal system represents the transformation of questions of fact and judicial discretion into questions of law. As more and more cases are decided, identical decisions are given by the judges in those cases which have similar facts, Old case law is quoted in fresh cases. If the facts of the two cases are identical, the discretion of the judge disappears and he is bound to give his decision according to the precedent on the subject. To a lesser extent, even questions of fact are converted into questions of law. If similar facts are to be found in two cases, the decision arrived at in the previous case is also the conclusion arrived at in the next case.
Discordance between Law and Fact:
- (i) by the establishment of legal presumptions and
- (ii) by the device of legal fictions.
Legal Presumptions:
A legal presumption is a rule of law by which courts and judges draw a particular inference from particular facts or from particular evidence unless and until the truth of that inference is disproved. One fact is recognized by law as sufficient proof of another fact, whether it is in truth sufficient for the purpose or not. A notification in the official gazette is presumed by law to have been duly signed by the person by whom it is purported to have been signed. In fact, the person concerned may have signed or may not have signed. However, the fact of notification is considered by law to be sufficient proof of the fact of the signature.
Presumptions are of two kinds:
- (i) Presumptions of law and
- (ii) Presumptions of fact.
- (a) Conclusive and
- (b) Rebuttable presumptions.
A conclusive presumption
Conclusive presumption is one which constrains the courts to infer the existence of one fact from the existence of another, even though that inference could be proved to be false. Law prohibits leading evidence to the contrary. If a child is born during the continuance of marriage and within 280 days after its dissolution that child is considered to be legitimate. Law does not allow any evidence to the contrary. A child under 7 years of age is conclusively presumed to be incapable of committing a crime and courts refuse to hear evidence to prove that the child realized the malicious or criminal nature of quality of the act. The Companies Act lays down that a certificate issued by the Registrar of Companies that the requirements of Act regarding registration have been fulfilled will be conclusive evidence that such requirements have been duly discharged. The certificate is final even if the signatures of some of the applicants were actually forged. Conclusive presumptions are called presumptio juris et de jute;
Rebuttable Presumptions:
A rebuttable presumption is one where the law requires the court to draw an inference even though there is no sufficient evidence to support it. However, if sufficient evidence is given to contradict a rebuttable presumption drawn by the court, the latter is bound to reject it. A negotiable instrument is presumed to be given for value unless the contrary is proved. A person who has not been heard of for 7 years or more by those who would naturally have heard of him if had been alive is presumed to be dead. Any person accused of an offence is presumed to be innocent but the prosecution can prove that he has committed a particular offence.
(We will discuss in detail about presumptions in another Article)
Conclusion:
Term Question of law is used in three distinct but related senses, it in the first place means a question which is authoritatively answered by law itself; in the second sense it means a question as to what the law on a particular point is or what is the true and real meaning behind a provision of law which is ambiguous and in the third sense it means a question which relates to the applicability or otherwise of a provision of law in view of the facts proved in a given case.Third category of questions can also be called mixed question of law and fact, since their answers one way or the other depend on the existence or otherwise of certain facts; for instance the question as to what is the period of limitation for a suit for recovery of possession by an owner after his dispossession is purely a question of law but whether the suit was instituted within the period provided by the first schedule of Limitation Act, 1908, would essentially be one of fact i.e. any other question which does not fall in any of the three categories would be a question of fact.
Relevant Questions:
- Bring out clearly points of distinction between question of law and question of fact.
- Explain the terms ‘Question of Law’ and ‘Question of Fact’. Also explain questions of discretion.
- Explain the terms, question of law, question of fact, and mixed question of law and fact.
- There is sometimes discordance between law and fact. Is there any truth in the above statement? If yes, explain.