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legal_language:nullus_commodum_capere_potest_de_injuria_sua_propria_834512019

Nullus commodum capere potest de injuria sua propria

No one can take advantage of his own wrong.

The maxim under consideration applies generally, and may be applied particularly to the case of contracts. Thus, where a man binds another to an impossible condition, or to the performance of some particular act, and at the same time does something whereby the performance of such act is prevented ; as, where A. contracts with B. to build a house within a certain time, under a penalty, B. finding materials, and B., by delay in providing the materials, prevents the due completion of the house ; he shall not in such case be allowed to succeed in an action for the penalty.

If the obligee of a bond have prevented the obligor from fulfilling the condition of the bond, he shall not take advantage of the nonperformance of the condition ; for that would be enabling him to benefit by his own wrong. So, if the condition of a bond be to build or repair a house, and the obligee, or some one by his direction or at his instigation, prevent the obligor from coming upon the land to build or repair it ; or if the obligee positively refuse to have the house built or repaired, and interrupt the building or repairing of it ; performance of the condition will in such cases be excused, and the obligation thereby discharged.

So, on a building contract, which provides that the builder shall not be paid but upon the certificate of the architect employed by the owner ; the owner in this case shall not have it in his power to delay payment by causing the certificate of the architect to be withheld, but the builder shall be entitled to recover upon other evidence of the work done in respect of which payment is sought.

And, in general, to all those cases of fraudulent representations between debtor and creditor, where one creditor seeks to obtain an advantage to himself at the expense of the others, by fraudulent conveyance or transfer of the debtor's goods, etc, the maxim applies. Nor will a court of equity decree specific performance of a contract in favour of a man who has been guilty of unreasonable delay in fulfilling his part of the agreement, and who at length, when circumstances have changed in his favour, comes forward to enforce a stale demand. Nor where the party seeking relief has been guilty of fraud, misrepresentation, or deceit.

Again, where, upon a sale of real estate in fee by assignees of a bankrupt, the bankrupt and his wife were parties to the conveyance, which recited that they were so for the purpose hereinafter mentioned ; the operative part stating that the deed was to be acknowledged by the wife under the Fines and Recoveries Act, and the deed was executed and acknowledged by the wife, but she was not a conveying party ; the wife surviving the husband and claiming dower, it was held that the claim was barred.

Champerty is within the meaning of this maxim. As, where one agrees to furnish money to carry on a lawsuit with a view to profit, having no personal interest in the matter in dispute ; he will not be entitled to recover the amount of his advances upon and' security he may have taken for payment. For this reason it was that choses in action were not assignable at law.

To the same effect are the maxims following: — “Nul prendra avantage de son tort demesne;” “Nemo ex dolo suo proprio relevetur, aut auxilium capiat;” “Nemo ex suo delicto meliorem suam conditionem facere potest.”


2 Inst. 564, 713 ; Jenk. Cent. 4 ; D. 50, 17, 134 ; Plowd. 88 ; Co. Litt. 148, 2C5 ; 1 Roll. Abr. 453, Condition N. ; Brown v. Mayor of London, 3 L. J. 225, C. P. j Harrington v. Long, 2 Myl. & K. 590 ; Heyward „. Bennett, 3 C. B. 423 ; Lloyd v. Collett, 4 Bro. C. C. 4G9 ; Jones v. Barclay, 2 Doug. 694 ; Cadman v. Horner, 18 Ves. 10 ; Malins v. Freeman, 2 Kee. 25 ; Holme v. Guppy, 3 M. & W. 389 ; Dent v. Clayton, 10 L. T. (N.S.) 865.


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Created on 2020/10/19 23:15 by • Last modified on 2020/11/07 18:33 (external edit)