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A Few Clauses to Help Lawyers Along

“The law helps the vigilant, before those who sleep on their rights.”

“No man is responsible for that which no man can control.”

“The law neither does nor requires idle acts.”

“The law never requires impossibilities.”

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These are just a few of the 37 “maxims of jurisprudence” that are actually embodied in state law. They appear together, almost buried and forgotten, in a section of the California Civil Code.

They are all general propositions that you might find, in the words of James Dunlavey, a business law professor, “on an Early American sampler.” They can mean everything or nothing. What benefit, after all, comes from knowing that “the greater contains the less,” “superfluity does not vitiate” and “that is certain which can be made certain”?

The code introduces these propositions (in Section 3509) with only this explanation:

“The maxims of jurisprudence hereinafter set forth are intended not to qualify any of the foregoing provisions of the code, but to aid in their just application.”

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What that means in practice is that they sometimes appear in appellate decisions to help explain or reinforce a legal point or conclusion. They are often used by lawyers in the preparation of legal briefs and come in handy when there is no case or statutory law to support a point the lawyer is trying to make. Besides, they sound impressive.

A law professor once told me that if you don’t have the facts on your side, you should pound on the law, and if you don’t have the law, you should pound on the table. If you can find a maxim that applies, you can pound on it, I suppose, even in small claims court. In the latest issue of Los Angeles Lawyer, the magazine of the Los Angeles County Bar Assn., Dunlavey, a lawyer who teaches business law at California State University, Chico, reminds attorneys that the maxims are alive and well and available for use in their arsenal of legal arguments.

But there’s no reason why lawyers should be the only ones to know they exist.

For example, to the husband who tries to collect on a life insurance policy after murdering his wife, the court will say, “No one can take advantage of his own wrong.”

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To the financial adviser who contends that the contract he signed is open to so many interpretations that it is effectively meaningless, a court may respond: “An interpretation which gives effect is preferred to one which makes void.”

A noisy neighbor who won’t quiet down can be met in court with the legal truism: “One must so use his own rights as not to infringe upon the rights of others.”

And then there was the husband who moved out of the family home to live with his girlfriend, but in certain social situations still maintained the appearance of being married to his wife. When he claimed that the property he acquired during this period should not be considered community property, half owned by his wife, the court disagreed and referred him to the maxim “he who takes the benefit must bear the burden.”

And, finally, perhaps the legislators who enact our laws may want to examine some of these very maxims, which were passed 117 years ago, to see if they meet their own standards: “When the reason for a rule ceases, so should the rule itself.”

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