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Obiter Dicta March 12, 2007

Posted by Ninja Clement in Politics and Law.

Obiter dicta, Latin for ‘things said in passing’, is that portion of a judicial decision that is not considered binding on lower courts and, generally, equal courts in the same jurisdiction. It amounts to ‘additional comment’ in a judgment.

Not everything in a legal ruling constrains courts adjudicating in succeeding cases. Consider a situation in which a thief sells something to a good-faith buyer. B steals A‘s watch, sells it to C (who, as a good-faith buyer, is unaware that the watch is stolen property), and then flees the country. A later comes across C wearing the watch and demands the return of the item. C refuses to relinquish the watch and A sues C in return. Suppose the judge finds in favor of A, on the grounds that “a thief takes no title and can pass none to a purchaser.” He suggests that the result “would be the same if B did not steal the watch but found it lying about”. Now the first part is considered binding on lower and equal courts dealing with similar cases of ‘stolen and sold’. This part of the decision is the ratio decidendi, Latin for ‘reason of deciding’. It is, formally speaking, the so-called precedent, although the entire case is often called the precedent.

By contrast, the remark about who should retain title to lost goods is considered obiter dictum (dictum is singular for dicta), because the property at issue in this case was stolen, not misplaced. Consider as another example a situation in which C finds A’s lost watch on a sidewalk and takes it. As in the previous scenario, A later comes accross C wearing the watch and, when C rejects his claim on the item, A sues in response. Yet a court dealing with this case of ‘found and sold’ is not bound by any precedent established by the previous court at this point. As such, the judge in the new case may or may not find in favor of A, the careless owner – the result of the litigation could go either way. Note, however, that courts customarily give due preference to the obiter dictum expressed by higher and equal courts in the same jurisdiction. Of course, courts also accord proper weight to the obiter dictum of their previous rulings.



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