A comment, suggestion or remark by a judge in an opinion that is not necessary for the resolution of the case and as such is not legally binding on other courts, but can always be cited as a persuasive authority in future litigation. Also known as dictum, dicta and dicta judiciaire. A dissenting opinion is generally considered an obiter dictum. Another way of saying obiter dicta is „by the way“. American jurist John Chipman Gray explained: „So that an opinion can have the weight of a precedent. it must be an expert opinion whose training is necessary to decide a particular case; In other words, it should not be obiter dictum. Dicta often take the form of unnecessarily broad statements. When a young man deliberately murdered his grandfather to prevent him from revoking a will, the court found that the beneficiary was not entitled to the bequest the will had provided him, stating that the law will not allow someone to „profit from his own wrongs or make a claim for his own injustice. or to acquire property by their own crime.“ In a subsequent case involving a legatee who had negligently caused the death of the testator in a car accident, the same result would not necessarily follow. The court is free to distinguish cases according to their facts and to limit the general dictum of the previous case. obiter dictum, Latin for „what is said in passing,“ a flippant statement.
In particular, in the law, it refers to a passage of a judicial opinion that is not necessary for the resolution of the dispute pending before the court. Such statements have no precedent, but can still be important. The arguments and reasoning of a dissenting judgment (as used in the United Kingdom[14] and Australia[15]) or a dissenting opinion (a term used by courts in the United States) are also obiter dicta. However, these could also be invoked if a court finds that its earlier decision was erroneous, as when the U.S. Supreme Court cited the dissent of Justice Oliver Wendell Holmes, Jr. in Hammer v. Dagenhart, when he overthrew Hammer in United States v. Darby Lumber Co. According to the doctrine of stare decisis, statements constituting obiter dicta are not binding, although they can be very convincing in some jurisdictions such as England and Wales. For example, in High Trees [5], Justice Denning not only granted the landlord`s application, but added that if the landlord had tried to recover the retroactive rent from the war years, the courts would have prevented him from doing so. Since the landlord did not want to recover the subsequent rent, Denning`s addition was clearly incidental, but this statement became the basis for the modern revival of the forfeiture of promissory notes.
Similarly, in Hedley Byrne & Co Ltd v. Heller & Partners Ltd,[6] the House of Lords held that negligent misrepresentation could give rise to a claim for purely economic loss, even if an exclusion of liability on the basis of the facts was effective in dismissing any claim. Similarly, in Scruttons Ltd v. Midland Silicones Ltd,[7] Lord Reid suggested that, although the doctrine of contract secrecy in this case prevented longshoremen from benefiting from the protection of an opt-out clause, this protection could be effective in the future if four directives (which he listed below) were all complied with. In Carlill v. Carbolic Smoke Ball Company[8][9] (a case where a woman who had used a smoked ball as prescribed could claim the advertised reward after a flu), Bowen LJ stated: Although they have no official legal weight, obiter dicta can have influence. For example, when imposing sentencing, a judge may point to certain elements of the crime or the convicted person`s background that warrant a harsh or lenient sentence. These statements are generally not necessary for sentencing and therefore constitute obiter dicta, but will be thoroughly examined in the future by prosecutors and defence lawyers who will present cases before this judge. Another example of the importance of obiter dicta is when the courts refuse to accept a case for lack of jurisdiction. After refusing to rule on the merits, the courts sometimes rule on the merits of the case. These remarks have no official status, but are nonetheless significant as official statements by the Court. In rendering decisions, courts sometimes cite obiter dicta passages found in the texts of expert opinions of previous cases, with or without recognition of the status of obiter dicta of the quoted passage.
A quoted passage from obiter dicta may be part of the decision in a later case, depending on what the latter court actually ruled and how that court dealt with the principle set out in the quoted passage. [4] A judicial declaration can only be ratio decidendi if it relates to the determinative facts and the law of the case. Statements that are not conclusive or that relate to hypothetical facts or unrelated legal issues are obiter dicta. Obiter dicta (often simply dicta or obiter) are remarks or remarks made by a judge that, although included in the court`s opinion, are not necessarily part of the court`s decision. In a judicial opinion, obiter dicta includes, inter alia, words that are „introduced for illustrative, analogous or argumentative purposes“. [1] Contrary to the ratio decidendi, obiter dicta are not the subject of the judicial decision, even if they are correct legal statements. The so-called Wambaugh inversion test provides that in order to determine whether a judicial declaration is ratio or obiter, one must reverse the argument, that is, whether the decision would have been different if the declaration had been omitted. If so, the statement is decisive and constitutes the ratio; If it`s not crucial, it`s obiter. Similar to obiter is the concept of semble (French Norman for „it seems“). In Simpkins v Pays (1955),[18][19] a grandmother, granddaughter and tenant participated in weekly contests in the Sunday Empire News. Each week, the three women made a prognosis together and contributed to the cost of admission; But it was the grandmother`s name that was on the right one.
The grandmother received £750 in prizes and refused to share it with the other two. The subtenant successfully sued for one-third of the price; but Judge Sellers added that the granddaughter was also to receive £250, although she was not involved in the trial. : (oh-bitter dick-tah) n. Remarks by a judge that are not necessary for a decision, but are made in the form of comments, illustrations or thoughts. In general, obiter dicta is simply dicta. In other cases, the obiter dicta may propose an interpretation of the law which has no bearing on the present case, but which could be useful in future cases. [2] The most notable example of such an event is the story of the famous footnote 4 of United States v. Carolene Products Co. (1938), which opposed the use of the due process clause to block most laws, but suggested that the clause could be used to remove laws dealing with „fundamental rights“ issues. It is generally believed that this obiter dictum led to the doctrine of rigorous examination (and subsequently intermediate examination) in cases of racial, religious and sexual discrimination, first enunciated in Korematsu v. the United States (1944).
Korematsu v. The United States itself was condemned by the same court in obiter dictum in Trump v. Hawaii (2018). If a court decides that it does not have jurisdiction to hear a case (or dismisses the case on the basis of a formality) but nevertheless issues opinions on the merits, these opinions may constitute obiter dicta. Other cases of obiter dicta may arise when a judge raises an obiter issue to provide context for the public or undertakes a thorough investigation into a relevant area of law. If a judge provides a hypothetical example as a clarification, it would be obiter, even if it were relevant, because it would not go into the facts of the case, as in the case of Carlill (below). In college, we investigated an interesting case in which obiter dicta played a role. In Hammer v.
Dagenhart in 1918, the Supreme Court ruled that manufacturing was not a form of interstate commerce, so Congress could not regulate it. About 20 years later, in United States v. Darby Lumber Co., the court cited Dagenhart`s dissenting opinion to rule that the earlier decision was erroneous. Since a company could not know where its products would end up, production was part of interstate trade.