DE MINIMIS NON CURAT LEX

While maxims play an important part in the development

and growth pf the law, Iegists differ as to their merit. Some, in
tnl s pa-s, have regarde,4 them as fejng of the same force and
effpct as sta u. s, 4,pre critical writers consider them misleading,
ori the grogn4 that they are not worth their face value, others
take a mid4le ground, treating maxims as useful servants but
dangergus masters.
Sometimes t.ere is a seeming antinomy presented by these
ap4orIsm.s, for example the 4pparet contrast between de mini-
Sow curt IFr, and Rp wrong wJtput a reedy. At times
ther fse i!to 4. R-ooiRs rjle pf law, as in thqse cases where
the capnqn pf srQlptoti cesspnte rqwone legis cessat ipsa le: is
resorted to for the trp se p, e the cpntent of a maxim,
sought to be ~~lie. a neqyl sjatqn . Frequently important
Podijes of a?,y qw.e their o tJpgal adagps; thus, the vast
sibject of te law qf agency derjyes from the legaI proverb, qui
facit per aiunm,fot Pgr se, and according to Btczkstone's Con-
mentaries,' the doctrine of the right of riparian proprietors to
aUlmivn g'.i~ed by imnerceptip~! degrees, originated in the maxim
de minimis non curt lex. Often where a case arises in which
judicial precedents cannot be found, and no statutory authority
exists, a court finds itself obliged to resort to general principles
of public policy, and maxims are frequently resorted to as crea-
tive agencies in the establishment of new precedents in jurispru-
2
dence.
Courts of law exist to enforce rights and redress wrongs,
not to encourage litigation, hence they will not take jurisdiction
of moot cases, nor take cognizance of vexatious suits. In general
it would be unnecessarily irksome and tedious, and beget a marked
tendency to delay justice, if courts were to require the mathe-
matical precision of a micrometer. Therefore it is necessary
and expedient that the law should not be concerned with trivial
'2 Br. COMM. *26.
The Code Napoleon seems to impose a similar duty on judges where
it provides that "The judge who shall refuse to determine under pretext of
the silence, obscurity or insufficiency of the law, shall be liable to be proceeded
against as guilty of a refusal of justice."--Code Civil, Art. 4.
(429)
430 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

matters. Thus the doctrine of riparian accretion arose, also the

rule that the law does not consider fractions of a day. Where,
however, ordinary convenience, which justifies application of the
rule, would be outweighed by considerations of substantial jus-
tice, cessante ratione legis cessat ipsa lex.
Many of the technicalities which in sundry times and at di-
vers places have become a reproach to the administration of the
law, would have been ineffective, had courts resolutely refused
to take cognizance of points which are unsubstantial, frivolous,
and without merit. It is not intended, however, that laboring as
they do under increasing pressure of work, courts should be sub-
jected to lax or slovenly procedure, for that would tend towards
unnecessary delay in the despatch of business, and create the very
mischief sought to be eliminated by the policy of the maxim de
minimis. Concededly, it is not a trifle to offend against procedural
requirements that a pleading should be concise, or that a brief
should be furnished with a table of contents.

i. The maxim is inapplicable to the positive and wrongful

invasion of another's property or person.
While torts are classified as a branch of private law, they
have a social aspect which is not to be lost sight of. Unchecked,
they are a menace to public safety, through the encouragement of
wrong-doing leading to breach of the peace and other crime.
Legislation in Massachusetts, Pennsylvania and other States,
making certain acts of trespass infractions of the criminal law,
is a clear recognition of this principle. The duty of the citizen
to check tort-feasors is well phrased by Dr. von Jhering, who
says:
"The law, to exist, demands that there should always
be a manly resistance made to wrong. . . . Resistance to in-
justice, the resistance to wrong in the domain of law, is a
duty of all who have legal rights, to themselves . . . for
it is a commandment of moral self-preservation-a duty to
the commonwealth; for this resistance must, in order that
the law may assert itself, be universal. . . . Every man
who enjoys the blessings of the law should also contribute
his share to maintain the power of the law and respect for
 DE MINIMIS NON CURAT LEX

the law. Every man is a born battler for the law in the
interest of society." 3
By submission to repeated acts of dominion over his prop-
etty, it is possible for a titan to deprive his family of their law-
ful heritage through the operation of statutes of limitation. 4 The
inherent rights of man to life, liberty, property and the pursuit
of happiness, are not mere figments of fancy; on the contrary,
they are vital, fundamental principles, essential to the continu-
ante Of a well-ordered civilization. It necessarily follows that
ptibic policy and ari enlightened self-interest are alike opposed
td considering wdtitbn breathes of personal rights as being within
the orbit of tht maxim.
As a genetal rule, torts; being violations of legal duty, are
not deemed trifles in the eye of the law. Consequently the maxim
de rninimis non curat lee is not applicable to actions sounding
in tort, for wilful infringemeht of personal rights; 5 and where
damages for such infractions are incapable of computation by
monetary standards, the law will imply them.6 So deeply rooted
is this principle that, where a legal right is invaded and a legal
recovery is necessary to its vindication, the implication of dam-
age will be drawn, even where in fact the breach of legal duty
has yielded a pecuniary benefit to a plaintiff.7 And a new trial
will not be refused in an action of tort where small damages have
been awarded, on the ground that the maxim applies thereto., Nor
will a right to maintain an action for the value of property be
denied on the ground that the amount involved is trivial. 9
The law of nuisance is on a different footing from that of
most torts, as nuisance is not actionable per se, which means that
'THE STRUGGLE FOR LAW (Lalor's transl. 1879) 30, 77.
'HOLMES, THE COMMON LAW (1881) 98.
5
Sappington v. tL RL, 127 Ga. 178, 56 S. E. 311 (i9o6) ; Seneca Road Co.
v. PL R., 5 Hill 170, 175 (N. Y. 1843) ; Campbell v. Cottelle, 38 . I. 32o, 95
AUt. 665 (I915); Wood v. Waud, 3 Ex. 748 (1849).
6
IL IL v. Flagg, 43 Ill. 364 (1867); Smith v. Holcomb, 99 Mass. 552
(1869); L R. v. Allen, 53 Pa. 276 (1866).
T
Dewire v. Hanley, 79 Conn. 454, 65 AtI. 573 (I9O7).
Campbell v. Cottelle, supra note 5.
Ivps v. Edison, 124 Mich. 402, 83 N. W. 120 (Igoo); Wartman v. Swin-
dell, 54 N. J.L. 589, 25 At. 356 (1892).
432 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

damage therefrom has to be shown, and will not be implied, and

that it is a question of degree rather than of kind. No action
will lie for a nuisance except where it causes actual damage to
the plaintiff, and where it is based upon discomfort or incon-
venience, the discomfort or inconvenience complained of must
be substantial and not trivial, from the standpoint of the average
member of the community. As expressed by Vice-Chancellor
Knight Bruce, in the case of Walter v. Selfe, 10 an actionable
nuisance "must cause an inconvenience with the ordinary com-
fort physically of human existence . . . according to plain and
sober and simple notions . . " Here, the maxim is plainly
applicable.
Defamation is another class of torts in which the question
of triviality, in law, is frequently relevant, for many imputations
that would be considered offensive to good taste, have been held
to be too trivial to be actionable. The gradations of traducement
in Anglo-American law show this; and cautious observance by
certain types of publications of the boundaries between actionable
and non-actionable falsehood often illustrate it. Actionable
calumny ranges from statements actionable per se, such as impu-
tation of crime or ignorance of one's calling, to those of which
the courts will take cognizance only where special damage can
be shown as a result, in which latter class of cases the maxim
is clearly applicable. The anomalies of the common law respect-
ing evil-speaking, lying and slandering, have been attributed to
the historical fact that mendacity was once a common subject
for spiritual censures.
It has been shown by the learned author of a well-written
note," that courts in many jurisdictions afford protection against
wilful interference of third parties with a contract right. In such
cases, it is conceived, the maxim would not be deemed applicable.
Nor is it likely that such classes of trespasses as were at one time
regarded to be criminal, and punishable by fine for breach of the
peace, which fine was imposed in addition to the damages as-

'4
De G. & Sm. 3,5, 322, 64 Eng. Repr. 849 (1851).
Tortious Interference with ContractualRelatims, 31 HARv. L. REV. 1017-
1022 (i9i8).
 DE MINIMIS NON CURAT LEX

sessed (until the statute 5 W. & M. c. 12, substituted costs pay-

able to the plaintiff for the fine payable to the crown) would be
considered trivialities in the eyes of the law.
Actionable negligence is a complex question. It comprises:
First, (to paraphrase the language of the Anglican prayer-book)
an allegation that the defendant has done those things which he
ought not to have done, or has left undone those things which
he ought to have done; and secondly, an averment that such con-
duct is a violation of the standard of legal duty. Where a court
decides, on motion for non-suit or otherwise, that a given state
of facts which constitutes negligence falls short of being action-
able, it holds, in effect, that the act or omission complained of is
a trifle in law. Hence it may be considered a safe conclusion
that the principle de ftinimis applies to actions for negligence.12

2. Applicability of the maxim to breaches of contract.

Despite modem legislation devised for the protection of
creditors, such as bulk -sales acts, and statutes making it a crim-
inal offence to issue a check where there are insufficient funds for
its payment, the general trend of jurisprudence is towards len-
iency to those who fail to carry out their contractual obligations. 13
It is therefore to be expected that the law would be more clement
towards breach of contract than it is towards torts, and such is
the case. Thus we find debtors' exemption acts, bankruptcy laws,
and similar legislation, in our American jurisdictions side by side
with Constitutional prohibitions against the enactment of laws
impairing the obligations of contracts. As has been observed
by Mr. Justice Holmes, the relation between contractor and con-
tractee is voluntary, 14 which, it goes without saying, is vastly
different from that arising between the tort-feasor and his vic-
tim. In a mild degree we find this attitude of leniency reflected
in judiciary law. Accordingly we find that a new trial has been

The importation of American precedents in the law of negligence into the

civil law jurisdiction of Porto Rico is gratifying evidence of the meritorious-
ness of this branch of American jurisprudence.-See Hamilton, Germanic and
Moorish Elements of the Spanish Civil Law, 3o HAmv. L. REv. 303, 318 (1917).
'A striking illustration of the same tendency at one period in ancient his-
tory is to be found in DEtuTFaONOmY I5: i, 2.
z'HOLMES, op. cit. supra note 4 at 302.
434 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

refused for error in insignificant items in an action for breach

of contract ;15 and where merely nominal damages are involved,1 6
except where such damages would carry costs. 1 7 Likewise an
appeal has been denied where the error assigned is a mistake of
a small sum of money. 1 8
Substantial performance on the part of the plaintiff must
be shown, when suit is brought upon a contract; but he need not
show literal compliance with unimportant details of his agree-
ment. Whether or not a defect or omission in the matter of per-
formance of a condition precedent has been committed by such
complainant is matter of substance or mere triviality is, as a
rule, deemed to be a question of fact, and not a question of law ;19
at the same time, where there has been a breach of contract, it is
horn-book law that the obligation be laid upon the party not in
fault to mitigate the damages caused by the defaultor's act, so
far as possible without loss to himself. 20 Again a plaintiff has
no right to bring an action of quasi-contract on the ground of
failure of consideration, where the defendant's breach or omis-
sion is not of such a nature as to indicate an intention to repu-
diate his agreement. On this ground it has been decided that
where one has failed to give a note or acceptance, required of
him by a contract under which he has purchased goods, he cannot
be sued on said contract until the expiration of the period of
credit originally agreed upon. 21 In such case, however, it has
been suggested that the delinquent is suable immediately on the
breach of the special agreement, and that damages would be re-

Cruthers v. Donahue, 85 Conn. 629, 84 Atl. 322 (1912).

Beattie v. R. R., 84 Conn. 555, 8o Atl. 709 (191)
; Thren v. Ames, 149 Ill.
App. 147 (19o9) ; Abbott v. Walker, 204 Mass. 7i, 9o N. E. 405 (igio) semble.
"Lund v. Lachman, 29 Cal. App. 31, 154 Pac. 295 (1915).
Willey v. Bowden, 14 Ga. App. 379, 8o S. E. 910 (1914).
Miller v. Benjamin, 42 N. Y. 613, 617, 37 N. E. 631 (1894).
'
Kingman v. Western Mfg. Co., 92 Fed. 486 (C. C. A. 8th i899); Black v.
2

Woodrow, 39 Md. 194, 215 (1874) ; Hosmer v. Wilson, 7 Mich. 294 (1859) ;
American Publishing Co. v. Walker, 87 Mo. App. 503 (i9OI); Clark v. Mar-
siglia, i Denio 317 (N. Y. 1845) ; Heiser v. Mears, 12o N. C. 443, 27 S. E. 117
(897) ; Davis v. Bronson, 2 N. D. 300, 50 N. W. 836 (1892); Collyer v. Moul-
ton, 9 R. I. go (i87o) ; Tufts v. Weinfeld, 88 Wis. 647, 6o N. W. 992 (1894).
'Manton v. Gammon, 7 IIl. App. 201 (i88o); Hanna v. Mills, 21 Wend.
9o (N. Y. 1839) ; Dutton v. Solomonson, 3 B. & P. 582 (i8o3) ; Mussen v.
Price, 4 East 147 (18o3).
 DE MINIMIS NON CURAT LEX

coverable to the amount of the sales price, less a rebate of inter-

est for the period of the stipulated credit.2 2 A part performance
which is a substantial, bona fide compliance with a contractual
obligation, is all that is necessary 23 (which imports that triviali-
ties would be ignored) ; unless, as in cases where time is stipulated
to be of the essence of a contract, incidental and otherwise non-
essential features are agreed by the parties to be matter of sub-
stance. 24 Likewise, in contracts of suretyship, the rule that any
alteration made in the principal contract, without his consent, dis-
charges the surety as to subsequent transactions, is, it is conceived,
subject to the principle de minimis where the alteration is unsub-
stantial or is beneficial to him. This view is supported by the
reasoning of the authorities which hold that where a surety guar-
antees the carrying out of more than one distinct undertaking, and
one of such undertakings is changed or an additional one agreed
to by a distinct contract, such change does not affect the surety's
25
liability as to the undertaking which remains unaltered.
The equitable practice of relief against forfeiture for lapse
of time where not essential to the substance of a contract, points
to the adoption in equity of the principle of the maxim de mini-
nis non curat lex, in pursuance of the adage that equity follows
the law. Readers who are interested in the civil law are respect-
fully referred to the concurrent mediaval maxim, de minimis non
curat pretor,2 which, for aught the writer knows to the contrary,
may be senior to that of the common law. Another application
of the maxim in equity, whether derived fr6m the common law,
civil law or both, is afforded by the rule that a contract will not
be cancelled for mistake, where such mistake does not affect its

Hanna v. Mills, supra note 21.

'Chambers v. Jaynes, 4 Barr 39 (Pa. 1846) Gilman v. Hall, ix Vt. 51o
(1839) ; 2 PARSONS, CONTRACTS (9th ed. 19o4) 811.
"Sneed v. Wiggins, 3 Ga. 94 (1847); Kemp v. Humphreys, 13 Ill. 573
(1852); Westerman v. Means, 12 Pa. 97 (r849); 2 PARSONS, op. cit. supra
note 23 at 812.
'Garnett v. Farmers' Bank, 91 Ky. 614, 16 S. W. 709 (1891); State v.
Swinney, 6o Miss. 39 (1882) ; Bank v. Traube, 75 Mo. 199 (i881) ; Mayor v.
Kelly, 98 N. Y. 467 (885) ; Dawson v. State, 38 Ohio St. 1 (1882) ; Harris-
burg Assn. v. U. S. Fidelity Co., I97 Pa. 177, 46 Atl. 9IO (igoo).
" Cusson v. Delorme, 6 Quebec Q. B. 202, 214 (1897).
436 UNIVERSITY OF PENNSYLVANIA LAW REIVIEI

substance. 2 - The rule is different, however, in cases where equi-

table relief is sought against actual fraud, for courts of equity
will not inquire into the extent of the injury done, if the party
seeking relief has been misled to his prejudice in the slightest de-
gree; provided that the amount of pecuniary loss inflicted is at
28
all appreciable.

3. The derivative rule that the law will not regard fractions
of a day.
The rule that the law does not regard fractions of a day
has been stated to be based upon necessity; but it is believed that
it is founded upon considerations of practical convenience and
expediency. As mere convenience should not outweigh consid-
erations of substantial justice, it is almost universally the case
that, where material, courts will regard fractions of a day. It
is to be borne in mind that the parent maxim emphasizes that the
law does not take cognizance of trifles, consequently its corollary,
that judicial attention will not be directed to fractions of a day,
is limited to those cases where the fraction is relatively of such
trivial importance as to be practically immaterial and irrelevant to
the issues in a litigation.
In the service of process, notice and pleadings, it has been
held that the rule applies: e. g., where service of summons is re-
quired to be made at least six days before the return day, a service
in the afternoon of the second day of April has been held valid
where returnable in the morning of the eighth of April. 29 The
rule that a man comes of age at the beginning of the day pre-
ceding the twenty-first anniversary of his birth is familiar to
all who have had anything to do with the conduct of elections.
As a practical matter very few people could give the hour of
their birth, so here the convenience of the rule amounts almost
to necessity. Even the day of birth is often a fact of which proof
is not easily accessible. This has been shown by the experience
2T2 POMEROY, EQUITY JURISPRUDENCE (3d ed. i9o5) § 856, and
cases cited in
notes I, (a) and (b). Compare article iiio of the Code Napoleon, "Mistake is
not a cause for annulling the agreement except when it occurs in the very sub-
stance of the thing which is the subject thereof," etc.
2 PoMERoY, op. cit. supra note 27, § 898, and cases cited in notes 3 and (b).
' Columbia Turnpike Road v. Haywood, io Wend. 422 (N. Y. 1833).
 DE MINIMIS NON CURAT LEX

of many native-born citizens of middle age or advanced years,

who, when applying for passports, are unable to furnish certifi-
cates of birth, owing to the dearth of records, prior to the year
i88o, upon which such certificates can issue. The familiar rule
of the common law that an infant en ventre sa mere is regarded
as an heir, makes it unnecessary to consider fractions of a day,
where an infant is born the day of the death of him through whom
an inheritance" is claimed. Unlike the hour of birth, the hour of
death is almost always noted. This fact is so well recognized
that most probate courts require the hour as well as the day of
death, as part of their records. Hence, where a judgment was
entered on the day of the death of a defendant, but after the
time of his death, it has been held that the fiction of the relation
of judgments to the first moment of the day of entry does not
apply, and that such judgment is not entitled to priority out of
the proceeds of the sale of real estate over the claims of general
creditors. 30 Ordinarily, however, a judgment is a lien during
the entire day of its entry, and will take priority over a mortgage
entered at a recorded hour on the same day 31-- a contingency that
is customarily provided against by conveyancers and title insur-
ance companies. If, however, it were required by statute that a
note of the hour and minute of entering a judgment be registered,
the rule would probably be otherwise. 32 The policy of such a stat-
ute as that last mentioned is doubtful. In the first place it de-
prives claims ripe for judgment of their protection against sudden
impairment of assets subject to execution; and in the second place,
it would make for intolerable confusion in populous centers where
court clerks are besieged by lawyer's clerks competing for prior-
ity of attention. The doctrine that fractions of a day will not

" Patterson's Appeal, 96 Pa. 93 (i88o). Contra, Wright v. Mills, 4 H. &

- N. 488 (1859).
"Alrichs v. Thompson, 5 Harr. 432 (Del. 1854). Contra, Goetzinger v.
Rosenfeld, i6 Wash. 392, 47 Pac. 882 (1897). The doctrine of Alrichs v.
Thompson is generally law in American jurildictions. A few jurisdictions ad-
here to the old common law rule that judgments relate back to the first day of
the term in which they are entered, and some others postpone the lien of a judg-
ment to the last day of the term; both classes of cases give equal priority to all
judgments entered in the same term. See LOYD, CASES ON JUDGMENTS, I58, n.
2, and I59, n. 4.
"See Alrichs v. Thompson, supra note 31.
 438 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

be regarded in the entry of judgments, and the consequent rela-

tion back of the lien of a judgment to the first moment of the
day of entry, results in the rule that judgments entered on the
same day have equal priority, 33 and gives rise to the principle
that a judgment has priority over any conveyance entered upon
3 4
the same day.
Sometimes the doctrine concerning fractions of a day is
stated in the form of the dogmatic fiction that in law there are no
fractions of a day-that a day is a mathematical point of no di-
mension, so to speak. Dogmatic fictions are frequently employed
on account of the convenience afforded by their compressed form
of stating legal doctrine; but it is urged that they are inapplicable
wherever the basic reasons of their underlying principles cease to
exist. It follows that the doctrine of relation is subject to the
ratio legis-Cessante ratione legis, cessat ipsa lex.
It has frequently happened that the question whether the
hour at which a statute takes effect shall be considered has been
the subject of contest. Sometimes the fiction prevails and at
other times it yields- to principles of greater weight. Where a
bankruptcy or insolvency law is repealed on the day of presen-
tation of a petition thereunder, the doctrine of relation governs,
even though such petition has been filed at an hour prior to the
going into effect of the repeal statute.3 5 While not so stated,
it is surmised that the cancellation of unpaid debts is not deemed
a proper ground for refusal to apply the fiction of relation. To
give the fiction any force in such a case would certainly divert it
from its original purpose. On the other hand, where considera-
tions of justice require the setting aside of the fiction, the maxims
Fictio cedit veritati and Fictio juris non est ubi veritas would
apply, as in the case of Louisville v. PortsmouthSavings Bank.3 6
In the case just cited a township-which had previously voted a
donation to a railroad, which gift was to be raised by a special

"Rbckhill v. Hanna, 15 How. 189 (U. S. 1853) ; Cook v. Dillon, 9 Iowa

4o7 (1859) ; Waterman v. Haskin, ii Johns. 228 (N. Y. 1814) ; Bruce v. Vogel,
38 Mo. ioo (1866).
"Boyer's Estate, i Pa. 432 (1866).
, Matter of Welman, 2o Vt. 653 (844).
"a104 U. S. 469 (1881).
 DE MINIMIS NON CURAT LEX

tax-voted to issue bonds in discharge of its undertaking. On

the day that the bond issue was voted, the people of the State
voted in favor of a new Constitution containing a provision which
forbade donations by townships, etc., to railroad or other private
corporations. In the forenoon of the election day a town-meeting
was held of fifty-four voters, of whom fifty-two voted in favor
of the bond issue. On appeal to the United States Supreme
Court it was held that the State Constitution did not go into
effect prior to sunset, when the polls closed, and that the author-
ization of the bond issue took place prior thereto, that while the
law, in general, does not take cognizance of the fractions of a
day, courts may do so when substantial justice requires it.

4. Applicability of the maxim de minimis to tax questions.

In the days immediately preceding the outbreak of the Revo-
lutionary War, opposed to the British conception that the right of
taxation derives from the possession of sovereignty, was the
American contention: "No taxation without representation."
This clash of principles, persisted in by the retention of the three
pence per pound duty on tea, terined by its supporters "that fig-
ment of a tax, that pepper-corn rent," led to the independence
of the United States. Taxation has thus had a deep political
signifiance in our American jurisdictions, and there is still so
much of a political character in the enactment and adminstra-
tion of tax laws, that courts, as non-political agencies of gov-
ernment, have found the general subject of taxation a matter of
great delicacy to deal with. It is a truism that the power to tax
is the power to destroy (a famous illustration of which has been
the elimination of state bank-notes by a prohibitive tax upon
circulation) and, in all probability, the consideration of this po-
tentiality is a contributing factor in impelling many courts to
feel that incidents of taxation are not trivial, and that the maxim
does not apply to excessive assessments or levies. On the other
hand, there is the feeling (which occasiotially manifests itself in
dissenting opinions) that taxes, as a sodrce of public revenue,
are essential to the promotion of the general welfare, and that it
is a serious matter to invalidate their collection. This latter posi-
44o UNIVERSITY OF PENNSYLVANIA LAW REVIEW

tion has led to legislation in some jurisdictions authorizing tax

sales of property which is worth considerably more than the
amount sought to be collected;37 and even (in one state at least)
validating sales or tax titles thereunder where part of the tax
is illegal.38
In general, a sale for unpaid taxes is valid where there has
been substantial compliance with the law in every step of the
proceedings, 3 9 consequently trivial deviations from tax law pro-
cedure would not invalidate such sales. Some authorities, how-
ever, require strict construction of statutes authorizing tax sales,
treating their requirements as mandatory and assimilating the
procedure to the strictness of forfeiture proceedings. 40 When
it comes to an excessive assessment or levy, the general rule is
that, except where otherwise expressly provided by statute, a sale
of property for taxes is void if there is any excess and the maxim
de minimis will not prevent the slightness of the excess from in-
validating the sale. 41 A modem American court is not likely
to attribute to the law-making power a statutory intent that an
authority conferred by it to assess or levy taxes is an elastic one,
and that such limits as are laid down by the legislature could
be passed; for if overstepping the authority laid down in a tax
act were left to the discretion of tax assessors and collectors, the
question of abuse thereof would rest largely upon the personal
equation of the membership of the courts and make for confusion
in lieu of a desirable certainty. Power to collect more taxes than
are needed savors too much of the antiquated system of the
farmers-general to be lightly ascribed to tax legislation.

" E. g., Southworth v. Edmands, 152 Mass. 203, 25 N. E. io6 (389o).

Rhodes v. Sexton, 33 Iowa 540 (1871).
'People v. Kankakee & S. Ry., 265 Ill. 497, lO7 N. E. 218 (914); 2
COOLEY, TAXATION (3d ed. 19o3) 912-914.
, Holland v. Hotchkiss, 162 Cal. 366, 123 Pac. 258 (1912); Wilson v.
McKenna, Ill. 43 (1869) ; Brown v. Veazie, 25 Me. 359 (3845) ; Hough v.
52
City of North Adams, 196 Mass. 290, 82 N. E. 46 (1907) ; Cahoon v. Coe, 57
N. H. 556 (1876) ; Landis v. Vineland, 61 N. J. L. 424 (1898) ; Wilson v. Bell,
7 Leigh 22 (Va. 1836).
v. Patterson, 51 Cal. 637 (1877); McLaughlin v. Thompson,
41Treadwell
55 Il. 249 (870) ; Genthner v. Lewis, 24 Kan. 309 (188o) ; Collins v. Lane,
151 Ky. 8, 150 S. W. 977 (1912) ; Hus v. Merriam, 2 Green 375 (Me. 1823);
Burroughs v. Goff, 64 Mich. 464, 31 N. W. 273 (1874) ; Lufkin v. Galveston,
73 Tex. 340, 11 S. W. 340 (1889) ; 2 COOLEY, Op. cit. supra note 39, 955-957.
 DE MINIMIS NON CURAT LEX

5. The maxim de minimis as a canon of statutory interpre-

tation.
An eminent educator, whose helpful guidance through the
mazes of legal study is gratefully remembered by many former
pupils, is said to have voted against the purchase of statute books
for the library of a famous law school. He felt that ample ma-
terial for the training of lawyers was contained in the volumes
of reported cases. His colleagues, however, realizing that this
is an era of legislation, voted for the addition of statute books to
their library. In recognition of the prominent part that legisla-
tion now plays, a number of law schools have courses in Statutes.
One of the first questions which frequently arise in the in-
terpretation of a statuteis whether it is mandatory or directory.
To solve the problem many rules of thumb, based upon form,
have been suggested, tested, and frequently discarded. It is re-
spectfully submitted that whether a statutory provision is man-
datory or directory is seldom a matter of form, that on the con-
trary the problem is largely a question of its importance in the
light of the subject-matter and general purpose of the act of
which it is a part, and that where literal compliance with its terms
is not essential to the carrying out of the legislative intention, the
maxim is applicable. The general trend of judicial decisions
seems consistent with this view. "Criminal law, as well as civil,
knows the maxim "De minimis non curat lex,' which has con-
trolling application to the enforcement of a statute which aims
at the repression of real and substantial abuses." 42 A stamp act
has been held to be subject to the maxim, because there was no
Icoin small enough to pay the tax, if it were attempted
to enforce
literal compliance with the terms of the statute. 43 In a murder
case, an appellate court has decided that a statutory requirement
that an order holding a special term of court shall be posted ten
days before the commencement of the term was merely directory
and that a notice of eight days was sufficient, it being deemed
that the notice was intended solely td prevent surprise, and that
the statutory purpose had been fully complied with.4 A statute
4
4'
U.S. v. Hocldng Valley Ry., i94 Fed. 234, 250 (N. D. Ohio 1911).
Baxter v. Faulam, I Wils. K. B. 129 (1746).
"Blimm v. Comm. 7o Ky. 32o (i87o).
442 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

declared that in every action thereunder against a carrier for loss

or damage, with interest from the date of filing a claim with
such carrier, the event of failure to pay the same within a pre-
scribed period subjected such carrier to a penalty, provided that
no penalty be imposed unless the plaintiff recovered the full
amount of his claim; the claim filed was for $16.88 and the
amount proved was $16.87Y2. Held, that the maxim de minimis
applied to the discrepancy of a fraction of the smallest current
coin-it being "too trivial for the practical administration of the
law." 45
In general, unsubstantial deviations from the letter of a
statute are disregarded, the prime question being whether they
are material, in the light of the ratio legis; the legislative inten-
tion, whenever it can be legitimately arrived at, being the pole-
star for the judicial interpreter. Where, however, statutes are of
a class that is strictly construed, such as acts in derogation of
common right or actions for penalties, the maxim de minimis does
not apply to their requirements 4-as a general rule. And the
smallness of a sum involved, provided that it be appreciable, is
not in iself a ground for application of the maxim to the inter-
pretation of a statute or municipal ordinance, so as to deprive a
court of jurisdiction in a test case.4 7 Moreover, a matter which
ordinarily would be too trivial for a court to consider, will be
judicially determined if it appear that the trifle might lead to
consequential results. 48 And where there is found to be a con-
flict among statutes in pari tateria, and such conflict relates to
an immaterial matter, the maxim will be applied and the trivial
discrepancies will be disregarded. 49 It is hardly necessary to ob-
serve that a court has no authority to substitute its own opinion
of the materiality or substantialness of a statutory requirement
for that which may be unequivocally and unmistakably expressed
or implied by the language of the lawmaker.

4
Laundry Co. v. Ry., 83 S. C. 209, 65 S. E. 239 (909).
"Mayhall v. Woodall, 192 Ala. 134, 68 So. 322 (1915).
Montgomery L. & T. Co. v. Avant, 2o2 Ala. 404, 8o So. 497 (918).
"State v. Superior Court, 136 Wash. 87, 238 Pac. 985 (1925).
State v. Dunn, 76 Neb. 155, 1O7 N. W. 236 (19o6).
 DE MINIMIS NON CURAT LEX

6. Applicability of the maxim to adjective law.

The early stages of legal development may be termed ritual-
istic. Sales, bailments and other contracts were made the sub-
ject of a dramatic diologue by the parties interested in the pres-
ence of witnesses, in order to ensure the sanction of enforceabil-
ity. The modern marriage service is a recognizable historic sur-
vival of this-practice of antiquity. Court procedure was equally
ritualistic and in the course of time a tradition of the sacred-
ness of form led to the adoption of such devices as fictions in
order to ensure that there would be an available remedy for the
vindication of a recognized legal right. Nowadays the tendency
of the courts is to look to the substance rather than the form of
matters in issue; tribunals, for illustration, decline to trouble a
jury with evidence which could not reasonably satisfy it,5 ° and
suport this practice on the ground that the law does not regard
trifles; and, in general, the rigidity of form yields to the prac-
tice of holding procedural requirements directory rather than
mandatory.
At present, the crying evil of the law's delays is fostered
in too many jurisdictions by legislation encroaching upon the
proper and appropriate functioning of courts with minute and
often irksome details of procedural requirement which fetter
courts and earnest parties litigant alike. As Dean Pound has
well said,
"More than one unhappy feature of American admin-
istration of justice which is a factor for ill in the conditions
of which complaint is made so justly today, is a result of
shortsighted, ignorant application of lay common sense to
difficult problems of law and of judicial administration,
which called not for common sense, but for the uncommon
trained sense of experts." "'
Mr. Elihu Root observes on the same subject that:
"During the sixty odd years which have elapsed since
the reform of American procedure by codification there has
Jewell v. Parr, 13 C. B. go9 (1853) ; Offut v. World's Columbian Exposi-
tion Co., 175 II. 472 S1 N. E. 651 (1898).
" Presidential address at the 49th (1926) annual meeting of the American
Bar Association.
444 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

been a constant movement towards . . .complex and tech-

nical procedure, caused by legislative interference with the
details of practice. . . . The New York Code, as a horrible
example, has been swelled in this way to more than eight
times its original dimensions." 52

Mr. Chief Justice Taft suggests a remedy for this state of.
affairs by calling for: first, the repeal in a number of jurisdic-
tions of legislation which restricts the judge in the exercise of
his control in the trial of cases; and secondly, the enactment of
suitable laws giving the judges the means of expediting the ini-
53
tiation, trial and final determination of litigation.
The best that the judicial interpreter can do, while and where
such conditions as have just been outlined are prevalent, is to re-
sort to the presumptions against inconvenience and unreasonable-
ness; discriminate between that which is mandatory and that
which is directory; and, after ascertaining what is matter of sub-
stantial requirement, apply the principles cessante ratione legis
cessat ipsa lex and de minimis non curat lex as canons of con-
struction. It is believed that the situation should not be dis-
couraging, for excellent materials are available for the use of
draftsmen of reformatory procedural legislation. A notable con-
tribution towards a solution of the problem of abridging the
law's delay has been made by Professor Whittier in his masterly
discussion of Notice Pleading. 5 4 Notice
pleading, as the article
shows, is a system whereby a claim or defense offered is required
to be stated in simple terms sufficient to give reasonable notice
to the opponent, as opposed to the old method of requiring a
statement of the salient facts necessary to be proved in order to
establish a claim or defense. The professor attributes great suc-
cess to the system, as worked out by the Municipal Court of
Chicago and the State courts of Michigan. Congress in its codi-
fication of the laws of Alaska offers a model statute for dealing
with variances by providing that :55
Ibid.
Ibid.
'3I HARv. L. REv. 501 (i918). See also Part IV of Professor Sunder-
land's article, The Michigan Judicature Act of 1915, 14 MIcE. L. Rav. 551
(1916).
'ALASKA ComP. LAWS (913) § 919.
 DE MINIMIS NON CURAT LEX

"No variance between the allegation in a pleading and

the proof shall be deemed material, unless it shall have ac-
tually misled the adverse party to his prejudice in maintain-
ing his action or defense upon the merits. Whenever it shall
be alleged that a party has been so misled, that fact shall
be proved to the satisfaction of the court, and in what re-
spect he has been misled; and thereupon the court may order
the pleadings to be amended upon such terms as shall be
just."

This statute is highly reformatory for it checks frivolous

objections on the one side, and punishes wilful or grossly negli-
gent slackness on the other side.
It has often been remarked that justice delayed is justice
denied. Nothing can be more disheartening than for a litigant
to find himself obliged to fight a case over again in a lower court
to maintain a point which admits of final determination in an
appellate court to which it has been carried. This mischief is
provided against in an Arkansas statute some thirty-five years
old 56 giving power to the State Supreme Court to make final
disposition where the record is in such shape as to admit of such
action. The act provides that:
"The Supreme Court may reverse, affirm or modify the
judgment or order appealed from in whole or in part and
as to any or all parties, and when the judgment or order
has been reversed the Supreme Court may remand or dis-
miss the cause and enter such judgment upon the record as
it may in its discretion deem just."

A Kentucky statute forbids a reversal except for substan-

tial error. 57 The Virginia Code of 1924 at Section 6331 enacts
that:
"No judgment or decree shall be reversed. for any
error committed in the trial where it plainly appears from
the evidence given at the trial, that the parties have had a
fair trial on the merits, and substantial justice has been
done."

SAcrs op Ax. (1891) 280, ARx. DiG. STAT. (Crawford, 1921) § 2177.
Weick v. Dougherty, 139 Ky. 528, go S. W. 966 (igo6).
446 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

It is believed that enough has been shown to indicate that

there is ample material, some of which has been tested by time
and experience, which is readily available for use by those who
may be charged with the important duty of drafting procedural
acts adapted to modern conditions. That "the law takes no ac-
count of trifles . . . is a maxim which relates to the ideal rather
than the actual law. The tendency to attribute undue importance
to mere matters of form-the failure to distinguish adequately
between the material and the immaterial-is a characteristic de-
fect of legal systems." 58
Frederick G. McKean, Jr.
Washington, D. C.

' SALMOND, JURISPRUDENCE (7th ed. 1924) 533.