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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

CERTAINTY, UNCERTAINTY

Contracts. In matters of obligation, a thing is certain when its essence, quality, and quantity are described and distinctly set forth. It is uncertain, when the description is not that of one individual object, but designates only the kind. Certainty is the mother of repose, and therefore the law aims at certainty.

If a contract be so vague in its terms that its meaning cannot be certainly collected and the statute of frauds preclude the admissibility of parol evidence to clear up the difficulty, or parol evidence cannot supply the defect, then neither at law nor in equity can effect be given to it.

It is a maxim of law, that, that is certain which may be made certain; certum est quod certum reddi potest Co.; for example, when a man sells the oil he has in his store at so much a gallon, although there is uncertainty as to the quantity of oil, yet inasmuch as it can be ascertained, the maxim applies, and the sale is good generally.

Pleading. By certainty is understood a clear and distinct statement of the facts which constitute the cause of action, or ground of defence, so that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give the judgment. Certainty has been stated to be of three sorts namely: 1. certainty to a common intent 2. to a certain intent in general; and, 3. to a certain intent in every particular.

- 1. Certainty to a common intent is simply a rule of construction. It occurs when words are used which will bear a natural sense, and also an artificial one, or one to be made out by argument or inference. Upon the ground of this rule the natural sense of words is adopted, without addition.

- 2. Certainty to a certain intent in general is a greater degree of certainty than the last, and means what upon a fair and reasonable construction may be called certain without recurring to possible facts which do not appear; and is what is required in declarations, replications, and indictments, in the charge or accusation, and in returns to writs of mandamus. By some of which authorities it would seem, certainty to a common intent is sufficient in a declaration.

- 3. The third degree of certainty is that which precludes all argument, inference, or presumption against the party pleading, and is that technical accuracy which is not liable to the most subtle and scrupulous objections, so that it is not merely a rule of construction, but of addition; for where this certainty is necessary the party must not only state the facts of his case in the most precise way, but add to them such as show that they are not to be controverted, and, as it were, anticipate the case of his adversary.

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