| 释义 |
casus omissus
[Latin] A circumstance not provided for by common law or statute; a gap in the law. To understand the significance of this important maxim it is necessary to recall its complete wording, namely Casus omissus pro omisso habendus est, that is, “A case (or class of cases) omitted is to be held as (intentionally) omitted.” Thus, the courts will presume that if Parliament omitted a reference, it did not do so by accident, but deliberately. This is a rule to be observed in the interpretation of statutes, and in considering whether they are applicable to certain cases analogous to the cases therein provided for. This is illustrated by Fisher v Bell [1961] QB 394, 400, in which Lord Parker CJ considered, by way of case stated, the prosecution of Mr Bell for “offering for sale” a flick knife, an act prohibited by the Restriction of Offensive Weapons Act 1959 s 1(1). However, in contract law it is the customer, not the retailer, who makes the offer. As a consequence, the prosecution brought by the police failed. Lord Parker stated that he fully understood what Parliament had intended to do under the statute (i.e. its purpose). However, it is a rule of statutory presumption that Parliament, when legislating, understands the previous common law rules. Moreover, it is not for the courts to “fill the gaps” where Parliament errs, particularly when that statute is penal in nature. The following year the statute was amended so as to read “display for sale”. |