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INTRODUCTION:
All questions which arise for consideration and determination in a court of justice are of two kinds, i.e., question of law and question of fact. 1. QUESTION OF LAW All questions:-i. which have already been answered by the law; ii. or by the court and became judicial precedent for similar cases; iii. or is to be answered by the court without recording the evidence is question of law. According to Salmond the question of law is used in three distinct, though related, senses:-i. Question which the law itself has authoritatively answered. ii. Question as to what the law is on certain point which is answered by judge. iii. In general sense question of law for the judge but question of fact is for the jury. i. QUESTION AUTHORITATIVELY ANSWERED BY LAW:
1. Question which court is bound to answer in accordance with a rule of law; 2. a question which the law itself has authoritatively answered; 3. to the exclusion of the right of the court to answer the question as it thinks fit in accordance with what is considered to be the truth and justice of the matter. Illustration of question of law: Whether the holder of a bill of exchange has been guilty of unreasonable delay in giving notice of dishonor is a question of law to be determined in accordance with certain fixed principles laid down in the bills of Exchange Act. The question whether a child accused of crime has sufficient mental capacity to be criminally responsible for his acts is one of fact, if the accused is over the age of ten years, but one of law if under 10 years of age. ii. QUESTION ARISES OUT OF UNCERTAINTY OF LAW:
In this second sense, a question of law is a question as to what law is. Thus, an appeal on a question of law means an appeal in which the question for argument and determination is what the true rule of law is on a certain matter. Question of law in this sense arises, not of the existence of law, but out of its uncertainty. ZEESHAN HUSSAIN ADIL: ENGLISH JURISPRUDENCE (Q&A-LL.B-I, Session 2012-13) 2-D
EXAMPLE The Companies Act empowers the court to make an order for the winding-up of a company if ,inter alia, the company is unable to pay its debts or the court is of opinion that it is just and equitable that the company should be wound up. The first of these questions is one of pure fact, whereas the second is a question of judicial discretion. Question of fact and matter of opinion: A question of fact is one capable of being answered by way of demonstrationa question of opinion is one that cannot be so answered. The answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong. EXAMPLE: The past history of a companys business is a matter of fact; but its prospects of successful business in the future is a matter of opinion. Many of the question which courts decide on the facts and which are not governed by fixed legal rules are question of opinion in this second sense. Whether the defendant drove without due care, whether accused reacted to the deceaseds provocation as would a reasonable man, whether a flat has been so substantially altered as to suffer a change of identityall these are strictly neither questions of law nor of fact; they are matters for evaluation. PRIMARY AND SECONDARY FACTS: A distinction is also drawn between primary and secondary facts; Primary facts are proved by oral, documentary and other evidence; secondary facts can be inferred from primary facts. ZEESHAN HUSSAIN ADIL: ENGLISH JURISPRUDENCE (Q&A-LL.B-I, Session 2012-13) 2-D
Explain the terms question of law, question of fact, and mixed question of law and fact. (Ann. 2007) Q. Explain the term Question of law and Question of fact. What do you understand by mixed question of law and fact? (Sup. 2006) Q. What do you understand by the term Question of Law and Question of Fact? Also discuss the mixed question of law and fact. (Ann. 2010) Q.
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