Obiter dictum (usually used in the plural, obiter dicta) is a Latin phrase meaning "said in passing".[ Black's Law Dictionary, p. 967 (5th ed. 1979).] In a legal system, the term may apply to any remark in a legal opinion that is "said in passing" by a judge or arbitrator. The concept as used in law derives from English common law, whereby a judgment comprises only two elements: ratio decidendi and obiter dicta. For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter dicta are persuasive only.
Significance
A judicial statement can be
ratio decidendi only if it refers to the crucial facts and law of the case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law issues, are
obiter dicta.
Obiter dicta (often simply
dictum, or
obiter) are remarks or observations made by a
judge that, although included in the body of the court's opinion, do not form a necessary part of the court's decision. In a court opinion,
obiter dicta include, but are not limited to, words "introduced by way of illustration, or analogy or argument".
Unlike
ratio decidendi,
obiter dicta are not the subject of the judicial decision, even if they happen to be correct statements of law. The so-called
Eugene Wambaugh provides that to determine whether a judicial statement is
ratio or
obiter, you should invert the argument, that is to say, ask whether the decision would have been different, had the statement been omitted. If so, the statement is crucial and is
ratio; whereas if it is not crucial, it is
obiter.
If a court rules that it lacks jurisdiction to hear a case (or dismisses the case on a technicality), but still goes on to offer opinions on the merits of the case, such opinions may constitute obiter dicta. Other instances of obiter dicta may occur where a judge makes an aside to provide context for the opinion, or makes a thorough exploration of a relevant area of law. If a judge, by way of illumination, provides a hypothetical example, this would be obiter even if relevant because it would not be on the facts of the case, as in the Carlill case (below).
University of Florida scholars Teresa Reid-Rambo and Leanne Pflaum explain the process by which obiter dicta may become binding. They write that:
In the United Kingdom
Under the doctrine of
stare decisis, statements constituting
obiter dicta are not binding, although in some jurisdictions, such as England and Wales, they can be strongly persuasive. For instance, in the
High Trees case,
[Central London Property Trust Ltd v High Trees House Ltd 1947 KB 130] Lord Denning was not content merely to grant the landlord's claim, but added that had the landlord sought to recover the back rent from the war years, equity would have
estopped him from doing so. Given that the landlord did not wish to recover any back rent, Denning's addition was clearly
obiter, yet this statement became the basis for the modern revival of promissory estoppel. Similarly, in
Hedley Byrne & Co Ltd v Heller & Partners Ltd,
[Hedley Byrne & Co Ltd v Heller & Partners Ltd 1964 AC 465] the House of Lords held,
obiter, that negligent misstatement could give rise to a claim for pure economic loss, even though, on the facts, a disclaimer was effective in quashing any claim. Also, in
Scruttons Ltd v Midland Silicones Ltd,
[Scruttons Ltd v Midland Silicones Ltd 1961 UKHL 4, 1962 AC 446] Lord Reid proposed that while doctrine of privity of contract prevented the stevedores in this instance from benefiting from protection of an exemption clause, in future such protection could be effective if four guidelines (which he went on to list) were all met. In
Carlill v Carbolic Smoke Ball Company[Carlill v Carbolic Smoke Ball Company 1893 2 QB 256][Carlill v Carbolic Smoke Ball Company 1892 EWCA Civ 1] (a case whether a woman who had used a smoke ball as prescribed could claim the advertised reward after catching influenza), Bowen LJ said:
In the United States
United States Supreme Court's
obiter dicta can be influential.
[ (plurality opinion)] One example in the Supreme Court's history is the 1886 case
Santa Clara County v. Southern Pacific Railroad Co.. A passing remark from
Chief Justice Morrison R. Waite, recorded by the court reporter before oral argument, now forms the basis for the doctrine that
are entitled to protection under the Fourteenth Amendment. Whether or not Chief Justice Waite's remark constitutes binding precedent is arguable, but subsequent rulings treat it as such.
In other instances, obiter dicta can suggest an interpretation of law that has no bearing on the case at hand but might be useful in future cases.
Dissenting judgments or opinions
The arguments and reasoning of a dissenting judgment (the term used in the United Kingdom)
also constitute
obiter dicta. These, however, might also be cited should a court determine that its previous decision was in error, as when the United States Supreme Court cited Justice Oliver Wendell Holmes Jr.'s dissent in
Hammer v. Dagenhart when it overturned
Hammer in
United States v. Darby Lumber Co.
In Shaw v DPP 1962[ Shaw v DPP 1962 AC 220 House of Lords] a publisher of the Ladies Directory (a guide to London prostitutes) was convicted of "conspiracy to corrupt public morals". He appealed on the grounds that no such offence existed. The House of Lords dismissed the appeal, in effect creating a new crime. Viscount Simonds said: "...there remains in the Courts of Law a residual power ... to conserve the moral welfare of the State, and ... guard it against attacks which may be the more insidious because they are novel and unprepared for." In a dissenting judgment, Lord Reid said: "Parliament is the proper place, ... to create. Where Parliament fears to tread it is not for the courts to rush in." Subsequently, Lord Reid was the leading judge in Knuller v. DPP,[Knuller (Publishing, Printing and Promotions) Ltd. v. DPP 1973 A.C. 435 at 456, 56 Cr.App.R. 633 at 637] a case on obscene libel in which a publisher was charged with "conspiracy to corrupt public morals". In this case, Lord Reid said he still disagreed with the majority decision in Shaw, but in the interests of certainty he would not overturn Shaw.
Semble
Akin to
obiter is the concept of
semble (
Norman French for "it seems"), indicating that the point is uncertain or represents only the judge's opinion. For example, in
Simpkins v Pays (1955),
['Simpkins v Pays' 1955 1 WLR 975 Queen's Bench Division] a grandmother, granddaughter and a lodger entered into weekly competitions in the
Sunday Empire News. Each week, all three women together made a forecast and each contributed to the cost of entry; but it was the grandmother's name that was on the coupon. The grandmother received £750 in prize money and refused to share it with the other two. The lodger successfully sued for one third of the prize money; but Sellers J added
semble that the granddaughter should also get £250, even though she had not been a party to the action.
See also
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