Legal Definitions - cum excessu moderaminis

cum excessu moderaminis

This Latin phrase, used in Scots law, translates to "in excess of the limits" or "with an excess of moderation." It describes a situation where an action, particularly the use of force, goes beyond what is legally permissible or reasonably necessary in a given circumstance.

The term is most commonly applied in cases involving self-defense, where an individual's response to a threat exceeds the proportional force required to protect themselves or others. It signifies that while an initial act might have been justified (e.g., defending oneself), the subsequent actions crossed a legal boundary by being overly severe or prolonged.

• Example 1: Disproportionate Self-Defense

  Imagine a person, Sarah, is walking home when she is suddenly pushed to the ground by an assailant attempting to snatch her bag. Sarah manages to fend off the attacker, who then turns to flee. However, Sarah, fueled by adrenaline, grabs a nearby heavy object and throws it at the retreating assailant, causing a severe head injury that was not necessary to prevent the theft or further harm. In this scenario, Sarah's initial act of fending off the attacker was justified self-defense. Still, throwing the object at a fleeing, non-threatening assailant could be considered cum excessu moderaminis because her response exceeded the force required once the immediate threat had passed.

• Example 2: Excessive Force in Property Defense

  Consider a homeowner, Mark, who discovers a teenager attempting to spray graffiti on his garden shed. Mark confronts the teenager, who immediately drops the spray can and tries to run away. Instead of simply detaining the teenager or calling the police, Mark tackles the teenager to the ground, breaking their arm in the process. While Mark had a right to protect his property, the level of physical force used against a non-violent, fleeing trespasser who posed no immediate physical threat to him could be deemed cum excessu moderaminis, as it went beyond the reasonable limits for defending property.

• Example 3: Unjustified Restraint by Security Personnel

  A store security guard, David, apprehends a shoplifter who has attempted to steal a small item. The shoplifter offers no resistance and complies with David's instructions to return to the store office. However, David, frustrated by repeated thefts, decides to apply unnecessarily tight handcuffs, causing bruising and discomfort, and then holds the shoplifter in a painful armlock for an extended period before police arrive. Even though David was justified in apprehending the shoplifter, the application of excessive and prolonged physical restraint beyond what was necessary to prevent escape or ensure safety could be seen as acting cum excessu moderaminis.