Legal Definitions - obiter

Obiter is an adverb used in legal contexts to describe something said or observed incidentally, or in passing, rather than as a central or essential part of a legal argument or judicial decision. When a judge or lawyer makes a comment obiter, it means the remark is not crucial to the main point being discussed or decided, and therefore does not form a binding part of the legal precedent.

Here are some examples illustrating the use of "obiter":

• A judge is delivering a ruling on a complex intellectual property case. While explaining their decision, the judge might comment obiter that, in their personal view, the current copyright laws are becoming increasingly difficult to apply to digital content. This observation is not part of the binding judgment for the current case but is an incidental remark about the broader legal landscape.

  Explanation: The judge's comment about the difficulty of applying copyright laws to digital content is obiter because it's a side observation not directly necessary for resolving the specific intellectual property dispute before them. The actual decision rests on other legal points and facts.

• During a hearing about a landlord-tenant dispute over unpaid rent, a lawyer might argue that their client, the tenant, had valid reasons for withholding payment due to severe maintenance issues. Obiter, the lawyer might also mention that the landlord's property management company has a history of similar complaints, even though this broader history is not directly relevant to the specific rent dispute at hand.

  Explanation: The lawyer's remark about the property management company's history is obiter because it's an incidental observation made in passing, not a core part of their legal argument regarding the specific rent dispute. It doesn't directly affect the immediate outcome of the current case.

• In a written appellate court opinion, the judges might decide a case based on a specific procedural error made by the lower court. Obiter, the opinion might include a paragraph noting that if the procedural error had not occurred, the court would likely have affirmed the lower court's factual findings, but this alternative reasoning is not the basis for the current decision to reverse and remand.

  Explanation: The court's observation about what they would have done in the absence of a procedural error is obiter because it's an incidental comment about a hypothetical scenario, not the primary legal reasoning or binding precedent for the current judgment. The decision is firmly rooted in the identified procedural error.