Legal Definitions - praeter legem

Praeter legem is a Latin legal term meaning "beyond the law" or "outside the law." It refers to situations where a legal decision or principle is applied to an issue that is not explicitly covered by existing statutes, regulations, or written legal rules. Rather than acting against the law (contra legem) or strictly according to the law (secundum legem), a decision made praeter legem fills a gap in the existing legal framework, often by drawing upon general principles of fairness, equity, or justice to achieve a reasonable outcome.

Here are some examples illustrating the concept of praeter legem:

• Novel Digital Assets: Imagine a scenario where, years ago, before specific laws were enacted for digital currencies or non-fungible tokens (NFTs), two individuals had a dispute over the ownership of a unique piece of digital art. The existing property laws were designed for physical assets or traditional intellectual property and did not explicitly define how ownership or transfer of purely digital, blockchain-based assets should be handled. A court or arbitrator, faced with this legal vacuum, might have to decide the case praeter legem. They would apply general principles of property, contract, or unjust enrichment, considering the intent of the parties and the nature of the digital asset, to reach a fair resolution even without a specific statute directly addressing NFTs.

  This illustrates praeter legem because the decision fills a gap where no specific law existed for this new type of asset, relying on broader legal principles to achieve justice.

• Unforeseen Contractual Gaps: Consider a long-term supply contract between a manufacturer and a component supplier. The contract is comprehensive but does not include any provisions for an extremely rare and unforeseen global event, such as a sudden, widespread natural disaster that completely halts international shipping for an extended period, making it impossible for the supplier to deliver components on time. When the manufacturer sues for breach of contract, a court might find that the existing contract terms, while valid, do not adequately address this unique circumstance. The court might then apply principles of commercial reasonableness, good faith, or force majeure (even if not explicitly defined in the contract for this specific event) praeter legem to determine whether the supplier should be excused from performance or if the contract needs to be adjusted, aiming for an equitable solution not strictly dictated by the written terms.

  This example demonstrates praeter legem as the court goes beyond the explicit terms of the contract and existing statutes to address an unforeseen event, applying general principles of fairness to resolve a contractual gap.

• Environmental Damage from Novel Sources: A new industrial process releases a previously unknown pollutant into a local ecosystem, causing significant harm to wildlife and natural resources. Existing environmental protection laws cover many types of pollution and specify penalties, but this particular substance and its specific impact are not explicitly listed or regulated by current statutes. A regulatory agency or court, tasked with addressing this harm, might act praeter legem. They would draw upon the general spirit and purpose of environmental law, principles of public trust, or the polluter pays principle to impose remediation requirements or penalties, even though no specific law directly targets this novel pollutant or its effects. The decision aims to protect the environment in a situation not precisely anticipated by the legislature.

  This illustrates praeter legem because the authorities address a novel environmental issue by applying the overarching goals and principles of environmental law, rather than a specific, pre-existing regulation for that exact pollutant.