Per se – By itself.
Meaning of Per Se
Per Se is a Latin term which literally means “by itself” or “inherently”.
In legal context:
It refers to something that is considered unlawful, wrong, or valid by its very nature, without needing further proof of surrounding circumstances.
If an act is illegal per se, it is wrong on its own, irrespective of the intention or outcome.
Key Points
Per se is used to indicate that a law or rule applies automatically, without requiring detailed investigation.
It is the opposite of a case requiring evidence to prove wrongfulness or negligence.
Commonly applied in criminal law, torts, antitrust law, and contract law.
Case Laws on Per Se
1. R v. Prince (1875), 1 Cox CC 154 (UK)
Facts: The defendant took a girl under 16, believing she was over 18.
Observation: The act of taking a minor was illegal per se, irrespective of the belief.
Principle: Certain offenses are considered wrong by themselves, and ignorance or intent does not absolve the actor.
2. Donoghue v. Stevenson, [1932] AC 562 (UK)
Facts: Manufacturer sold ginger beer containing a snail; the consumer became ill.
Observation: The manufacturer owed a duty of care per se to the consumer.
Principle: Certain duties or liabilities are inherent by the nature of the act.
3. Bajaj Auto Ltd. v. TVS Motors, AIR 2002 SC 1430 (India)
Facts: Trademark infringement case.
Observation: Passing off or infringement is per se unlawful, i.e., the act itself is illegal without needing further proof of damage.
4. Sherman Act, 1890 (US Antitrust Law)
Provision: Certain agreements restraining trade are illegal per se, e.g., price-fixing or market allocation.
Principle: Courts do not require evidence of actual anti-competitive effect to declare such acts unlawful—they are illegal by their nature.
Illustration
Criminal Law:
Driving under the influence of alcohol is illegal per se. The act alone constitutes an offense, regardless of whether an accident occurs.
Tort Law:
Selling a defective product that injures a consumer may create strict liability per se, meaning the manufacturer is liable by the very nature of selling a harmful product.
Contract/Commercial Law:
A contract to commit fraud or restraint of trade is illegal per se—it is void by itself, without considering consequences.
External Law References
Indian Penal Code (IPC)
Sections like Section 279 (Rash driving) and Section 304A (Causing death by negligence): Certain acts can be considered illegal per se.
Civil Law
Tort of nuisance per se: Some acts like keeping a hazardous material in a residential area may be inherently wrongful.
US Antitrust Law
Under the Sherman Act, certain trade practices (price-fixing, bid-rigging) are illegal per se, meaning courts do not require proof of anti-competitive effect.
Distinguishing Per Se
| Feature | Per Se | Regular Wrongful Act |
|---|---|---|
| Meaning | Wrong or illegal by itself | Wrong depending on context or consequences |
| Proof | Does not require additional proof | Requires evidence to establish wrongdoing |
| Example | Selling counterfeit goods | Negligent driving causing accident |
✅ Conclusion:
Per se means “by itself” or “inherently.” In law, it indicates that an act is unlawful, wrong, or binding on its own, without requiring proof of circumstances or intent. Courts treat such acts as automatically actionable or illegal, maintaining strict standards in criminal, civil, and commercial law.
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