Sub silentio

Sub silentio is a legal Latin term meaning "under silence" or "in silence". It is often used as a reference to something that is implied but not expressly stated. Commonly, the term is used when a court overrules the holding of a case without specifically stating that it is doing so.[1]

Examples

United Kingdom

On cross-claims for liquidated and unliquidated damages, Potter LJ stated in 2001 that

It appears to me that the decision in Hanak –v- Green (1958) is a sub silentio precedent for the proposition that an unliquidated cross-claim may be set-off against an unliquidated primary claim.[2]

United States

To assume that Congress, which had enacted a criminal sanction directed against state judicial officials, intended sub silentio to exempt those same officials from the civil counterpart approaches the incredible. Sheriffs and marshals, while performing a quintessentially judicial function such as serving process, were clearly liable under the 1866 Act, notwithstanding President Johnson's objections. Because, as Representative Shellabarger stated, § 1 of the 1871 Act provided a civil remedy "in identically the same case" or "on the same state of facts" as § 2 of the 1866 Act, it obviously overrode whatever immunity may have existed at common law for these participants in the judicial process in 1871.[3]

References

  1. ^ Adkins v. Children's Hospital, 261 U.S. 525, 564 (1923) (CJ. Taft, dissenting) ("It is impossible for me to reconcile the Bunting Case and the Lochner Case, and I have always supposed that the Lochner Case was thus overruled sub silentio. Yet the opinion of the court herein in support of its conclusion quotes from the opinion in the Lochner Case as one which has been sometimes distinguished but never overruled.")
  2. ^ Potter LJ, Kemi v Blackburn Chemicals Ltd [2001] EWCA Civ 457, paragraph 23, delivered on 3 April 2001, accessed on 7 February 2026
  3. ^ Briscoe v. LaHue, 460 U.S. 362 (1983)
  • "Precedents - Sub Silentio: The Lurking Problem" in "Note" [1954] 29 New York University Law Review 1122
  • G W Paton, "Decisions per Incuriam" [1948-1950] 4 Res Judicatae 7
  • Barry Friedman, "The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona)" (2010) 99 Georgetown Law Journal 1 (No 1, November 2010)
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