De minimis

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De minimis is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor ("The praetor does not concern himself with trifles") or de minimis non curat lex ("The law does not concern itself with trifles").[1][2] Queen Christina of Sweden (r.1633-1654) favoured the similar Latin adage, aquila non captat muscas (the eagle does not catch flies).[3]

In risk assessment, it refers to a level of risk that is too small to be concerned with. Some refer to this as a "virtually safe" level.[4]

Examples of application of the de minimis rule[edit]

In criminology, the de minimis or minimalist approach is an addition to a general harm principle. The general harm principle fails to consider the possibility of other sanctions to prevent harm, and the effectiveness of criminalization as a chosen option. Those other sanctions include civil courts, laws of tort and regulation. Having criminal remedies in place is seen as a "last resort" since such actions often infringe personal liberties – incarceration, for example, prevents the freedom of movement. In this sense, law making that places a greater emphasis on human rights, such as the European Convention on Human Rights fall into the de minimis category. Most crimes of direct actions (murder, rape, assault, for example) are generally not affected by such a stance, but it does require greater justification in less clear cases.[5]

This also has application in the field of auditing and may refer to situations of a low audit risk. It can be verified in ASA 1.

Under U.S. tax rules, the de minimis rule governs the treatment of small amounts of market discount. Under the rule, if a bond is purchased with a small amount of market discount (an amount less than 0.25% of the face value of a bond times the number of complete years between the bond’s acquisition date and its maturity date) the market discount is considered to be zero. If the market discount is less than the de minimis amount, the discount on the bond is generally treated as a capital gain upon disposition or redemption rather than as ordinary income.[6] Under IRS guidelines, the de minimis rule can also apply to any benefit, property, or service provided to an employee that has so little value that reporting for it would be unreasonable or administratively impracticable; for example, use of a company photocopier to copy personal documents – see de minimis fringe benefit. Cash is not excludable, regardless of the amount.[7]

The de minimis rule in North American drug law requires a usable quantity of the substance in question before charges can be brought, known as the minority rule.[8]

In Canada, de minimis is often used as a standard of whether a criminal offence is made out at a preliminary stage. For a charge of second degree murder, the test being: "could the jury reasonably conclude that accused actions were a contributing cause, beyond de minimis, of the victim's death."[9]

In Great Britain following bus deregulation in 1986, small contracts for supplementary local bus services could be let by local authorities without competitive tendering. The Department for Transport's "Guidance on New De Minimis Rules for Busy Subsidy Contracts" (2004) notes that "The 1985 Transport Act (as amended by the 2000 Transport Act) introduced the provisions which govern the duties of local passenger transport authorities to secure local bus services where these would not otherwise be met. In the majority of cases these services have to be secured through competitive tender. The Service Subsidy Agreements (Tendering) Regulations provided local authorities with the scope to let any individual bus subsidy contract in any one year up to a certain maximum value without the need to competitively tender (the de minimis limits). There was also a maximum value that de minimis contracts could be let with any one operator in any one year."

Under European Union competition law, some agreements infringing Article 101(1) of the TFEU (formerly Article 81(1) of the EC Treaty) are considered to be "de minimis" and therefore accepted. Horizontal agreement, that is one between competitors, will usually be de minimis where the parties’ market share is 10% or less, and a vertical agreement, between undertakings operating at different levels of the market, where it is 15% or less.[10]

The European Union de minimis "state aid" regulation allows for aid of up to €200,000 to be provided from public funds to any business enterprise over a rolling three-year period.[11]

Copyright[edit]

Courts will occasionally not uphold a copyright on modified public domain material if the changes are deemed to be "de minimis".[12] Similarly, courts have dismissed copyright infringement cases on the grounds that the alleged infringer's use of the copyrighted work (such as sampling) was so insignificant as to be "de minimis". However, in Bridgeport Music, Inc. v. Dimension Films, such a ruling was overturned on appeal, the US appeals court explicitly declining to recognize a de minimis standard for digital sampling.[13]

See also[edit]

References[edit]

  1. ^ Ehrlich, Eugene (1987) [1985]. Amo, Amas, Amat and More. New York: Harper Row. p. 100. ISBN 0-06-272017-1. 
  2. ^ Garner, Bryan A. (editor-in-chief) (1999). Black's Law Dictionary (7th ed.). St. Paul, Minnesota: West Publishing. p. 443. 
  3. ^ Walter Keating Kelly (1869), A Collection of the Proverbs of All Nations 
  4. ^ National Library of Medicine Toxicology Glossary - Risk De minimis Retrieved on 14 July 2007.
  5. ^ Ashworth, Andrew (1999). Principles of Criminal Law (3 ed.). Oxford: Oxford University Press. p. 33. ISBN 0-19-876557-6. 
  6. ^ SIFMA — Investing in Bonds The de minimis rule Retrieved on 29 July 2007.
  7. ^ Society for Human Resource Management De minimis rule Retrieved on 28 July 2007.
  8. ^ MacFarlane, Bruce A. (1986). "De minimis non curat lex". Drug offences in Canada. p. 565. ISBN 0-88804-032-6. 
  9. ^ R. v. J.S.R. (a young person), 2008 ONCA 544, 7 July 2008, from the Canadian Legal Information Institute
  10. ^ "Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) of the Treaty establishing the European Community (de minimis)". Official Journal of the European Communities (Luxembourg: Office for Official Publications of the European Communities). 2001/C (368/07): 13–5. 2001-12-22. OCLC 52301298. Retrieved 2008-08-20. 
  11. ^ Commission Regulation (EC) № 1998/2006 PDF
  12. ^ Webbink, M.; Johnny, O.; Miller, M. (2010). "Copyright in Open Source Software - Understanding the Boundaries". International Free and Open Source Software Law Review 2. doi:10.5033/ifosslr.v2i1.30.  edit
  13. ^ Heins, Marjorie (2004-09-21). "Trashing the Copyright Balance". The Free Expression Policy Project.