De minimis

De minimis is a Latin expression meaning "about minimal things", normally in the terms 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"), a legal doctrine by which a court refuses to consider trifling matters.[1][2] Queen Christina of Sweden (r. 1633–1654) favoured the similar Latin adage, aquila non capit muscās (the eagle does not catch flies).[3]

The legal history of de minimis dates back to the 15th century.[4]

The general term has come to have a variety of specialised meanings in various contexts as shown below, which indicate that beneath a certain low level a quantity is regarded as trivial, and treated commensurately.

Examples of application of the de minimis rule

Taxation

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.[5] Under Internal Revenue Service 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.[6]

Specifically in U.S. State income tax, de minimis refers to the point at which withholdings should be initiated for a nonresident working in a state which taxes personal income. Not all U.S. states levy income taxes, and there's little consistency among nonresident de minimis standards for those that do. Some states base de minimis on the number of days worked (although the definition of what counts as a workday has been controversial[7]), others on the dollars earned or a percentage of total income derived from work in the state, still others using a combination of methods. These inconsistencies have led to repeated attempts to pass the so-called Mobile Workforce State Income Tax Simplification Act[8] without success.

European Union usage

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.[9]

Under European Union competition law, some agreements infringing Article 101(1) of the Treaty on the Functioning of the European Union (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]

Procurement of low value contracts is subject to limited regulation when its value falls below certain low thresholds.[11]

Criminology and crime

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, falls into the de minimis category. Most crimes of direct action (murder, rape, assault, for example) are generally not affected by such a stance, but do require greater justification in less clear cases.[12]

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.[13]

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."[14]

Risk assessment
See also: materiality (auditing)

In risk assessment, it refers to the highest level of risk that is still too small to be concerned with. Therefore, only risk levels above this de minimis level must be addressed and managed. Some refer to this as a "virtually safe" level.[15] It has application in the fields of auditing, modeling, and engineering, and may refer to situations of low (negligible) risk. It can be verified in ASA 1.

This movie poster is likely subject to copyright and strict interpretation of copyright could argue that the image focuses on the poster too much, hence it has been censored in this image

Courts will occasionally not uphold a copyright on modified public domain material if the changes are deemed to be de minimis.[16] 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. For example, the NBA 2K video games that included copyrighted tattoos in the recreation of the players' likenesses were found to be in de minimis and not copyright-violating.[17] 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.[18]

In India

The principle of de minimis non curat lex can be used as defense in India in cases of copyright infringement. The important issue is that whether de minimis principle could be used as separate defence than fair use under section 52 of Indian Copyright Act. In India Tv Independent News Service Pvt. Ltd. and Ors. v Yashraj Films Pvt. Ltd., the court discussed the applicability of de mininims principle at length. Before this case the position was not very clear with regard to the applicability. The facts of the case were that five words were copied from a song of five stanzas. After applying the five well-known factors commonly considered by courts in applying de minimis, the court reached the conclusion that the infraction is trivial and attracts the defence of de minimis.[19]

Education

In Endrew vs. Douglas County School District, the U.S. Supreme Court unanimously ruled, on March 22, 2017, that the Individuals with Disabilities Education Act (IDEA) requires more than de minimis efforts to provide equivalent educational opportunity to students with disabilities.[20] The decision reversed a previous decision by the U.S. Court of Appeals for the Tenth Circuit.

Miscellaneous examples

Following bus deregulation in Great Britain 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 Bus Subsidy Contracts" (2005) notes that "The Transport Act 1985 (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."[21]

Under the de minimis provision of the World Trade Organization's Agreement on Agriculture there is no requirement to cap trade-distorting domestic support in any year during which the value of support does not exceed a certain percentage (5–10%) of the national production value per product or of all products taken together if the support is not attributable to any specific product category.

See also

References
  1. Ehrlich, Eugene (1987) [1985]. Amo, Amas, Amat and More. New York: Harper Row. p. 100. ISBN 978-0-06-272017-7.
  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. Max L. Veech & Charles R. Moon, "De Minimis Non Curat Lex", 45 Michigan Law Review. 537, 538 (1947) (quoting Thomas Branch, Principia Legis et Æquitatis 36 (William Waller Hening ed., T. H. White, 4th London ed. 1824))
  5. Securities Industry and Financial Markets Association – Investing in Bonds The de minimis rule Retrieved on 29 July 2007.
  6. Society for Human Resource Management De minimis rule Archived 2012-08-06 at the Wayback Machine Retrieved on 28 July 2007.
  7. New York State Updates Guidance on 14-Day Withholding Threshold. Retrieved on 25 July 2012.
  8. 114th Congress: HR 2315 / S 386. Retrieved on 14 September 2015.
  9. "Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid". Retrieved 2019-11-20.
  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)" (PDF). Official Journal of the European Communities. 2001/C (368/07): 13–5. 2001-12-22. OCLC 52301298. Retrieved 2008-08-20.
  11. Cheshire East Council, EU Procurement thresholds as at 1 January 2018, accessed 29 May 2018
  12. Ashworth, Andrew (1999). Principles of Criminal Law (3 ed.). Oxford: Oxford University Press. p. 33. ISBN 978-0-19-876557-8.
  13. MacFarlane, Bruce A. (1986). "De minimis non curat lex". Drug offences in Canada. p. 565. ISBN 978-0-88804-032-9.
  14. "R. v. J.S.R. (a young person), 2008 ONCA 544". canlii.org. Canadian Legal Information Institute. 7 July 2008.
  15. "Toxicology Glossary – Risk De minimis". National Library of Medicine. Archived from the original on 2007-08-27. Retrieved 14 July 2007.
  16. 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.
  17. Gardner, Eriq (March 29, 2020). "'NBA 2K' Publisher Beats Copyright Suit Over LeBron James' Tattoos". The Hollywood Reporter. Retrieved March 29, 2020.
  18. Heins, Marjorie (2004-09-21). "Trashing the Copyright Balance". The Free Expression Policy Project.
  19. Andrew Inest, "A Theory of De Minimis and a Proposal for Its Application in Copyright", 21 Berkeley Technology Law Journal, 945 (2006)
  20. Endrew vs. Douglas County School District
  21. "Guidance on New De Minimis Rules for Bus Subsidy Contracts". Department for Transport. 22 June 2005. Archived from the original on 7 November 2012.
  • The dictionary definition of de minimis non curat lex at Wiktionary
  • Media related to De minimis at Wikimedia Commons
  • Wilde, Larry (1982). The Official Lawyers Joke Book. Bantam. p. 20. ISBN 9780553201116. Limerick: There was a young lawyer named Rex / Who was sadly deficient in sex. / Arraigned for exposure / He said with composure, / 'De minimis non curat lex.'
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