Per Se

The phrase per se is a Latin term that means “in and of itself.” In a legal context, per se is commonly used to single out a single element of a larger issue. Per se is not an issue or topic, but serves to make sure listeners understand what the speaker is trying to pull out of the big picture, or that he is referring to the inherent nature of something. To explore this concept, consider the following per se definition.

Definition of Per Se




  1. Of, in, for, or by itself
  2. Intrinsically, inherently


1565-1575       Latin   per se (by itself)

Per Se as a Legal Term

Legal matters often involve complex issues, some of which must be untangled and examined individually. Referring to a single element of a larger issue makes use of the term per se, to signify this separation. For example, one might refer to a rule that is being questioned, saying “the rule, per se, is not a bad one, but its enforcement is lacking.” In other words, “the rule in and of itself is not a bad one, but its enforcement is not as good as it should be.”

Illegal Per Se

The term “illegal per se,” refers to an act that is illegal “in itself,” or which is inherently illegal. The act is considered egregious in and of itself, and does not require any additional evidence, or proof of criminal intent. By simply committing an act that is illegal per se, the perpetrator is liable for the act. Acts committed by an intoxicated individual are often considered to be illegal per se, as are certain acts amounting to fraud or anti-trust violations.

In a civil lawsuit, proving someone is guilty of an act that is illegal per se generally requires only proof that he violated a statute, and that the violation was the actual cause of the plaintiff’s damages. In most cases, the defendant has no defense, because he committed an illegal act, even if it happened accidentally.

For example:

David, who is 17 years old, drinks one beer while hanging out at the river with his friends. While driving home, a police officer pulls David over to tell him his brake light is out. Smelling beer on David’s breath, the officer has him get out of the vehicle, and makes him perform a breathalyzer test. The device registers David’s blood alcohol level at 0.01%, which is far below the legal limit – for adults.

David is arrested because it is against the law for anyone under the age of 21 to have any alcohol in his blood. Although David is upset, he really has no defense, as he is guilty of “DUI per se,” which is an illegal per se offense.

Defamation Per Se

Defamation refers to the smearing of a person’s character in a public manner. This may be done by verbally saying terrible things about a person that are untrue, repeating them to others, which is considered “slander.” It may also be done by putting such untrue things in writing, for others to see, which is considered “libel.”

In order to be successful in a civil lawsuit for defamation of character, the plaintiff must prove that the defendant said the terrible things, that those things were untrue, or were not simply the defendant’s opinion, and that the lies caused damage to the plaintiff’s character.

There are some things that may be said of someone that are considered to be so terrible, and so damaging, as to have no possibility of having an innocent or innocuous meaning. These things are so harmful that they are automatically considered to be defamation, or “defamation per se.”

For example:

Barb becomes angry when she realizes her friend, Stephanie, is dating her ex-boyfriend, that she starts saying terrible things to anyone who will listen. Barb posts on her Facebook wall that Stephanie has Chlamydia, which is an STD, and that she has “given it” to several sexual partners.

Stephanie does not have an STD of any kind, and Barb’s false statements to others are so damaging that it is considered to be defamation per se. All Stephanie has to do to win a judgment in civil court is to prove Barb made the statements to others.

Negligence Per Se

Negligence per se refers to an act automatically considered negligent because it violated a statute. A plaintiff suing for negligence per se does not need to prove that another “reasonable person” would have acted differently in the same situation. This is because the defendant’s action violated a law or ordinance. All the plaintiff needs to do is such a situation is prove that the defendant’s act caused damages. This only applies, however, if the statue violated is related to public safety.

Example of Per Se Negligence

Trevor is a construction contractor in charge of building a house in the country. While installing the flu for the fireplace on the first floor of a two-story house, he finds that one of the roof joists is in the way. It would be very difficult to move the flu, so he takes a hatchet and carves out just an inch of the joist so that the pipe will fit by on its way through the roof.

One day, a year later, the homeowner builds up a roaring fire on a chilly winter day. A brief time later, neighbors see flames coming from the roof, and alerts the fire department, and gets the family out of the house. While the family was safe, their house was a total loss by the time the flames were put out.

The building codes prohibit placing a fireplace flu in close proximity to any wood structures for a reason, and Trevor violated those codes. In this example of per se negligence, Trevor will be held liable for the family’s losses.

Related Legal Terms and Issues

  • Egregious – Extraordinarily bad.
  • Statute – A written law enacted by a legislative body.

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