Unit - 1
Overview of legal world
The major legal systems used throughout the world are:
1) Civil Law. The civil law system is the most widespread legal system in the world. The distinguishing feature of the civil law system is that its legal authority is organized into written codes. The civil law system is derived from Roman law and is found in much of continental Europe, Central America, South America, and several other regions.
2) Common Law. In contrast to the codified laws of the civil law system, doctrines and rules developed over time by judges serve as “legal precedent” in the common law system. The common law system is derived from the English common law and is found in many parts of the English-speaking world such as Australia, Canada, England, the United States, Wales, and other countries.
3) Customary Law. Customary law is rooted in the customs of a community. Common attributes of customary legal systems are that customs may be unwritten, customs govern social relations, and customs are widely accepted by the community’s members. Customary law systems are found in Africa, the Pacific Islands, and elsewhere.
4) Religious Law. The religious law system is a legal system that is based on religious beliefs or texts. Islamic law (or Sharia law) is the most widespread religious law system, and it governs all aspects of public and private life. Islamic law systems are found throughout Africa, the Middle East, Central Asia, and South Asia, and their laws widely vary among Muslim countries.
5) Mixed Law. Mixed law refers to a combination of elements of the legal systems described above. In the United States, the most noteworthy mixed law system is found in the State of Louisiana, which has elements of both civil law and common law.
Legal profession in India
- INTRODUCTION
Though federal in structure, the unitary character of India under its Constitution has influenced the country to have a unified bar. The pre-constitutional legal framework had to undergo a transformation in the backdrop of the struggle by the people of India to achieve its freedom from the colonial rulers and the eventual adoption of a democratic, republican Constitution.
The Indian legal profession is one of the largest in the world, with over 1.4 million enrolled advocates nationwide. The estimated total value of the Indian legal market as of 2010 was approximately USD 1.25 billion. The legal profession, evolving as it has done from colonial India, has undergone a huge transformation since its independence. The efforts of the members of the bar to achieve excellence in all spheres of their practice through stiff competition is not only apparent in their every dealing with newer challenges due to technological and other developments, but also in the recognition earned by them in a globalized world. Historically, the members of the bar have provided leadership at a national as well as international level. The current potential is much higher.
B. LEGAL PROFESSION IS REGULATED BY ADVOCATES ACT, 1961
The Advocates Act of 1961 amended and consolidated the law relating to legal practitioners and provided for the constitution of the State Bar Councils and an All-India Bar - the Bar Council of India as its apex body. The Bar Council of India is comprised of the Attorney General of India and the Solicitor General of India as its ex officio members, as well as one member elected from each of the State Bar Councils. The members of the State Bar Councils are elected for a period of five years. Some main functions of the Bar Council of India are:
(1) To lay down standards of professional conduct and etiquette for advocates;
(2) To lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council;
(3) To promote and support law reform;
(4) To promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils;
(5) To organize legal aid to the poor in the prescribed manner;
(6) To recognize on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate in India.
The Bar Council of India is led by a Chairman and a Vice-Chairman, who are elected from amongst the members of the Council for a period of two years.
Each of the States in India has a State Bar Council. Each of the State Bar Councils has a varying number of members depending upon the numerical strength of advocates on its rolls, who are elected to the membership of the State Bar Council in accordance with the system of proportional representation by means of a single transferable vote amongst advocates on the electoral roll of the respective State Bar Council. In the case of an electorate not exceeding five thousand members, the State Bar Council shall consist of 15 members, while in the case of an electorate exceeding five thousand but not more than ten thousand, the strength of the Council shall be twenty members. If the electorate exceeds ten thousand, the strength of the Council shall be twenty five members. Additionally, each of the State Bar Councils counts their respective Advocate Generals as ex officio members. Each State Bar Council is headed by a Chairman, who is assisted by a Vice-Chairman and Secretary.
C. ROLE OF BAR COUNCIL OF INDIA AND STATE BAR COUNCILS
(1) Rules on Professional Standards
The Bar Council of India lays down rules pertaining to standards of conduct and professional etiquette to be maintained by lawyers in court, with clients and opponents, and towards fellow advocates. Disciplinary proceedings against those who violate the rules are initiated by the Disciplinary Committee of State Bar Councils, and the Bar Council of India acts as an appellate authority for the same.
(2) Legal Education
The Bar Council of India is responsible for the promotion of legal education and lays down the standards of legal education in consultation with universities. The Bar Council approves centers of legal education, and also prescribes types and standards of courses of study, eligibility for admission, infrastructure requirements and course structures. The Bar Council also visits and inspects these centers of legal education as part of its statutory functions.
The Bar Council was also responsible for kick-starting the next level of evolution in legal education in the country through the founding of the first National Law School of India University in Bangalore. The establishment of this premier law school has brought about a paradigm shift in teaching of and research of law. Students from the National Law Schools set up in different parts of the country have shown at the international stage through winning prestigious moots such as the Philip C. Jessup International Law Moot Competition and the Willem C. Vis International Arbitration Moot Court Competition. Alumni of the National Law Schools have gone on to join top law firms in the world, and also important bodies such as the United Nations, the Permanent Court of International Arbitration, the World Bank and the World Trade Organization, to name a few.
The Bar Council of India also initiated the All India Bar Examination from the year 2010, which is a compulsory examination for all law graduates seeking enrolment as advocates. This has been undertaken by the Bar Council to raise the standards of the bar, and encourage legal education.
(3) The Bar Council of India Trust
The Bar Council of India Trust is a public charitable trust which aims to further legal research and education. The Trust publishes a quarterly journal known called the ‘Indian Bar Review’. It also conducts a national moot court competition, and various seminars and workshops as part of its continuing Legal Education Programme. A Fellowship and Placement Scheme for junior lawyers to render financial assistance to the best candidates was initiated and is being continued by the Trust.
(4) Bar Associations
Apart from the Bar Council of India and the State Bar Councils, almost every court in the country has Bar Associations of advocates that operate at a less formal level. These bar associations look after the welfare of advocates, represent their interests, and conduct numerous social and cultural activities of the bar, or even different sections of the bar. The Supreme Court Bar Association and the Supreme Court Advocates-on-Record Association is an example of two of the associations that thrive side by side.
D. CLASSES OF PRACTICIONERS
(i) Individuals: Senior Advocates and Advocates
Advocates are divided into two classes – Senior advocates and other advocates. Lawyers can be designated as senior advocates by the Supreme Court or any of the 21 High Courts. Advocates are designated as Senior advocates with their consent, if the Supreme Court or High Court is of opinion that by virtue of their ability (standing at the Bar or special knowledge or experience in law) they are deserving of that distinction. Only 1% of the lawyers constitute this elite group of senior lawyers who wield exemplary influence in the profession. Senior advocates enjoy priority of audience. A senior advocate designated by one court is recognized as a senior in other courts as well. It is only the Senior Advocates who have a combined seniority roll maintained by the Bar Council of India. Senior advocates have certain restrictions placed upon them by the Advocates Act, 1961 and the Bar Council of India. They cannot appear without a separate “briefing” advocate (or, in the Supreme Court, an Advocate on Record). Seniors are foreclosed from drafting pleadings and conveyances or taking evidence (Bar Council of India Rules 2009, Part 6, Ch. 1). A Senior advocate is not allowed to accept any brief directly from a client. The reasons for these restrictions are to enhance opportunities for the younger members of the bar, as well as enable the senior members of the bar to spend their time profitably on research and academia.
(ii) Law Firms – From a Solicitors Practice to the Modern Corporate Sector
Law firms were always present in India, but were restricted mainly to the Metropolitan cities of Bombay, Calcutta and Madras before India’s Independence in 1947. These cities had firms of solicitors, as well as attorneys. The dual-system of classification between solicitors and attorneys was abolished in 1970 with uniform enrolment as advocates, but in Bombay and Calcutta the system of dual license is still followed, and examinations are still conducted for persons who wish to qualify as solicitors, upon the completion of a three-year training period in a solicitor’s office as an ‘article clerk’ and the passing of a solicitors’ exam.
With the opening up of the economy, there are law firms in almost every city in India. Major law firms have their presence in every State and city with a High Court, as well as in commercial centres throughout the country. The law firm segment has been the most touched by globalization and has seen tremendous growth, contributing heavily to transactional and litigation work. They also attract the best talent from law schools in India.
The impact of globalization necessitated recognition of Limited Liability Partnerships (LLPs) to enable the law firms to meet the new challenges. In 2008, the Limited Liability Partnerships Act was passed which recognizes law firms with more than 20 partners and enables them to limit their liability.
(iii) The Focus on Litigation Practice
Despite the emergence of the National Law Schools and rising standards in legal education, there are still not enough litigating lawyers to keep up with the demands of India’s burgeoning population. There is a lot of potential for the further growth of the bar. The concentration of advocates and law firms is mostly in the big cities. In towns, urban areas and in villages the advocates are mostly involved in private practise. There are also some distinctive features of the Indian legal profession which perhaps are quite surprisingly similar to those of the pre-independence era and perhaps make it unique, which Marc Galanter finds in his article entitled ‘The Indian Legal Profession in the Age of Globalization’ (2012). These features form the core structure of the legal profession in India:
(a) Individualistic approach - Lawyers mostly practise by themselves i.e., they have their own chamber/office assisted by clerks and a few juniors depending upon their seniority. And in case of the law firms, most of them are not oriented towards litigation.
(b) Most of the lawyers are oriented towards courts. So, if an advocate practises at Delhi High Court, most of his time will be dedicated to this particular court. Even though these days, some of the lawyers have started flocking to other courts, but such cases are restricted to a few lawyers only.
(c) Courtroom advocacy continues to remain the central point of the profession. More focus is laid on the oral arguments made before the court than written submissions. It reflects the dominance of the English barrister model in the Indian bar and, with the kind of prevalent remuneration structure, it only reinforces its dominance.
(iv) The Shift Away from Litigation to Corporate Law Firms
The trend in recent times has seen the law graduates from prestigious law schools gravitating towards the law firms and companies, rather than litigation. The reasons for this may be because young lawyers in litigation do not earn as much at the outset, as compared to their counterparts in law firms who are paid handsomely. Furthermore, the gestation period for a litigating lawyer is quite long when compared to careers at law firms and companies.
E. ETHICS
In India the legal profession, to this date, is considered a noble profession and thereby still assessed by standards of legal ethics that may seem outdated in many other jurisdictions abroad, but are considered a very important part of the legal profession in India, despite the change in thinking that liberalisation has inevitable brought. The Bar Council of India still maintains strict standards with respect to the legal community. An example of this is Rule 36 of the Bar Council of India Rules whereby the Indian Law firms/ lawyers are not allowed to advertise their practise in the market. The judiciary has acknowledged the substance of this restriction in various cases. That is not to say that the Bar Council of India has been completely blind to the realities of liberalisation, as would be evident from its decision to amend Rule 36 and add a proviso allowing advocates to maintain websites about themselves or their law firms in order to disseminate information, in order to enable people to make informed choices.
The Bar Council of India is progressively reviewing the ethical standards with the demands of our time, in order to strike the best balance. Recently, the Bar Council in a seminar on ‘Professional Ethics’ considered whether to reform standards of ethics and professional conduct in India in order to better reflect the standards of the International Bar Association, of which it is a member, and standards under the UIA Rules. Champerty and contingency fee arrangements have always been illegal in India, and there is nothing to suggest that there is any reason for changing such thinking in the near future.
F. FOREIGN LAW FIRMS
A seeming resistance to the entry of foreign law firms by the members of the bar is primarily founded on reciprocity. The Indian Bar is not insulated from the impact of globalization nor is it averse to competition. The expectation is only that the foreign law firms are welcome in India on a similar reciprocal recognition of Indian lawyers and law firms by other countries. The professional services sector in India has already opened its doors to the foreign accountancy firms, engineering multinationals and architecture firms. The legal profession cannot remain too far away.
India being a signatory to the General Agreement on Trade in Services (GATS), which is an organ of the World Trade Organization (WTO), it is anticipated that it may soon appreciate its obligation to open up the services sector to Member Nations. Legal Services are included in the list of recognized services under GATS, which obligates India to open the markets to the foreign law firms and foreign lawyers. Many members such as the US, EU, Australia, Singapore, Japan, China, Switzerland, New Zealand and Brazil have requested that India show its commitment to its obligations under the GATS. These requests have also been reflected in the process of plurilateral requests which are mostly for FLC’s in only corporate and international law. There is no such request to practice domestic law in Indian courts. These requests are only for their engagement in a consultative capacity. There are
Requests for commercial association between foreign and local lawyers and firms on certain terms and conditions.
G. CONCLUSION
The Indian legal profession has grown over a short period of less than 50 years to become the world’s largest branch of the profession. Within India, it is one of the most influential professions having an involvement in the governance of the country. It sufficiently reflects the diversity of Indian society, its social hierarchies and realities, and yet performs efficiently in delivering justice to litigants through Courts, despite the massive pressures that Courts and legal institutions function, given how unimaginably overburdened they always are. The unitary structure of the Indian bar comes across as a boon in this regard.
Due to globalization, the effects of the world economy are being felt, with foreign law firms seeking entry into the Indian space and Indian law firms handling transactions with global implications. At the same time, the core practise of law still revolves around the courts in India, and the majority of the bar is involved in practise before the courts. This produces a melting pot of ideas and opinions, and the result is a bar which is evolving through reforms in legal education and ethics and at the same time, is fortified by traditions that have stood the test of time. It is inevitable that as the nature of legal services sought by the consumers of legal service change, with the inevitabilities of liberalisation, the profession in India will evolve and rise to the challenges that they raise. Continuing Legal Education (CLE) initiatives will need to be fostered. There is no doubt that the legal profession in India will always work closely with all stakeholders concerned to improve access to justice for all and help realise our Constitutional ideals for people from all walks of life.
INTRODUCTION
The Indian Contract Act, 1872 prescribes the law regarding contracts in India and is that the key act regulating Indian law.
The Act relies on the principles of English Common Law. It’s applicable to all or any the states of India. It determines the circumstances during which promises made by the parties to a contract shall be legally binding.
Under Section 2(h), the Indian Contract Act defines a contract as an agreement which is enforceable by law.
OBJECTIVE OF THE ACT
The purpose of the Contract Act is to make sure that the rights and obligations arising out of a contract are honored which legal remedies are made available to an aggrieved party against the party failing to honor a part of agreement. The Indian Contract Act makes it obligatory that this is often done and compels the defaulters to honor their commitments.
EXTENT AND COMMENCEMENT
- It extends to the entire of India except the State of Jammu and Kashmir
- It came into force on the primary day of September, 1872.
- The sale of goods was repealed from this Indian Contract Act in 1930. Contracts regarding partnership were repealed in 1932.
DEVELOPMENT
The Act as enacted originally had 266 Sections, it had wide scope
- General Principles of Law of Contract – Sections 01 to 75
- Contract regarding Sale of goods – Sections 76 to 123
- Special Contracts- Indemnity, Guarantee, Bailment & Pledge and Agency – Sections 124 to 238
- Contracts concerning Partnership – Sections 239 to 266
At present the Indian Contract Act could also be divided into two parts:
- Part 1: deals with the overall Principles of Law of Contract Sections 1 to 75
- Part 2: deals with Special sorts of Contracts like Contract of Indemnity and Guarantee and Contract of Bailment and Pledge
The Indian Contract Act, 1872 defines what we mean by “Agreement”. In its section 2 (e), the Act defines the term agreement as “every promise and each set of promises, forming the consideration for each other”.
Now that we know how the Act defines the term “agreement”, there may be some ambiguity within the definition of the term promise.
The Indian Contract Act, 1872 defines the term “Contract” under its section 2 (h) as “An agreement enforceable by law”. In other words, we will say that a contract is anything that's an agreement and enforceable by the law of the land.
This definition has two major elements in it viz – “agreement” and “enforceable by law”. So as to know a contract in the light of The Indian Contract Act, 1872 we need to define and explain these two pivots within the definition of a contract.
Offer and its acceptance
Free consent of both parties
Mutual and lawful consideration for agreement
It should be enforceable by law. Hence, intention should be to make legal relationship. Agreements of social or domestic nature aren't contracts
Parties should be competent to contract
Object should be lawful
Certainty and possibility of performance
Contract shouldn't be declared as void under Contract Act or the other law
OFFER AND ACCEPTANCE
DEFINITION
PROPOSAL SECTION 2(A):
When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make an offer.
- May be express or implied
- May be positive or negative
- Must shall create legal relationship
- Terms of offer must be sure
- May be made to a selected person or class of persons or to anybody within the world at large
- Must be communicated to the offeree
- Must be made with a view to get the assent
- May be conditional
ACCEPTANCE SECTION 2(B):
- When the person to whom the offer is made, signifies his assent there to, the offer is said to be accepted.
A. ESSENTIALS OF A VALID OFFER AND ACCEPTANCE
RULES OF VALID OFFER
Here are some of the few essentials that make the offer valid.
1] Offer must create Legal Relations
The offer must cause a contract that makes legal relations and legal consequences just in case of non-performance. So, a social contract which doesn't create legal relations won't be a valid offer. Say for instance a dinner invitation extended by A to B isn't a valid offer.
2] Offer must be clear, not vague
The terms of the offer or offer should be very clear and definite. If the terms are vague or unclear, it'll not amount to a valid offer. See example the following offer – A offers to sell B fruits worth Rs 5000/-. This is often not a valid offer since what sorts of fruits or their specific quantities aren't mentioned.
3] Offer must be communicated to the Offeree
For an offer to be completed it must be clearly communicated to the offeree. No offeree can accept the offer without knowledge of the offer. It makes clear that acceptance in ignorance of the offer doesn't amount to acceptance.
4] Offer could also be Conditional
While acceptance can't be conditional, an offer could be conditional. The offeror can make the offer subject to any terms or conditions he deems necessary. So, A offers to sell goods to B if he makes half the payment in advance. Now B can accept these conditions or make a counteroffer.
5] Offer cannot contain a Negative Condition
The non-compliance of any terms of the offer cannot result in automatic acceptance of the offer. Hence it cannot say that if acceptance isn't communicated by a particular time, it'll be considered as accepted. Example: A offers to sell his cow to B for 5000/-. If the offer isn't rejected by Monday, it'll be considered as accepted. This is often not a valid offer.
6] Offer is often specific or general
As we saw earlier the offer are often to at least one or more specific parties. Or the offer might be to the public generally.
7] Offer could also be Expressed or Implied
The offeror can make an offer through words or maybe by his conduct.
An offer which is formed via words, whether such words are written or spoken (oral contract) we call it an express contract and when an offer is formed through the conduct and therefore the actions of the offeror it's an implied contract.
TERMINATION OF OFFER
- By notice of revocation
- By lapse of your time
- By failure of the acceptor to fulfill a condition precedent to acceptance
- By failure to simply accept consistent with the mode prescribed
- By death or insanity of the offeror
- By rejection
RULES FOR VALID ACCEPTANCE
- Acceptance must be absolute and unconditional
- Acceptance by usual mode as desired by the offer or
- Acceptance cannot precede the offer
- Acceptance could also be express or implied
- Acceptance must tend within an inexpensive time
- Acceptance must be by an ascertained person (offeree)
- Offer can't be accepted after it had been rejected unless it's renewed
- Silence doesn't imply acceptance
- Acceptance must be made before the lapse or revocation of the offer
- Acceptance of offer means acceptance of all terms attached to the offer
- An agreement not enforceable by law is claimed to be void.
CONCEPT
When at the desire of the promisor, the promise or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing something, such act or abstinence or promise is called a consideration for the promise.
DEFINITION OF CONSIDERATION:
Consistent with Pollock, “Consideration is the price for which the promise of other is brought & the promise thus given for value is enforceable.”
According to section 2(d) when at the desire of the promisor, the promise or any other person:
- Has done or abstained from doing, or [Past consideration]
- Does or abstains from doing, or [Present consideration]
- Promises to do or abstain from doing something [Future consideration] such act or abstinence or promise are called a consideration for the promise.
EXAMPLE: ‘P’ agrees to sell his car to ‘Q’ for Rs.50, 000 Here ‘Q’s Promise to pay Rs.50, 000 is that the consideration for P’s promise and ‘P’s promise to sell the car is that the consideration for ‘Q’s promise.
IMPORTANCE OF CONSIDERATION
Consideration explains why a party is entering a contract and what they get from being a part of the contract. A contract must include consideration for each party involved so as to be valid. Essentially, consideration is that the benefit a party gets for entering a contract. During a basic contract, if you pay money for an item at the store and receive the item, that's your consideration. So as to qualify as consideration, each party must change their position.
Consideration usually results from:
• A promise to do something you are not legally obligated to try and do
• A promise to not do something you're allowed to do
What Happens Without Consideration?
If a court believes the contract doesn't have adequate consideration, it can step in and rule the contract unenforceable. This will happen for variety of reasons, including:
A party was already obligated to perform. If one among the parties is already legally obligated to do something, it is not actually consideration.
The promise may be a gift, not a contract. If one party gives something to the other party without expecting anything reciprocally, it's considered a present, not a contract. Because the other party didn't provide anything in exchange for the gift, they need no legal standing if the promise falls apart.
The exchange is past consideration. Consideration doesn't apply if the action has already taken place. For instance, a promise to pay money for a product that somebody has already given you isn't legally binding.
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LEGAL RULES REGARDING CONSIDERATION U/S 2
It must move at the will of the promisor: It must be offered by the promise at the will or request of the promisor. An act done at the will or request of the third party doesn't form a legitimate consideration.
It’s going to move from the promise or the other person: Consideration may move from the promise or the other person i.e., even a stranger. It may be an act, abstinence or forbearance or a return promise.
The following are good consideration for the contract:
- Forbearance to Sue
- Compromise of A Disputed Claim
- Composition with Creditors
It’s going to be present, past or future. i. Past Consideration ii. Present Or Executed Consideration iii. Future or Executory Consideration
Consideration needn't to be adequate but it must have some value. It must be real & not illusory.
There’s no consideration within the following cases:
1. Physical impossibility 2. Legal impossibility 3. Uncertain consideration
It must be something which the promisor isn't already sure to do A promise to try to what one is sure to do, either by general law or under an existing contract, isn't an honest consideration. It must not be illegal, immoral or against public policy
Unlawful consideration includes any activities:
- Is forbidden by law.
- Is fraudulent.
- Is of such nature that, it'll defeat a provision of any law.
- Involves any injury to the person or property of another.
- The Court regards it as immoral or against public policy.
EXCEPTIONS OF THE RULE “NO CONSIDERATION NO CONTRACT” (AS PER U/S 25)
1. On account of natural love & affection u/s 25(1): Such agreements are enforceable even inconsiderately.
2. For voluntary services u/s 25(2): A promise to compensate wholly or partially, an individual who has voluntarily done something for the promisor, is enforceable, even inconsiderately.
3. For promise to pay time-barred debts 25(3): A promise by a debtor to pay a time barred debt is enforceable provided it's in writing and signed by the debtor or his agent.
4. Within the case of completed gifts: The rule no consideration no contract doesn't apply.
5. Within the case of agency: to make workplace relationship consideration isn't necessary.
UNLAWFL CONSIDERATION (AS PER SECTION 23)
According to Section 23, within the following cases consideration or object of an agreement is unlawful:
1. If it's forbidden by law:
Where the object of a contract is forbidden by law, the agreement shall be void. An act is claimed to be forbidden if it's punishable by criminal law or any special statute, or if it's prohibited by any law or order made in exercise of powers or authority conferred by the legislature.
Example:
(1) A and B agreed to deal in smuggled goods. It is forbidden by law and thus void.
(2) A committed B's murder within the presence of C. A promise to pay Rs. 500 to C, if C doesn't inform the police about the murder
The agreement in example No. 2 given above is against the law as its object is unlawful. Besides, A and C are going to be responsible for the act of murder and its concealment under the Indian penal code.
2. If it's of such a nature that if permitted, it might defeat the provisions of the other law:
The object of an agreement might not be directly forbidden but indirectly, it's going to defeat the thing of any other law, and the agreement would be void in such a case.
Example:
(1) A failed to pay his land revenue. Therefore, his estate was sold for arrears of revenue by the govt. By the law, the defaulter is prohibited from purchasing the land again. A asks B to get the estate and afterward, transfer an equivalent to him at an equivalent price. The agreement is void because it will defeat the thing of the law which prohibits a defaulter to get back the land, for indirectly A will again become the owner of the estate.
The second agreement is additionally void because it would defeat the provision or object of the law of limitation.
3. If it's fraudulent:
If the object of an agreement is fraudulent, i.e., to cheat people, it's void.
Example:
A, B & C enter into an agreement to sell bogus plots of land in Delhi the agreement is void because it is fraudulent and thereby unlawful.
4. If it involves or implies injury to the person or property of another: Law protects property and person of its citizens. It cannot permit any contract which ends up in an injury to the person or property of any one.
Examples:
(1) A promise to pay Rs. 500 to B if B beats C. It involves injury to C; hence it's unlawful and void.
5. If the Court regards it as immoral or against public policy: If the thing of an agreement is immoral or against public policy, it'll be void. Morality here means something which the law regards as immoral.
Examples:
(1) A agrees to offer his house on rent to a prostitute for her immoral purpose. A cannot recover the rent of his house if a prostitute refuse to pay. However, he could also be allowed to urge his house vacated from the prostitute because it will put an end to the immoral purpose.
(2) A agrees to offer his daughter on hire to B for concubinage. The agreement is void because it's immoral, though the letting might not be punishable under the Indian penal code.
Effect of Illegality:
1. An illegal agreement is void:
It is not enforceable at law.
2. Collateral transactions to illegal transactions also are void:
Not only the illegal agreement is void but also the collateral transactions are void.
Example:
A borrows Rs. 2,000 from B to shop for a revolver to shoot C. Since the thing of the transaction is against the law, B cannot recover his Rs. 2,000 if he has given the loan, knowing that A is taking the loan to get a revolver to shoot C.
Thus, people are going to be discouraged to finance or assist illegal transaction once they know that they're going to not be able to recover their loans.
3. Law doesn't help any party:
Where the agreement is against the law, the law won't help any of the parties. The rationale is that both the parties are equally guilty and therefore the law doesn't help a guilty person. The law wants to discourage both the parties.
Example:
A promise to pay a bribe of Rs. 200 to B, if B does his work. The agreement is against the law cannot recover the amount of Rs. 200 after doing A's work. Similarly, if A has paid the bribe in advance, he cannot get it back if B doesn't do his work.
4. Indirectly defendant is helped:
Defendant may be a person against whom the suit is filed. When the law doesn't help any of the parties, it means the party who has paid the amount won't be ready to get it back as we've seen within the above example. The party who has received the quantity is thus helped to stay the money with it and isn't asked by the Court to return it. The Court is neutral and therefore the defendant gets the advantage of the Court's neutrality. Within the example given above, B can keep Rs. 200, even if B doesn't do the work of A. The Court won't ask B to return the quantity. Thus, B is indirectly benefited or helped by the refusal of the Court to intervene.
5. In cases of fraud, coercion, etc., money or property transferred is often recovered:
Where the illegality is that the results of coercion and fraud of the other party, the Court can compel the guilty to return the cash paid or property transferred.
6. Agreement partly legal and partly illegal (Sec. 24):
An agreement may contain promises which are legal and illegal. If the legal promise is often separated from the illegal one, the legal promise is often enforced. In Such a case the illegal part is going to be void.
Where the legal promise can't be separated from the illegal one, the entire of it might be void.
Where there's one consideration for one or more unlawful objects, the agreement is void.
Example:
(1) A promise to manage B's factory, where genuine and bogus motor parts are manufactured. B agrees to pay A (Manager) a salary of Rs. 1,000 per month.
The agreement is void as partly it's legal and illegal and therefore the legal part can't be separated because the salary is for both the parts.
7. Reciprocal promises, legal and illegal (Sec. 57):
Where persons reciprocally promise, firstly to do certain things which are legal, and secondly under specified circumstances to do certain other things which are illegal, the first set of promise may be a contract, but the second may be a void agreement.
Example:
A and B agree that A shall sell a house to B for Rs. 10,000 but that if B uses it as a gambling house, he shall pay A Rs. 50,000 for it.
The first set of promise, i.e., to sell the house and to pay Rs. 10,000 may be a contract.
The second set of promise, i.e., B may use the house as a gambling house and pay Rs. 50,000 may be a void agreement.
8. Alternative promise, legal and illegal (Sec. 58):
In the case of an alternate promise, one branch of which is legal and therefore the other illegal, the legal branch alone is often enforced.
DEFINITION
The parties who enter into a contract must have the capacity to do the contract.
“Capacity “here means competence of the parties to enter into a legitimate contract. According Sec 10, an agreement becomes a contract if it's entered into between the parties who are competent to contract.
According Sec .11, every person is competent to contract who
- Is of the age of majority according to the law to which he's subject
- Is of sound mind
- Is not qualified from contracting by any law to which he's subject.
Thus Sec. 11 declares following persons to be incompetent to contract:
1. Minors
2. Persons of unsound mind
3. Persons disqualified by any law to which they're subject.
1. MINORS
According to Sec 3 of the Indian Majority Act, 1875, a minor is a person who has not completed eighteen years of age.
In following cases he attains majority after 21 years aged
- Where a guardian of minor person or property has been appointed under guardians and wards act,1890
- Where the superintendence of minor’s property is assumed by a court of wards.
The position of minor as regards his agreements could also be summed up as under:
- An agreement with or by a minor is void
- He is often a promise or beneficiary.
- His agreement can't be ratified by him on attain the age of majority.
- If he has received any benefit under a void agreement, he can't be asked to compensate or buy it.
2. PERSONS OF UNSOUND MIND
One of the essential conditions of competency of parties to a contract is that they ought to be of sound mind.
Sec 12 lays down the soundness of mind “A person is said to be of sound mind for the purpose of making the contract if, at the time when he makes it, he's capable of understanding it and of forming a rational judgment as to its effect upon his interests.
A person, who is usually of unsound mind but occasionally of sound mind, may make a contract when he's of sound mind.
A person, who is typically of sound mind but occasionally of unsound mind, might not make a contract when he's of unsound mind
E.g.: an individual may be a lunatic, who is at intervals of sound mind, may contract during those intervals.
Soundness of minds depends on two facts:
- His capacity to know the contents of the business concerned,
- His ability to make a rational judgment on its effect on his interests.
- If an individual is incapable of both, he suffers from unsoundness of mind.
CONTRACTS OF PERSONS OF UNSOUND MIND
- Lunatics: A lunatic may be a one that is mentally deranged due to some strain or personal experience. He suffers from intermittent intervals of sanity and insanity. He can enter contracts during the amount when he's of sound mind.
- Idiots: An Idiot may be a one that has completely lost his mental powers. He doesn't exhibit understanding of even ordinary matters. Idiocy is permanent lunacy denotes periodical insanity with lucid intervals. An agreement of an idiot like that of minor is void.
- Drunken or intoxicated persons: A drunken or intoxicated person suffers from temporary incapacity to contract i.e., at the time when he's so drunk or intoxicated that he's incapable of forming a rational judgment. The position of a drunken or intoxicated person is analogous thereto of a lunatic.
3. PERSONS DISQUALIFIED BY ANY LAW TO WHICH THEY'RE SUBJECT
- Alien Enemies: An Alien (the subject of foreign state) is an individual who isn't subject of the Republic of India. He could also be Alien friend of Alien enemy.
- Foreign sovereigns, their diplomatic staff and accredited representatives of foreign states: they need some special privileges and usually can't be sued unless of their own undergo the jurisdiction of our law courts. But an Indian citizen has got to obtain a previous sanction of central govt. So as to sue them in our law courts.
- Corporations: an organization is a man-made person created by law, having a legal existence aside from its members. It may be available to existence by a legislative act of legislature or by registration under the companies’ Act, 1956.
- Insolvents: When a debtor is adjudged insolvent, his property vests within the official receiver or official assignee. As such insolvent is bereft of his power to deal therein property.
- Convicts: A convict when undergoing imprisonment is incapable of getting into contract.
INTRODUCTION
Sec 10 of contract act states “all agreements are contract, if they're made by the free consent of parties.” in order to form a valid contract it's necessary that there should be a (a) consent & (b) Free consent. For the formation of a contract the parties should either have assented, or be deemed to possess assented, to an equivalent thing within the same sense it's called consensus ad idem.
MEANING OF CONSENT:
The term consent has been defined by many scholars are as under:
- Webster’s College Dictionary: Consent means “to agree or to be willing to try to do something.”
- Section 13 of Contract Act: “Two or more persons are said to be consented when they agree upon the same thing in a same manner.”
ESSENTIALS OF CONSENT:
- Parties must be agreeing on an equivalent thing: “same thing” the entire material of the agreement whether it consist wholly or partially of an act or promise to try to or abstain from doing something. If the parties have various things in mind or the parties though agree upon a thing but do so in several sense, it's not said to be a true consent and agreement.
- Parties must agree within the same sense: if one among the parties to a clear contract, by his own fault enters into it during a sense different from that during which it had been understood by the opposite party he could also be precluded from fixing that there was no agreement within the same sense.
- Parties’ expressions must be in agreement: the aim of the good majority of contract is to effect and exchange of promises, or of certain performance. To attend this purpose, there must be mutual expressions of assent to the exchange.
There need to be two parties to a contract, who willingly and knowingly enter into an agreement. But how does the law determine if the parties are both these things? this is often where the concept of free consent comes in. Allow us to learn more about free consent and therefore the elements vitiating free consent.
DEFINITION:
In the Indian Contract Act, the definition of Consent is given in Section 13, which states that “it is when two or more persons agree upon the same thing and in the same sense”. Therefore, the two people must comply with something within the same sense also.
Example: A agrees to sell his car to B. A owns three cars and needs to sell the Maruti. B thinks he's buying his Honda. Here A and B haven't prescribed an equivalent thing within the same sense. Hence, there's no consent and subsequently no contract.
Now Free Consent has been defined in Section 14 of the Act. The section says that consent is taken into account free consent when it's not caused or suffering from the subsequent,
- Coercion
- Undue Influence
- Fraud
- Misrepresentation
- Mistake
- Elements Vitiating Free Consent
Let us take a glance at these elements individually that impair the free consent of either party.
1. Coercion (Section 15)
Coercion means using force to compel an individual to enter into a contract. So, force or threats are wont to obtain the consent of the party under coercion, i.e., it's not free consent. Section 15 of the Act describes coercion as committing or threatening to commit any act forbidden by the law within the IPC unlawfully detaining or threatening to detain any property with the intention of causing a person to enter into a contract
Example: A threatens to harm B if he doesn't sell his house to A for five lakh rupees. Here albeit B sells the house to A, it'll not be a legitimate contract since B’s consent was obtained by coercion.
Now the effect of coercion is that it makes the contract voidable. This suggests the contract is voidable at the choice of the party whose consent wasn't free. Therefore, the aggravated party will decide whether to perform the contract or to void the contract. So, within the above example, if B still wishes, the contract can plow ahead.
Also, if any monies are paid or goods delivered under coercion must be repaid or returned once the contract is void. And therefore, the burden of proof proving coercion are going to be on the party who wants to avoid the contract. Therefore, the aggravated party will need to prove the coercion, i.e., prove that his consent wasn't freely given.
2 Undue Influences (Section 16)
Section 16 of the Act contains the definition of undue influence. It states that when the relations between the 2 parties are such one party is during a position to dominate the opposite party, and uses such influence to get an unfair advantage of the opposite party it'll be undue influence.
The section also further describes how the person can abuse his authority within the following two ways: When an individual holds real or maybe apparent authority over the opposite person or if he's during a fiduciary relationship with the opposite person. He makes a contract with an individual whose brain is suffering from age, illness or distress. The unsoundness of mind is often temporary or permanent
Example: A sold his gold awaits only Rs 500/- to his teacher B after his teacher promised him good grades. Here the consent of A (adult) isn't freely given, he was under the influence of his teacher.
Now undue influence to be evident the dominant party must have the target to require advantage of the opposite party. If influence is wielded to profit the opposite party it'll not be undue influence. But if consent isn't free thanks to undue influence, the contract becomes voidable at the choice of the aggravated party and therefore the burden of proof is going to be on the dominant party to prove the absence of influence.
3. Fraud (Section 17)
Factors Impairing Free Consent: Fraud
Fraud means deceit by one among the parties, i.e., when one among the parties deliberately makes false statements. Therefore, the misrepresentation is completed with full knowledge that it's not true, or recklessly on faith for the trueness, this is often said to be fraudulent. It absolutely impairs free consent.
So consistent with Section 17, a fraud is when a celebration convinces another to enter into an agreement by making statements that are suggesting an incontrovertible fact that isn't true, and he doesn't believe it to be true the active concealment of facts a promise made with none intention of performing it the other such act fitted to deceive.
Example: A bought a horse from B. B claims the horse are often used on the farm. Seems the horse are lame and A cannot use him on his farm. Here B knowingly deceived A and this may amount to fraud.
One factor to think about is that the aggravated party should suffer from some actual loss thanks to the fraud. There’s no fraud without damages. Also, the falsehood must be a fact, not an opinion. Within the above example if B had said his horse is best than C’s this is able to be an opinion, not a fact. And it might not amount to fraud.
4. Misrepresentation (Section 18)
Misrepresentation is additionally when a celebration makes a representation that's false, inaccurate, incorrect, etc. The difference here is that the misrepresentation is innocent i.e., not intentional. The party making the statement believes it to be true. Misrepresentation is often of three types an individual makes a positive assertion believing it to be true any breach of duty gives the person committing it a plus by misleading another. But the breach of duty is with none intent to deceive.
When one party causes the opposite party to form an error on the topic matter of the contract. But this is often done innocently and not intentionally.
5 Mistake: an error is described as a component, which when occurs during a contract makes it void.
There are two sorts of mistakes, which occurs during a contract
- Unilateral Mistake: A mistake is claimed to be unilateral when one party is mistaken within the agreement.
- Bilateral Mistake: A mistake is claimed to be mutual when both parties misunderstood one another. Thus, it shows that there's a breach within the principle of consensus-ad-idem within the contracts and therefore the contract is to be considered as void.
Example: “A” made an offer to “B” to sell his scooter. “A” intended to sell his 3G scooter but “B” believed that “A” would sell his 4G scooter. Thus, there was no proper communication and therefore the fact was mistaken. It might amount to an effective agreement.
- Common mistake: Section 20 of the Indian Contract Act, 1872 lays down the supply for common mistakes. A contract arising out of common mistake is taken into account to be void. This sort of mistake is possessed by both the parties but this error isn't the results of mutual mistake, it arises individually.
For a contract to be a legitimate contract two things are absolutely essential – lawful object and lawful consideration. Therefore, the Indian Contract Act gives us the parameters that structure such lawful consideration and objects of a contract. Allow us to take a glance at the legality of object and consideration of a contract.
Lawful Consideration and Lawful Object
Section 23 of the Indian Contract Act clearly states that the consideration and/or object of a contract are considered lawful consideration and/or object unless they're specifically forbidden by law of such a nature that they might defeat the aim of the law are fraudulent involve injury to the other person or property the courts regard them as immoral are against public policy.
So lawful consideration and/or lawful object cannot contain any of the above. It allows us to take a more intimately check out each of them.
1 Forbidden by Law
When the thing of a contract or the consideration of a contract is prohibited by law, then they're not lawful consideration or object anymore. They then become unlawful in nature. Then such a contract can't be valid anymore.
Unlawful consideration of object includes acts that are specifically punishable by the law. This also includes people who the acceptable authorities prohibit via rules and regulations. But if the principles made by such authorities aren't in tandem with the law than these won't apply.
Example. A received a license from the Forest Department to chop the grass of a particular area. The authorities at the department told him he cannot expire such interest to a different person. But the Forest Act has no such statute. So, A sold his interest to B and therefore the contract was held as valid.
2 Consideration or Object Defeats the supply of the Law
This means if the contract is trying to defeat the intention of the law. If the courts find that the important intention of the parties to the agreement is to defeat the provisions of the law, it'll forgot the said contract.
Example: A and B enter into an agreement, where A is that the debtor, that B won't plead limitation. This, however, is completed to defeat the intention of the Limitation Act, then the courts can rule the contract as void thanks to unlawful object.
3 Fraudulent Considerations or Object
Lawful consideration or object can never be fraudulent. Agreements entered into containing unlawful fraudulent consideration or object are void naturally.
Example: A decides to sell goods to B and smuggle them outside the country. This is often a fraudulent transaction as so it's void. Now B cannot recover the cash under the law if A doesn't deliver on his promise.
4 Defeats any Rules in Effect
If the consideration or the thing is against any rules in effect within the country for the nonce, then they're going to not be lawful consideration or objects. Then the contract thus formed won't be valid.
5 Once they involve Injury to a different Person or Property
In legal terms, an injury means to a criminal and harmful wrong done to a different person. So, if the thing or the consideration of the contract does harm to a different person or property, this may amount to unlawful consideration. Say for instance a contract to publish a book that's a violation of another person’s copyright would be void. This is often because the consideration here is unlawful and injures another person’s property, i.e., his copyright.
6 When Consideration is Immoral
If the thing or the consideration is regarded by the court as immoral, then such object and consideration are immoral. Say for instance A lent money to B to get a divorce from her husband C. It had been agreed once B obtains the divorce A would marry her. But the court passed the judgment that A cannot recover money from B since the contract is void on account of unlawful consideration.
7 Consideration is against Public Policy
For the great of the community, we restrict certain contracts within the name of public policy. But we don't use public policy during a wide sense during this matter. If that was the case it might curtail individual freedom of individuals to enter into contracts. So, for the aim of lawful consideration and object public policy is employed during a limited scope. We only specialize in public policy under the law.
Some agreements that are against public policy:
Trading with the Enemy: getting into an agreement with an individual from a rustic with whom India is at war, void be a void agreement.
Example, a trader getting into a contract with a Pakistani national during the Kargil war.
Stifling Prosecution: this is often a pervasion of the natural course of law, and such contracts are void.
Example: A agrees to sell land to B if he doesn't participate within the criminal proceedings against him.
8. Maintenance and Champers:
Maintenance agreement is when an individual promises to take care of a suit during which he has no real interest and champers is when an individual agrees to help another party in litigation for some of the damages or proceeds.
• An Agreement to Traffic publicly Offices
• Agreements to make Monopolies
• An agreement to brokerage marriage for rewards
• Interfering with the Courts: An agreement whose object is to induce judicial or state officials to act corruptly and interfere with legal proceedings
Void Agreements
VOID AGREEMENT:
An agreement not enforceable by law is void.
AGREEMENT SECTION 2(E):
Every promise and every set of promises, forming the consideration for each other is an agreement.
VOID AND VOIDABLE CONTRACT
An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract
A contract which ceases to be enforceable by law becomes a void contract.
The section 2(j) of the Act defines a void contract as “A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable”. This makes all those contracts that are not enforceable by a court of law as void.
Example: A agrees to pay B a sum of Rs 10,000 after 5 years against a loan of Rs. 8,000. A, dies of natural causes in 4 years. The contract isn't any more valid and becomes void due to the non-enforceability of the agreed terms.
Void Contract means a contract doesn't exist in any respect. The law can't enforce any legal obligation to either party especially the disappointed party because they are not entitled to any protective laws as far as contracts are concerned.
An agreement to carry out an illegal act is an example of a void contract or void agreement.
Example: Contract between drug dealers and buyers could also be a void contract simply because the terms of the contract are illegal. In such a case, neither party can move to court to enforce the contract.
As per Section 2(g) of The Indian Contract Act, 1872 “An agreement not enforceable by law is claimed to be void”, and as per Section 2(j) of The Act “A Contract which ceases to be enforceable by law becomes void when it ceases to be enforceable”
Thus, Void Contracts are often of following two types-
- Void ab initio: - void-ab-initio i.e., unenforceable from the very beginning
- Void due to the impossibility of its performance: A contract can also be void due to the impossibility of its performance. E g: If a contract is formed between two parties A & B but during the performance of the contract the thing of the contract becomes impossible to achieve (due to action by someone or something apart from the contracting parties), then the contract cannot be enforced within the court of law and is thus void.
Void agreements as per the provisions of Indian Contract Act, 1872: Any agreement with a bilateral mistake is void (Section 20)- Where both the parties to an agreement are under a mistake on matter of fact essential to agreement, the agreement is void, for ex. A agrees to shop for from B a specific horse. It seems that the horse was dead at the time of the discount, though neither party was aware of the particular fact. The agreement is void.
But a contract isn't voidable merely because it had been caused by one of the parties thereto being under a mistake on a matter of fact. (Section 22)
Agreements which have unlawful consideration and objects are void. (Section 23 & 24): The consideration or object of an agreement is unlawful if it's forbidden by law or of such a nature that if permitted, it'd defeat the provisions of any law or is fraudulent or involves injury to the person or property of another or court regards it as immoral or against public policy.
If any a neighborhood of one consideration for one or more objects, or anybody or any a neighborhood of anybody of several consideration for one object, is unlawful, the agreement is void. But where the legal a neighborhood of an agreement is severable from the illegal, the previous would be enforced.
Agreements made inconsiderately is void (Section 25): An agreement without the consideration is void unless:
- It's made on account of natural love and affection and it's expressed in writing and registered under the law for the nonce in effect.
- It's a promise to compensate, a private who has already voluntarily done something for the promisor.
- It's a promise to pay a time barred debt.
Agreement in check of marriage of any major person is void (Section 26):
Every agreement in check of the marriage of an individual, apart from a minor is void. It’s the policy of the law to discourage agreements which restrains freedom of marriage. The restraint could even be general or partial, that's to say, the party could even be restrained from marrying within the least, or from marrying for a hard and fast time or from marrying a selected person or class of persons, the agreement is void.
Agreement in check of trade is void. (Section 27): Every agreement by which anyone is restrained from exercising a lawful profession, or trade or business of any kind, is thereto extent void. There are two kinds of exception to the rule, those created by Statutes-
Sale of Goodwill: the only exception mentioned within the proviso to section 27 is that regarding sale of goodwill. It states that “One who sells the goodwill of the business may accept as true with the customer to refrain from carrying on the same business, within specified local limits, so long because the buyer, or an individual deriving the title to the goodwill from him, carries on a like business therein: as long intrinsically limits appear to the court reasonable, regard being had to the character of the business.
Partnership Act: There are four provisions within the Partnership Act which validate agreements in restraint of trade. Section 11 enables partners during the continuance of the firm to limit their mutual liberty by agreeing that none of them shall keep it up any business apart from that of the firm. Section 36 enables them to restrain an outgoing partner from carrying on an equivalent business within a specified period or within specific local limits. An equivalent agreement could even be made by partners upon or I anticipation of dissolution.
EXCEPTION TO THE RULE AS PER JUDICIAL INTERPRETATION:
Exclusive Dealing Agreements: Business practice hip is that a producer or manufacturer likes to market his goods through a sole agent or distributor and thus the latter agrees successively to not affect the products of the opposite manufacturer.
Restraints upon Employee: An agreement of service often contains negative covenants preventing the worker from working elsewhere during the amount covered by the agreement. Trade Secrets, name of consumers etc. are also the property of master and servant isn't imagined to disclose it to anyone else. An agreement of this class doesn't fall within Section 27.
Agreement in check of legal proceedings is void. (Section 28): An agreement purporting to oust the jurisdiction of the courts is against the law and void on grounds of public policy. Section 28 of the Act renders void two sorts of agreement, namely:
- An agreement by which a party is restricted absolutely from enforcing his legal rights arising under a contract by the quality legal proceedings within the ordinary tribunals.
- An agreement which limits the time within which the contract rights could even be enforced
However, this is often also not an absolute rule and it's two exceptions thereto which is as follows-
This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be mentioned arbitration, which only the quantity awarded in such arbitration shall be recoverable in respect of the dispute so referred.
Nor shall this section render illegal any accept writing, by which two or more persons suits arbitration any question between them which has already arisen, or affect any provision of any law effective for the nonce on references to arbitration.
But right to Appeal doesn't come within the purview of this section. a celebration to a suit may comply with not appeal against the selection.
An agreement the terms of which are uncertain is void. (Section 29): Agreements, the meaning of which isn't certain, or capable of being made certain, are void. It is a necessary requirement that an agreement so as to be binding must be sufficiently definite to enable the court to supply it a practical meaning. An agreement to agree within the longer term is void, for there is no certainty whether the parties will b able to agree.
Where only a neighborhood or a clause of the contract is uncertain, but the remainder is capable of bearing a reasonably certain meaning, the contracts are getting to be considered.
Similarly, if the agreement is totally silent on price, it'll be valid, for, therein case, Section 9 of the Sale of products Act,1930 will apply and reasonable price shall be payable.
An agreement by way of wager (betting/gambling) is void. (Section 30): Agreements by way of wager are void; and no suit shall be brought for recovering anything imagined to be won on any wager or entrusted to an individual to abide by the results of any game or other uncertain event on which any wager is made. The section doesn't define “Wager”. But wagers are often said as a promise to supply money or money’s worth upon the determination or ascertainment of an uncertain event.
This rule has two exceptions thereto, which is as follows-
- Horse Race- This section doesn't render void a subscription or contribution, or an agreement to subscribe or contribute, towards any plate, prize or sum of money of the worth or amount of 500 Rs. Or upwards to the winner or winners of any horse races.
- Crossword Competitions & Lottery: - If skill plays a substantial part within the result and prizes are awarded according to the merits of the solution, the competition isn't a lottery. Otherwise, it’s. Thus, literary competitions which involve the applying of skill and within which an effort is formed to select the simplest and most skillful competitor, aren't wagers.
An agreement contingent upon the happening of an impossible event is void. (Section 36)-
A contingent contract could also be a contract to try to or to not do something, if some event, collateral to such contract, does or doesn't happen. Contingent agreements to undertake to or to not do anything, if an impossible event happens, are void, whether the impossibility of the event is known or to not the parties to the agreement at the time when it's made.
For ex. A agrees to pay B 1000 Rs if two straight lines should enclose a neighborhood. The agreement is void.
Agreement to undertake to impossible acts is void. (Section 56): An agreement to try to an act impossible in itself is void. A contract to try to an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor couldn't prevent, unlawful, becomes void when the act becomes impossible or unlawful.
VOIDABLE CONTRACT:
An agreement which is enforceable by law at the choice of the one or more of the parties thereto, but not at the choice of others or others, may be a voidable contract. Voidable Contract is valid unless one of the parties has set it aside. Voidable Contract generally happens when one side of the party is tricked into entering a contract by other party.
(I) Voidable Agreements as per provisions of Indian Contract Act,1872-
• Void ability of agreements without free consent: - when consent to an agreement is caused by coercion, fraud or misrepresentation the agreement is voidable at the selection of the party whose consent was so caused. However, a celebration to a contract, whose consent was obtained by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed.
• Power to line aside contract induced by Undue Influence: When consent to an agreement is caused by undue influence, the agreement could also be a contract voidable at the selection of the party whose consent was so caused. A contract is claimed to be induced by undue influence where the relation subsisting between the contracting parties are such during one-to-one interaction in every of one of the parties is in a position to dominate the desire of the other.
In such a case the burden of proving that such a contract wasn't induced by undue influence shall lie upon the one that's during an edge to dominate the desire of other.
• Liability of a celebration preventing event on which contract is to require effect - When a contract contains reciprocal promises and one party to contract prevents the other from performing his promise, the contract becomes voidable at the selection of the party so prevented. Obvious principle is that a private cannot cash in of his own wrong.
For ex. A and B contract that B shall execute certain work for A for a specific sum of money. B is ready and willing to execute the work accordingly, but A prevents him from doing so, the contract is voidable at the selection of B.
• Effect of failure to perform at fixed time, during a accept which period is crucial: When time is essence of contract and party fails to perform in time, it's voidable at the choice of other party. a private who himself delayed the contract cannot avoid the contract on account of (his own) delay.
(II) Consequences of rescission of Voidable Contract:
When an individual at whose option a contract is voidable rescinds it, the other party thereto needn't perform any promise therein contained within which he's promisor. The party rescinding a voidable contract shall, if he has received any benefit there under from another party to such contract, restore such benefit, so far as could even be, to the person from whom it had been received.
(III) Mode of Communicating or revoking rescission of voidable contract:
The rescission of a voidable contract could even be communicated or revoked within an equivalent manner, and subject to the same rules, as apply to the communication or revocation of a proposal.
Void and illegal Agreement: The Contract Act draws distinction between an agreement which is simply void and thus the one which is unlawful or illegal. An illegal agreement is one which is forbidden by law; but a void agreement won't be forbidden, the law may merely say that if it's made, the courts won't enforce it. Thus, every illegal contract is void but a void contract isn't necessarily illegal.
The main difference between a void and illegal contract is that, a void contract isn't punishable and its collateral transactions aren't affected but on the contrary illegal contract is punishable and its collateral transactions are also void.
DIFFERENCE BETWEEN VOID AND VOIDABLE AGREEMENT:
A void contract is taken into account to be a legal contract that's invalid, even from the start of signing the contract. On the other hand, a voidable contract is additionally a legal contract which is claimed invalid by one of the two parties, surely legal reasons.
While a void contract becomes invalid at the time of its creation, a voidable contract only becomes invalid if it's cancelled by one of the two parties who are engaged within the contract.
In the case of a void contract, no performance is possible, whereas it's possible during a voidable contract. While a void contract isn't valid at face value, a voidable contract is valid, but is usually declared invalid at any time.
While a void contract is nonexistent and cannot be upheld by any law, a voidable contract is an existing contract, and is binding to a minimum of 1 party involved within the contract.
Key Takeaways:
1. When the person to whom the offer is made, signifies his assent there to, the offer is said to be accepted.
2. A void contract is taken into account to be a legal contract that's invalid, even from the start of signing the contract.
3. Agreements made inconsiderately is void (Section 25)
4. For a contract to be a legitimate contract two things are absolutely essential – lawful object and lawful consideration.
MODES OF DISCHARGE OF CONTRACT
- Discharge by performance.
- Discharge of Contract by Substituted Agreement.
- Discharge by lapse of your time.
- Discharge by operation of law.
- Discharge by Impossibility of Performance.
- Discharge by Accord and Satisfaction.
- Discharge by breach.
We shall examine each of them as follows.
Discharge by performance
Where both the parties have either carried out or tendered (attempted) to carry out their obligations under the contract, is mentioned as discharge of the contract by performance. Because performance by one party constitutes the occurrence of a constructive condition, the other party’s duty to perform is additionally triggered, and thus the one that has performed has the proper to receive the other party’s performance. The overwhelming majority of contracts are discharged during this manner.
Discharge of Contract by Substituted Agreement
A contract emanates from an agreement between the parties. It thus follows that; the contract must even be discharged by agreement. Therefore, what's required, inevitably, is mutuality. Discharge by substituted agreement arises when a contract is abandoned, or the terms within it are altered, and both the parties are in conformity over it.
For example, A and B enter into some agreement, and A wants to change his mind and to not perform his terms of the contract. If he does this unilaterally then he is getting to be in breach of contract to B. However, if he approaches B and states that he would adore to be released from his liabilities under the contract then the latter might agree. Therein case the contract is claimed to be discharged by (bilateral) agreement. In effect B has promised to not sue A if he doesn't perform a neighborhood of the contract and thus the consideration for his promise could also be A’s promise to not sue B. Discharge by agreement may arise within the subsequent ways.
- Novation: The term novation implies the substitution of a fresh contract for the first one. This arrangement could even be either with the same parties or with different parties. For a novation to be valid and effective, the consent of all the parties, including the new one(s), if any, is vital. Moreover, subsequent or second agreement must be one capable of enforcement in law, the consideration that is that the exchange of promises to not enforce the first contract.
- Rescission: This refers to cancellation of all or few the fabric terms of the contract. If the contracting parties mutually decide to do so, the respective contractual obligations of the parties stand terminated.
- Alteration: This refers to a change in one or more of the terms of a contract with the consent of all the contracting parties. Alteration results in a replacement contract but parties thereto remain the same. Here the assumption is that both the parties are to understand a fresh but different enjoy the new agreement. Remission this means the acceptance (by the promisee) of a lesser sum than what was contracted for, or a lesser fulfillment of the promise made. As per Section 63, ‘every promisee may (a) remit or dispense with it, wholly or partially, or (b) extend the time of performance, or (c) accept the opposite satisfaction instead of performance’.
- Waiver: The term waiver implies abandonment or relinquishment of a right. Where a party deliberately abandons its rights under the contract, the other party is released of its obligations, otherwise binding upon it.
Discharge by lapse of your time
A contract stands discharged if not enforced within a specified period called the “period of limitation”. The Limitation Act, 1963 prescribes the duration of limitation for various contracts. As an example, period of limitation for exercising right to recover an immovable property is twelve years, and right to recover a debt is three years. Contractual rights become time barred after the expiry of this limitation period. Accordingly, if a debt isn't recovered within three years of its payment becoming due, the debt ceases to be payable and is discharged by lapse of your time.
Discharge by Impossibility of Performance
Sometimes after a contract has been established, something might occur, though not at the fault of either party, which can render the contract impossible to perform, or illegal, or radically different from that originally undertaken.
However, if whatever happens to prevent the contract from being performed has not been caused by either party couldn't be foreseen, and its effect is to destroy the thought of the contract then the courts will, generality, state that the contract has become impossible to perform. If that happens then the contract is discharged and neither party will have any liability there under. Section 56 of the Indian Contract Act clearly provides that an agreement to undertake to an act impossible in itself is void
The performance of a contractual obligation may become subsequently impossible on sort of grounds.
They include the next
• Objective impossibility of performance
• Commercial impracticability
• Frustration of purpose
• Temporary impossibility
Discharge of operation of law
A contract stands discharged by operation of law within the subsequent circumstances.
Unauthorized material alteration of a document
A party can treat a contract discharged (i.e., from his side) if the other party alters a term (such as quantity or price) of the contract without seeking the consent of the previous.
- Statutes of Limitations
A contract stands discharged if not enforced within a specified period called the ‘period of limitation’. The Limitation Act, 1963 prescribes the duration of limitation for various contracts. As an example, limitation period for exercising right to recover an immovable property is twelve years and right to recover a debt is three years. Contractual rights become time barred after the expiry of this limitation period. Accordingly, if a debt isn't recovered within three years of its payment becoming due, the debt ceases to be payable and is discharged by lapse of your time.
- Insolvency
A discharge in bankruptcy will ordinarily bar enforcement of most of a debtor’s contracts.
- Merger
A contract also stands discharged through a merger that happens when an inferior right accruing to party during a contract amalgamates into the superior right ensuing to an equivalent party. As an example, a hire a factory premises from B for a couple of manufacturing activity for a year, but 3 months before the expiry of lease purchases that very premises. Now since A has become the owner of the building, his rights associated with the lease (inferior rights) subsequently merge into the rights of ownership (superior rights). The previous rental contract ceases to exist.
Discharge by Accord and Satisfaction
To discharge a contract by accord and satisfaction; the parties must suits accept performance that's different from the performance originally promised. It’s getting to be studied under the next sub-heads.
Accord
An accord is an executor contract to perform an act which can satisfy an existing duty. An accord suspends, but doesn't discharge, the primary contract.
Satisfaction
Satisfaction is that the performance of the accord, which discharges the primary contractual obligation.
If the obligor refuses to perform the oblige can sue on the primary obligation or seek a decree for performance on the accord.
BREACH OF CONTRACT
A contract is breached or broken when any of the parties fails or refuses to perform its promise under the contract. Breach of contract is a legal cause of action in which a binding agreement is not honoured by one or more parties by non-performance of its promise by him renders impossible.
Section 37 of the Indian Contract Act,1872 provides that the parties to the contract are under obligation to perform or offer to perform, their respective promises under the contract, unless such performance is dispensed with or excused under the provisions of the Indian Contract Act or of any other law.
According to Section 39, where the party has refused to perform or disabled himself from performing, his promise in its entirely, the other party may put an end to the contract, unless that other party has expressly or impliedly signified its consent for the continuance of contract. If the other party chooses to put an end to the contract, the contract is said to be broken and amounts to breach of contract by the party not performing or refusing to perform its promise under the contract. This is called repudiation. Thus, repudiation can occur when either party refuses to perform his part or makes it impossible for him to perform his part of contract in each of the cases in such a manner as to show an intention not to fulfil his part of the contract.
Key takeaways:
- A contract can be discharged by either by performance, by substituted agreements and by lapse of time.
- A contract is breached or broken when any of the parties fails or refuses to perform its promise under the contract.
- Discharge by agreement may arise within by Rescission, Novation and Alteration.
REMEDIES FOR BREACH OF CONTRACT (AS PER SECTION 73-75)
A legal remedy may be a writ that seeks to uphold a person’s rights or to redress a breach of the law.
When one party breaches a contract, the opposite party may ask a court to supply a remedy for the breach. The court may order the breaching party to pay money to the non-breaching party.
TYPES OF REMEDIES
- Suit for rescission
- Suit for damages
- Suit for quantum meruit
- Suit for performance
- Suit for an i injunction
- Suit for Rescission
SUIT FOR RESCISSION
The term Rescission refers to the cancellation of contract.
In such cases, if one party has broken his contractual relations, the opposite party may treat the breach as discharge and refuse to perform his part of performance.
Thus, just in case of rescission of contract, the aggrieved or casualty is discharged from all his obligations of the contract.
UNDER FOLLOWING CASES THE COURT MAY REFUSE TO GRANT RESCISSION:
• The parties can't be restored to their original positions thanks to changed circumstances.
• The party(s) has acquired rights in straightness and value during subsistence of contract.
• Only a neighborhood of the contract is rescinded and this part can’t be separated from remainder of the contract.
• But if an individual rightfully rescinded, he's entitled to compensation for any damage which he has sustained through non fulfillment of the contract by the opposite party.
EXAMPLE:
'A' contract to provide 10kg of tea leaves for Rs.8, 000 to 'B' on 15 June. If 'A' doesn't supply the tea leaves on the appointed day, 'B' needn't pay the worth. 'B' may treat the contract as rescinded and should sit quietly reception. 'B' can also file a ‘suit for rescission’ and claim damages. 12 A B Breach of contract when ‘A’ doesn’t supply to ‘B
SUIT FOR DAMAGES
Damages are a monetary compensation allowed to the casualty for the loss or injury suffered by him as results of the breach of contract. The elemental principle underlying damages isn't punishment but to compensate the aggrieved party for the loss suffered by him within the original position as he would fare.
Rules regarding damages
• The damages must naturally arise within the usual course of things from such breach i.e., the damages must be the proximate or direct consequence of the breach of contract.
• The aggrieved party must have suffered damages by breach of contract.
• Damages are awarded to compensate the loss caused by a celebration but to not punish the party at default for the breach of contract.
• Amount of damages is often decided at the time of agreement by the mutual consent of both the parties.
Types of damages
• Ordinary
• Special
• Exemplary
• Nominal damages
• Damages for inconvenience and discomfort
• Liquidated damages and penalty
• Stipulation for interest
• Forfeiture of margin there are 8 sorts of damages
EXAMPLE: Mr. A to pay 3 lacs to Mr. On 1st April. Mr. Doesn't pay the cash thereon day. Mr. B is unable to pay her debts and suffer a loss. Mr. A is susceptible to pay B principal amount and also interest thereon. 16 A B Breach of contract when ‘A’ doesn’t give money to ‘B’. Payable money
SUIT FOR QUANTUM MERUIT
It means “AS much as EARNED” or “in proportion to the work done.”
Right to ‘Quantum Meruit’ literally means a right to say the compensation for the work already done.
EXAMPLES Mr. Engages Mr. a contractor, to create a 3 storied house. After a neighborhood is made ‘A’ prevents ‘B’ from working any longer. ‘B’ the contractor, is entitled to urge reasonable compensation for work done under the doctrine of quantum merit additionally to the damages for breach of contract. 18 Breach of contract when ‘A’ told ‘B’ to prevent building construction. A B
SUIT FOR PERFORMANCE
Suit for performance means demanding the court’s direction to the defaulting party to hold out the promise consistent with the terms of contract Cases where suit for performance isn't maintainable
i. Where compensatory damages arising from breach aren't measurable
Ii. Where monetary compensation isn't an adequate remedy.
Example agreed to sell an old painting to Y for Rs50, 000. Subsequently, X refused to sell the painting. Here, Y may file a suit against X for the precise performance of the contract.
SUIT FOR INJECTION
It means demanding court’s stay order.
An order of the court which prohibits an individual to try to a specific act
A party to a contract does something which he presumed to not do; the court may issue an order prohibiting him from doing so.
EXAMPLES: A, a singer contracts with B the Manager of a theatre to sing at his theatre for one year and to abstain from Singing at other theatres during the theatre. She absents herself, B cannot compel A to sing at his theatre, but he may sue her for an injunction restraining her from Singing at other theatres.
G agreed to require the entire of his supply of electricity from a particular company. The agreement was held to import a negative promise that he would take none from elsewhere. He was, therefore, restrained by an injunction from buying electricity from the other company.
(Sec 68-72)
Quasi Contract: Quasi contracts are based on principle of Equity hence a person should not receive or accept any benefit unjustly. If so, he has an obligation to give it back to the right owner. Such obligation is called “Quasi Contractual Obligations”.
In such situation a person is obliged to compensate another although the basis of this obligation is neither a contract between the parties, nor any tort on the part of the person who is bound to compensate.
Every Contract has two parts:
Formative: It gives procedures as to how contract is formed step by step e.g., offer, acceptance, agreement etc.
Consequential: It gives rise to rights and liabilities of the parties.
For valid contracts both the parts should be present
i.e., Formative part + Consequential part = Absolute Contract
But when Formative part of the contract is absent but Consequential part is present, such situation gives rise to Quasi Contracts.
The basis of the obligation under quasi contracts is that no one should have unjust benefit at the cost of the other. For example:
a) A leaves his hand bag at B’s house by mistake. B has quasi contractual obligation to return it to A.
b) A and B jointly owe Rs. 100 to C, A alone pays the amount to C and B not knowing this also pays Rs. 100 to C. C is bound to repay the amount to B or A.
c) A receive some money in his account by mistake of bank.
Kinds of Quasi Contracts
Claim for supply of necessaries to incompetent person (Section 68)
Payment by an interested person (Section 69)
Non-Gratuitous act (Section 70)
Responsibility of finder of lost goods (Section 71)
Payment of Mistake or under Coercion (Section 72)
Explanation
Claim for supply of necessaries to incompetent person (Section 68): “Necessaries” means goods or services which are most eventual for the survival of human life. It includes food, clothing, shelter, education, medical, legal aid etc. to a person who are minor or of unsound mind by another person.
The claim cannot be enforced against such incompetent person but reimbursement can be claimed only from the property of such a person.
What is luxury to one person may be necessity to another and vice versa.
e.g., A supplied suits to the defendant who is a school going boy. When the boy becomes major, plaintiff demanded the price of 10 suits, the defendant refused. The court held that minor is not liable to pay for 10 suits because it was excessive of necessaries suited to life.
The necessaries supplied, could be to such person or his dependents.
e.g., A supplies the wife and children of B, a lunatic, with necessaries suitable to their condition in life. A is entitled to be reimbursed from B’s property.
Payment by an interested person (Section 69): A person who is interested in the payment of money which another is bound by law to pay, and therefore pays, is entitled to be reimbursed by the other.
B hold a land belongs to A. A has to give revenue to govt. Which is due. The govt. Advertises for the sale of land to recover its revenue. As per law, if this is done B’s lease will be nullified. B, to prevent the sale and the consequent annulment of his own lease, pays to the govt. The sum due from A. B is entitled to claim reimbursement from A.
The following two conditions must be satisfied for the application of this section:
One person is interested in the payment of money, and therefore he pays it
Another person is bound by law to pay the same, but he fails to pay.
E.g., A is the owner of the house and B is the tenant. There is water connection provided by the corporation and it was agreed that water expenses should be paid by ‘A’. The corporation asked for the payment from A but A failed to pay. B made the payment to avoid further consequences. Here B is entitled to recover the money so paid from A
Non-Gratuitous act (Section 70): Non-Gratuitous act means –an act or service done with the expectation of something in return.
When a person does something for another person or delivers anything to him non -gratuitously, he is entitled to claim compensation for the same from such other person.
e.g., A tenant of a property makes improvements and additions in the property and the landlord accepts the same, the presumption is that the tenant did not intend to do so gratuitously and he can recover compensation for the same from the landlord.
P.C. Wadhwa v. State of Punjab
In this case the appellant got selected in the service of the Forest Department of the Punjab State. He was given practical training and education for about 10 months. He was supposed to sign a bond to serve the department for 5 years after such training and education or otherwise to refund the cost of the same incurred by the State of Punjab.
He was selected in I.P.S and he left the training in between. The Punjab govt. Brought an action to recover a sum of Rs. 3250, being the cost of training and education.
He refused to pay and contended that he did not take any benefit from the training. This plea was rejected and it was held the act of the Punjab govt. Was not a gratuitous act but it was non-gratuitous act and he voluntary enjoyed the benefits of training.
Responsibility of finder of lost goods (Section 71): A finder is a person who finds goods belonging to another and takes the goods into his custody.
The position of the finder of goods is similar to that of a bailee. Like bailee the finder is bound to take as much care of the goods as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods found by him. The finder is entitled to claim the reward, if any offered.
The finder of goods however has been authorized to sell the goods found by him, when:
The owner of the goods cannot be found after reasonable search or if he refuses to pay the lawful charges of the finder and
If the goods found is of perishable nature or goods are not perishable but the lawful charges of the finder, amounts to 2/3rd of its value.
Payment of Mistake or under Coercion (Section 72): When a person receives any money or goods by mistake or under coercion, he must repay or return it.
e.g., a) A received Rs. 100000 in his account by mistake from the employee of the bank, A is obliged to return it.
b) A railway company refuses to deliver up certain goods to the consignee except upon the payment of an illegal charge for carriage. The consignee pays the sum charged in order to obtain the goods. He is entitled to recover.
Even if some govt. Authority has charged some amount by mistake or illegally, the said authority is obliged to refund it.
No refund if the plaintiff did not pay from his own pocket
A paid excise duty by mistake, but A had already recovered the whole of the paid duty from their customers. A is not entitled to refund. Refund in such a case would amount to unjust enrichment of the petitioners.
Money not recoverable if there is no unjust enrichment of the defendant
If the receiver of the money is no longer the same and has further paid it under a similar mistake, he cannot be asked to repay the same.
E.g., A told to B that he had given B address to receive a courier. B received the courier and gave it to A. It was later found out by the courier company that the delivery was to a wrong person. They sued B. Court held B is not required to pay as B has enjoyed no unjust enrichment.
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Key takeaways:
- Quasi contracts are based on principle of Equity hence a person should not receive or accept any benefit unjustly.
- Non-Gratuitous act means –an act or service done with the expectation of something in return.
- For valid contracts both the parts should be present
i.e., Formative part + Consequential part = Absolute Contract
The word contingent means when an event or situation is contingent, i.e., it depends on some other event or fact. Section 31 of the Indian Contract Act, 1872 defines the term ‘Contingent Contract’ as follows:
‘A contingent contract is a contract to do or not to do something, if some event collateral to such contract does or does not happen’.
In simple words, contingent contracts are the ones where the promisor performs his obligation only when certain conditions are met. The contracts of insurance, indemnity, and guarantee are some examples of contingent contracts.
Illustration: - A contracts to pay to B Rs. 70,000 if B’s house is burnt. This is a contingent contract.
Essentials of Contingent Contract are as follows:
- There must be a valid contract to do or abstain from doing something
- Performance of the contract must be conditional
- The said event must be collateral to such contract
- The event shouldn’t be at the discretion of the promisor.
Key takeaways:
1. ‘A contingent contract is a contract to do or not to do something, if some event collateral to such contract does or does not happen’.
References:
1.Commercial Law by John. A. Chamberlain
2. Business Law by B.B. Dam
3. Business Law – N D Kapoor, SChand
4. Business Law – Pathak, Tata Mc GrawHill
5. Legal frame work, Oxford.
