UNIT 1 | unit 1 the indian contract act 1872

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UNIT 1

QUESTION BANK

Q1) What do you mean by contract? What are the elements of contract?

ANS. An agreement enforceable by law may be a contract.

Steps Involved within the Contract

1. Proposal and its communication

2. Acceptance of proposal and its communication

3. Agreement by mutual promises

4. Contract

5. Performance of Contract

Essential Requirements of a Legitimate 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

Characteristics and Kinds

1. On the idea of validity

Valid contract: An agreement which has all the essential elements of a contract is named a legitimate contract. a legitimate contract is often enforced by law.

Void contract [Section 2(g)]: A void contract may be a contract which ceases to be enforceable by law. A contract when originally entered into could also be valid and binding on the parties. It's going to subsequently become void. -- There are many judgments which have stated that where any crime has been converted into a "Source of Profit" or if any act to be done under any contract is against "Public Policy" under any contract— than that contract itself can't be enforced under the law-

Voidable contract [Section 2(I)]: An agreement which is enforceable by law at the option of 1 or more of the parties thereto, but not at the option of other or others, is a voidable contract. If the essential element of free consent is missing in a contract, the law confers right on the aggrieved party either to reject the contract or to accept it. However, the contract continues to be good and enforceable unless it's repudiated by the aggrieved party.

Illegal contract: A contract is against the law if it's forbidden by law; or is of such nature that, if permitted, would defeat the provisions of any law or is fraudulent; or involves or implies injury to an individual or property of another, or court regards it as immoral or against public policy. These agreements are punishable by law. These are void-ab-initio.

“All illegal agreements are void agreements but all void agreements aren't illegal.

Unenforceable contract: Where a contract is good in substance but due to some technical defect can't be enforced by law is termed unenforceable contract. These contracts are neither void nor voidable.

2. On the idea of formation

Express contract: Where the terms of the contract are expressly prescribed in words (written or spoken) at the time of formation, the contract is claimed to be express contract

Implied contract: An implied contract is one which is inferred from the acts or conduct of the parties or from the circumstances of the cases. Where a proposal or acceptance is formed otherwise than in words, promise is claimed to be implied.•

Quasi contract: A contract is made by law. Thus, quasi contracts are strictly not contracting as there's no intention of parties to enter into a contract. It's legal obligation which is imposed on a celebration who is required to perform it. A contract is predicated on the principle that an individual shall not be allowed to complement himself at the expense of another.

3.On the idea of Performance

Executed contract: An executed contract is one during which both the parties have performed their respective obligation.

Executory contract: An executory contract is one where one or both the parties to the contract have still to perform their obligations in future. Thus, a contract which is partially performed or wholly unperformed is termed as executory contract.

Unilateral contract: A agreement is one during which just one party has got to perform his obligation at the time of the formation of the contract, the opposite party having fulfilled his obligation at the time of the contract or before the contract comes into existence.

Bilateral contract: A contract is one during which the requirement on both the parties to the contract is outstanding at the time of the formation of the contract. Bilateral contracts also are referred to as contracts with executory consideration.

Offer and Acceptance

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 a proposal.

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

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

Acceptance

When the person to whom the proposal is made, signifies his assent there to, the proposal is said to be accepted.

Essentials of a 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.

Q2) How can you explain the term Free Consent with its elements?

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 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 are 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.

Q3. Discuss the different types of contracts.

Ans. Classification of contracts/ kinds of contracts

Contracts may be classified according to them

 Formation

 Validity

 Performance

 Formalities

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 die 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:-

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 all during a ll|one in every of"> one of one 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.

Q3) What are the provisions within the Partnership Act which validate agreements in restraint of trade?

Ans. 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 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 be 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 contract is 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 wager is 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.

Q4)How can you explain the term voidable contract.

Ans. 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 :-

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.

(II) Consequences of rescission of Voidable Contract:

(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.

Q5)How can contracts be discharged by the parties?

Ans. Contract implies termination of contractual obligations. This is often actually because when the parties originally entered into the contract, the rights and duties in terms of contractual obligations were found out . Consequently, when those rights and duties are put out then the contract is claimed to possess been discharged. Once a contract stands discharged, parties thereto are not any more liable albeit the obligations under the contract remain incomplete.

A Contract is deemed to be discharged, that is, concluded and not binding, within the subsequent circumstances:

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 are 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 hires 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.

Q6) When can the court may refuse to grant rescission ?

Ans. 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 a 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 a result 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 are 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. A 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

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. A 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: X 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.

Q7) What do you mean by Quasi Contracts? Discuss.

Ans. 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.

e.g. 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.

Q8) What are the provisions for minor and unsound mind people to enter into the contract ?

Ans. 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 promisee 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

Egg: 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.

Q9) What is the effect of anticipation breach .Explain with examples?

Ans. Where there's a constructive breach , the non-breaching party may either rescind the contract, or Treat the accept force and await the time of performance. In first case, it can immediately sue for damages, i.e., it isn't required to attend for the time for performance to expire.

For example, [D agreed to use P] as a courier for 3 months commencing on June 1. Before the said date D told P that his services wouldn't be required. This was to be a constructive breach of contract and it entitled P to sue D for damages immediately. If the non-breaching party elects to treat the contract operative, it waits until the time of performance then holds the other party liable for the non-performance. Thus, by doing therefore the non-breaching party is giving a chance to the breaching party to still perform, if it can, so on urge a legitimate discharge.

Actual Breach

Actual breach refers to the failure to perform contractual obligations when performance is due. Failure to perform obligations is that the commonest quite breach, wherein a seller fails to deliver the products by the appointed time, or where, although delivered, the products aren't up to the mark in respect of quality or quantity laid call at the contract.

EFFECT OF ACTUAL BREACH

Breach is described as how of discharge although it shouldn't automatically discharge the contract. Breach of contract leads to two main remedies, namely breach of condition, and breach of warranty.

Breach of a condition this is often a significant term, mentioned as breach of contract, which entitles the casualty to damages, and provides it an option to treat the contract as subsisting or discharged.

Breach of a warranty this is often a term, called non-material breach, which entitles the non-breaching party to damages. It doesn't have the proper to repudiate the contract, although a non-material breach can provide it the proper to defer performance until the breach is made good. However, once the breach is remedied, the non-breaching party must go ahead and render its performance, minus any damages caused by the breach.

Thus, it's clear from the above that not every breach entitles the casualty to treat the contract as discharged. It must be shown that the breach has affected a big a part of the contract, which it is a breach of condition rather than breach of warranty.

REMEDIES FOR BREACH OF CONTRACT

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.