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TRANSFORMATION IN TEACHER STUDENT RELATIONSHIP:CHANGE TOWARDS CAPITALIST PRODUCTION NATURE:CONTRACT : 

TRANSFORMATION IN TEACHER STUDENT RELATIONSHIP:CHANGE TOWARDS CAPITALIST PRODUCTION NATURE:CONTRACT Regulated by legal education service market. Teacher a legal education service provider : Seller of the legal education process product. Student a legal education service consumer : Buyer to be the consumer of service to transform himself in to a seller of legal service in the legal service market. Purpose of the contract: To create a legal knowledge and skill-product in the buyer which should be in demand in the legal service market. Teaching objective: Creation of a legal knowledge and skill-product in the buyer(student)which satisfy the demand of legal service market.(R&D for Curriculum)

Contract of legal education between the teacher and the student : 

Contract of legal education between the teacher and the student

Special about the contract : 

Special about the contract The consumer or buyer or student is a Party to the contract and also becomes the part of Purpose of the subject matter of the contract. Therefore the stakes of the buyer are very high in terms of quality of product than the seller.

The objective of quality control of the subject matter of contract law curriculum: Legal education product(Market centric) : 

The objective of quality control of the subject matter of contract law curriculum: Legal education product(Market centric) . (a) The student, the buyer, gets the career in legal service market which makes him happy. (b) The teacher, the seller, gets the satisfaction which makes him happy.

INDIAN TEACHER STUDENT RELATIONSHIP:PRIMITIVE SOCIALIST PLUS SOME KIND OF FEUDALISTIC : 

INDIAN TEACHER STUDENT RELATIONSHIP:PRIMITIVE SOCIALIST PLUS SOME KIND OF FEUDALISTIC Student (faithful disciple) education seeker. The education provision to be made through command system. Teacher (guru) education service provider. The faithful students were subject to uniform command system during the term of education without discrimination. The system survived during the substantial period of feudal production relations in India. The transformation in production relation from feudalism to capitalism transformed the teacher –taught relationship from command to demand supply (market) relationship.

EFFICIENT CONTRACT FORMATION IMPERATIVES : 

EFFICIENT CONTRACT FORMATION IMPERATIVES Inquisitive, alert, and absolutely honest with reference to legal education market forces. Ego-centricity in the parties is dangerous to the quality of the subject of the contract between the teacher and the student. How to deal with ego-virus.? Ubemarrie fidie contract?

Basic reading material : 

Basic reading material 1.Theory of knowledge. (Bertrand Russell) 2.Epistemology. 3.Origin of private property, family and state. (Fredrick Angel) 4.Marriage and Morals. (Bertrand Russell) Reading material Pages 1 to 135

LAW:A REFLECTION OF PRODUTION RELATIONS( ECONOMIC SYSTEM) : 

LAW:A REFLECTION OF PRODUTION RELATIONS( ECONOMIC SYSTEM) Primitive tribal communist production ( public property only) relations reflected the corresponding laws. (Instinctive mutual co-operation in the tribe was the basis of law) Feudal production (origin of private property) relations. (Feudal force was/is the basis of law) Capitalist production (Market forces is basis of law) Socialist production (command is the basis of law) Conclusion: Law is the super-structure of the economic system, and the economic system is infrastructure of law.

ECONOMIC RESOURCES(MEANS OF PRODUCTION) : 

ECONOMIC RESOURCES(MEANS OF PRODUCTION) EARTH:ANYTHING IN OR OVER IT AIR AND SPACE LIFE IN ANY FORM KNOWLEDGE:OF ALL KINDS LABOUR:OF ANY KIND AND FORM ETC.

ECONOMIC SYSTEMS(METHOD OF RESOURCES ORGANISATION) : 

ECONOMIC SYSTEMS(METHOD OF RESOURCES ORGANISATION) 1.SOCIALIST ECONOMIC SYSTEM:ADMINISTRATIVE LAW 2.CAPITALIST ECONOMIC SYSTEM:CONTRACT LAW 3.MIXED ECONOMIC SYSTEM:MIXTURE OF CONTRACT LAW AND ADMINISTRATIVE LAW ………………………………………………………….. The proportions of mixture of economic systems in a society reflects the proportions of the administrative and contract law applicable

GROWTH OF CAPITALIST MODE OF PRODUCTION: SIGNIFY GROWTH OF CONTRACT LAW : 

GROWTH OF CAPITALIST MODE OF PRODUCTION: SIGNIFY GROWTH OF CONTRACT LAW 1.Privatisation in the country signify the growth of capitalist mode of production in the country. 2.Globalisation signify : Globalisation of capital market and labour market Globalisation of all other eco-resources and Globalisation of market means globalisation contract law. (WTO) Rich capital-resource countries by and large have become poor labour-resource countries. 3.What needs to be globalised for the normal growth of capitalist mode of production: Globalisation of capital market and labour market ?

GLOBALISATION IMPERATIVES :LEVEL PLAYING FIELD ? : 

GLOBALISATION IMPERATIVES :LEVEL PLAYING FIELD ? Uneven or non-capitalist mode of development in the different nations creates conflicts of interest amongst the nations: a centripetal force for globalisation. Mutuality of interests in the capitalist mode of production across the nations: a centrifugal force for globalisation. Conflict of interest in the capitalist mode of production: a centripetal force for globalisation.

LAW OF CONTRACT ( METHOD OF ECONOMIC RESOURCES ORGANISATION) : 

LAW OF CONTRACT ( METHOD OF ECONOMIC RESOURCES ORGANISATION) LAW:THE REFLECTION AND REGULATION OF ECONOMIC SYSTEM CONTRACT LAW:REFLECTION AND REGULATION OF CAPITALIST ECONOMIC SYSTEM

ECONOMIC SYSTEMS(METHOD OF RESOURCES ORGANISATION) : 

ECONOMIC SYSTEMS(METHOD OF RESOURCES ORGANISATION) 1.SOCIALIST ECONOMIC SYSTEM:ADMINISTRATIVE LAW 2.CAPITALIST ECONOMIC SYSTEM:CONTRACT LAW 3.MIXED ECONOMIC SYSTEM:MIXTURE OF CONTRACT LAW AND ADMINISTRATIVE LAW ………………………………………………………….. The proportions of mixture of economic systems in a society reflects the proportions of the administrative and contract law applicable

CAPITALIST ECONOMIC SYSTEM :CONTRACT LAW SYSTEM : 

CAPITALIST ECONOMIC SYSTEM :CONTRACT LAW SYSTEM CO-RELATION CAPITALISM AND MARKET FORCES. CONTRCT LAW AND MARKET FORCES. CONFLICT BETWEEN ‘STATUTORY CONTRACT LAW’ AND MARKET FORCES. ECONOMIC SYSTEM AS INFRASTRUCTURE AND CONTRACT LAW AS SUPERSTRUTURE OF SOCIETY.

SPECIAL ABOUT CONTRACT LAW : 

SPECIAL ABOUT CONTRACT LAW CONTRACT LAWS Public law regulation of private legislation, which creates rights and duties. Existence interface with economic system. Method of learning has to be different. Contract legal language: More important.? OTHER LAWS Public law creates rights and duties. No existence interface with economic system. General method of learning. Important ?

PRINCIPLES OF LAW OF CONTRACT : 

PRINCIPLES OF LAW OF CONTRACT 1.GENERAL PRINCIPLES:CONTRCT-1 (Sections 1 to 75 of Indian Contract Act). 2.SPECIAL PRINCIPLES:CONTRACT-2 (Remaining sections of Indian Contract Act and few other Acts dealing with special contracts). 3.OTHER SPECIAL PRINICIPLES-Other special principles in other special contract courses.

GENERAL PRINCIPLES OF CONTRCT LAW(S.1-75) : 

GENERAL PRINCIPLES OF CONTRCT LAW(S.1-75) 1.CONTRACT FORMATION PRINCIPLES 2.CONTRACT DISCHARGE PRINCIPLES 3.SOME OTHER PRINCIPLES

CONTRACT FORMATION PRINCIPLES : 

CONTRACT FORMATION PRINCIPLES (Essentials of a valid contract..S.10) 1 Competent parties (S.11). 2 Offer(S.2(a),3,4,5,6.). 3 Acceptance(2(b),3,4,5,6,7,8.). 4 Consent(S.13,14,15,16,17,18,19,20-22). 5 Lawful consideration with lawful object (S.23,24.).

COMPETENT PARTIES (Section.11) : 

COMPETENT PARTIES (Section.11) Majority age (Sec.3,Majority Act xi of1875,Family Law Reform Act 1969..english) Sound mind (Sec.12,Economic rational behaviour test) No legal disqualifications. (Burden of proof :one who alleges)

NO MAJORITY AGE: IMPLICATIONS : 

NO MAJORITY AGE: IMPLICATIONS Mohoribibi Vs Dharmodasghose(1903)..void agreement No estoppels against pleading age disqualification. No liability in tort law..Johson V Pye case Doctrine of restitution..not applicable Application of restitution u/s 64(voidable contract) Application of restitution u/s 65(contract becomes or discovered to be void) Application of restitution under Specific Relief Act:Mohoribibi case,Khangul case..distinction Beneficial contract?? Voidable contract? Ratification Necessaries (sec.68)

PERSONS OF UNSOUND MIND : 

PERSONS OF UNSOUND MIND Indian law 1.Definition: section 12 2.Nature:void (Inder Singh Vs. P.Singh AIR 1957 Pat.491. 3.Burden of proof: who alleges English law 1.Competent to contract 2.(I)Voidable contract: If knowledge of defendant is proved. (II)Valid contract if the knowledge defendant is not proved or if it is confirmed by the plaintiff. 3.Burden of proof: who alleges

PROPOSAL S.2(a) : 

PROPOSAL S.2(a) 1.Two competent persons. 2.Communication(S.3) 3.Purpose:to seek the consent of other 4.Intention to make contract(Balfour V . Balfour(1919)2 KB 571 :Indian law:(1973)1SCC:yes,(1988)3SCC526: Doubtful ? Objective theory of intention determination: (Carlill V Carbolic Smoke Ball Company(1893)1QB 256

CATEGORISATION OF OFFER : 

CATEGORISATION OF OFFER 1.specific 0ffer 2. General offer..Lalman V.Gauridutt (1913) 11,All.L.J.489, and Carlill case 3.Standing offer 4.Continuing offer 5.Cross offer. 6.Counter offer. Hyde V.Wrench(1840)Beav 334.($1000-950 case)

INVITATION TO OFFER : 

INVITATION TO OFFER Definition. where a party without expressing his final willingness ,proposes certain terms on which he is willing to negotiate the contract he is said to make an invitation to offer Harvey Vs.Facey (1893) AC 552 Lowest price for Bumper Hall Pen,$900 case McPherson Vs.Appana AIR 1951 SC 184 Plaintiff offered to purchase a lodge from the def for Rs.6000.If found reasonable he is ready to pay more.Def.replied,”would not sell less than Rs.1000”.Plaintiff accepted it and brought the suit for specific performance. Decide?

Comparison : 

Comparison Invitation to offer Not capable of being accepted. Objective is to seek offer. May or may not generate offer. If offer is generated the offeree has the available options under the law. Offer Capable of being accepted. Objective is to seek acceptance. May or may not generate acceptance. If acceptance is generated the contract formation takes place.

Acceptance: irreversible happening : 

Acceptance: irreversible happening Consent. Reciprocal promises. Consideration. Agreement. Contract.

ESSENTIAL ELEMENTS OF ACCEPTANCE(Ss.2.b,3,4,5,6,7) : 

ESSENTIAL ELEMENTS OF ACCEPTANCE(Ss.2.b,3,4,5,6,7) 1.Two competent persons 2.Express or implied. 3.Absolute and unqualified. 4.Mode: usual and reasonable unless prescribed. 5.Mode prescribed: duty of the offerer 6.Time for acceptance: when prescribed. 7.Acceptance during subsisting offer. 8.Communication of acceptance.

COMMUNICATION OF ACCEPTANCE : 

COMMUNICATION OF ACCEPTANCE 1.By whom. 2.To whom. 3.When communication is complete: depends on means of communication. (a) Electronic means. (b) Non electronic means. 4.Postal rules of communication: jurisprudential crisis. 5.Jurisdiction

COMMUNICATION OF OFFER AND ACCEPTANCE WHEN COMPLETE (S.4) : 

COMMUNICATION OF OFFER AND ACCEPTANCE WHEN COMPLETE (S.4) 1.Offer : when it comes in the knowledge of offeree. 2.Acceptance: (a) as against the offerer..When it is put in the course of transmission so that it is… (b) as against the acceptor.. When it comes in the knowledge of the offerer. 3.Jurisprudential problem with acceptance communication rules.

OFFER MAY LAPSE OR BE REVOKED (S.6) : 

OFFER MAY LAPSE OR BE REVOKED (S.6) 1.Notice of revocation. 2.Lapse of time period or reasonable period of time. 3.Condition precedent failure. 4.Death or insanity of offerer.

REVOCATION OF OFFER AND ACCEPTANCE(S.5): WHEN ? : 

REVOCATION OF OFFER AND ACCEPTANCE(S.5): WHEN ? 1.Offer :May be revoked at any time before the communication of acceptance is complete as against the offerer. 2.Acceptance:May be revoked at any time before the communication of acceptance is complete as against the acceptor.

WHEN COMMUNICATION OF ACCEPTANCE IS DISPENCED WITH ? : 

WHEN COMMUNICATION OF ACCEPTANCE IS DISPENCED WITH ? If offer dispenses with communication of acceptance . Performance requirement may dispense with the communication of acceptance . In that case the moment performance is done offer stand accepted.

SOME CASES AS REFERENCE POINT OF DISCUSSION : 

SOME CASES AS REFERENCE POINT OF DISCUSSION 4.Lalman Vs. Gauri Dutt,(1913) Cal.L.J489 5.Carlill Vs. Carbolic Smoke Ball Co.(1893) 1 QB 256 6.Mir Sarwarjan Vs.Fakhruddin Mohd Chaudhary (1912) 39 Cal.232 :PC 39 IA 1

SOME CASES AS REFENCE POINT FOR DISCUSSION : 

SOME CASES AS REFENCE POINT FOR DISCUSSION (INTENTION TO MAKE CONTRACT) 1.Balfour Vs. Balfour (1919)2 KB 571. 2.Banwari Lal Vs.Sukhdarshan Dayal (1973) 1SCC 294. 3.CWT Vs. Abdul Hussain (1988)3SCC562

SOME CASES AS REFERENCE POINT OF DISCUSSION : 

SOME CASES AS REFERENCE POINT OF DISCUSSION (INVITATION TO OFFER) 7.Harvey Vs.Facey (1893) AC 552 8.Pharmaceutical Society of Great Britain Vs. Boots Cash Chemists Ltd.(1952) 2 QB 795. 9.McPherson Vs.Appanna AIR SC 184

CONTRACT LAW ON CONSENT (Ss.13 to 19) : 

CONTRACT LAW ON CONSENT (Ss.13 to 19) Contract law definition of consent: Section 13: Meeting of minds of two or more competent persons on three points. 1. On the identity of the persons. 2. On the identity of the subject matter. 3. On the identity of the transaction.

CONSENT : 

CONSENT

FREE CONSENT(S.14,19) : 

FREE CONSENT(S.14,19) Consent is free if it is not caused by; 1.Coercion.(S.15) 2.Undue influence.(S.16) 3.Fraud.(S.17) 4.Mis-representation.(S.18) 5.Mistake.? x .x ?

COERCION(S.15) : 

COERCION(S.15) ESSENTIAL ELEMENTS 1.Committing or threatening to commit an act forbidden by Indian Penal Code. 2.Detaining or threatening to detain the property. 3.To the prejudice of any person whatever.

SOME CASES AS REFERENCE POINT OF DISCUSSION : 

SOME CASES AS REFERENCE POINT OF DISCUSSION 1.Chikham Amiraju V.Chikham Seshamma (1917)14 Mad 33.Wallis,CJ,Seshagiri,J. Oldfield,J.dissented. 2.Andhra Sugars Ltd.V.State of A.P. A.I.R.1968.S.C.599

COERCION:DURESS : 

COERCION:DURESS 1.Re.essentils.(violence, imminent violence, threat to do something illegal ) 2.Re.origin. 3.Re.direction.near relation.(parents, wife, child and near relatives) 4.Re.property. K.Ammal V. K.Pillai (1987)1 Mad.L.J.138.

UNDUE INFLUENCE(S.16) : 

UNDUE INFLUENCE(S.16) 16.1:Definition.two parameters. (a) Dominant position. (de-facto or de-jure ) (b) Misuse of the position. 16.2:Presumtions of dominant position (a) Real or apparent position,fiduciary relation. (b) Affected mental capacity.age,illness, distress mental or bodily. 16.3:Presumtion of undue influence. 1. (a) Dominant position. (de-facto or de-jure ) (b) Unconscionable transaction. 2. Contract with Pardanashin lady. (through precedent)

SOME CASES AS REFERENCE POINT OF DISCUSSION : 

SOME CASES AS REFERENCE POINT OF DISCUSSION 1.Mannu Singh Vs. Umadat Pandey (1890) 12 All 532. 2.Raghunath Prasad Vs. Sarju Prasad, AIR 1924 PC 60: exorbitant rate of interest on money borrowed(Rs.10,000 at 24%,1,12,885 after 11 years) to defend a criminal case.(S.16.3).No 3.Ranee Annapurni Vs. Swaminatha (1910) 34 Mad 7 Poor widow, seeking to establish right to maintenance , loan at 100% interest.(Precedent) Yes Is the situation of mental distress? 3. Chand Singh Vs. Ram Kaur (1987)2 Punj. L.J 70: 70 years ,a parda widow,3 Daughters ,gifts land to tenant in possession of land : Held- Possession of land made the position dominant.

SOME CASES AS REFERENCE POINT OF DISCUSSION : 

SOME CASES AS REFERENCE POINT OF DISCUSSION 4.Hodges Vs. Delhi & London Bank (1901) 27 IA (PC) 168. definition of Pardanashin lady, quasi-Pardanashin. 5.Kalibaksh Singh Vs. Ram Gopal Singh (1913) 41 IA (PC) 23. Pardanashin gifted half of her property to son of her paramour case 6.Andhra Sugars Ltd. Vs. State of AP. AIR 1968 SC 599. Consent under statutory compulsion : Held to be free. Statutory compulsion if mental distress.?

COERCION Vs. UNDUE INFLUENCE : 

COERCION Vs. UNDUE INFLUENCE 1.Re subsisting relation. 2.Re dominant position. 3.Re special rules of evidence. 4.Re commission or threatened commission of acts forbidden by IPC. 5.Re detention of property. 6.Re tort or crime as well.

Fraud and Misrepresentation (Ss.17,18,19) : 

Fraud and Misrepresentation (Ss.17,18,19) Derry Vs. Peek (1889)14 A.C 337 Elements of fraud: 1.Statement of fact not opinion. (a) Statement (communication) (b) Silence if statement. Can silence communicate ? 2.Fact of the statement must be false. 3.Person making the statement either knows the fact to be false or do not believe the fact to be true. 4.To cause the consent.

Statement of fact not opinion : 

Statement of fact not opinion Opinion statement has two parts. (a) Fact part. (b) Opinion part. Fact part is representation of fact of situation. Opinion part represent the assessment on the fact part of the opinion holder which may be true or false.

Statement: if silence is statement : 

Statement: if silence is statement 1.Statemen.Express or implied statement. (a)Is silence a statement: It is implied statement. (b)If there is a duty to speak, silence may amount to statement.% (c)When there is a duty to speak. (i) Fiduciary relationship. (ii) Uberrima fides contract. Insurance contracts (iii) Context may create duty to speak. (iv) Change of circumstances. (v) Disclosure of half truth obligates to speak the whole truth. 3.If the silence makes the false statement. (a) Intentional or (b) Innocent 3.Cause consent. 4. Fraud or misrepresentation.

FRAUD Vs. MISREPRESETATION : 

FRAUD Vs. MISREPRESETATION Regarding intention. Regarding tort and crime. Regarding discovering truth with ordinary diligence defense. Regarding rescission and compensation (S.75,and The (English) misrepresentation Act,1967) Regarding communication or revocation of rescission.(Ss.3,66) Regarding consequences of rescission. (S.64.Restitution applicable)

Grounds of rescission right loss : 

Grounds of rescission right loss Affirmation.( Long V.Lloyd,(1958)2All.ER 402.Lorry in excellent condition case) Lapse of reasonable period of time. Subsequent sale in good faith. Mode: Notice, if not traceable ,FIR may work as notice of intention to rescind the contract

MISTAKE : 

MISTAKE Mistake (M)as to the identity of the parties. Mistake(M) as to the identity of subject matter. Mistake(M) as to the identity of transaction. Mistake(M) as to the law applicable. (no excuse) Mistake(M) as to the law not applicable. (fact: Subject matter) Mistake(M) as to the foreign law. (fact: Subject matter) Unilateral mistake of fact does (no effect on contract formation).

Mistake Vs Misrepresentation : 

Mistake Vs Misrepresentation Mistake(no com) Miss+ take=Mistake Missing the take. Unilateral..No effect on consent. Bilateral..No consent Affect presence or absence of consent Misrepresentation( com) Mis-take+Representation =Misrepresentation. False communication. Intentional..Fraud Innocent..Misrepresen.. Affect freedom of consent not existence.

Effect of mistake as to law: Ss 21,22. : 

Effect of mistake as to law: Ss 21,22. Mistake as to any law in force in India. (No effect: Ignorance of law no excuse) Mistake as to the law not enforce in India (Effect as a mistake as to the matter of fact) Unilateral mistake as to the matter of fact (No effect on contract formation)

SOME CASES AS REFERENCE POINT OF DISCUSSION : 

SOME CASES AS REFERENCE POINT OF DISCUSSION 1.Cundy Vs. Lindsay(1878)3AC459. Blenkarn& Co (Blenkiron& Co) Pl.persue developments. 2.Raffles Vs.Wichelhaus(1864):133 RR 853. Ex Peerless from Bombay(October-November) 3.Pratap Vs.Puniya,1977MP108. Old illiterate lady and uterine brother case.

SOME CASES AS REFERENCE POINT OF DISCUSSION : 

SOME CASES AS REFERENCE POINT OF DISCUSSION Krishnan Vs.Kurukshetra University, AIR 1976 SC 376 P.Sarojam Vs.LIC AIR1986 201 Long Vs.Lloyd:1958 All ER 402 Decent condition car case

CONSIDERATION (Ss.2.d,23,25) : 

CONSIDERATION (Ss.2.d,23,25) Definition :S.2(d) Forbidden considerations in contract formation:S.23 Relevance of consideration in contract formation:S.25

Consideration:S.2(d) : 

Consideration:S.2(d) Definition :S.2(d) When, at the desire of the promisor, the promisee 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.

When, at the desire of the promisor : 

When, at the desire of the promisor 1.Durga Prasad Vs. Baldeo(1880) 3All.E.R 221. The Plaintiff on the order of collector constructed a Ganj,def. promised to pay commission on items sold in lieu his construction of the shop: 2.Kedar NathVs.Gouri Mohamed 1886 ILR 14Cal 64 Commissioners of Howrah sought charitable subscription to construct Town Hall at Howrah . Charitable subscription Rs.100.Work started. Promissory Estoppel?. Held liable. 3.Abdul Aziz Vs. Masum Ali AIR1914 All 22 Charitable subscription Rs.500 for Mosque repair. Repairs not started as yet. Held not liable.

“THE PROMISEE OR ANY PERSON” : 

“THE PROMISEE OR ANY PERSON” 1.The party to the contract need not be party to consideration . 2.But the contract can be enforceable only by the party to the contract and not party to the consideration. English law: Dutton Vs. Poole (1677) 83 ER 523 If father forebear to sell the wood to give portion to his daughter the son promised to his father to pay $1000 to his sister. Brother held liable in a suit to sister? Overruled in Tweddle Vs. Atkinson (1861) 123 ER 762 after 200 years.

CASES AS REFERENCE POINT FOR DISCUSSION : 

CASES AS REFERENCE POINT FOR DISCUSSION Tweddle Vs. Atkinson (1861) 123 ER 762 The plaintiff was to be married to the daughter of one G and in consideration of this intended marriage G and the plaintiff ‘s father entered in to a written agreement by which it was agreed that each would pay the Plaintiff a some of money. G failed to do so and the plaintiff sued his executors. Whitman J considered it to be an established principle that a person can not take advantage of a contract, who is stranger to the contract. Basic propositions of English law: Consideration must move from promisee only. Stranger to contract can not enforce the contract.? Law revision committee 1937.(Benefit to third party)

Continued : 

Continued Tweddle rule stranger to the contract have no cause action is applicable in India. Indian exceptions:2 kinds 1. Statutory :Negotiable Instrument Act, Contract of Agency ,TPA, Bill of lading,Railway receipt,etc. 2.Judicial:Trust beneficiary,marriage,partition or other family arrangements, estoppel,covenents running with land.

.”Has done or abstained from doing": : 

.”Has done or abstained from doing": (On request of the promisor the consideration is furnished first and thereafter the promise is made) Executed and consideration: There can be two situations. (a) has done or abstained from doing on the request of promisor (b) has done or abstained from doing without the request of promisor. Promise is without consideration but enforceable u/s 25(2)

PRESENT CONSIDERATION : 

PRESENT CONSIDERATION “Does or abstains from doing” The point of time of furnishing the consideration is the same as that of making the promise by the promisor for the consideration.

FUTURE OR EXECUTORY CONSIDERATION : 

FUTURE OR EXECUTORY CONSIDERATION “Promises to do or to abstain from doing” The consideration for the promise is in the form of promise. The obligations are due from both the sides of the contracting parties. The reciprocal promises forming consideration for each other.

SOMETHING: SOME VALUE IN THE EYE OF LAW : 

SOMETHING: SOME VALUE IN THE EYE OF LAW Some (economic)value in the eye of law and value need not adequate. Doctrine of Laesio enormous ( less but enough) in civil legal system. Promise to forbear or forbearance to sue. Promise to compromise or compromising of dispute irrespective of its merits. Promise to perform or the performance of pre-existing of legal duty.? i. Contractual legal duty. ii. Non-contractual legal duty.

Pre-existing contractual duty. English law : 

Pre-existing contractual duty. English law 1.Promise to pay amount less than due. No consideration English (Pinnell) rule (1602) 5 Co Rep 117a. 2.Exceptions: (a) Part payment by third party. (b) Payment before due time. (c) Payment at different place or different mode (c) Promissory Estoppel.

Continued… : 

Continued… Indian law, Section 63 “Every promisee may (i) dispense with or remit, (ii) wholly or in part, (iii) the performance of the promise made to him, or (iv) may extend the time for such performance ,or (v) may accept instead of it any satisfaction which he thinks fit”

Exceptions to the consideration requirements : 

Exceptions to the consideration requirements 1.English law. (a) Contracts under seal. (b) Simple contract.

Indian law: Section 25 : 

Indian law: Section 25 Section 25,read with Section 2.e) 1.Promise is in writing and registered. 2.Promise to compensate for something done. 3.Promise to pay debt barred by limitation law.

Promise expressed in writing..love and affectionSection 25(1) : 

Promise expressed in writing..love and affectionSection 25(1) 1.It is expressed in writing and 2.registered under the law for the time being in force for the time being and 3.is made on account of natural love and affection 4.between parties standing in near relation;

CASES AS REFERENCE POINT FOR DISCUSSION : 

CASES AS REFERENCE POINT FOR DISCUSSION 1.Rajlukhy Dabee V. Bhootnath Mookerjee (1900)4 Cal.WN 488 :husband wife case. 2.Bhiwa V.Shivaram (1899)1 Bom.LR 495: two brothers property sharing case.

Promise to compensate for something doneSection. 25(3) : 

Promise to compensate for something doneSection. 25(3) 1.It is a promise to compensate, wholly or in part, 2.a person who has already voluntarily done something for the promisor, or 3.something which the promisor was legally compellable to do;

Is a promise to pay a debt barred by limitation ( Section 25.3) : 

Is a promise to pay a debt barred by limitation ( Section 25.3) It is promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for limitation of suits. In any of these cases, such an agreement is a contract.

Promise to pay time barred debt and acknowledgement to pay : 

Promise to pay time barred debt and acknowledgement to pay 1.Section 25.3 is applicable in case of promise to time barred debt. 2.It is not applicable in case acknowledgement. Limitation of period takes place under the Indian Limitation Act.

SOME CASES AS REFERENCE POINT OF DISCUSSION : 

SOME CASES AS REFERENCE POINT OF DISCUSSION Which promisor is bound u/s 25.3 Bombay High Court. original time barred debtor only, P.M.Mody V.Bai Meherbai(1928) 30Bom.L.R1407 Madras High Court. Any person who promise to pay the time barred debt P.G.Nair V. P.A.Nair AIR 1940 Mad.678 ??

What considerations and objects are lawful, and what not ( Section 23) : 

What considerations and objects are lawful, and what not ( Section 23) The consideration or object of an agreement is lawful, unless- 1.It is forbidden by law; or 2.Is of such a nature that ,if permitted, it would defeat the provisions of any law; or 3.Is fraudulent; or 4. Involves and implies injury to the person or property of another; or 5.The court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful, is void.

Illegality of consideration or illegality of object of consideration : 

Illegality of consideration or illegality of object of consideration The “object” and “consideration” may in some cases be the same thing but usually they are different. Chandra Sreenivasa Rao V. Kovapatti Raja Rama Mohana Rao AIR1952 Mad 579 Money is borrowed to celebrate the child marriage. Child marriage Restraint Act 1929; to celebrate the marriage of child is offence. Here debt-consideration itself is not illegal but the object of debt is illegal

1.Forbidden` by law : 

1.Forbidden` by law Law includes: Statutes, Customary law , Precedent, rules and regulations, etc. Nandlal V.Thomas J.William,171 IC 948 The plaintiff was licensed under an Excise Act which forbids its sale, sub-lease, but he took the defendant in partnership. Partnership held void

2.Is of such a nature that ,if permitted, it would defeat the provisions of any law; : 

2.Is of such a nature that ,if permitted, it would defeat the provisions of any law; Fateh Singh V. Sanwal Singh (1878)1 All. 751 The accused is required under Cr.P.C to surety bond for Rs.5000 for good behavior for certain period, he deposits the sum with the defendant when period is over refused to pay. Held not recoverable.

3.Is fraudulent; : 

3.Is fraudulent;

4.The court regards it immoral : 

4.The court regards it immoral Parameters of immorality: Immorality is a relative term in relation to values of the society at particular time and space. The arbiter of the standard is the court. The survey of the judicial decision reflects that immorality is limited to sexual immorality as of now.

IN THE OPINION OF COURT IT IS IMMORAL: Immorality is limited to sex outside marriage : 

IN THE OPINION OF COURT IT IS IMMORAL: Immorality is limited to sex outside marriage Gherulal V. M.Maiya (1959) 2SCA 342 Subba Rao J (after CJ) The case law in England and in India confines the doctrine to sexual immorality D.Nagartnamba v Kunuku Ramayya AIR 1968235:1 SCR 43. BACHAWAT J Certain properties were gifted my a male of joint Hindu family for past cohabitation case failed for incompetency but BACHAWAT J recognised “the past cohabitation as good consideration.”

Instances of sexual immorality : 

Instances of sexual immorality Interference with matrimonial relations. Bai vijli V. Nansa Nagar (1885) 10 Bombay 152 :Money lended to seek divorce, not recoverable. Dealing with prostitutes :Pearce V. Brookes( 1866)LR 1EX 213.Thing sold and hired for prostitution. Illegal cohabitation: Past,present,future.?

COHABITATION AS CONSIDERATION : 

COHABITATION AS CONSIDERATION PAST COHABITATION. English law under seal valid otherwise it is past consideration. Indian law .1.adulterous or.2. non-adulterous cohabitation. Dhiraj Kuer V.Bikramji Singh (1831)3All 787 :Past cohabitation held good consideration. Pyare Mohan V. Narayani AIR 1982 Raj.43 :Logic different-gift needs no consideration logic. Husseinali Casan V.DinbaiAIR1924 Bom.135:Past cohabitation is illegal consideration. D.Nagartnamba v Kunuku Ramayya AIR 1968235:1 SCR 43. Certain properties were gifted my a male of joint Hindu family for past cohabitation case failed for incompetency but BACHAWAT J recognised “the past cohabitation as good consideration.”

In the opinion of the court opposed to public policy : 

In the opinion of the court opposed to public policy ENGLISH LAW 1.Public policy 2.Judicial observations on “public policy” Lord Halsbury in Egertone V.Brownlow (1953)4HLC 123 “I deny that any court can invent new head of public policy.” Lord Atkin in Fender V.Johan Mildmay (1938) AC.1 “ The doctrine should be invoked in clear cases in which the harm to the public is substantially incontestable, and does not depend upon the idiosyncratic inference of a few judicial minds”

Public policy: Indian Law : 

Public policy: Indian Law Subba Rao J( after wards CJI) in Gherulal V.Mahadeodas AIR1959 SC781 Justice Subba Rao blended Halsbury and Atkin to articulate the Indian position. “the primary duty of the court is to enforce the promise which the parties have made and to uphold the sanctity of the contract which forms the basis of the society : but in certain cases ,the court may relieve them of their duty on the rule founded on what is called the public policy; for want of better words Lord ATKIN describes that something done contrary to public policy is a harmful thing; but the doctrine is extended to harmful cases but also to harmful tendencies; the doctrine of public policy is a branch of common law and just like any other branch of common law, it is governed the precedents; the principles have been crystallized under different heads and though it is permissible for the courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public.

4. Involves and implies injury to the person or property of another : 

4. Involves and implies injury to the person or property of another Ram Swarup V. Bansi Mandar (1915) 42 cal,742:Borrowed Rs.100 with exorbitant interest and executed a bond or to work for 2 years without salary. Slavery? Beresford V. Royal Insurance Company Ltd. (1917) 2 All.E.R.243: Suicide to help representative to get money. The representative not allowed to get money.

HEADS OF PUBLIC POLICY : 

HEADS OF PUBLIC POLICY 1.Trading with enemy. 2.Traffiking in public offices. 3.Marriage brokerage agreement. 4.Interference with administration of justice. (a) Interference with the course of justice. (b) Stifling prosecution. (c) Maintenance and champerty. 5.Unfair deal; Central Inland Water transport corporation Vs. N Ganguly AIR 1986 SC 1571 Termination of service3months notice without reason .

VOID AGREEMENTS : 

VOID AGREEMENTS 1.Illegal agreements.24 2.With out consideration.25 3.Restraint of marriage.26 4.Restraint of trade .27 5.Restraint of legal proceedings.28 6.Uncertain agreements.29 7.Wagering agreements.30 8.Impossible agreements.56

Agreement in restraint of trade is void(S.27) : 

Agreement in restraint of trade is void(S.27) 27.Agreement in restraint of trade void-Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. Exceptions; 1.Statutory. (a). Sale of goodwill, limits specified, which is reasonable. (b). Under Indian Partnership Act. 2.Judicial.

Lawful profession trade or business : 

Lawful profession trade or business One is restrained from exercising lawful 1.Profession 2.Trade or 3.Business 4.Occupation amounting to business 5.Occupation is not covered

English law: Restraint : 

English law: Restraint Nordenfelt V.Maxim Nordenfelt Guns and Ammunition Co Ltd (1894) AC 535 1.Not to practice the same trade for 25 years (Reasonable) 2.Not to engage in any business for the time being carried on by the company.( unreasonable) 3.He afterwards enters into agreement with another manufacturer of guns and an action for restrain was filed. 4.New law laid down (a) In the interest of parties. (b) In the interest of society as well.

Restraint in terms of time and space before 1894 : 

Restraint in terms of time and space before 1894

English law: Reasonable restraint permissible : 

English law: Reasonable restraint permissible Two parameters: 1.Reasonable with reference to the interest of parties. 2.Reasonable with reference to the public interest. The restriction should be framed and guarded as to afford adequate protection the party in whose favor it is imposed while at the same time it is no way injurious to the public interest

Indian law: All restraints covered : 

Indian law: All restraints covered Madhub Chander V.Raj Coomar (1874)14 Bengal Law Reporter 76. Two rival shopkeepers in a locality case. COUCH J held; “ The words ‘restraint from exercising a lawful profession, trade or business’, do not mean an absolute restriction, and are intended to apply to a partial restriction limited to some place.”

Profession, trade or business : 

Profession, trade or business 1.Rewashanker Samji V. Vedji AIR 1951 Kutch 56: agreement to monopolize the work to perform the religious services: held void? Religious services if trade, business or profession ? 2.Pothi Ram V.Islam Fatima AIR 1915 All.94 Two landlord in the neighbourhood,in order to avoid competition agreed to hold cattle mela on different dates in the same neighborhood . Held binding.? If occupation?

Statutory exceptions : 

Statutory exceptions A. Under section 27. 1.Sale of goodwill. Definition of ‘goodwill’: Lord Eldon (Cruttwell V.Lye Ves.335) “The goodwill which has been the subject of sale is nothing more than the probability that the old customer will resort to old place" (old name of business) Local limits are prescribed. Limit appear to be reasonable, regards being had to the nature of business.

Continued…. : 

Continued…. (B).Under Indian Partnership Act. 1. Section 11:During the continuance… 2.Section 36 : Out going partner…. 3.Section 54: In anticipation of dissolution… For sections 36 and 54,local limits or period be specified ,which should be reasonable.

Judicial exceptions : 

Judicial exceptions 1.Trade combinations. S.B.Fraser and Co.V. Bombay Ice Mfg.Co. (1904)29 ILR Bom.107 (Regulation not restrain) 2.Solus or exclusive dealing agreements. Carliles Nephews and Co.V.Ricknauth Buttermull ILR (1882) 8 Cal 809 Agreement to sell 1,36,000 dhotis of certain description to the defendant only for certain period of time. (Assuring market not restraint)

Continued…. : 

Continued…. 3.Service agreements with restraint on employees: (a) Restraint during employment. Charlesworth V. MacDonald (b) Restraint beyond employment period. Niranjan Shanker V.Century Spinning and Manufacturing (1967) SC 1098 The appellant torn the agreement to pieces only because he has been offered higher salary by the other company.

Agreement by way of wager is void. (Section 30) : 

Agreement by way of wager is void. (Section 30) Definition: Justice HAWKINS in Carlill V. Carbolic Smoke Ball Co.(1892)2QB484 “A wagering contract is one by which two persons professing to hold opposite views touching the issue of a future uncertain event , mutually agree that, dependent on the determination of that event, one shall pay or hand over to him, a sum of money or other stake; neither of the contracting parties having any other interest in that contract than the sum or stake he will win or loose, there being no other real consideration for the making of such contract by either of the parties. It is essential to wagering contract that each party may under it either win or lose, whether he will win or lose being dependent on the issue of the event, and,therefore,remaining uncertain until that issue is known. If either of the parties may win but cannot lose, it is not a wagering contract”

ESSENTIAL ELEMENTS OF WAGER : 

ESSENTIAL ELEMENTS OF WAGER The parties holding opposite views. About a (future) uncertain event. Mutually agree to pay a certain sum of money or other stake. On the determination of the uncertain event. The parties are interested in money or stake only and not in the event otherwise. Mutual chances of gain or loss of certain sum of money or stake.

Exception u/s 30 : 

Exception u/s 30 1.Horse racing with Rs.500 and above. Note-Nothing in this section shall be deemed to legalize any transaction where section 294-A is applicable.

Examples : 

Examples 1.Lottory in Subhash Kumar Manwani V. State of M.P. AIR 2000 MP 109. 2.Life Insurance contract If the insurer does not have ‘insurable interest” it is a wagering agreement.

Discharge of Contract : 

Discharge of Contract A contract may be discharged through the following methods: 1.Performance (Ss.31-67) 2.Impossibility of performance. 3.Agreement. 4.Breach.

Impossibility of performance,S.56 : 

Impossibility of performance,S.56 Section 56 1.Existing impossibility: void agreement. 2.Supernuing impossibility: void contract. 3.Compensation for loss through non performance of act known to the party to be impossible.

SOME CASES AS REFERENCE POINT OF DISCUSSION: Meaning of impossibility : 

SOME CASES AS REFERENCE POINT OF DISCUSSION: Meaning of impossibility 1.Satyabrata V.Mugneeram AIR 1954 SC 44 :1954 SCR 310 This much is clear that the word “impossible” has not used here in the sense of physical or literal impossibility. It should be impracticable and useless from the point of view of the object and purpose of the contract.

English law: The doctrine of frustration: theories : 

English law: The doctrine of frustration: theories The of implied term. Lord Loreburn in F.A.Tamplin Steamship company . Theory of just and reasonable solution.Denning LJ British Movies News Ltd V.London and District Cinemas Ltd.(1951) 1KB 190 Effects of frustration Frustration should not be self-induced. Frustration operates automatically. The frustration is not applicable in India ?

Specific grounds of impossibility : 

Specific grounds of impossibility Destruction of subject matter. Change of circumstances. Non occurrence of contemplated event. Death or incapacity of party. Governmental administration. Intervention of war.

Discharge by breach of contract : 

Discharge by breach of contract Definition of breach of contract: When a party to the contract either refuses to perform or fails to perform or incapacitates himself to perform his part of the contract obligation he beaches the contract. Kinds of contract breach: The breach of contract is two kinds: Anticipatory breach of contract. Breach

Anticipatory breach of contract : 

Anticipatory breach of contract Definition: It is the breach of the contract by the party to contract in anticipation of the date of the performance of the contract. Effects: The innocent party is excused of the performance of contract. The choice of action of the aggrieved party. Right of Immediate action. Hochester V.De La Tour (1853) 95 RR 747. Courier hiring case. Anticipatory breach of contingent contract. Frost V.Knight (1872) L.R.7 Exch.111. Engagement promising to marry on father’s death but refused to marry before father’s death, immediate action is maintainable.

Continued… : 

Continued… Right of action on due date of performance. Consequences: The anticipatory breacher may opt to perform the contract on due date. Damages shall be calculated on the current market rate if market principle is applicable. Discharge by any other event may benefit the parties

Breach of contract Section73 : 

Breach of contract Section73 When a contract has been broken, a party who suffers by such breach is entitled to receive, from the party who has broken the contract, Compensation for any loss or damage caused to him thereby ,which naturally arose in the usual course of things from such breach, (general damages) Or which the parties knew, when they made the contract, to be likely to result from the breach of it.( special damages ) Hadley V. Baxendale (1854)9 Ex 341 Alderson B

Two steps in compensation determination : 

Two steps in compensation determination Identification of the loss or losses for which the compensation is awardable to the aggrieved. Conversion of loss in to money compensation.

Identification of loss or the losses to be compensated in case of breach : 

Identification of loss or the losses to be compensated in case of breach Section 73 provides two rules for the identification of the loss or losses to be compensated. (1) Any loss or damage caused to him thereby ,which naturally arose in the usual course of things from such breach. (2) Any loss which the parties knew at the time of contract making as likely to result from the breach.

Conversion principles of damage in to damages : 

Conversion principles of damage in to damages There are two important principles for converting the damage in to damages. 1.Market principle if applicable. Market forces will play a decisive role. 2.Evaluation principle if market principle if market principle is not applicable. The opinion of the experts will be important for the judge to make the judgment.

Certain relations resembling those created by contract(Ss.68-72) : 

Certain relations resembling those created by contract(Ss.68-72) Rationale: English law 1.Theory of unjust enrichment. Lord Mansfield in Moses V.Macferlan (1760) All.E.R 581 2.Theory of “Implied-in-fact” contract Lord Mansfield in Sinclair V. Brougham (1914) AC 398

S.68:Claim for necessaries : 

S.68:Claim for necessaries Meaning of necessaries: Alderson B in Chappel V.Cooper (1844)13 LJ(Ex)268 “Things necessary are those with out which an individual cannot reasonably exist. In the first place, food, raiment, lodging and the like. About these there is no doubt. Again, as the proper cultivation of the mind is as expedient as the support of the body ,instruction in art or trade, or intellectual ,moral and religious education may be necessary also . . . Then the classes being established, the subject and extent of the contract may vary according to the state and condition of the infant himself. His clothes may be fine or coarse according to his rank; his education may vary according to the station he is to fill; and the medicines will depend on the illness with which he is afflicted, and the extent of his probable means when of full age. . . But in all these cases it must first be made out that the class itself is one in which the things furnished are essential to the existence and of reasonable advantage and comfort of the infant contractor. Thus articles of mere luxury are always excluded, though luxurious articles of utility are in some cases allowed.”

Continued. : 

Continued. Nature of liability : Indian law 1.Not personal. 2.To the extent of property. English law

Nature of Liability : 

Nature of Liability Not personal To the extent of property English Law Nash vs Inman (1908 (2) KB 1)

Section 69Reimbursement of a person paying money due by another, in the payment of which he is interested. : 

Section 69Reimbursement of a person paying money due by another, in the payment of which he is interested. The person must be interested in the payment Another person must be bound to pay by law Person paying is entitled for reimbursement Govindram Gordhandas Seksaria V.State of Gondal AIR 1950 PC 99 Maharaja having sold certain mills without paying overdue municipal taxes, was sued by the buyer who has to pay to save the property from being sold.

Section 70:Obligation of a person enjoying benefit of non-gratuitous act : 

Section 70:Obligation of a person enjoying benefit of non-gratuitous act The service or act must be non-gratuitous The other person must enjoy the benefit The person enjoying the benefits needs to pay compensation for the same State of West Bengal V.B.K.Mondal & sons AIR 1962 SC 779 The plaintiff on the request of the officer of the State of West Bengal constructed a Kutch road,guard room, office, ,kitchen, room for clerks and storage sheds for the use of the civil supply department of the Government.

Section 71 :Responsibility of finder of the goods : 

Section 71 :Responsibility of finder of the goods A person is a finder of the goods The finder takes the goods in his custody Finders responsibility is that of bailee Section 168 :Right of the finder of goods. Section 169: When finder of thing commonly on sale may sell it. When the thing is perishable When the lawful charges of finder, in respect of the thing found, amount to two third of its value

Section 72 : 

Section 72 Liability of a person to whom money is paid or thing delivered by mistake or under coercion Mistake of fact or law. Coercion. Sales Tax Officer, Banas V. Kanhaiya Lal Mukund Lal Saraf AIR 1959 SC 135 Tax was paid on its forward transactions which was held ultra-vires