Law Of Contract Notes
Question No. 1: Who is competent to contract Discuss the law relating to minor’s agreement in India, with case laws. Also brief about English Law Indian law in this context ?
Minor’s agreements are void ab-initio. In which case the above rule was established. Discuss in brief that case and also bring out the exceptions to the above rule ?
What do you understand by “capacity to contract” What is effect of Minor’s agreement and when can it enforced?
Discuss the nature and effects of Agreement by minor?
Answer – INTRODUCTION:- All agreements are not contracts. Section 10 of contract deals with the condition of valid contract. According to section 10 of Indian Contract Act, 1872 for valid contract parties must be competent and the consent must be free. Therefore the competency of the parties to a contract is most essentials element of a contract.
According to section 11 of Indian contract Act 1872, every person is competent to contract who is of the age of majority according to law to which is subject and who is of sound mind and not disqualified from contracting by any law to which he is subject. Therefore, following persons are competent to contract –
- Sound mind.
It is evident that minor’s and unsound mind person cannot make a contract. A Major person means who has attained the age of 18 years. The age of majority has been decided by Indian majority act 1875. In case of guardian appointed by the court, the age shall be 21 years.
Agreement by a minor is void-ab-initio (void in itself), such contract cannot be enforced by law. Further the minor cannot authorise any other person to do a contract.
In case of Mohiri Bibi vs Dharmodas Ghosh (1903) A minor Mr. Dharmodas Ghosh executed a mortgage documents for Rs.20,000.00 in favour of a money lender Sh. Brahmo Dutt. The money lender paid Rs.8,000.00 to the minor. It is important that before this transaction the guardian of the minor informed the Attorney of Money lender that he is minor. Later on a suit was instituted by the petitioner ( Dharmodas Ghosh ) against the money lender Sh. Brahamo dutt with the intention that the mortgage be set aside. This suit was opposed by Money lender by saying that the above contract being voidable, he has the right to receive the amount of the loan under section 64 and 65 of India Contract Act, 1872 i.e. minor is bound to return back the amount.
Privy council held that,“ the contract is void ab-initio which cannot be enforced.” It was also held that the minor could not be asked to repay the loan taken by him. It was further held that law of estoppel cannot be applied against the petitioner being mis-stated falsely his age because he was minor at the time of the agreement and the agreement was void. The law of estoppel as stand in section 115 of Indian Evidence Act was not applicable to the present case as the plaintiff was minor at the time of making agreement, this fact was also known to the agent of Brahmo Dutt defendant. Under Specific Relief Act 1877 Section 38 and 41 applies where party had the knowledge of minority age gets restitute degree.
But, it has been held in various cases. A minor is bound for the beneficial contract. The beneficial contract are those contracts which are for the benefit of minor. The first case was S.Subramanyam v/s Subha Roy-1948 – In this case transfer of inherited property of a minor affected by his guardian to pay off an inherited debt was binding on him for his benefit. Here is a list of beneficial contract-
- Contract of Insurance Such contracts are in the benefit of minors.
- Contract to purchase the immovable property Such contract are valid.
- Contract of service – These are for the benefit for the minor.
- Contract of apprentice ship Training period of any minor who is taking training from any person, because of the training minor will save his livelihood. It is for his benefit and one is liable to compensate that person.
- Contract of Marriage When guardian made an agreement for the marriage of the minor then another party cannot enforce it, but minor can enforce it. If agreement is made jointly by guardian and minor, it can be enforced again on majority age.
- Contract of Necessities- According to section 68 of the Contract Act-1872, minor is also liable for necessaries. Necessaries means the basic things of the life. These are mainly, Food, Shelter and clothing . If any person supplied necessaries to minor then the minor is liable to compensate the supplier. In case of Chapple vs Cooper The court held that necessaries are not only food, shelter, clothes but also education or religious and any such things which are necessary for life, comes under the definition of necessaries. The following two conditions are necessary for liable.
i) The supply must not be more than sufficient.
ii) The supply must be according to the standard of minor.
PETRESS VS FLEMING
The supply of a watch to a minor whose study was considered as the necessity because to have a watch for graduate person is his necessity.
RATIFICATION OF THE MINOR’S AGREEMENT
A minor’s agreement being void- ab-initio, it is incapable of being validated a subsequent ratification after the minor has attained the age of majority. Here is minor accepts the contract in some terms is entered during minority then also he is not liable. If a minor takes 2000.00 in minority and Rs.3000- after getting majority age and said major give back Rs.5000- then this is valid and with consideration. After getting majority age if minor uses his option to be a partner, he will be bound for all the responsibilities of minority period, which are against the firm.
CONTRACT BY MINOR GUARDIANS
- If the agreement is on behalf of minor done by guardian.
- With in his Power.
- Guardian is capable to enter into contract.
- The agreement will be in the interest of minor.
A case of Raj Rani vs Prem – Father agreed with the Director of Film, and according to this agreement Director of Film will give a role to Indrani. It was held void because no consideration was therein. It this agreement is with the daughter then it is void ab-initio. If it is with his father then it has no value even to think over it.
DOCTRINE OF RESTITUTION
Restitution means if an agreement is declared void, benefit should be returned. Under section 64 & 65 of contract Act, that section 68 is applies only on voidable agreements, Section 56 is applies on the agreement which were valid at the time of formation but due to some circumstances(as under sec.56) it becomes void. Under the equitable doctrine of restitution minor has to restore back the benefit so received by him the exact things but it is applicable in case of goods and property not in the case of money. Restitution stop where repayments begins.
A case of Leslie vs Sheill- (1914) – It was held by the court of Appeal that the money could not be recovered. If there were allowed that would amounts to enforcing the agreement to repay loan, which is void under Inflants Relief Act-1874.
Section 39(3) specific Relief Act 1877 If the court thinks he may pass an order of restitution in any case, now a question arises whether he person did not know about the age of minor. If minor is also not know his age. In this stage plaintiff does not get compensation. If respondent misrepresent his age on this point there are different view of court.
In case of KHARGIL VS LAKHAN SINGH -1928 Lahore high court, the court ordered a minor to refund Rs.17500- which he had taken in advance for the sale of land. When he refused to complete the contract. The court was of the opinion that still the Specific Relief Act should apply whether the minor was the plaintiff or the defendant. The doctrine of restitution should apply whether the minor had taken the goods or money.
In case of, Ajudhiya Parsad vs Chandan Lal – 1937, Allahabad High Court refused to following, extended view of restitution and held that a minor who had taken money by mortgaging his home was not bound to restore the money. Now section 33(2)(b) added according to this section, when a plaintiff wants to dissolve the agreement and says that at the time of agreement he is minor than he can get back all his profits.
DOCTRINE OF ESTOPPEL
According to rules contained in Sec.115 of Indian Evidence Act 1872, if you make a statement today, which misleads another person, you are not allowed to deny the statement to-narrow when the question of your liability arises. A question whether a minor who has made a false representation about his age is stopped from pleading his minority, was raised, but it was not decided in this case of Mohiri Bibi. Privy Council held that where the party knows about the age of minor this principle could not apply. The question arises that whether minor can be stopped by false representation as to his age is now settled by this case.
In case of Nawab Sadiq Ali Khan vs Bibi Jai Kishori- 1928 It was held by Privy Council that if a minor makes a contract by fraudulently expressing his age more than actual then he cannot be stopped as per the rules of estoppel that he was minor at the time of contract.
INDIAN AND ANGLO LAW
It is difficult to differentiate between both the law in respect of contract by minor’s but generally the difference in both the law is –
- Contract by minor under Indian law is void ab-initio.
- It is voidable under English Law, such contract can be declared void on the will of minor.
If the contract is for the benefit or fulfilment of necessity of minor. Then it shall be binding.
QUESTION NO 2.- Difference between void and illegal agreement? OR
All illegal agreements are void but all void agreement are not illegal. Comments
According to section 2(g) of Indian Contract Act 1872, Void agreement is , “ Agreement is not enforceable by law said to be void.” For instance, an agreement by a minor has been held to be void. Section 24 to 30 of the Indian Contract Act 1872, make a specific mention of agreement which are void. Generally the following agreements are not enforceable by law.
- Whose parties are not competent to do a contract i.e. minor and unsound mind.
- Whose parties do not have free consent i.e. they are under coercion, undue influence fraud & misappropriation etc.
- Whose consideration and object has not been lawful.
- Which are immoral or against public policies.
- Which do not create valid (illegal) liabilities between the parties.
- Which have been declared as void by the court etc.
All above agreements are void because they cannot be enforced by law.
Illegal agreements are such agreements whose consideration and object are not lawful i.e. they are illegal. Such agreements are mentioned in section 23 of the Indian Contract Act 1872. The following agreements are considered as illegal-
- Which are prohibited by Law.
- Which is of such a nature if followed would defeat the provisions of law.
- Which is fraudulent.
- Which is causing injury to body or property of any other person.
- Which have been declared by the court as immoral or against public policies.
After the definition of void and illegal agreements we have considered the following statements –
“ That all illegal agreements are void agreements but all void agreements need not necessarily be illegal.” It can be adjudged from the following –
- Illegal agreements are void – ab-initio which cannot be enforced by law at any time whereas void agreement need not be void-ab-initio, such agreements could become un-enforceable by law later. EXAMPLE- An agreement takes place between the citizen of India and Pakistan which was enforceable by law at the time agreement, but later on in the event of war between India & Pakistan the agreement becomes un-enforceable whereas agreement to pay money by A to B for illegal intercourse is void ab-initio which cannot be enforced any time.” This shows the illegal agreements are always void whereas void agreements are not always illegal.
- Parties of illegal agreements can be punished whereas the parties of void agreements cannot be punished. EXAMPLE – An agreement to encourage any woman for prostitution by paying her money is punishable but an agreement by minor or without consideration is not punishable. This also proves the fact that every illegal agreement is void but every void agreement is not illegal because illegal agreement is of punishable nature whereas void agreement is not. Void agreement does not contain the element of illegal agreement whereas illegal agreement contains the elements of void agreement.
- Void agreement cannot be enforced at any time and illegal agreement is also never enforceable by law. Hence illegal agreement contains implicitly the element of illegal agreement.
- Illegal agreement are those which are mentioned in Sec. 23 of contract act whereas void agreements included various other types of agreement, like agreement by minor or unsound mind persons, agreement without consideration etc.
- Void agreements include illegal agreements which are not enforceable by law, but illegal agreements need not contain all types of void agreement. This shows that all illegal agreements are void but all void agreements are not illegal.
Question No 3 : All contracts are agreements but all agreements are not contracts?
Discuss the rule for the formation of a valid contract when a contract becomes complete?
Introduction : –
- MULLA :- Every agreement or promise enforceable by law is a contract.
- SALMOND :-Contract is an agreement creating defining obligations between parties.
A contract is an agreement enforceable by law. An agreement is the prime stage of the contract. If agreement is enforceable by law or if agreement is recognised by law then it will become a contract otherwise not.
To make contract an agreement it is essential that no contract is possible without an agreement, but we cannot say that all agreements are contracts. Section 2(h) of contract Act says that, “ Agreement enforceable by law is a contract.” All agreement e.g. to see cinema is not contract, if offer is accepted then it becomes promise. Promise is followed by consideration then it becomes agreement and if an agreement is enforceable by law then it becomes CONTRACT, see below :-
- Proposal + acceptance = PROMISE
- Promise + consideration = AGREEMENT
- Agreement+ Enforceability = CONTRACT
AGREEMENT :- Agreement Section 2(e) “Every promise or set of promises forming the consideration with each other, is an agreement”.
PROMISE :- Promise is an important part of the agreement. A proposal when accepted becomes promise.
PROPOSAL/OFFER :- According to section 2(a) when one person signifies to other his willingness to do or to abstain from doing anything, with a view of obtaining the assent of that offer to such act or abstinence, he is said to make a proposal.
ACCEPTANCE:- According to section 29(b) of contract act when the person to whom the proposal is made signifies his assent there to the proposal then it is said to be accepted. A proposal when accepted becomes promise.
CONSIDERATION :- Section 2(d) of contract act defines consideration. Section 2 says that an agreement made without consideration is void unless :-
- Natural love and affection. Sec.25 of contract act, the parties to the agreement must be standing in a near relationship to each other. The promise should be made by one party out of natural love and affection for the other. The promise should be in writing and registered.
- Compensation for past voluntary services sec. 25(2) in Case, Sindha v.Abrahim-1895 Bombay : The promise to compensate though without consideration is binding because of this exception. The exception also covers a situation where the promise is for doing something voluntarily”
- Promise to pay time barred debt: Sec.25(3): The promise must be to pay wholly or in part a time barred debt i.e. a debt of which the creditor might have enforced payment but for the law for the limitation of suit. The promise must be in writing and signed by the person to be charged therewith.
ENFORCEABLE BY LAW :- in Indian Contract Act 2(h) it says that contract is agreement enforceable by law. If an agreement is enforceable by law then it is CONTRACT, otherwise merely an agreement.
To make an agreement a contract in Indian Contract Act section 10, the following conditions must be fulfilled :-
- Competent Parties :- Section 11 says, contract should be made with person who must be major and sound mind not disqualified by law.
- Free Consent :- Section 14, says that consent must be free, when it is not caused by coercion, undue influence under section 16, fraud under section 17, misappropriation under section 18 and mistake under section 20.
- Lawful consideration & object :- According to section 23, when agreements consideration or object are unlawful, they are void.
- Not expressly declare as void:- The such agreements which are made without consideration or expressly declared to be void as per section (25) are no contract, these are as under:-i)Agreement in restrain of marriage section-26. ii)Agreement in restrain of trade section-27. iii)Agreement in restrain of legal proceedings section -28. iv)Agreement which is ambitious and uncertain sec.29. v) Agreement by way of wages section-30 vi) Agreement to do an impossible act section-56.
FORMALITIES PERFORMED IF NEEDED BY LAW:- The person by whom the contract must be performed at particular time and place and performance opportunity of payment. Thus when these conditions are fulfilled then an agreement is made contract because these are enforceable by law.
DIFFERENCE BETWEEN AGREEMENT AND CONTRACT
1. Three important points for agreement are-
1. Two important points for contract are –
2. An agreement could be legal or illegal.
2. Agreement in contract to be lawful and enforceable by law.
3. Agreement may or may not be
Enforceable by law.
3. Contract is enforceable by law
4. Area of agreement is very wide as it can be any type legal, moral etc. Any agreement even if not enforceable by law remains an agreement.
4. Area of contract is limited as every agreement are not contract.
5. The certain of valid liability is not requires in all agreement like, moral, religious etc.
5. In contract the valid liability is created between the parties.
Question No 4 :- Discuss the meaning of consideration? When the consideration becomes unlawful? How does the Public Policy Effect he consideration?
An Agreement without consideration is void.” Discuss with Exceptions ?
Answer : INTRODUCTION : The consideration has important place in contract. It is important part of Contract. A valid contract requires a consideration. Agreement without consideration are void. The study of consideration in respect of the subject matter is required.
Section 2 (d) of the Indian Contract Act- 1872 defines consideration. It says, “ When at the desire of the promisor, the promise or any other person has done or abstained from doing or does or abstains from doing or promises to do or to abstain from doing-something, such act or abstinence or promise is called a consideration for promise.”
In other words when a the desire of one person, another person does sense act or abstains from doing, then it consideration for the first person.
ILLUSTATION :- ‘A’ purposes ‘B’ to buy his cycle for /rs.1000.00. ‘B’ agrees to buy that cycle for Rs.1000/-. Here Rs.1000/- is the consideration for cycle.
According to Pollock :- “ A party does or abstains from doing or promise to do or abstain from doing something, is a price for which the promise is bought, the promise thus given for value is enforceable.
According to Auson :- “ Consideration is that which is to be done abstain from doing, to be bear or promises to do or which the promises abstain from doing in respect of promise or bears it.”
ELEMENTS OF CONSIDERATION:-
- Consideration to be at the desire of promisor.
- Consideration can be given by the promise or any other person.
- Consideration may be past, future or present.
- Consideration must be legally adequate and valuable.
- Consideration must be valid.
In case of Mirahul Enterprises V/s Mrs. Vijaya Srivastav AIR 2003, Delhi High Court said that a valid agreement requires the consideration to be definite.
In Case :-Durga Parsad v/s Baldev The Plaintiff constructed certain shops in a market at the instance of the Collector of that place. Subsequently the defendants occupied one of the shops in the market. Since the Plaintiff had spent money for the construction of market, the defendants in consideration thereof, made a promise to pay the plaintiff commission on the articles sold through their (defendant) agency in that market. The plaintiff failed to pay the promised commission. In an action by the plaintiff to recover the commission, it was observed that the consideration for the promise to pay the commission was the construction of the market by the plaintiff. Such construction had not been done at the desire of the defendants, but on the order of the Collector. It was therefore held that since the consideration did not moved at the desire of the defendants ( Promisors in this case), this did not constitute valid consideration and therefore the defendants were not liable in respect of the promise made by them.
TYPES OF CONSIDERATION ;- There are three types of consideration which are as under :-
- Past consideration.
- Present consideration.
- Future consideration.
Present consideration means such consideration which is paid to the promissory immediately. For example : ‘A’ offers to ‘B’ to sell his vehicle for Rs.50,000/-, ‘B’ pays to ‘A’ Rs.50,000/- at that moment, and ‘A’ gives the possession of vehicle to ‘B’. This is present consideration.
Past consideration is the consideration for the service or promise performed in past. For example :- ‘X’ at the desire of ‘Y’ takes care of the family of ‘Y’. After three years ‘Y’ promises to ‘X’ that he shall pay him Rs.10000/- for his services given. Here, the services provided by ’X’ in the past to ‘Y’ shall be called past consideration.
Future consideration means such consideration which shall be paid in future. For example :- ‘X’ promises to sell his house for Rs.75,000/- to ‘Y’ on 5th.Feb 2003, and both parties decide that possession of house shall be delivered on 1st.Dec.2003 and on that day he payment of Rs.755,000/- shall be made. This is future consideration, because the contract had originated on 05.02.2003 but its consideration was to be paid on 1st December, 2003.
WHEN THE CONSIDERATION IS ILLEGAL
A valid contract requires the consideration to be valid or legal contract with illegal consideration is not enforceable. Sec.23 of Contract Act tells those situations in which the consideration shall be considered to be illegal. These situations are as under:-
- When it is prohibited by law.
- When it is of such nature that if followed would defeat the provisions of law.
- When it is fraudulent.
- When it involves injury to the person or property of another.
- The court regards it as immoral or opposed to public policy.
Consideration forbidden by Law:-Such agreements are void. An agreement or act forbidden by law is that which is not permitted by law to be followed or which is against the law. in case of Ram Sewak v/s Ramcharan : AIR 1982 Allahabad, the partners of a partnership firm made an agreement for the concealment of profit for the purpose of deceiving tax. It was held illegal consideration or an agreement forbidden by law.
Consideration to defeat the provisions of Law:- An agreement with such consideration is also void, whose purpose is to defeat the provisions of law. In other words, where an agreement is done with such consideration that if applied would defeat the provisions of law, then such consideration and agreement shall be considered void.
For example ‘A’ and ‘B’ agrees with the intention that they shall be able to take any dispute related to a particular subject to the court, even though the limitation for it has been determined,. This agreement defeats the provisions of Limitation Act, and is therefore void.
In Nutan Kumar v/s Additional District Judge, Banda (AIR 1994 Allahabad), Allahabad High Court held that such an agreement between landowner and tenant which is inconsistent to the provision of Rent control Act shall be void. Such agreements cannot be enforced through court.
Fraudulent Consideration: Agreement with such consideration which are fraudulent, are void. For example A, B and C agrees for the partition among themselves of the profits obtained or to be obtained by fraud. Agreement is void because its object and consideration is against law.
Consideration to cause injury to Body or property of any other person:- Such agreement is void whose object and consideration are illegal owing to be causing injury to body or property of any other person.
Immoral and Opposed to Public Policy:- Agreement with consideration being immoral and opposed to public policy are void and unenforceable. Several decisions of court in his respect have been made. Several judicial decisions have considered following object and consideration to be immoral and opposed to public policy :-
- Agreement to lent house on rent for prostitution.
- Agreement to lent vehicle to be used for prostitution.
- Agreement to provide money to have cohabitation with the wife of any other person.
- Consideration of earlier cohabitation.
- Agreement to give consideration for future illegal cohabitation.
A case of Subhash Chandra v/s Narbada Bai (AIR- 1982 of MP) A man made agreement for maintenance with a woman. It was the result of an earlier cohabitation with a woman with that man. Court held it to be void and unenforceable. Agreement with consideration being opposed to public policy are also void. The public policy does not have any universal definition, but several judicial decisions have considered following things to be against public policy :-
- Insurance conscience.
- Obstruction in freedom.
- Elements creating restrain to trade or natural or legal rights.
- Against good conduct etc.
The following agreements have been considered to be against public policy :
- Agreement to cause injury to public service.
- Transfer of decree for the purpose of avoiding the effect of decree to other creditors.
- Agreement to pay money in return of marriage.
- Agreement to bribe for adoption etc..
in case of SBI v/s Aditya Finance and Leasing co. – 1999 (Delhi) , It was held that the land spotted or embarked for residential purposes is used for commercial purposes by an agreement which shall be void by being against public policy. Thus the agreement with such consideration that adversely effect over the interest of common people or which are not proper in respect of public shall unenforceable by being void.
AGREEMENT WITHOUT CONSIDERATION ARE VOID
As we have seen above that Consideration is essential for a valid contract. Agreement without consideration cannot be imagined. Section 25 of Indian Contract Act-1872 clearly provides that “ Agreement without consideration is void.”
FOR EXAMPLE:- ‘A’ promises ‘B’ to pay him Rs.2000/- without any consideration. This is void agreement.
Exceptions :- But the above rule have some exceptions also i.e. an agreement without consideration in following situation is valid and enforceable :-
- Agreement Under Natural Love and Affection:- Agreement without consideration due to Natural Love and Affection are valid and enforceable provided that they are written and registered.
- Agreement to pay compensation for past service Where any person without the knowledge of promisor or otherwise than his prayer, does any service or has done service and the promisor promise to compensate him, there consideration shall not be required, with the following thing which are necessary :- i) An act has been voluntarily done already for the promisor. ii) At the time of commission of that act, promisor was competent to contract. For example ‘A’ at the desire of ‘B’ does service for the relatives of ‘B’. Later ‘B’ agrees to pay Rs.1000/- to ‘A’ for the service. This agreement been result of earlier service is valid and enforceable. Such consideration is also called past consideration.
- Agreement for payment of Time Barred Debt. Such an agreement for payment of a debt barred by time under limitation act, is considered to be lawful because a time barred debt is also a good consideration as the debt remains ever after the completion of time of recovery. In Tulsiram v/s Samey Singh AIR-1981 (Delhi), Delhi High Court held that an agreement for the payment of a time barred debt can be made under Se.25(3) but it requires that the agreement shall mention that consent has been given for the payment of time barred debt.
Question No. 5. Discuss contingent contract. Elaborate with suitable illustrations ?
Answer :- INTRODUCTION : Contingent contract is special types of contract. Generally in most contracts rights of parties are enforced immediately after the execution of contract, but sometimes there are contracts whose enforcement depends upon happening or non-happening of an event.
Section 31 of Indian Contract Act 1872 defines that Contingent Contract according to it : “A contingent contract is a contract to do or not to do something, if some event, collateral to such contract does or does not happen.”
‘ A’ contracts with ‘B’ that if the house of ‘B’ destroyed by fire then he shall pay Rs.10,000/- to B. It is contingent contract because the enforcement of contract depends on the happening or non happening of an event.
Thus the contingent contract depends upon the happening of a uncertain event. If the event is of certain nature, then it shall not be contingent contract.
ELEMENTS OF CONTINGENT CONTRACT
These are as under:-
- The contingent contract depends upon the happening or non-happening of an event.
- Such event shall be of uncertain nature i.e. it may or may not be happen.
- Such event is not the part of mutual promises of parties.
- Happening or non happening of the event does not depend on the will of the parties.
- The future uncertain even is collateral to the main contract.
Ranchoddas V/s Nathmal Hirachand and company 1951 (Bombay)
In this case the court decided and did not accepted the contention and said that reaching of cloth to India was a method of delivery. This cannot be said contingent contract.
NATURE OF CONTINGENT CONTRACT:-
Section 32 to 36 of The Indian Contract Act, 1872mention that various forms of contingent contract like:-
- i) According to Section 32 . Contingent contract to do or not to do be anything if an uncertain event happens cannot be enforced by law unless and until that event has happened. If the event becomes impossible such contract becomes void.
EXAMPLE:- A contract to pay B a sum of money when B marries C. C dies without being married to B. The contract becomes void.
- ii) Section 33 says : contingent contract to do or not to do anything, if an Uncertain future even does not happens can be enforced by law when the happening of that event becomes impossible.
EXAMPLE:- A agrees to pay to B a sum money if a certain ship does not return. The ship is sunk. The contract can be enforced when the ship sinks.
iii) Section 34 says : that if future event on which a contract is contingent is the way in which a person will act at an unspecified time, the event shall be considered to become impossible when such person does anything which renders it impossible that he should so act within any definite time, or otherwise than under further contingencies.
EXAMPLE:- A agrees to pay B a sum of money if B marries C. C marries D. The marriage of B to C must now be considered impossible, though it is possible that D may die, and that C may afterwards marry B .
- iv) Section 35 says that :- contingent contacts to do or not to do anything if a special uncertain event happens within as fixed time become void if, the expiration of the time fixed, such event has snot happened, or if, before the time fixed, such becomes impossible.
EXAMPLE:- A promises to B to pay a sum of money if a certain ship returns within a year. The contract may be enforced if the ship returns within a year, and becomes void if the ship is burnt within the year.
- v) Section 36 says that : contingent contract to do or not to do anything if an impossible event happens, are void, whether the impossibility of the event is known or not to the parties to the agreements at the time when it is made.
EXAMPLE: – A agrees to B, a sum or Rs.1000.00, if two straight lines should on close a space. The agreement is void.
Contingency dependent on the behaviour of the parties. It is important that if the performance of the promise depends on the mere will and pleasure of the promisor, it is no promise at all but promise to pay what a third party decide is valid promise.
Question No.6 : Define Fraud ? Distinguish between Fraud and Misrepresentation. Whether silence amounts to fraud?
What are the factors which vitiate consent and make the Agreement Void or voidable?
What is consent? When is consent said to be free under Indian Contract Act?
Distinguish between coercion and undue influence.
Answer : INTRODUCTION :-
An agreement becomes contract if it fulfils the conditions of /section 10. According to sec. 10 for an agreement becomes contract with law full object and consideration. It means free consent is not free then the contract is invalid. But it is voidable not void. Voidable means a contract which can be declared void by the court at the option of other party.
under sec.2(1). Section 198, 10(a) also deines the term voidable.
Section 13 : Consent : According to Indian Contract Act 1872:- “ Two or more persons are said to consent when they agree upon something in the same sense.”
In the above definition it shows that (i) At least two persons are must (ii) for the same thing and same sense.
EXAMPLE: At least two persons are must:- A agrees to sell his house to B for Rs.50,000/- B accepts this proposal.
For same thing and same sense:- ‘ A’ have two cars; one Maruti and the other is Fiat. He agree to sell to B. A might be thinking to sell Maruti car while B might be thinking to purchase fiat car. In this EXAMPLE A & B do not agree upon the same thing in the same sense, hence there is snot contract in this case.
A Free Consent :- under sec.14 Consent: is said to be free when it not caused by : i) Coercion Sec. 5.15 (ii) Undue influence sec..16 (iii) Fraud sec..17 (iv) Misrepresentation .18 (v) Mistake 5.20.
In other words consent is free if it is not affected by coercion, undue influence, fraud and misrepresentation. In case of consent taken by mistake the consent shall be void.
- COERCION ( 5.15) :
Coercion means by force or compulsion. Coercion is a method of doing consent. This method is against the law. When any person by doing an illegal act gets the consent of any other person on an agreement it is called coercion. It means:
Explanation : It is immaterial whether the IPC-1860 is or is not in force in the place where the coercion is employed.
(a) Threading to commit any act forbidden by IPC: If consent obtained by threat of committing act forbidden by SC it called is coercion. EXAMPLE : A kidnapped a son of B, A says you give me your scooter in Rs.50/- then I will give you your child. B agreed, it is a coercion. Case : Masjidi v/s Ashiya 1880: It was held that it cannot be simple upon these facts that the consent of such person was caused by coercion.
In Raganayaswami V/s Alyar Sette, a Madrasi man died leaving behind a widow. The relative of the dead threaded the widow to adopt a boy otherwise they will not allow her to remove the dead body of her husband. The widow adopted the boy and subsequently applied to cancel the adoption. The court held the adoption is not valid.
Muthiah Chettiar V/s Karupan Chettiar
A was an agent of B. A at the end of his services denied to give account to other agent. He said to B to release him from liabilities otherwise he shall not give the account book. It held by coercion.
(b) Threat to commit suicide: It comes under sec.15.
In case of Ammiraja V/s Seshamma, A person held out a threat to commit suicide to his son and wife, if they refused to execute a release deed in his favour. They executed the deed in his favour. It was held by the court that this coercion. According to old filled J threat to commit suicide no body can be punishable under IPC, and suicide itself not a crime under IPC, because after suicide no body can be punished. Only attempt to commit suicide is punishable.
(c) Un lawful detaining of any property : According to sec.15 coercion could also be caused by unlawful detaining or threatening to detain any property to the prejudice of any person whatsoever with the intention of causing any person to enter into an agreement. Property may be moveable or immovable. If one person detains unlawfully, it is coercion.
(d) To Prejudice of a person : Coercion may be against a party as well as against any person.
(e) Legal Threatening not coercion:- A commits accident with B. B says you give me Rs.500 otherwise I shall sue against you. It is not coercion.
(f) Place of coercion: coercion may be committed at any place. It may also be committed even outside India.
(g) Burden of proof on Plaintiff:
(h) Remedies: Voidable or restitution.8
Andhra Sugar Ltd. v/s State of Andhra Pradesh– 1968 : It was held that the agreement cannot be said to be by lack of free consent.
- UNDUE INFLUENCE : SEC.( 16)
Undue influence means unreasonable influence or improper or not right influence. When consent is taken by way of unreasonable influence or improper way then it is not free. The consent can be declared void on this ground. Section 16 says that when any person has such position over the other person as to dominate his will, the person who dominates the will of the other must have superiority over the other. This is done under the following conditions.
1.Relationship superior or inferior may be real or apparent relationship as
(a) Money lender or borrower.
(b) Income Tax Officer and shopkeeper.
(c) Income Tax Officer and assessee.
(d) Police and thief.
Case :- J.R.Bhatt v/s State of U.P. Pt. Was employed in the court of UP. He wants a leave. Registrar said leave can be granted on the condition if you will not come in service after the end of leave. He wrote it. It was held by servant under undue reference influence.
2. Fiduciary Relationship :- 1. Advocate & Client. 2. Master & Servant. 3. Guru and chela 4. Father and children 5. Teacher & student. 6.Doctor & Patient. 7. Creditor and Debtor. 8. Trustier and benefishes. In Manu Singh v/s Umadat Pandey, An old Hindu woman gifted the whole property to her religious guru to get peace in heaven. It held undue influence .
Parda-Nashin women : contract with parda-nashin women is presumed to have been induced by undue influence. She can avoid the contract unless he other party can show that it was her intelligent and voluntary act, A case : Ismiel v/s Amir Bibi 1902 : It was held that the women does not become parda-nashin women.
Mental sickness:-If one party is not in position to think his interest due to mental sickness. Case : Rani Annpurna v/s Swami Nath. A widow who did not have any mental fitness went to creditor, she got Rs.1500/- or 100% interest. It was held voidable because she was not in a position to give free consent. The Party attempted to influence the will of other party. A state of mental fear is not undue influence. If a party is in a position to influence other’s will it is not undue influence whether other party gets damaged.
Real Damage :- If no damage is done to the Pt. Then it will not be undue influence. Remedies : 1. Voidable u/s 19.2. Restitution u/s 64 3.damages u/s 73. The court under section 19 can declare the whole agreement as void or the court may be declared it void on reasonable condition.
Burden of Proof. : Pt. Will have to prove that the def. Was in a position to dominate the will of the pt. Thus if such relationship is proved by the pt. The court will presume the undue influence. Now burden to disprove this presumption comes on defendant, that there was no undue influence. He should prove that he did not try to dominate other’ will.
- He paid sufficient consideration to aggrieved.
- That the plaintiff had opportunity to take free advice.
- Effect of Undue Influence:- Section 19A says when consent to an agreement is caused by undue influence, the agreement is a contract, voidable at the option of the party whose consent was so caused.
FRAUD UNDER SECTION (17)
Section 17 defines that “ Fraud “ includes any of the following act committed by a party to a contract or with his connivance or by his agent with intent to deceive another party there or his agent or to include him, to enter into the contract( whenever a person obtains any material advantage from another by unfair and wrongful means. It is said that he has committed fraud. Fraud is the wilful representation made by a party to contract with the intent to deceive the other party or to induce such party to enter into a contract.
ESSENTIALS OF FRAUD :-
- To give a suggestion that a fact is true, while it not true: (false suggestion) such suggestion, which is not true.
- Active concealment of a fact which is in the knowledge of the person: Every body has the duty to disclose the defects in the material or the property while entering to the contract, if it is not done then the agreement is based on fraud. EXAMPLE :- ‘A’ agrees to transfer his land to B but the land is already mortgaged to C, A does not disclose this fact. It is a fraud.
- To do such promise without intention of perform(false promise )
- Any other act fitted to deceive.
- Any act which is declared by law as fraudulent : such as in slavery act for companies it has been specified that certain type of transfer of property is fraud.
- Fraud committed by partner or agent of the firm: such as River silver mining v/s Smith AIR 1869: The court held that this act was done by the Agent of company is liabe.
- There must be a false representation i.e. A shopkeeper tells B that these goods are fresh. It is A option to reject it. It will not be fraud.
- Representation must have been made by the Party or by his agent: The representation must have been made knowing that it is false without knowing its truth. In both cases it will be fraud.
- The representative must have been an intention to deceive.
- Mere silence is no fraud: according to sec.17 of Indian contract act,1872 A contracting party is not obliged to disclose each and everything to the other party. Merely because a person does not disclose the defects in the goods sold by him, there is no fraud. In Shri Krishan v/s Kurukshetra University- 1976, It was held that there was no fraud by the candidate and the University has no power to withdraw the candidature of the candidate on that account.
- There are two exceptional cases where mere silence may amount to fraud- i) Duty to speak : when the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak. Keeping silence in such case amounts to fraud.In case of Srinivasa Pillai v/s LIC of India, AIR-1977, It was held that the claim is not maintainable against the insured corporation. ii) Duty to disclose changes :- If a statement is true when made, but subsequently becomes false by the change of circumstances, there is duty to disclose the change before the other party acts upon it.
Prof of Fraud
Fraud is essentially a question of fact and has to be proved by the person who alleges that the fraud was done on him.
MISREPRESENTATION (UNDER SEC. 18)
When a false statement is made with the knowledge that it is false and also with the intention to deceive the other party and make him enter into a contract on that basis, it is known as Fraud,
But when the person making a false statement believe the statement to be true and does not intend to mislead the other party to the contract, it is known as “Misrepresentation” it is somewhat different from fraud. EXAMPLE : ‘A’ while selling his watch tells ‘B’ that his watch is made in Switzerland, A does not know that the watch is not made in Switzerland. It is fraud because the watch is made in India. A is guilty of misrepresentation.
It includes :- 1) The positive assertion, in a manner not warranted by the information of the person making it of that which is not true, though he believes it to be true. 2. Any breach of duty which without an intention to deceive gains an advantages to the person committing it.
- The positive assertion of material fact: When one party believes that his statement is true but it is not true, it is called misrepresentation. Case: The Ocean steam Navigation comp. v/s Sunderdas Dharmsay: ‘A’ sold ship telling it is of 28 tons but it was of less tons. ‘A’ did not know about it. It held misrepresentation.
- Any Breach of duty : When on Party without intention of committing fraud breaches duty and if he also takes benefit from the agreement it will be misrepresentation. Case : Bamarsi Dass v/s New India Assurance : Actually one liability of party released in that deed held misrepresentation. There was the duty of the party to disclose the fact of deed. B could not read it but he did not. It means he trusted on A and it is his false statement, which held then it is Misrepresentation.
- Innocent Misrepresentation: When false statement is made innocently then it is Misrepresentation. Smith v/s Land & House Property Corp.: A sold a hotel and said that all rent holders are gentleman. Actually they it all were defaulters. It held misrepresentation. In Case of, Derry v/s Peek(1889),it was held that the management of the company was guilty of misrepresentation, and not for fraud. In another case : Noor-ud-din v/s Umerao Bibi 1998: A sale deed was challenged on this ground that it was executed under fraud and misrepresentation seller was a blind person. He was also not paid sufficient consideration. The possession of property was also transferred to the buyer, court declared such sale deed to be set-aside.
FRAUD & MISREPRESENTATION DIFFERENCE BETWEEN
1. Fraud contains the intention to deceive.
It does not contain any such intention.
2. The facts are altered with the intention to deceive the other person.
No such thing in misrepresentation. Any is presented as such presented as such whereas it does not came out to be true
3. The guilty person has the knowledge of truth.
The guilty person has no knowledge of truth.
4. Fraud is a type of tort and so punishable.
It does not come under tort.
5. Contract by fraud can be rescinded to demand compensation.
Contract by misrepresentation can only be rescinded not demand of compensation.
6. The guilty person cannot take the defence that the victim person as plaintiff could have find out the truth.
Such defence could be availed.
MISTAKE (Section: 20-22)
The fifth element defecting the consent is MISTAKE, contract by mistake are either void or voidable. It is not a free consent. One or both of the parties may be working under same.
Mistake is of three kinds :-
- Mistake in the mind of the parties is such that there is no genuine agreement at all. There is no meeting of minds or consensus ad idem.
- There may be mistake as to a matter of fact relating to that agreement.
- The mistake essential to the agreement as to the subject matter.
TYPES OF MISTAKE :-
Mistake when there is no consensus ad idem: According to sec.13, two or more persons are said to consent when they agree upon the same thing in same sense. If there is no meeting of minds or consensus ad idem, there arises no contract which could be enforced.
Section 20 requires that:- Mistake of both the parties : The agreement is void if there is mistake on the part of both the parties. In case of Ayekam Angahal Singh v/s Union Bank Of India, AIR- 1970, It was held that since the mistake was unilateral, the contract was not affected thereby and the same could not be avoided.
According to Sec.21 of the Indian Contract Act which lays that mistake of law of country is not excusable i.e. any contract is done under a mistake of law being followed in India then such contract shall not be voidable, but if contract is under a mistake of foreign law that i shall be void, i.e. Mistake of Foreign Law and Mistake as to individual rights. Case : Cooper v/s Phibbs-1867: The court held that the mistake related to general ownership shall the same effect what the mistake of fact would have. Mistake of fact is not excusable.
EXAMPLE :- ‘A’ agrees to buy horse from ‘B’ at the time of agreement, the horse had already died but both the parties had no knowledge of it such, agreement is void.
The following points are important in respect of Mistake of Fact :-
- Mistake must be mutual. In case of Courturier v/s Hastie: 1856, It was held that the agreement was void because of the mutual mistake as to existence of the subject matter.
- Mistake must relate o any substantive fact, like mistake as to identity of the parties, identity of subject matter identity of nature of transaction etc.
- Mistake must relate to present or existing fact.
Case : Raffles v/s Wichellehaus – 1864 : It was held that owing to mistake as to the identity of subject matter of contract, such contract was void.
- Mistake as to Promise:- If a mistake because of which the promise does not reflect the real intention which was there in the proposed agreement, such an agreement would be void. Case :Hartog v/s Colins& Shields: 1939 It was held that there had arisen no contract in this case because the buyer could have noticed the mistake.
Question No. 7:- Explain the law relating to agreement in restraint of trade with reference to Indian Law along-with exceptions?
Answer :-INTRODUCTION : Section 25 to 30 of the Indian Contract Act-1872 mentions that those agreement which are void. Void agreement are defined in sec. 2(g) of the act. According to it :- “An agreement not enforceable by law is said to be void.” Thus sec.25 to 30 of the act mentions following agreements to be void :-
AGREEMENT IN RESTRAINT OF TRADE
Section 27 of the act mentions that all such agreements shall be void which creates restraint or partial restraint in any type of occupation, trade or business of a person. In simple language, agreements creating restraint in lawful trade, occupation or business are void.
Indian constitution provides every person the freedom to trade, occupation or business. This freedom cannot be interfered except in certain situation. Freedom of trade, occupation or business is in accordance to public policy. This is the reason that this provision has been mentioned in sec.27 of the act. But it is important that a reasonable restraint on trade, occupation or business shall not make an agreement void. The requirement is that restraint shall be reasonable.
In case of, Northernfelt v/s M.N.Felt Guns and Ammunition Co. Ltd. 1894, It was held that before declaring agreement in restraint of trade to be void, the reasonability of restraint shall be examined and the examination shall consider mainly that whether it is reasonable or not for parties or public interest.
EXAMPLE : If two neighbouring land owner agrees that they shall not organise market for cattle on their lands on the same day then such agreement shall not be void because it is in the interest of both.
In case of, Ms.S.Dey Forments Industrial Ltd v/s Ravindera Nath S.Kamath 1999, It was held that where any person is appointed in a company as an advisory and a condition is laid that he shall not act anywhere during his service, there such an agreement shall not be void.
The above rules does have few exceptions which are under :-
- Sale of Goodwill : Where the goodwill of any trade, occupation or business is sold, there the buyer shall have an agreement with the seller that the seller shall not do any such business within the local limits for a specific time which shall be done by the buyer with that goodwill. Four things are necessary for the exception- i) Trade is similar, ii) Within specified local limits, iii) Buyer is doing such business, iv) The restraint is reasonable in the eye of court.
In case of Gujrat Bottling Co. Ltd. v/s Coca Cola Co. 1995, It was held that provisions related o agreement in restraint of trade shall not apply in such matters in which are prohibited only for the time of existence of contract. If they are applied even after the termination of contract, then i shall be void.
- Partnership Agreements : Where there is an agreement between partners at the time of formation of firm that any partners shall not carry a similar or otherwise any trade during the existence of partnership, then such an agreement is not considered to be creating restraint.
- Dissolution of Partnership :- If any agreement is made between the partners at the time dissolution of partnership or a partner shall not carry a business similar to that of firm for a specific time, then such agreement shall not be void provided that it is reasonable.
Question No.8 : What do you understand by ‘Quasi-contract? State its essential features.
Quasi-Contract are in law but not in fact. Explain.
Quasi- contract is not the product of an agreement entered into parties but a creation of law on the basis of equitable principles.” Discuss the above statement and state the quasi contract relations recognised by the India in Contract Act.?
What do you understand by Quasi-contracts? Explain some relations which are resembling to those created by contracts as incorporated under the Indian Contract Act 1872.
Answer :- INTRODUCTION: For a valid contract there must be offer, acceptance and consideration with some other requirements. But sometime the position comes when there is neither offer not acceptance still there is contract. Such position is put under the category of “ Quasi- Contract” or relation resembling to those contract.
The term Quasi Contract generally means half or ‘semi’. It means Quasi contract is half or semi contract. But this meaning does not fulfil our aim. It is a confusing term. However we can say that ‘quasi contract’ means the contract, which is equal to that of a valid contract. Chapter 5 of the Indian Contract Act deals with such situations under the heading of certain relations resembling to those created by contract. The chapter avoids the word ‘quasi-contract’.
Generally the contracts or agreements are the result of acts of parties. Parties agree to do or not to do something but several times there is no agreement between the parties, but still the liabilities arise between the parties such liabilities are called by, Quasi-Contract.
Definition : Indian Contract act does not define the Quasi-contracts. It only mentions that, certain relations resembling those created by contract. However the various jurists have defined the Quasi-contract as under:-:According to Wharton’s Law Lexicon: “ An act which has not strict form of a contract but has the effect of it, is an implied Contract.”
According to Desai : Quasi contract or implied contracts are exceptional kind of contracts by which one party is bound to pay money in consideration of something done or suffered by the other party. They are not founded on actual promises but arise when one party so conducted himself that he must be deemed as if had made promise although he has not,”
According to Pollock:- “Quasi contracts are contracts in law but not in fact.” In other words it can be said that Quasi contracts is not a product of an agreement entered into parties but a creation of law on the basis of equitable principles.
Basic of Quasi-Contract : Lord Mansfied is considered as the father of this contract. According to him, ‘Natural justice demands that one should not get unjust profit at the cost of another unjust loss. This order has been laid down in the case of :- MOSES v/s MACFERLAN : Such action lies for money paid by mistake or upon a consideration which happens to fail or for money got through imposition or extortion or oppression or for an undue knowledge taken of the pt’s situation. Country to the law made for protection of persons under those circumstances of the case. It is obliged by lies of natural justice and equity o refund the money.
Under section 68 to 72 It has been recognised by Indian Contract act under the heading of , Certain relations resembling to those contracts.
CHARACTERISTICS OF QUASI-CONTRACTS
- These agreement are never made by parties but imposed by law.
- One party is bound to pay money to other party.
- Such contract gives right to one party. Again the other party in not against world.
- Only money can be obtained not the liquidated damages.
KINDS/ESSENTIAL OF QUASI-CONRACT
- Necessaries supplied to a person of contracting: Sec. 68 says that if a person who is incapable to enter into a contract is supplied necessaries, then he is bound to compensate the suppler. Incapable means, who are not capable under sec. 11 and 12, Minor is insane or disqualify by law. If basic necessities are supplied to this, it will be deemed quasi contract and its price can be recovered through medical aid, clothes, food, marriage of minor’s sister etc., that is depending upon him. Minor’s marriage is not a basic necessity. The ingredients of sec.68 are as under : i) Necessaries supplied to a person not competent to make contracts. ii) These goods must be for the basic needs. iii) The goods must be according to the status of minor. iv) The supplier can recover the price against the property of minor. It is not personal liability.
In case of Chapple v/s Cooper: 1844, It was held the things for necessities shall be considered those without which it is not possible to live. The food, clothing, shelter, medicine etc., are the necessaries to minor or lunatic. But it must not be more than sufficient.
- PAYMENT BY AN INTERESTED PERSON : According to Section 69 of act, a person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by other.
EXAMPLE: ‘B’ holds land in Bengal, on a lease granted by A, who is a zamidar. The revenue payable by A to the government being in Wlaw, the consequences of such sale will be the annulment of B’s lease. B prevent the sale and consequent annulments of his own lease, pays to the government the sum due from A. A is bound to make goods to B the amount so paid.
Govind Ram Gordhan dass Sekajri v/s State of Himachal
Where Maharaja, having sold mills without paying the overdue municipal taxes was sued by the buyer, who had to pay to save the property from being old. The Privy Council held that he was bound by law to pay without the meaning of the sec. Where a person is only morally bound and is not legally compellable to pay he will not bound to pay.
- LIABILITY TO PAY FOR NON-GRATUITOUS ACT: – When any person lawfully does any act for another person not gratuitously and the other person has enjoyed the benefit of that act then he is bound to compensate him.
ILLUSTRATION:- ‘A’ is a trade man leaves goods at B’s house by mistake. B treats the goods as him own. He is bound to pay ‘A’ for them. A Case : Subramanyam v/s Thaippa 1961: A contractor did more build more that what was required by the contract and did not intended act gratuitously. Court held that the contractor was entitled to compensation for extra work.
Essential conditions of section 70:-
- One person legally works for other
- The act is done voluntarily.
- He gets some benefit for this work.
- To whom it is done takes benefit of that act.
- Act has been done not gratuitously.
In Kanhiya Lal v/s Inder chand, the court held that section 68 does not apply because she was a minor at sec.70 also does not apply because she did not get any benefit. Because it was not a quasi-contract as his friend having no interest in this payment.
- Responsibility of Finder of Goods:- according to Section 71 of the Act, a person who finds goods belonging to another there will be a quasi contract . If bailment between two looses all the rights and duties of bailer and balee will be presumed under section 165 & 169( rights and Duties of bailee).
- MISTAKE OF COERCION:- Section 72 of the act says that, “ when anything is delivered by way of mistake then it is the duty of the person to return that things to the concern person or to compensate him.”
Sales Tax Officer Banaras v/s Kanhayya Lal : In this case it was held that the transactions is to be ultra-wires. The firm was allowed to recover back the tax which he had paid.
Similarly if any person takes any thing from another person by coercion i.e. by way of force under this petition also the person is bound to return the goods to the concerned person under quasi-contract obligation.
For EXAMPLE :- A at the point of pistol takes some gold rings from ‘B’. Here ‘A’ is bound to return the gold rings to ‘B’ under quasi contract obligation. The word coercion is same as defined in sec.15 and the word mistake is same as defined under sec.20. There are the provisions with regard to quasi-contract.
Thus, in all above matters there is no agreement between the parties but the conduct and actions of parties show that an agreement has originated between them and get binding in similar way as like a contract. This is called Quasi-Contract.
Question No.9:- Explain the term ‘Anticipatory Breach of Contract’ and discuss the consequences of such a breach.
Discuss the consequences of breach of contract with relevant case.
Who must perform the Contract? Who can demand for the performance of Contract?
Answer: INTRODUCTION ; Contracts are important when they are performed. There are two main questions in this respect :-
A) Who shall perform the contract.
B) Who can enforce the performance of the contract.
WHO SHALL PERFORM THE CONTRACT :- Section 40 of the Act mentions that generally the contract shall be performed by the promisor itself if the parties has such intentions. Otherwise the promisor can employ any other person for the performance of contract.
Generally contract based on personal qualifications shall be performed by the promisor himself. For EXAMPLE, ’A’ promise to paint a picture for B. The performance of contract requires it to be done by the promisor himself because painting in personal skill of ‘A’. Whereas the contract of sale of property can be performed by promisor himself or by some other person.
Promisor can perform a contract by himself in the following conditions :
- Where the intention of parties was that the contract shall be performed by the promisor only.
- Where the performance depends upon personal skill of promisor. Such contracts get terminated on death.
- By Agent :- If the performance of contract does not depend upon personal skill, then such contract can be performed by the agent of promisor. Generally such contracts are contracts for the sale of property.
- By Legal Representative : Where the promisor dies before the performance of contract and the performance does not depend upon personal skill of promisor, there such contracts shall be performed by the legal representatives of deceased promisor, but only up to that limit to which the legal Representative had the interest in the property of deceased.
- By Third Person:- Where promises accepts the performance from a third person, there such promise can be performed by that third person. In such mattes, promise cannot enforce performance from promisor under section 41 of the Indian Contract Act.
PERFORMANCE OF JOINT PROMISES
There are provisions in the Indian Contract Act,1872 in this respect:-
- Under section 42 of the act when two or more persons have made a joint promise, all such persons must jointly fulfil the promise.
- When any one of joint promisor dies, his legal representatives shall perform the promise.
- Under section 43 of the act when two or more persons make a joint promise, the promise may compel any of such joint promisors to perform the whole promise.
- Section 44 of the act says that where two or more persons have made a joint promise, a release of one of such joint promisor, by the promisee does not discharge the other promisor of joint promisors neither does it free the joint promisor so released from responsibility to the other joint promisor or joint promisors.
WHO CAN DEMAND FOR THE PERFORMANCE OF CONTRACT.
The following persons can demand for the performance of the contract :-
a) The first right for the performance of contract is with the promisee. He can demand for the performance of contract.
b) If the contract is not of personal nature then on the death of promisee his legal representative or representatives can demand the performance.
c) Where there is joint promise, there all the joint promisors can jointly demand.
d) Where any one of the joint promisee dies, then the legal representative of such deceased shall demand for the performance.
e) Where are promisee dies, then their legal representatives can demand the performance.
ANTICIPATORY BREACH OF CONTRACT:
Section 39 of the Act provides for the Anticipator Breach of Contract which means :-
“before the performance of the contract, any party to contract refuse to perform the promise or contract or makes itself disable for performance is breach of contract”.
EXAMPLE :- A singer enters into a contract with B the manager of theatre to sing at his theatre for two nights in every week during the next two months and B agrees to pay her Rs.1000/- for each night’s performance. On the sixth night A wilfully absents herself from the theatre. B is at liberty to put an end to the contract. In such cases promisee can cancel the contract.
The base of section 39 is “ when a party to a contract has refused to perform or disable himself from performing his promise in its entirety, the promisee may put an end to the contract, unless he has signified by words or contract his acquiescence in its continuance.
The following remedies are available against the anticipatory breach of contract :-
- The promisee can file a suit for the breach of contract considering it to be actual breach.
- The promisee shall wait till the actual date of performance and then file the suit.
- Specific performance and Injuction : sometimes a party to the contract instead of recovering damages for the breach of contract may have protection to the alternative remedy of specific performance of the contract.
- Damages : Remedy by way of damages is the most common remedy available to the injured party. This entitles the injured party to recover compensation for the party who causes the breach. Sec.73 to 75 incorporate the provisions in this regard. In case of,Hadley V/s Baxendale-1854, It was held that the special circumstances were not communicated by the plaintiffs to the defendants. The plaintiffs were therefore not entitled to recover the loss. In case of, Victoria Loundry Ltd. v/s Newman Industries Ltd. 1949, It was held that the defendant had the knowledge of the fact. The case was referred to official Referee to determine the damages payable in this case.
- Quantum Meruit:- When the injured party has performed a part of his obligation under the contract before the breach of contract has occurred, he is entitled to recover the value of what he has done under this remedy.
- Measure of Damages :- That after the certain result of the breach of contract in nearest time is to be compensated. Damages are, therefore, to fix amount of that basis if a party takes security deposit from the other for the due performance of the contract.