law of contract - sem Vth - Part One
Q. Distinguish between proposal and invitation to
proposal.
Section 2(a) says that when a person signifies to another, his willingness to do or to abstain from doing something with a view to obtaining the assent of that another to such act or abstinence, he is said to make a proposal. Thus, when an offer is made with such finality that the only thing remaining is the assent of the party to whom it is proposed, it is called a proposal. If the offer does not reflect such finality, it is merely an invitation to proposals. Thus, when a person advertises that he has books to sell, it is only an invitation for proposals.
When a person, without expressing his final willingness, proposes certain terms on which he wishes to negotiate, he is merely making an invitation to proposals.
In the case of Harvy vs Facie 1893, plaintiff telegraphed, "Will you sell Bumper Hall pen? Send lowest price." Defendants responded with "Lowest price of Bumper Hall Pen, $900". Plaintiffs then sent, "we agree to buy bumper hall pen for $900". However, defendants refused to sell. It was held that defendants had not signified a final willingness to sell. They had only told the lowest price. This, it was only an invitation to proposal and not a proposal.
In the case of Pharmacutical Society of GB vs Boots Cash Chemists Ltd. 1952, it was held that display of goods is also an invitation to sell even if it is a self service shop.
MC Pherson vs Appanna 1951 - Proposal to buy property at 6000/- was replied with, " won't accept less than 10000". This was not considered a proposal but an invitation to proposal.
Auctions : Announcement to hold auction is not an offer. Highest bid is nothing more than an offer to buy.
Definiteness of proposal: "Cocks and Hens - 25s each" is not an offer to sell.
Q. Define contract. State essential elements of a valid contract.
Section 2(h) of Indian Contract Act 1972 - An agreement enforceable by law is a contract.
Def. by Anson - A contract consists in an actionable promise or promises.
Def. by Sevigni - Contract is a combination of agreement and responsibility.
Def. by Pollock - An agreement or promise enforceable by law is contract.
Essential Elements
Section 10 - All agreements that are made by people competent to contract, with free consent, for a lawful object and lawful consideration and not expressly declared to be void are contracts.
Thus, we get the following elements -
Section 2(a) says that when a person signifies to another, his willingness to do or to abstain from doing something with a view to obtaining the assent of that another to such act or abstinence, he is said to make a proposal. Thus, when an offer is made with such finality that the only thing remaining is the assent of the party to whom it is proposed, it is called a proposal. If the offer does not reflect such finality, it is merely an invitation to proposals. Thus, when a person advertises that he has books to sell, it is only an invitation for proposals.
When a person, without expressing his final willingness, proposes certain terms on which he wishes to negotiate, he is merely making an invitation to proposals.
In the case of Harvy vs Facie 1893, plaintiff telegraphed, "Will you sell Bumper Hall pen? Send lowest price." Defendants responded with "Lowest price of Bumper Hall Pen, $900". Plaintiffs then sent, "we agree to buy bumper hall pen for $900". However, defendants refused to sell. It was held that defendants had not signified a final willingness to sell. They had only told the lowest price. This, it was only an invitation to proposal and not a proposal.
In the case of Pharmacutical Society of GB vs Boots Cash Chemists Ltd. 1952, it was held that display of goods is also an invitation to sell even if it is a self service shop.
MC Pherson vs Appanna 1951 - Proposal to buy property at 6000/- was replied with, " won't accept less than 10000". This was not considered a proposal but an invitation to proposal.
Auctions : Announcement to hold auction is not an offer. Highest bid is nothing more than an offer to buy.
Definiteness of proposal: "Cocks and Hens - 25s each" is not an offer to sell.
Q. Define contract. State essential elements of a valid contract.
Section 2(h) of Indian Contract Act 1972 - An agreement enforceable by law is a contract.
Def. by Anson - A contract consists in an actionable promise or promises.
Def. by Sevigni - Contract is a combination of agreement and responsibility.
Def. by Pollock - An agreement or promise enforceable by law is contract.
Essential Elements
Section 10 - All agreements that are made by people competent to contract, with free consent, for a lawful object and lawful consideration and not expressly declared to be void are contracts.
Thus, we get the following elements -
- There must be two or more people involved.
- There must be an intention to contract. Balfour vs Balfour 1919 - Husband promised to send money to wife. Not a contract because there was no intention to contract.
- There must be an agreement to do or to abstain from doing something.
- The agreement must involve a lawful purpose, which means - agreement must not be against marriage, trade, legal proceedings, or it must not be a wagering agreement or must not be expressly prohibited by law.
- Agreement must not be uncertain
- Must not be impossible. Sec 56.
- Free consent - not vitiated by coercion, undue influence, fraud, or misrepresentation.
- Parties must be competent to contract.
- Lawful consideration.
- Lawful object.
- Legal formalities
- Must be enforceable by law, which means must not be immoral or against public policy.
Q. What is a
general offer? How is a contract created through general offer? Refer to
leading cases.
An offer may be made to the world at large. Such an offer is a general offer. However, a contract is not done with the whole world but only with the person who comes forward and accepts the offer. The acceptance might be express or implied.
As per Anson, "An offer need not be made to an asertained person, but no contract can arise until it is accepted by an ascertained person".
Case of Carllil vs Cabolic Smoke Ball Company.
Creation of the contract - If the person performs the conditions of the offer. Thus, a person who finds a lost dog fulfills the condition of the prize money and thus a contract with the owner of the dog is created.
General Offer of Continuing Nature - Some offers such as finding a lost object close when it is accepted by the first person. However, some offers, such as in the Carllil case, it can be accepted by any number of persons until the closing date of offer or until it is retracted.
An offer may be made to the world at large. Such an offer is a general offer. However, a contract is not done with the whole world but only with the person who comes forward and accepts the offer. The acceptance might be express or implied.
As per Anson, "An offer need not be made to an asertained person, but no contract can arise until it is accepted by an ascertained person".
Case of Carllil vs Cabolic Smoke Ball Company.
Creation of the contract - If the person performs the conditions of the offer. Thus, a person who finds a lost dog fulfills the condition of the prize money and thus a contract with the owner of the dog is created.
General Offer of Continuing Nature - Some offers such as finding a lost object close when it is accepted by the first person. However, some offers, such as in the Carllil case, it can be accepted by any number of persons until the closing date of offer or until it is retracted.
Q. Describe the law relating to communication of
proposals, their acceptance and their revocation.
Section 2(a) of Indian Contract Act 1972 says that when a person signifies his willingness to do or to abstain from doing something to another, with a view to obtaining the assent of that another, he is said to make a proposal. Further, section 2(b) says that when the person to whom the proposal is made signifies his assent, the proposal is said to be accepted. The important point to note here is that the party making the proposal or the party accepting the proposal must "signify" their willingness or assent to the other party. Thus, a promise cannot come into existence unless the willingness or assent is communicated to the other party. Further, even the revocation, if any, must be communicated to the other party for it to take effect. Therefore, communication is the most critical aspect in the making of a contract.
Communication
Section 3 defines how a communication, acceptance, or revocation can be signified:
The communication, acceptance, and revocation are deemed to be made by an act or omission of the party proposing, accepting, or revoking, by which he intends to communicate such proposal, acceptance, or revocation, or which has the effect of communicating it.
Thus, a proposal may be made by any way, which has the effect of laying before another person his willingness to do nor not do something. The acceptance can be signified similarly. Section 9 specifies that a promise (i.e. a proposal and its acceptance) can be formed either by words, written or oral, is which case it is called express or by action, in which case it is called implied. In the case of Haji Mohd Ishaq vs Mohd Iqbal SCC 1978, the defendants accepted the goods supplied by the plaintiff through a go between man and also paid part of the price. It was held that the defendants were liable to pay the remaining balance because the proposal and its acceptance were signified by their actions.
Section 4 specifies when a communication is complete:
Section 2(a) of Indian Contract Act 1972 says that when a person signifies his willingness to do or to abstain from doing something to another, with a view to obtaining the assent of that another, he is said to make a proposal. Further, section 2(b) says that when the person to whom the proposal is made signifies his assent, the proposal is said to be accepted. The important point to note here is that the party making the proposal or the party accepting the proposal must "signify" their willingness or assent to the other party. Thus, a promise cannot come into existence unless the willingness or assent is communicated to the other party. Further, even the revocation, if any, must be communicated to the other party for it to take effect. Therefore, communication is the most critical aspect in the making of a contract.
Communication
Section 3 defines how a communication, acceptance, or revocation can be signified:
The communication, acceptance, and revocation are deemed to be made by an act or omission of the party proposing, accepting, or revoking, by which he intends to communicate such proposal, acceptance, or revocation, or which has the effect of communicating it.
Thus, a proposal may be made by any way, which has the effect of laying before another person his willingness to do nor not do something. The acceptance can be signified similarly. Section 9 specifies that a promise (i.e. a proposal and its acceptance) can be formed either by words, written or oral, is which case it is called express or by action, in which case it is called implied. In the case of Haji Mohd Ishaq vs Mohd Iqbal SCC 1978, the defendants accepted the goods supplied by the plaintiff through a go between man and also paid part of the price. It was held that the defendants were liable to pay the remaining balance because the proposal and its acceptance were signified by their actions.
Section 4 specifies when a communication is complete:
- Communication of a proposal is complete when it comes to the knowledge of the party to whom the proposal is made.
For example, if A sends a proposal in the mail to B and if the mail is
lost, it can be held that the communication of the proposal is not complete. In
the case of Lalman vs Gauridatta 1913, it was held that the reward for
the missing child cannot be claimed by a person who traced the child without
any knowledge of the announcement. There was no contract between the two in the
first place because the proposal never came to the knowledge of the person who
found the child and thus he could never accept it.
- Communication of the acceptance is complete, as against the promisor, when it is put in course of transmission to the promisor so as to be out of the power of the acceptor, as against the acceptor, when it comes to the knowledge of the promisor.
For example, as soon as B drops a letter of acceptance in mail back to A, A
is bound by the promise. However, B is not bound by it unless A receives the acceptance
letter. In the case of Adams vs Lindsell 1818, it was held that a
contract arose as soon as the acceptance was posted by the acceptor. In this
case, the plaintiff received the offer to sell wool on 5th and they posted an
acceptance, which was received on 9th by the defendants. The defendants,
however, had already sold the wool on 8th. The court observed that the contract
must arise as soon as the acceptance is posted and is gone out of the reach of
acceptor otherwise this will result in an infinite loop.
- Communication of a revocation is complete as against the party who makes it when it is put in course of transmission to the party to whom it is made, so as to be out of the power of the party who makes it; as against the party to whom it is made, when it comes to the knowledge of the party to whom it is made.
For example, if A sends a letter revoking his proposal, it will be complete
against A as soon as the letter is dropped in the mailbox and is out of his
control. However, the revocation will be held complete against B only when B
receives the letter.
Further, if B revokes his acceptance by telegram, it will he deemed complete against B as soon as he dispatches the telegram. It will be held complete against A, when A receives the telegram.
Section 5 specifies when a proposal and acceptance can be revoked:
Further, if B revokes his acceptance by telegram, it will he deemed complete against B as soon as he dispatches the telegram. It will be held complete against A, when A receives the telegram.
Section 5 specifies when a proposal and acceptance can be revoked:
- A proposal can be revoked anytime before the communication of its acceptance is complete as against the proposer but not afterwards.
For example, if A propose to B through a letter, A can revoke the proposal
as long as B has not posted a letter of acceptance to A. In the case of Henthorn
vs Fraser 1862, an offer to sell a property was made to a person. This
person was to reply to it within 14 days. He lived in another town and he
posted an acceptance at 3.50PM, which reached the offerer at 8.30 PM.
Meanwhile, the offerer posted the revocation letter at 1 PM, which reached the
person at 5.30PM. Thus, the revocation did not reach the offeree before the
communication of the acceptance was complete as against the offerer.
Thus, the revocation was held ineffective.
- An acceptance may be revoked anytime before its communication is complete as against the acceptor.
For example, B can revoke his acceptance that was sent by letter, by a
telegram that reaches A before the acceptance letter. In the case of Union
of India vs Bhimsen Walaiti Ram 1969, the defendant won an auction for a
liquor shop and paid 1/6 of the cost upfront. However, the bid was supposed to
be finalized by the financial commissioner, which he had not done. Meanwhile,
the defendant failed to pay the remaining amount and the commissioner ordered a
re-auction. In the re-auction, less money was realized and the plaintiff sued
to recover the shortfall. However, SC held that since the commissioner had not
given is final approval for the bid, the communication of acceptance was not
complete against the defendant, thus the defendant was free to withdraw or
revoke his proposal (i.e the bid).
Section 6 specifies how a revocation can be made:
Section 6 specifies how a revocation can be made:
- A proposal is revoked
- by the communication of the notice of revocation by the proposer to the other party.
- by the lapse of prescribed time in the proposal for acceptance or if no time is prescribed, by the lapse of a reasonable time in communication of the acceptance.
- by the failure of the acceptor to perform a condition precedent to acceptance.
- by death or insanity of the proposer, if the fact of the death or insanity comes to the knowledge of the acceptor before acceptance.
Acceptance
Section 7 specifies that an acceptance must be absolute and unqualified. A partial acceptance or a clarification regarding a proposal, or specifying a condition on acceptance is no acceptance.
In the case of Hyde vs Wrench 1840, an offer was made to sell a farm for #1000, which was rejected by an plaintiff, who counter offered #950 for it. This was rejected by the defendant, upon which the plaintiff agreed to pay #1000. However, it was held than the defendant was not bound by any such second acceptance.
Section 7 further says that the acceptance must be in some usual and reasonable manner, unless the proposal prescribes the manner in which the acceptance should be made. If the proposal prescribes the manner, and if the acceptance is not done in that manner, the proposer may insist that the acceptance be made in the manner prescribed, and if he fails to do so, he accepts the acceptance. Thus, if the acceptance is sent by any way other than what is prescribed by the proposal, the proposer must reject it in a reasonable time otherwise the proposer accepts it. This is markedly different from English law where a proposal must be accepted in the manner required in the proposal otherwise, the acceptance is invalid. In the case of Elliason vs Henshaw 1819, it was held that an acceptance sent by mail instead of through the wagon that brought the offer, was not valid.
Section 8 specifies that a proposal is accepted when the acceptor performs conditions prescribed for the acceptance or when he accepts the consideration given along with the offer for a reciprocal promise. When acceptance consists of an act as in the case of State of Bihar vs Bengal C & P Works 1954, it was held that, when an order is sent for goods, the posting of goods itself is equivalent to acceptance. No further communication of acceptance is necessary.
In the case of Carlill vs Carbolic smoke ball co 1893, it was held that, purchasing and consuming the medicine performs the condition of the proposal.
Requirements for an acceptance
Section 7 specifies that an acceptance must be absolute and unqualified. A partial acceptance or a clarification regarding a proposal, or specifying a condition on acceptance is no acceptance.
In the case of Hyde vs Wrench 1840, an offer was made to sell a farm for #1000, which was rejected by an plaintiff, who counter offered #950 for it. This was rejected by the defendant, upon which the plaintiff agreed to pay #1000. However, it was held than the defendant was not bound by any such second acceptance.
Section 7 further says that the acceptance must be in some usual and reasonable manner, unless the proposal prescribes the manner in which the acceptance should be made. If the proposal prescribes the manner, and if the acceptance is not done in that manner, the proposer may insist that the acceptance be made in the manner prescribed, and if he fails to do so, he accepts the acceptance. Thus, if the acceptance is sent by any way other than what is prescribed by the proposal, the proposer must reject it in a reasonable time otherwise the proposer accepts it. This is markedly different from English law where a proposal must be accepted in the manner required in the proposal otherwise, the acceptance is invalid. In the case of Elliason vs Henshaw 1819, it was held that an acceptance sent by mail instead of through the wagon that brought the offer, was not valid.
Section 8 specifies that a proposal is accepted when the acceptor performs conditions prescribed for the acceptance or when he accepts the consideration given along with the offer for a reciprocal promise. When acceptance consists of an act as in the case of State of Bihar vs Bengal C & P Works 1954, it was held that, when an order is sent for goods, the posting of goods itself is equivalent to acceptance. No further communication of acceptance is necessary.
In the case of Carlill vs Carbolic smoke ball co 1893, it was held that, purchasing and consuming the medicine performs the condition of the proposal.
Requirements for an acceptance
- Acceptance must be from a person to whom the proposal was made. In the case of Powel vs Lee 1908, it was held that communication of an acceptance from an unauthorized person is invalid.
- Acceptance must be signified to the proposer. In the case of Felthouse vs Bindley 1863, it was held that unless an acceptance is given to the offerer, it is no acceptance.
- It is required that there be an act that signifies the acceptance. As held in the case of Bhagvandas Goverdhandas Kedia vs Girdharilal Pursottamdas & Co SC AIR 1966, for an acceptance to be completed, a mere mental decision is not sufficient. An external manifestation of the decision is a must.
Communication and
acceptance of General Offers
A general offer, such as an advertisement for the sale of an article at a fixed price, or to give prize to the one that does something first, is not made to a particular person. Whoever the contract is done with the person who responds or who does the task first. Communication of such as offer is done through public media such as a newspaper. S general offer can be perpetual or end as soon as the condition is fulfilled.
No explicit acceptance of such offers is usually required. Performing the conditions specified in the offer acts as the acceptance of the offer. For example, in the case of Carlill vs Carbolic Smoke Ball Company 1893, it was held that it was a general offer and anybody who fulfilled the condition was eligible for the $100 compensation as advertised.
Revocation of General Offers
A general offer can be revoked in the same manner as it was made. For example, by printing a revocation in a newspaper. It will be considered complete, even if a person who is ignorant of the revocation, performs the conditions after the revocation is published.
A general offer, such as an advertisement for the sale of an article at a fixed price, or to give prize to the one that does something first, is not made to a particular person. Whoever the contract is done with the person who responds or who does the task first. Communication of such as offer is done through public media such as a newspaper. S general offer can be perpetual or end as soon as the condition is fulfilled.
No explicit acceptance of such offers is usually required. Performing the conditions specified in the offer acts as the acceptance of the offer. For example, in the case of Carlill vs Carbolic Smoke Ball Company 1893, it was held that it was a general offer and anybody who fulfilled the condition was eligible for the $100 compensation as advertised.
Revocation of General Offers
A general offer can be revoked in the same manner as it was made. For example, by printing a revocation in a newspaper. It will be considered complete, even if a person who is ignorant of the revocation, performs the conditions after the revocation is published.
Q. "An agreement enforceable by law is a
contract" as per section 2(h) of Indian Contract Act 1872 but
"agreements enforceable by law have been defined in section 10".
Discuss the statement. Write essential elements of a valid contract.
In our regular day to day life we make several comments and statements. We say several things to people whom we talk to. Most of these are not with any intention to create any legal obligation. For example, if we say to someone that we will go to lunch with him, it is not a legal obligation. But some, which are related to business or civil matters, are understood to be in a serious mood and have a potential to be legally enforceable. For example, when we hire an Auto-rickshaw for going from point A to point B, we are legally bound to pay and the driver is legally bound to take us from A to B. Indian Contract Act 1872 defines these activities in precise terms in Section 2.
Definition of Terms
Sec. 2 (a) When a person signifies to the other, to do something or to abstain from doing something, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a Proposal.
Sec. 2 (b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. An accepted proposal becomes a promise.
Sec. 2 (c) The person making the promise is called Promisor, while the person accepting the promise is called Promisee.
Sec. 2 (d) When, at the desire of the Promisor, the Pomisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or abstain from doing, something, such act or abstinence is called a consideration for the promise.
Sec. 2 (e) Every Promise and every set of Promises forming a consideration for each other, is an Agreement.
Sec. 2 (f) Promises which form the consideration or part of consideration for each other are "Reciprocal Promises".
Sec. 2 (g) An agreement not enforceable by law is void.
Sec. 2 (h) An agreement enforceable by law is a Contract.
Sec. 2 (i) An agreement that is enforceable by law at the option of one or more of the parties thereto but not at the other or others is a voidable Contract.
Sec. 2 (j) A Contract that ceases to be enforceable by law becomes void when it ceases to be enforceable by law.
From sec 2(e) and 2(h), it is clear that Agreement and Contract are two different things. For an agreement to become a contract, it has to be enforceable by law.
Section 10 states that all agreements that are made by free consent of the people who are competent to contract, for a legal object and legal consideration, and are not hereby expressly declared to by void, are contracts and are thus legally enforceable. Thus, there are five factors that determine whether an agreement can be legally enforced or not. These are discussed below:
1. Competency of the people doing the agreement. (What do you understand by competency to contract? Who are competent to contract? What protections are offered to minors?)
All the parties doing the agreement must be competent to contract. Section 11 determines who are competent to contract. As per this section, person who has attained the age of majority according to the law to which is subject, who is of sound mind, and who is not prohibited/disqualified from contracting by law to which he is subject. Majority is 18 years except when a guardian is appointed by the court in which case it is 21 yrs.
In the case of Mohoribibee vs Dharmodas Ghosh in 1903, a minor had taken a loan and then he sued to avoid the contract. Privy Council council held that any contract with a minor is void ab initio and so the loaner cannot get any money that he gave as advance back. This rule is adopted all over India whether or not it benefits the minor.
In the case of Mir Sarwarjan vs Fakhruddin Mohd. Chaudhary 1912, a contract to purchase a property was done on behalf of minor. It was held that the minor could not sue for getting the possession of property.
However, since in today's times minors are coming a lot in public life, it is not always possible to consider an agreement with a minor to be always void. Therefore, in the case of Srikakulam Sbhramanyam vs Kurra Sabha Rao 1949, Privy Council held that a sale of inherited property of a minor to pay off inherited debt effected by the guardian was binding on the minor.
Protections offered to minors:
No estoppel against minor - It has now been settled that a minor who enters into a contract by misrepresenting his age can later on tell his correct age and avoid the contract.
No liability in tort or in contract arising out of a contract - If a minor enters into a contract, he can neither be held liable in contract nor in torts. In the case of Jennings vs Rundall 1799, when an infant hired a horse for riding short distance but rode it for long distance resulting in injury to horse, he was not held liable because it was a contractual obligation. In the case of Hari Mohan vs Dulu Mia 1934, Calcutta HC held minor not liable in tort for money lent on bond.
However, in absence of a contract, a minor may be liable in tort. Thus, in the case of Burnard vs Haggis 1863, when a minor "borrowed" a mare only for riding and then lent it to a friend who jumped her and killed her, he was held liable in tort.
Doctrine of restitution - If a minor obtains property or goods by misrepresenting his age, he can be forced to return it but only as long as the goods are traceable in the minor's possession. This is called doctrine of equitable restitution. If the minor sells or converts the property, the value of the goods cannot be retrieved because that would amount to enforcing a void contract. In the case of Leslie vs Sheill, a minor got 400 pounds from money lenders by misrepresenting his age. The money lenders could not recover it under any of fraud, quasi-contract, or doctrine of restitution. This was followed in the case of Mohoribibee vs Dharmodas Ghosh as well..
Beneficial Contracts - In contract where a minor has already supplied consideration, the minor can enforce the contract. Thus, in the case of Ulfat Rai vs Gauri Shakar 1911, it was held that a minor can sue to take possession of a property for which he has already paid. But where the contract is still executor and consideration has not been given, the principle adopted in Mohoribibee will prevail. Thus, in the case of Raj Rani vs Prem Adib 1949, it was held that the film producer was not bound by a contract with minor's father to give a role to minor in his movie. This is because minor could not be forced to give consideration and father had not given any consideration. However, a contract of marriage of a minor enter into by the father is not void for want of consideration because it is for the benefit of the minor.
Liabilities for necessities (Section 68) - If a minor is supplied with necessaries that are in accordance with his living standard, the supplier can get paid through the minors property.
Persons of unsound mind
Section 12 says that a person is of sound mind for the purpose of contracting if at the time of contracting, he is capable of understanding the contract and capable of making a rational judgement as to the effects of the contract upon his interests. A person who is usually of sound mind but sometimes of unsound mind may not make a contract when he is of unsound mind, while a person who is usually of unsound mind but sometime of sound mind may make a contract when he is of sound mind. Thus, a person, who is too drunk, or who is temporarily delirious due to sickness such as high fever, may not make a contract at that time. A patient in a lunatic asylum, who is at intervals of sound mind may make a contract when he is of sound mind.
In India, a contract done by a person of unsound mind is absolutely void ab initio. In the case of Indersingh vs Parmeshwardhari Singh Patna HC in 1957 held that a contract to sell property worth 25000 in 7000, was voidable because the mother claimed that her son was of unsound mind and did not understand the implications.
2. Consent and Free Consent
Section 13 defines that two or more people are said to consent when they agree upon the same thing in the same sense. However, many a times, a consent may not reflect the true intentions of a party. For example, one party may give consent because of being financially pressured or criminally threatened. Thus, such a consent should not make the agreement enforceable. Section 14 determines what factors can vitiate a consent and when a consent is considered free of any complication that affects the enforceability of an agreement . It states that a consent that is not obtained through coercion, undue influence, fraud, misrepresentation, or mistake subject to section 20, 21, and 22, is a free consent.
a. Coercion (Sec 15): Coercion is committing or threatening to commit any act forbidden by the Indian Penal Code, or unlawful detaining or threatening to detain the property, to the prejudice of any other person, with an intention to cause that other person to enter into an agreement. It is immaterial whether IPC is or is not in force where coercion is applied. Thus, an act that is unlawful as per IPC but not as per England law and that has been used to induce the consent, will be considered coercion.
A clear example would be force someone to consent on gun point or by hurting or threatening to hurt. In Chikham Amiraju vs Chikham Seshamma Madras HC 1912 held that threatening to commit suicide is coercion. In the case of Astley vs Reynolds 1771, the plaintiff had pledged his plate for #20 and when he went to claim it back, the defendant asked for #10 more as interest. To redeem his plate, the plaintiff paid the money but later sued to recover #10. The court allowed it.
b. Undue Influence (Sec 16): Undue influence occurs when because of the nature of the relationship that exists between the parties, one party is able to dominate the will of the other and uses this dominance to obtain unfair advantage over the other. A person is in a dominant position when he holds a real or apparent position of authority for example manager employee, or stands in a fiduciary relationship with the other for example money lender and loanee. A person could also be in a dominant position if the mental capacity of other party is temporarily or permanently effected due or illness, age, or distress.
The burden of proof that undue influence has not occurred is on the person who is in the dominant position, if the agreement is unconscionable otherwise it is on the party that alleges undue influence.
Examples:
Father (A) give some money to son (B) when B was a minor. Upon majority, A makes B execute a bond for a much larger amount.
A person (A) who is old and sick is induced into paying an unreasonably large amount of sum to his doctor (B).
A village moneylender (A) lends money to a villager (B), who is already in debt, at a very high interest. It lies on A to prove that he has not used undue influence to induce the contract.
At a time of financial crises, a bank manager gives loan to a person at a substantially higher rate. This is not considered to be undue influence but a simple business transaction.
In Mannu singh vs Umadat Pandey Allahbad HC 1890, a guru induced his devotee into giving all the devotee's property to himself. This was considered undue influence.
c. Fraud (Sec 17): When a person intentionally tries to cheat another person, it is called as fraud in a general sense. Section 17 defines fraud precisely as such - Fraud means and includes any of the following activities done by a party or by his connivance or by his agent, with an intent to deceive another party or his agent, or as to induce the other party to enter into the contract.
In our regular day to day life we make several comments and statements. We say several things to people whom we talk to. Most of these are not with any intention to create any legal obligation. For example, if we say to someone that we will go to lunch with him, it is not a legal obligation. But some, which are related to business or civil matters, are understood to be in a serious mood and have a potential to be legally enforceable. For example, when we hire an Auto-rickshaw for going from point A to point B, we are legally bound to pay and the driver is legally bound to take us from A to B. Indian Contract Act 1872 defines these activities in precise terms in Section 2.
Definition of Terms
Sec. 2 (a) When a person signifies to the other, to do something or to abstain from doing something, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a Proposal.
Sec. 2 (b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. An accepted proposal becomes a promise.
Sec. 2 (c) The person making the promise is called Promisor, while the person accepting the promise is called Promisee.
Sec. 2 (d) When, at the desire of the Promisor, the Pomisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or abstain from doing, something, such act or abstinence is called a consideration for the promise.
Sec. 2 (e) Every Promise and every set of Promises forming a consideration for each other, is an Agreement.
Sec. 2 (f) Promises which form the consideration or part of consideration for each other are "Reciprocal Promises".
Sec. 2 (g) An agreement not enforceable by law is void.
Sec. 2 (h) An agreement enforceable by law is a Contract.
Sec. 2 (i) An agreement that is enforceable by law at the option of one or more of the parties thereto but not at the other or others is a voidable Contract.
Sec. 2 (j) A Contract that ceases to be enforceable by law becomes void when it ceases to be enforceable by law.
From sec 2(e) and 2(h), it is clear that Agreement and Contract are two different things. For an agreement to become a contract, it has to be enforceable by law.
Section 10 states that all agreements that are made by free consent of the people who are competent to contract, for a legal object and legal consideration, and are not hereby expressly declared to by void, are contracts and are thus legally enforceable. Thus, there are five factors that determine whether an agreement can be legally enforced or not. These are discussed below:
1. Competency of the people doing the agreement. (What do you understand by competency to contract? Who are competent to contract? What protections are offered to minors?)
All the parties doing the agreement must be competent to contract. Section 11 determines who are competent to contract. As per this section, person who has attained the age of majority according to the law to which is subject, who is of sound mind, and who is not prohibited/disqualified from contracting by law to which he is subject. Majority is 18 years except when a guardian is appointed by the court in which case it is 21 yrs.
In the case of Mohoribibee vs Dharmodas Ghosh in 1903, a minor had taken a loan and then he sued to avoid the contract. Privy Council council held that any contract with a minor is void ab initio and so the loaner cannot get any money that he gave as advance back. This rule is adopted all over India whether or not it benefits the minor.
In the case of Mir Sarwarjan vs Fakhruddin Mohd. Chaudhary 1912, a contract to purchase a property was done on behalf of minor. It was held that the minor could not sue for getting the possession of property.
However, since in today's times minors are coming a lot in public life, it is not always possible to consider an agreement with a minor to be always void. Therefore, in the case of Srikakulam Sbhramanyam vs Kurra Sabha Rao 1949, Privy Council held that a sale of inherited property of a minor to pay off inherited debt effected by the guardian was binding on the minor.
Protections offered to minors:
No estoppel against minor - It has now been settled that a minor who enters into a contract by misrepresenting his age can later on tell his correct age and avoid the contract.
No liability in tort or in contract arising out of a contract - If a minor enters into a contract, he can neither be held liable in contract nor in torts. In the case of Jennings vs Rundall 1799, when an infant hired a horse for riding short distance but rode it for long distance resulting in injury to horse, he was not held liable because it was a contractual obligation. In the case of Hari Mohan vs Dulu Mia 1934, Calcutta HC held minor not liable in tort for money lent on bond.
However, in absence of a contract, a minor may be liable in tort. Thus, in the case of Burnard vs Haggis 1863, when a minor "borrowed" a mare only for riding and then lent it to a friend who jumped her and killed her, he was held liable in tort.
Doctrine of restitution - If a minor obtains property or goods by misrepresenting his age, he can be forced to return it but only as long as the goods are traceable in the minor's possession. This is called doctrine of equitable restitution. If the minor sells or converts the property, the value of the goods cannot be retrieved because that would amount to enforcing a void contract. In the case of Leslie vs Sheill, a minor got 400 pounds from money lenders by misrepresenting his age. The money lenders could not recover it under any of fraud, quasi-contract, or doctrine of restitution. This was followed in the case of Mohoribibee vs Dharmodas Ghosh as well..
Beneficial Contracts - In contract where a minor has already supplied consideration, the minor can enforce the contract. Thus, in the case of Ulfat Rai vs Gauri Shakar 1911, it was held that a minor can sue to take possession of a property for which he has already paid. But where the contract is still executor and consideration has not been given, the principle adopted in Mohoribibee will prevail. Thus, in the case of Raj Rani vs Prem Adib 1949, it was held that the film producer was not bound by a contract with minor's father to give a role to minor in his movie. This is because minor could not be forced to give consideration and father had not given any consideration. However, a contract of marriage of a minor enter into by the father is not void for want of consideration because it is for the benefit of the minor.
Liabilities for necessities (Section 68) - If a minor is supplied with necessaries that are in accordance with his living standard, the supplier can get paid through the minors property.
Persons of unsound mind
Section 12 says that a person is of sound mind for the purpose of contracting if at the time of contracting, he is capable of understanding the contract and capable of making a rational judgement as to the effects of the contract upon his interests. A person who is usually of sound mind but sometimes of unsound mind may not make a contract when he is of unsound mind, while a person who is usually of unsound mind but sometime of sound mind may make a contract when he is of sound mind. Thus, a person, who is too drunk, or who is temporarily delirious due to sickness such as high fever, may not make a contract at that time. A patient in a lunatic asylum, who is at intervals of sound mind may make a contract when he is of sound mind.
In India, a contract done by a person of unsound mind is absolutely void ab initio. In the case of Indersingh vs Parmeshwardhari Singh Patna HC in 1957 held that a contract to sell property worth 25000 in 7000, was voidable because the mother claimed that her son was of unsound mind and did not understand the implications.
2. Consent and Free Consent
Section 13 defines that two or more people are said to consent when they agree upon the same thing in the same sense. However, many a times, a consent may not reflect the true intentions of a party. For example, one party may give consent because of being financially pressured or criminally threatened. Thus, such a consent should not make the agreement enforceable. Section 14 determines what factors can vitiate a consent and when a consent is considered free of any complication that affects the enforceability of an agreement . It states that a consent that is not obtained through coercion, undue influence, fraud, misrepresentation, or mistake subject to section 20, 21, and 22, is a free consent.
a. Coercion (Sec 15): Coercion is committing or threatening to commit any act forbidden by the Indian Penal Code, or unlawful detaining or threatening to detain the property, to the prejudice of any other person, with an intention to cause that other person to enter into an agreement. It is immaterial whether IPC is or is not in force where coercion is applied. Thus, an act that is unlawful as per IPC but not as per England law and that has been used to induce the consent, will be considered coercion.
A clear example would be force someone to consent on gun point or by hurting or threatening to hurt. In Chikham Amiraju vs Chikham Seshamma Madras HC 1912 held that threatening to commit suicide is coercion. In the case of Astley vs Reynolds 1771, the plaintiff had pledged his plate for #20 and when he went to claim it back, the defendant asked for #10 more as interest. To redeem his plate, the plaintiff paid the money but later sued to recover #10. The court allowed it.
b. Undue Influence (Sec 16): Undue influence occurs when because of the nature of the relationship that exists between the parties, one party is able to dominate the will of the other and uses this dominance to obtain unfair advantage over the other. A person is in a dominant position when he holds a real or apparent position of authority for example manager employee, or stands in a fiduciary relationship with the other for example money lender and loanee. A person could also be in a dominant position if the mental capacity of other party is temporarily or permanently effected due or illness, age, or distress.
The burden of proof that undue influence has not occurred is on the person who is in the dominant position, if the agreement is unconscionable otherwise it is on the party that alleges undue influence.
Examples:
Father (A) give some money to son (B) when B was a minor. Upon majority, A makes B execute a bond for a much larger amount.
A person (A) who is old and sick is induced into paying an unreasonably large amount of sum to his doctor (B).
A village moneylender (A) lends money to a villager (B), who is already in debt, at a very high interest. It lies on A to prove that he has not used undue influence to induce the contract.
At a time of financial crises, a bank manager gives loan to a person at a substantially higher rate. This is not considered to be undue influence but a simple business transaction.
In Mannu singh vs Umadat Pandey Allahbad HC 1890, a guru induced his devotee into giving all the devotee's property to himself. This was considered undue influence.
c. Fraud (Sec 17): When a person intentionally tries to cheat another person, it is called as fraud in a general sense. Section 17 defines fraud precisely as such - Fraud means and includes any of the following activities done by a party or by his connivance or by his agent, with an intent to deceive another party or his agent, or as to induce the other party to enter into the contract.
- the suggestion of a fact, of that which is not true, by the one who does not believe it to be true.
- active concealment of a fact by one who knowledge or belief of the fact.
- making a promise without an intention to perform.
- any act fitted to deceive
- any such act or omission that the law declares to be fraudulent.
Mere silence as
to facts likely to affect the willingness of a person to enter into the
contract is not fraud unless, according to the circumstances of the case, it is
the duty of the person keeping silence to speak or unless his silence itself is
considered as speech.
Examples:
A sells a horse to B by auction without telling B that horse is unsound. This is not fraud.
B is A's daughter who has just come off age, then it is A's duty to tell B about the fact. So this is fraud.
B says to A, "if you do not deny it, I will assume that horse is sound". Here, silence is considered as speech so this is fraud.
A and B, being traders, enter into a contract. A has private pricing information that will cause B to not enter the contract. A is not bound to inform this to B. This is not fraud.
Concealing the disease history while obtaining insurance is fraud because it is the duty of the insured to give this information to the insurer.
Derry vs Peek 1889 was not fraud, because the company honestly believed in what they said and there was no intentional misrepresentation, which is the essence of fraud.
Sri Krishan vs. Kurukshetra Univ., AIR 1976 SC the student was not found to be fraud. Even though he knew that he was short on attendance, he did not disclose it on examination form. He was let off because 'mere silence' is not fraud.
d. Misrepresentation (Sec 18): When a person makes an unwarranted statement, however innocently, which the person believes to be true, and which turns out to be false, it is misrepresentation. Any breach of duty, without an intention to deceive, that gains an advantage to the person committing it or to the person claiming under him, by misleading the other person to his prejudice or to person claiming under him, is also misrepresentation. Further, causing a party to an agreement to make a mistake regarding the subject matter of the agreement, however innocently, is also misrepresentation.
Examples:
A claimed to B that the ship being considered under an agreement was below 2800 tonnage. But in reality it turned out to be more than 3000 tonnage. It was held to be misrepresentation and B was entitled to avoid the contract. Oceanic Steam Navigation vs Soonderdas Dharmasey. Bom HC 1980.
A land was purchased expressly for constructing duplexes. The seller claimed that he saw no permissioning problems. However, later on the permission was denied. This was held to be misrepresentation and even though the claim was innocent, the buyer was allowed to avoid the sale
Where the seller of a car stated the mileage of the car to be 20000, which turned out to be wrong, the buyer of the car was allowed to recover compensation for misrepresentation.
Section 19 declares that a contract induced due to coercion, fraud, or misrepresentation is voidable at the option or the party whose consent was obtained by coercion. An exception is that when the consent is obtained by silence fraudulent under sec 17, and when the affected party had the means of discovering the truth with ordinary diligence. In this case, the contract is not voidable. Further, if the fraud or misrepresentation did not cause the party on which they were practiced to give consent, then the contract will not be voidable.
Section 19A declares that the party whose consent was obtained by undue influence has the option to avoid the contract.
3. and 4. Legal Object and Legal Consideration
When four dacoits enter into an agreement to share the loot equally and if two of them take more share than the other two, there is nothing that law can do, except arrest them for dacoity. Needless to say, the objects and considerations involved in the the agreement have to be legally valid. Section 24 declares that agreements are void if consideration and object are unlawful in part. If any part of a single consideration for one or more objects, or any one or any part of one of several considerations for a single object, is unlawful, the agreement is void.
Thus, if the unlawful part cannot be severed from the object or consideration, the whole agreement becomes void. However, if the unlawful part can be severed, the remaining part can still be enforced. For example, A enters into an agreement with B to get 1 Gram of Cocain with 1 Kg or Rice for 10 Rs for rice and 1000 Rs for Cocain, then a part of the object that is 1 gm of cocain and 1000Rs is severable from the agreement without affecting the lawful part. In this case, the agreement can be enforced partially. In another example, A man enters into an agreement with a married women to clean his house and live with him in adultery, which is unlawful, for a sum per month, the whole agreement is void because it is not possible to divide the sum properly between lawful and unlawful objects.
What objects or considerations are unlawful
Section 23 declares that any object or consideration is lawful, unless - it is forbidden by law, or is of the nature that if permitted, defeats the provisions of any law , or is fraudulent, or implies or involves injury to the person or property of another, or is determined by the court to be immoral or against public policy. Thus, an agreement to rent an apartment for prostitution or gambling is void.
5. Agreements expressly declared to be void by this act
Some other agreements that satisfy all the four conditions given is section 10 can still be void. Such agreements are:
Sec 20 : when both the parties are under mistake as to the matter of fact, the agreement is void.
Sec 24 : agreement in which any part of a single consideration for one or more objects, or any consideration or part of a consideration out one or more considerations for a single object is unlawful, is void.
Sec 25 : agreement without any consideration except if it is registered, or a promise to pay for something already done, or is a promise to pay time barred debt.
Sec 26: agreement in restraint of marriage.
Sec 27 : agreement in restraint of trade.
Sec 28 : agreement against legal proceedings.
Sec 29 : agreement that is uncertain
Sec 30 : agreement by way of wager.
Sec 56 : agreement to do impossible act is void. If an act becomes impossible after the contract it done, the contract becomes void when the act becomes impossible to do.
Legal formalities: Certain agreements such as agreement for the sale of immovable property, or agreement for insurance become a contract only when they are properly registered. For such agreements, the procedure prescribed by law must be followed to make them a contract.
Examples:
A sells a horse to B by auction without telling B that horse is unsound. This is not fraud.
B is A's daughter who has just come off age, then it is A's duty to tell B about the fact. So this is fraud.
B says to A, "if you do not deny it, I will assume that horse is sound". Here, silence is considered as speech so this is fraud.
A and B, being traders, enter into a contract. A has private pricing information that will cause B to not enter the contract. A is not bound to inform this to B. This is not fraud.
Concealing the disease history while obtaining insurance is fraud because it is the duty of the insured to give this information to the insurer.
Derry vs Peek 1889 was not fraud, because the company honestly believed in what they said and there was no intentional misrepresentation, which is the essence of fraud.
Sri Krishan vs. Kurukshetra Univ., AIR 1976 SC the student was not found to be fraud. Even though he knew that he was short on attendance, he did not disclose it on examination form. He was let off because 'mere silence' is not fraud.
d. Misrepresentation (Sec 18): When a person makes an unwarranted statement, however innocently, which the person believes to be true, and which turns out to be false, it is misrepresentation. Any breach of duty, without an intention to deceive, that gains an advantage to the person committing it or to the person claiming under him, by misleading the other person to his prejudice or to person claiming under him, is also misrepresentation. Further, causing a party to an agreement to make a mistake regarding the subject matter of the agreement, however innocently, is also misrepresentation.
Examples:
A claimed to B that the ship being considered under an agreement was below 2800 tonnage. But in reality it turned out to be more than 3000 tonnage. It was held to be misrepresentation and B was entitled to avoid the contract. Oceanic Steam Navigation vs Soonderdas Dharmasey. Bom HC 1980.
A land was purchased expressly for constructing duplexes. The seller claimed that he saw no permissioning problems. However, later on the permission was denied. This was held to be misrepresentation and even though the claim was innocent, the buyer was allowed to avoid the sale
Where the seller of a car stated the mileage of the car to be 20000, which turned out to be wrong, the buyer of the car was allowed to recover compensation for misrepresentation.
Section 19 declares that a contract induced due to coercion, fraud, or misrepresentation is voidable at the option or the party whose consent was obtained by coercion. An exception is that when the consent is obtained by silence fraudulent under sec 17, and when the affected party had the means of discovering the truth with ordinary diligence. In this case, the contract is not voidable. Further, if the fraud or misrepresentation did not cause the party on which they were practiced to give consent, then the contract will not be voidable.
Section 19A declares that the party whose consent was obtained by undue influence has the option to avoid the contract.
3. and 4. Legal Object and Legal Consideration
When four dacoits enter into an agreement to share the loot equally and if two of them take more share than the other two, there is nothing that law can do, except arrest them for dacoity. Needless to say, the objects and considerations involved in the the agreement have to be legally valid. Section 24 declares that agreements are void if consideration and object are unlawful in part. If any part of a single consideration for one or more objects, or any one or any part of one of several considerations for a single object, is unlawful, the agreement is void.
Thus, if the unlawful part cannot be severed from the object or consideration, the whole agreement becomes void. However, if the unlawful part can be severed, the remaining part can still be enforced. For example, A enters into an agreement with B to get 1 Gram of Cocain with 1 Kg or Rice for 10 Rs for rice and 1000 Rs for Cocain, then a part of the object that is 1 gm of cocain and 1000Rs is severable from the agreement without affecting the lawful part. In this case, the agreement can be enforced partially. In another example, A man enters into an agreement with a married women to clean his house and live with him in adultery, which is unlawful, for a sum per month, the whole agreement is void because it is not possible to divide the sum properly between lawful and unlawful objects.
What objects or considerations are unlawful
Section 23 declares that any object or consideration is lawful, unless - it is forbidden by law, or is of the nature that if permitted, defeats the provisions of any law , or is fraudulent, or implies or involves injury to the person or property of another, or is determined by the court to be immoral or against public policy. Thus, an agreement to rent an apartment for prostitution or gambling is void.
5. Agreements expressly declared to be void by this act
Some other agreements that satisfy all the four conditions given is section 10 can still be void. Such agreements are:
Sec 20 : when both the parties are under mistake as to the matter of fact, the agreement is void.
Sec 24 : agreement in which any part of a single consideration for one or more objects, or any consideration or part of a consideration out one or more considerations for a single object is unlawful, is void.
Sec 25 : agreement without any consideration except if it is registered, or a promise to pay for something already done, or is a promise to pay time barred debt.
Sec 26: agreement in restraint of marriage.
Sec 27 : agreement in restraint of trade.
Sec 28 : agreement against legal proceedings.
Sec 29 : agreement that is uncertain
Sec 30 : agreement by way of wager.
Sec 56 : agreement to do impossible act is void. If an act becomes impossible after the contract it done, the contract becomes void when the act becomes impossible to do.
Legal formalities: Certain agreements such as agreement for the sale of immovable property, or agreement for insurance become a contract only when they are properly registered. For such agreements, the procedure prescribed by law must be followed to make them a contract.
Q. Explain - Coercion, Undue Influence, Fraud, and
Misrepresentation.
According to Section 10, free consent is an integral part of a contract. An agreement cannot become a contract unless it is done by free consent of parties.
Section 14 says that a consent is free when it is not vitiated by coercion, undue influence, fraud, misrepresentation, or by mistake subject section 20, 21, 22.
Coercion
Section 15 defines coercion as follows -
Coercion is committing or threatening to commit an act that is prohibited by IPC, or any unlawful detaining or threatening to detain, any property, to the prejudice of any person whatever, with an intention of causing any person into entering a contract. It is immaterial whether IPC is in operation at a place where such act took place.
Illustrations
A threatens B at gun point to sell his land to A.
A while in an English ship on high seas enter into a contract with B by intimidating B that is unlawful in India. Later on A sues B of breach of contract in Calcutta. This is coercion.
Chikham Amiraju vs Chikham Seshamma 1912 - Husband threatened to suicide unless wife gave property to his brother. This was held coercion.
Askari Mirza vs Bibi Jai Kishori 1912 - Threatening a criminal prosecution is not coercion per se. It could be coercion if the threat is to file false charges.
Astley vs Reynolds 1731 - Plaintiff had pledged his place for $10. When he went to take it back, pledgee asked for $10 more. He paid the additional $10, but sued to get recover it back. It was held coercion.
Andhra Sugars vs State of AP 1968 - A factory was bound to take the sugar cane from the farmer under an act. This was not held to be coercion.
Undue Influence
Section 16 defines Undue Influence as follows -
A contract is said to be induced by Undue Influence when the relationship between the parties is such that one party is able to dominate his will on the others and uses that position to gain an unfair advantage. A person is deemed to be in the position of dominating the will of the other if -
According to Section 10, free consent is an integral part of a contract. An agreement cannot become a contract unless it is done by free consent of parties.
Section 14 says that a consent is free when it is not vitiated by coercion, undue influence, fraud, misrepresentation, or by mistake subject section 20, 21, 22.
Coercion
Section 15 defines coercion as follows -
Coercion is committing or threatening to commit an act that is prohibited by IPC, or any unlawful detaining or threatening to detain, any property, to the prejudice of any person whatever, with an intention of causing any person into entering a contract. It is immaterial whether IPC is in operation at a place where such act took place.
Illustrations
A threatens B at gun point to sell his land to A.
A while in an English ship on high seas enter into a contract with B by intimidating B that is unlawful in India. Later on A sues B of breach of contract in Calcutta. This is coercion.
Chikham Amiraju vs Chikham Seshamma 1912 - Husband threatened to suicide unless wife gave property to his brother. This was held coercion.
Askari Mirza vs Bibi Jai Kishori 1912 - Threatening a criminal prosecution is not coercion per se. It could be coercion if the threat is to file false charges.
Astley vs Reynolds 1731 - Plaintiff had pledged his place for $10. When he went to take it back, pledgee asked for $10 more. He paid the additional $10, but sued to get recover it back. It was held coercion.
Andhra Sugars vs State of AP 1968 - A factory was bound to take the sugar cane from the farmer under an act. This was not held to be coercion.
Undue Influence
Section 16 defines Undue Influence as follows -
A contract is said to be induced by Undue Influence when the relationship between the parties is such that one party is able to dominate his will on the others and uses that position to gain an unfair advantage. A person is deemed to be in the position of dominating the will of the other if -
- if the person holds a real or apparent position of power
- If stands in a fiduciary relationship with the other.
- if the other person is mentally weak because of sickness, disease, or economic distress
It further says
that if a contract is unconscionable the burden of proof lies of the person in
whose favor the contract is to prove that it was not induced by Undue
Influence, other wise the burden of proof is on the one who alleges it.
Illustrations
A advances some money to his minor son B. Upon majority, A makes B sign a contract to pay back more than the sum advanced.
A is sick and physically feeble and is attended by his nurse B. B influences A to enter a contract to pay him an unreasonable amount for his professional services.
A being in debt of B, the village money lender goes to B for getting a loan. B gives the loan on terms that are unconscionable. It lies on B to prove that undue influence was not used to create the contract.
A applies for loan to a banker B while there is a stringent crises in the money market. B declines to give the loan only at a very high rate. This is not coercion but simple business transaction.
Ability to dominate the will
Mannu Singh vs Umadat Pandey 1890 - Spiritual guru induced the plaintiff, his devotee, to gift all his property to the guru.
Relations of dominion over other - parties are not on equal footing.
Williams vs Baylex 1866 - father being afraid of bank manager, entered into a contract to mortgage his house. This was held voidable.
Real of Aparant authority
Income tax office, magistrate, police officer etc.
It may not be real but if a person shows off as such then also it is applicable.
Fiduciary Relation
Every relationship of trust and confidence is a fiduciary relationship.
Solicitor - client, doctor - patient, spiritual guru - devotee.
Mental Distress
Ranee Annapurni vs Swaminatha 1910 - A poor widow who was in dire need to money to establish her right to maintenance, was persuaded by a money lender to take loan at the rate of 100%. It was held to be undue influence while a person was under mental distress and the court reduced the rate to 24%.
Burden of Proof - The person must show that the other party was in position of dominating the will and that he used that position to gain advantage.
Presumption of undue influence
In certain cases, when it is established that the defendant was in a position to dominate the will of the plaintiff, it will be presumed that he must have used his position to obtain an unfair advantage. Thus, it will be up to the defendant to prove that the plaintiff freely consented.
Lancashire Loans Ltd. vs Black 1934 : It was held that a daughter may not necessarily be independent and may be under the influence of the mother.
Presumption is raised in the following cases -
1. Unconscionable bargains
Wajid Khan vs Raja Ewaz Ali Khan 1891 - An old illiterate woman conferred upon her managing agent a bug pecuniary benefit without any valuable consideration under the guise of a trust. This was held to be under undue influence.
2. Inequality in bargaining power
LLoyd's Bank vs Bundy - Farmer pledged his farmhouse for securing a loan for his son. Later bank tried to take possession of the house. It was held that the contract might have been done under undue influence.
3. Contracts with Pardanashin women
A contract with a pardanashin woman is presumed to have been induced by undue influence. However, such a woman must be totally secluded from ordinary society. In the case of Ismail vs Amir Bibi 1902, a lady stood as witness, put tenants, collected rents in respect of her house. She was held not a pardanashin woman.
Illustrations
A advances some money to his minor son B. Upon majority, A makes B sign a contract to pay back more than the sum advanced.
A is sick and physically feeble and is attended by his nurse B. B influences A to enter a contract to pay him an unreasonable amount for his professional services.
A being in debt of B, the village money lender goes to B for getting a loan. B gives the loan on terms that are unconscionable. It lies on B to prove that undue influence was not used to create the contract.
A applies for loan to a banker B while there is a stringent crises in the money market. B declines to give the loan only at a very high rate. This is not coercion but simple business transaction.
Ability to dominate the will
Mannu Singh vs Umadat Pandey 1890 - Spiritual guru induced the plaintiff, his devotee, to gift all his property to the guru.
Relations of dominion over other - parties are not on equal footing.
Williams vs Baylex 1866 - father being afraid of bank manager, entered into a contract to mortgage his house. This was held voidable.
Real of Aparant authority
Income tax office, magistrate, police officer etc.
It may not be real but if a person shows off as such then also it is applicable.
Fiduciary Relation
Every relationship of trust and confidence is a fiduciary relationship.
Solicitor - client, doctor - patient, spiritual guru - devotee.
Mental Distress
Ranee Annapurni vs Swaminatha 1910 - A poor widow who was in dire need to money to establish her right to maintenance, was persuaded by a money lender to take loan at the rate of 100%. It was held to be undue influence while a person was under mental distress and the court reduced the rate to 24%.
Burden of Proof - The person must show that the other party was in position of dominating the will and that he used that position to gain advantage.
Presumption of undue influence
In certain cases, when it is established that the defendant was in a position to dominate the will of the plaintiff, it will be presumed that he must have used his position to obtain an unfair advantage. Thus, it will be up to the defendant to prove that the plaintiff freely consented.
Lancashire Loans Ltd. vs Black 1934 : It was held that a daughter may not necessarily be independent and may be under the influence of the mother.
Presumption is raised in the following cases -
1. Unconscionable bargains
Wajid Khan vs Raja Ewaz Ali Khan 1891 - An old illiterate woman conferred upon her managing agent a bug pecuniary benefit without any valuable consideration under the guise of a trust. This was held to be under undue influence.
2. Inequality in bargaining power
LLoyd's Bank vs Bundy - Farmer pledged his farmhouse for securing a loan for his son. Later bank tried to take possession of the house. It was held that the contract might have been done under undue influence.
3. Contracts with Pardanashin women
A contract with a pardanashin woman is presumed to have been induced by undue influence. However, such a woman must be totally secluded from ordinary society. In the case of Ismail vs Amir Bibi 1902, a lady stood as witness, put tenants, collected rents in respect of her house. She was held not a pardanashin woman.
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Coercion - Section 15
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Undue Influence -
Section 16
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There is a clear threat involved and the person being coerced knows it.
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There is no outward sign on undue influence and the person being
influenced may not realize it.
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No relationship has to exist.
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A relationship that allows a person to dominate the will of other must
exist.
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Contract induced by coercion is voidable under section 19
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Contract induced by undue influence is voidable under section 19-A
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If an act, which is unlawful under IPC, has been used to force a person
into contract, it is immaterial where it has taken place, contract will
still be voidable in India.
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Fraud
Section 17 defines fraud as follows:
Fraud means and includes any of the following acts done by a party to a contract, or by his connivance, or by his agent, to decieve another party thereto or his agent, or to induce him to enter the contract. Such acts include-
- the suggestion, as a fact, that of which the party knows or has reason to believe to be not true.
- active concealment of a fact by the one who knows or has reason to believe to be true.
- Making a promise he does not intend to fulfill.
- any act fitted to deceive.
- any act or omission as the law specifically declares to be fraudulent.
Illustrations
A sells, by auction, to B a horse which A knows to be unsound but does not tell anything to B. This is not fraud.
B is A's daughter who has just come of age. In this case, it is A's duty to tell B that the horse is unsound.
B says to A, "If you do not deny it, I will assume that the horse is good.". Here, A's silence is equivalent to speech.
A and B are both traders and A has private information about change in prices, which would affect B's willingness to proceed with contract. This is not fraud.
Intention to deceive is required to constitute fraud.
Suggestion of a fact
Derry vs Peek 1889, it was held not to be fraud because the defendants truly believe that permission would be granted by the board of trade because parliament had approved it.
Active concealment
Active concealment is different from passive concealment. Passive concealment merely means silence as to material facts. However, active concealment means making efforts to prevent the facts from reaching a party and this is fraud.
B R Chaudhary vs IOC 2004 - A dealer concealed his previous employment under govt. to get dealership. SC allowed the contract to be terminated.
Concealment by mere silence is not fraud
Sri Krishan vs Univ. of Kurukshetra 1976 - the candidate knew that he was short of attendance but did not write anything on the examination form. It was held not fraud because it was the job of the university to scrutinize the forms.
Silence may become fraud in certain cases - Duty to speak, Half truth, change of circumstances.
Making a promise without any intention to perform
DDA vs Skipper Construction Company 2000- A builder collected deposit money from more number of people than there were flats. SC held that since the builder knew that he cannot perform his promise and still took the money, he was doing fraud. He was held liable to pay interest even though there was no provision of interest on deposit.
Any other act fitted to deceive
Ningawwa vs Byrappa 1968 - Husband got his illiterate wife to sign papers saying that he was mortgaging her two lands but actually he mortgaged four. This act was obviously done to deceive and was held to be fraud.
Misrepresentation
Section 18 defines misrepresentation as follows:
Misrepresentation means and includes
A sells, by auction, to B a horse which A knows to be unsound but does not tell anything to B. This is not fraud.
B is A's daughter who has just come of age. In this case, it is A's duty to tell B that the horse is unsound.
B says to A, "If you do not deny it, I will assume that the horse is good.". Here, A's silence is equivalent to speech.
A and B are both traders and A has private information about change in prices, which would affect B's willingness to proceed with contract. This is not fraud.
Intention to deceive is required to constitute fraud.
Suggestion of a fact
Derry vs Peek 1889, it was held not to be fraud because the defendants truly believe that permission would be granted by the board of trade because parliament had approved it.
Active concealment
Active concealment is different from passive concealment. Passive concealment merely means silence as to material facts. However, active concealment means making efforts to prevent the facts from reaching a party and this is fraud.
B R Chaudhary vs IOC 2004 - A dealer concealed his previous employment under govt. to get dealership. SC allowed the contract to be terminated.
Concealment by mere silence is not fraud
Sri Krishan vs Univ. of Kurukshetra 1976 - the candidate knew that he was short of attendance but did not write anything on the examination form. It was held not fraud because it was the job of the university to scrutinize the forms.
Silence may become fraud in certain cases - Duty to speak, Half truth, change of circumstances.
Making a promise without any intention to perform
DDA vs Skipper Construction Company 2000- A builder collected deposit money from more number of people than there were flats. SC held that since the builder knew that he cannot perform his promise and still took the money, he was doing fraud. He was held liable to pay interest even though there was no provision of interest on deposit.
Any other act fitted to deceive
Ningawwa vs Byrappa 1968 - Husband got his illiterate wife to sign papers saying that he was mortgaging her two lands but actually he mortgaged four. This act was obviously done to deceive and was held to be fraud.
Misrepresentation
Section 18 defines misrepresentation as follows:
Misrepresentation means and includes
- making a statement in a manner that is unwarranted by the information of the person making it, of that which is not true, though he believes it to be true.
- any breach of duty which, without an intention to deceive, gains an advantage to the person committing it or any one claiming under him, by misleading another to his prejudice or to the prejudice of anyone claiming under him.
- causing, however innocently, another party to commit a mistake as to the substance of the thing which is the subject of the agreement.
Thus, when there
is no intention to deceive but still a wrong statement has been made, or a duty
has not been performed, or a mistake has been induced, it is misrepresentation.
Unwarranted Statements
Oceanic Steam Navigation vs Soonderdas Dharmasey 1980 - the defendants charted a ship from a company. The plaintiff had made a claim that the ship was not more than 2800 tonnage even though the plaintiff had not known about it. In reality the ship turned out to be more than 3000 tonnes. It was held to be misrepresentation and the defendants were allowed to avoid the contract.
Breach of Duty
Thake vs Maurice 1986 - Husband was not informed of the risks and failure rate of vasectomy before the operation. Later on wife became pregnant and the hospital was held guilty of misrepresentation and was ordered to pay compensation for all the pains and expenses of delivery.
Inducing mistake about subject matter
The subject matter of the contract is supposed by the parties to be of a certain value or quality. If one party, however innocently, leads another party to make a mistake as to the value of subject matter, it is misrepresentation.
Farrand vs Lazarus 2002 - A car dealer put a notice on a car that the mileage is incorrect even though he knew that the reading was grossly incorrect. This was held to be misrepresentation.
Suppression of Material and Vital Facts
R vs Kylsant 1932- Company prospectus said that company was regularly paying dividends, which implied that is was making profit. However, it did not say that company was making losses and dividends were being paid from war time accumulated profits.
Expression of Opinion
Merely expressing an opinion is not misrepresentation.
Bisset vs Wilkinsen 1927 - The seller was aware that the land was being purchased for sheep farming and he expressed an opinion that the land could carry 200 sheep. It turned out that the land was no suitable for sheep farming. The seller was not held liable.
Section 19 says that any contract which is induced by Coercion, Fraud, or Misrepresentation is voidable at the option of the party whose consent was caused due to coercion, fraud, or misrepresentation.
However, if the consent is obtained by misrepresentation of a fact or silence amounting to fraud, the contract is not voidable if the party whose consent was so caused was able to discover it with due diligence.
Also, a fraud or misrepresentation that did not cause a party to give consent, does not render a contract voidable.
Section 19 A says that when an agreement is created due to a consent induced by undue influence, such an agreement is a contract voidable at the option of the contract whose consent is so caused.
Unwarranted Statements
Oceanic Steam Navigation vs Soonderdas Dharmasey 1980 - the defendants charted a ship from a company. The plaintiff had made a claim that the ship was not more than 2800 tonnage even though the plaintiff had not known about it. In reality the ship turned out to be more than 3000 tonnes. It was held to be misrepresentation and the defendants were allowed to avoid the contract.
Breach of Duty
Thake vs Maurice 1986 - Husband was not informed of the risks and failure rate of vasectomy before the operation. Later on wife became pregnant and the hospital was held guilty of misrepresentation and was ordered to pay compensation for all the pains and expenses of delivery.
Inducing mistake about subject matter
The subject matter of the contract is supposed by the parties to be of a certain value or quality. If one party, however innocently, leads another party to make a mistake as to the value of subject matter, it is misrepresentation.
Farrand vs Lazarus 2002 - A car dealer put a notice on a car that the mileage is incorrect even though he knew that the reading was grossly incorrect. This was held to be misrepresentation.
Suppression of Material and Vital Facts
R vs Kylsant 1932- Company prospectus said that company was regularly paying dividends, which implied that is was making profit. However, it did not say that company was making losses and dividends were being paid from war time accumulated profits.
Expression of Opinion
Merely expressing an opinion is not misrepresentation.
Bisset vs Wilkinsen 1927 - The seller was aware that the land was being purchased for sheep farming and he expressed an opinion that the land could carry 200 sheep. It turned out that the land was no suitable for sheep farming. The seller was not held liable.
Section 19 says that any contract which is induced by Coercion, Fraud, or Misrepresentation is voidable at the option of the party whose consent was caused due to coercion, fraud, or misrepresentation.
However, if the consent is obtained by misrepresentation of a fact or silence amounting to fraud, the contract is not voidable if the party whose consent was so caused was able to discover it with due diligence.
Also, a fraud or misrepresentation that did not cause a party to give consent, does not render a contract voidable.
Section 19 A says that when an agreement is created due to a consent induced by undue influence, such an agreement is a contract voidable at the option of the contract whose consent is so caused.
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Fraud - Section 17
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Misrepresentation -
Section 18
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There is intention to deceive.
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No intention to deceive.
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A contract involving fraud is liable for action in tort for damages.
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No action in tort.
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Defence of ordinary diligence is not available for fraud except for fraud
by silence.
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Can be defended on the ground that the person could find out the truth by
ordinary diligence.
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Similarity in Fraud and Misrepresentation
- Both contain false representation.
- Both render a contract voidable.
- In both the cases, the consent must have been caused due to that fraud or misrepresentation.
- Defense of ordinary diligence is available to fraud by silence and misrepresentation.
Q. What are different types of mistakes? Explain their effects on the
validity of the contract.
There can be two types of mistakes - a mistake that misleads the parties to an agreement to consent and a mistake that defeats the consent itself.
For example, A contracts with B for purchasing goods coming by a ship. However, unknown to both, the ship has already drowned at the time of the contract. In this case, there was a mistake of a fact, which lead the parties to consent. This type of mistake is covered by sections 20, 21, and 22.
In another example, A enters into a agreement with B thinking that he is C. In this case, there was no consent from A at all because of mistake in identities. As another example, A agrees to sell to B his stock and B agrees to pay 5000Rs for A's stock. However, A was thinking about his livestock (i.e. cattle) and B was thinking about shares of a corporation. In this case, there was no consent because they agreed on the same thing but not in in the same sense. These mistakes defeat the consent itself. There is no real consent here at all. This type of mistakes is covered by section 13, which says that when two persons agree to the same thing in the same sense, they are said to consent. Agreement on the same thing in the same sense is true consent and is called consensus ad idem. If there is no consensus ad idem, there is no agreement, and hence no contract.
Section 20 says that an agreement is void when both the parties are under mistake as to matter of fact that is essential to the contract.
Illustrations
A agrees to buy a horse from B. At the time of agreement the horse was dead but no one knew about it. The agreement is void.
A, being entitled an estate for the life of B, sells it to C. B was dead at the time of contract but both the parties were ignorant of the fact. The agreement is void.
Section 21 says that a contract is not voidable if it was caused by mistake as to law in India. However, mistake as to law outside India has the same effect as mistake of fact.
Section 22 says that contract is not voidable merely because one of the parties was under mistake as to fact.
Thus, for an agreement to be voidable due to a mistakes three conditions are required -
There can be two types of mistakes - a mistake that misleads the parties to an agreement to consent and a mistake that defeats the consent itself.
For example, A contracts with B for purchasing goods coming by a ship. However, unknown to both, the ship has already drowned at the time of the contract. In this case, there was a mistake of a fact, which lead the parties to consent. This type of mistake is covered by sections 20, 21, and 22.
In another example, A enters into a agreement with B thinking that he is C. In this case, there was no consent from A at all because of mistake in identities. As another example, A agrees to sell to B his stock and B agrees to pay 5000Rs for A's stock. However, A was thinking about his livestock (i.e. cattle) and B was thinking about shares of a corporation. In this case, there was no consent because they agreed on the same thing but not in in the same sense. These mistakes defeat the consent itself. There is no real consent here at all. This type of mistakes is covered by section 13, which says that when two persons agree to the same thing in the same sense, they are said to consent. Agreement on the same thing in the same sense is true consent and is called consensus ad idem. If there is no consensus ad idem, there is no agreement, and hence no contract.
Section 20 says that an agreement is void when both the parties are under mistake as to matter of fact that is essential to the contract.
Illustrations
A agrees to buy a horse from B. At the time of agreement the horse was dead but no one knew about it. The agreement is void.
A, being entitled an estate for the life of B, sells it to C. B was dead at the time of contract but both the parties were ignorant of the fact. The agreement is void.
Section 21 says that a contract is not voidable if it was caused by mistake as to law in India. However, mistake as to law outside India has the same effect as mistake of fact.
Section 22 says that contract is not voidable merely because one of the parties was under mistake as to fact.
Thus, for an agreement to be voidable due to a mistakes three conditions are required -
- Both the parties are under mistake.
- Mistake is of a fact.
- fact is essential to the agreement.
Which facts are
essential to the agreement?
This depends on the nature of the promise in each case. Something that is remotely linked to the agreement is not an essential fact. For example, A agrees to hire B for taking his goods to a city. They came to know later that there is no electricity. This fact is not essential to the contract. However, it they come to know later that all transporters are on strike, this would be a fact essential to the agreement.
There are three types of things that are essential facts to an agreement - identity of the parties, identity and nature of the subject matter of the contract, and nature and content of the promise itself.
Mistake as to identity
Mistake as to identity can occur due to
This depends on the nature of the promise in each case. Something that is remotely linked to the agreement is not an essential fact. For example, A agrees to hire B for taking his goods to a city. They came to know later that there is no electricity. This fact is not essential to the contract. However, it they come to know later that all transporters are on strike, this would be a fact essential to the agreement.
There are three types of things that are essential facts to an agreement - identity of the parties, identity and nature of the subject matter of the contract, and nature and content of the promise itself.
Mistake as to identity
Mistake as to identity can occur due to
- assumption of a false name
- taking over a business
- fraud
In the case of Cundy
vs Lindsay 1878, a fraudster, who had a similar name as that of the
defendant, sent an order to the plaintiff . Plaintiff supplied the order which
went to the defendant. It was held that since there was a mistake as to
identity, there was no contract between the parties.
In cases where identity of the offeree is important to the offerer, a contract cannot arise in the case of mistake as to identity. In the case of Said vs Butt 1920, the plaintiff got the tickets for a show through a friend but the defendant, the manager of the theater did not allow him to enter. It was held that since the manager did not give the ticket for the plaintiff, there was no contract between them.
Mistake as to Subject matter
This can occur due to
In cases where identity of the offeree is important to the offerer, a contract cannot arise in the case of mistake as to identity. In the case of Said vs Butt 1920, the plaintiff got the tickets for a show through a friend but the defendant, the manager of the theater did not allow him to enter. It was held that since the manager did not give the ticket for the plaintiff, there was no contract between them.
Mistake as to Subject matter
This can occur due to
- Non existent subject matter
- Mistake as to title or ownership
- Different subject matters in mind
- Mistake as to quality of subject matter.
Raffles vs Witchlehaus -Parties had
different ships in mind but both were named peerless. It was held that there
was no consensus ad idem and so the contract must be set aside.
Smith vs Huges - Buyer wanted to buy old oats for his horse. The seller showed him the sample but didn't say anything about the age. The buyer kept the sample for 24 hrs and then ordered. Later on he rejected the order saying that the oats were new. It was held that buyer had no right to reject.
Mistake as to the nature of promise
When a deed of one character is signed under the belief that it is of another character, the agreement is wholly void.
Sarat Chandra vs Kanailal - A gift deed was signed under the impression that it is only power of attorney. It was held void.
Limitations
Both Parties
According to Section 20 both the parties must be under a mistake for the agreement to be void. This is further supplanted by article 22 that an agreement is not void if only one party is under mistake.
Erroneous Opinion
Explanation to section 20 says that an erroneous opinion regarding the subject matter does not render an agreement void. This was reflected in the case of Smith vs Huges.
Mistake of fact and not of law
Section 2 1 says that mistake of law does not render an agreement void. Thus, the mistake must be of a fact. A mistake of foreign law will be treated as a mistake of fact.
Smith vs Huges - Buyer wanted to buy old oats for his horse. The seller showed him the sample but didn't say anything about the age. The buyer kept the sample for 24 hrs and then ordered. Later on he rejected the order saying that the oats were new. It was held that buyer had no right to reject.
Mistake as to the nature of promise
When a deed of one character is signed under the belief that it is of another character, the agreement is wholly void.
Sarat Chandra vs Kanailal - A gift deed was signed under the impression that it is only power of attorney. It was held void.
Limitations
Both Parties
According to Section 20 both the parties must be under a mistake for the agreement to be void. This is further supplanted by article 22 that an agreement is not void if only one party is under mistake.
Erroneous Opinion
Explanation to section 20 says that an erroneous opinion regarding the subject matter does not render an agreement void. This was reflected in the case of Smith vs Huges.
Mistake of fact and not of law
Section 2 1 says that mistake of law does not render an agreement void. Thus, the mistake must be of a fact. A mistake of foreign law will be treated as a mistake of fact.
Q. What is a lawful consideration? When would a consideration or object of
an agreement unlawful? Explain with illustration.
Section 23 says that a consideration or an object of an agreement is lawful unless,
Section 23 says that a consideration or an object of an agreement is lawful unless,
- it is prohibited by law.
- it is of such nature that, if permitted, defeats the provisions of a law.
- it is fraudulent.
- it involves or implies injury to another person or property of another.
- it is immoral or against public policy.
Illustrations
1. A promises to sell his house to B for 10000 Rs. The object is the house and the consideration is 10000/- both are lawful.
2. A promises to pay B 1000/- if C fails to pay his debt to B within next 6 months. B upon this promise give 6 more months to C repaying debt.
3. A promises to B to superintend B's manufacture of Indigo, which is lawful, as well as a trade in illegal items for a monthly salary of 5000/. Unlawful.
4. A promises to pay 5000/- per month to B to clean his house and live with him in an adulterous relationship.
So on...
Forbidden by Law -
1. A promises to sell his house to B for 10000 Rs. The object is the house and the consideration is 10000/- both are lawful.
2. A promises to pay B 1000/- if C fails to pay his debt to B within next 6 months. B upon this promise give 6 more months to C repaying debt.
3. A promises to B to superintend B's manufacture of Indigo, which is lawful, as well as a trade in illegal items for a monthly salary of 5000/. Unlawful.
4. A promises to pay 5000/- per month to B to clean his house and live with him in an adulterous relationship.
So on...
Forbidden by Law -
- Means any law in force, including Hindu and Muslim personal laws.
- Koteswar Vittal Kamath vs K Rangappa Baliga 1969 SC - Sale of liquor without license is void and prices paid is irrecoverable.
- Mannalal Khetan vs Kedar nath Khetan 1977 SC - If the intention of the law is to forbid something in public interest, an agreement that contravenes it is void. However, if the intention is to merely regulate something, the contract may not be void even if the parties have to pay a penalty.
Defeats the
provisions of a law
- Fateh Singh vs Sanval Singh 1878 - An accused was required to put a surety of 5000/- for good behavior. He deposited the money with defendant and asked the defendant to become surety. Ofter the period of surety, the accused sued to recover the deposit. Agreement was held void.
- Regazzoni vs K C Sethia 1956 - Two parties made an agreement that one will supply jute to another in an African country so that it can then be resold in another country to which export of jute bags was prohibited. One party sued the other for breach of contract. Agreement was held void.
Fraudulent
- Scott vs Brown Doering McNab and Co 1891 - A trader asked the broker to purchase a stock of a company at a premium to create an impression in people that the company was worth paying a premium. Later he discovered that the broker sold his own shares to him. The trader sued to revert the transaction. Held void because it was done to defraud people.
Injury to person
or property
- Ram Sarup vs Bansi Mandar 1915 - An agreement said that a person would work for another person for two years for borrowing rs 100. In case of default, he was to pay an exorbitant interest and principal at once. This was held indistinguishable from bonded labor and this was injurious to person. Held void.
Immoral
- What is moral depends on the standards of morality prevailing at a particular time and approved by the courts.
- Interference in marital relations is immoral.
- Dealings with sex workers
- Allice Marry Hill vs William Clark 1905 - Adultery involving a married person is not only immoral but illegal and any contract or promise related to that cannot be enforced.
Public Policy
- Under Public Policy, sometimes the court may refuse to enforce a contract for the benefit of public interest.
- Ratanchand Hirachand vs Askar Navaz Jung 1976 - J Reddy of AP HC observed, "The twin touchstones of public policy are advancement of public good and prevention of public mischief and these are to be decided by the judges not as a men of legal learning but as experienced and enlightened members of the society."
- Trafficking in public offices, trading with enemy, interference with administration of justice, champerty, marriage brokerage contracts, unfair or unreasonable dealings - when parties are not on equal footing.
Understanding of
a lawful consideration is important because as per section24, an agreement is
void if any part of a single consideration for one or more objects, or if
any one or any part of any one of several considerations for a single object is
unlawful.
Q. "An Agreement without consideration is void." Explain this
rule and state exceptions if any.
Indian Contract Act 1872 in section 2(e) says that every promise and every set of promises that form a consideration for each other is an agreement. Thus, it is clear that the formation of consideration for a promise or promises is a key ground on which a promise becomes an agreement. There cannot be an agreement if there is no consideration. Section 25 of the act says the same thing in precise terms and also gives three exceptions when an agreement without consideration is a valid contract:
Section 25: An agreement without consideration is void unless,
Indian Contract Act 1872 in section 2(e) says that every promise and every set of promises that form a consideration for each other is an agreement. Thus, it is clear that the formation of consideration for a promise or promises is a key ground on which a promise becomes an agreement. There cannot be an agreement if there is no consideration. Section 25 of the act says the same thing in precise terms and also gives three exceptions when an agreement without consideration is a valid contract:
Section 25: An agreement without consideration is void unless,
- it is in writing and registered and the promise has been made due to natural love and affection between the parties standing in near relation to each other.
- it is a promise to compensate, wholely or in part, a person who has voluntarily done something for the promisor or something that the promisor was legally bound to do.
- it is a promise to pay for a time barred debt.
Natural Love and
Affection
Rajlukhy Debi vs Bhootnath Mukherji - Court found no evidence of love.
Bhiwa vs Shivram - A person gave half of his property to his brother in order to be reconciled with him. Court held that it was due to natural love and affection.
Past and Executed Consideration
The definition in 2(d) says "...has done or abstained from doing...". Thus, an act already done can be a valid consideration. However, a past consideration and an executed consideration must be distinguished. For example, if A saves B from drowning and if B promises to pay A 50/-, under English law, B is not bound by the promise because there was no promise when the act was done. The act of saving is past consideration. On the other hand, if A promises to pay 50/- to who ever finds his dog and if B finds and produces the dog, A is bound to pay because the promise existed before the act. This is called executed consideration.
However, in Indian law, Section 25 (2) explicitly says that a promise to compensate a person who has voluntarily done something for the promisor is binding. Thus, if B saves A from drowning and if A promises to pay B, then A is bound by the promise.
Further, in the case of a past service on request without any promise to pay, it is construed that there is an implied promise to pay only the amount of payment is not fixed. Thus, a promise to pay for a past service upon request is a valid contract.
In the case of Sri Sandhi Ganpatji vs Abraham, it was held that services rendered to a minor, which were continued after his majority upon his request is a valid consideration for a promise to pay.
Value of the consideration
It is important that the consideration has some value in the eyes of law. If A promises to B to give his Rolls Royce if B brings it from the garage, the promise is not binding because the consideration has no value in the eyes of law. However, if A sells his horse worth 1000/- to B for 10/-, it is a valid consideration even if it is not adequate provided that the consent was free. Explanation 2 of section 25 says that inadequate consideration may be considered to be against free consent.
Haigh vs Brooks - A promise to pay for returning a document, which later on was found to be worthless, was held to be a valid because the document was considered of some value at the time of the contract.
However, consideration need not be adequate.
De La Bere vs Pearson - A person lost money due to a financial advice given in a newspaper. The newspaper was held liable because the consideration of buying the newspaper was of some value even if not adequate.
Debi Radha Ranee vs Ram Dass - Forbearance to sue to sue is a valid consideration.
Performace of existing duties
In general performance of something that one was already required to do is not a valid consideration.
Performance of Legal Obligation
For example, a policeman is under legal obligation and performance of his duties cannot be a valid consideration.
Performance of contractual Obligations
In the case of Ramchandra Chintaman vs Kalu Raju 1877, a lawyer was promised to get 100/- more if he wins the case. The promise was held not binding because the lawyer was already under contractual duty to do his best in the case.
However, a performance of a pre-existing contract with a third party was held a valid consideration. In the case of Shadwell vs Shadwell, an uncle's promise to pay his nephew if he married some girl was held valid. This was held by MP HC in the case of Gopal Co. vs Hazarilal Co AIR 1963.
Promise to pay less than the amount due.
Section 63 of Indian Contract Act says that payment of a smaller sum in satisfaction of a larger dept is valid if this has been done under an agreement between the creditors and the debtors. It further gives an illustration that if A owes B 5000 rs and if B accepts 2000Rs as a satisfaction of the whole amount at the time and place where 5000 rs were due, the payment of 2000 rs discharges A of his debt.
Q. What are the important components of a consideration?
Section 2(d) defines consideration as follows:
When, at the desire of the promisor, the promisee or any other person, has done or has abstained from doing, does or abstains from doing, or promises to to or abstain from doing, such an act or abstinence becomes a consideration for the promise.
At the desire of the promisor
To be a valid consideration, the act must be at the desire of the promisor and not of anybody else. In the case of Durga Prasad vs Baldeo 1880, the plaintiff had build the shops on the desire of the collector and not of the defendants. Therefore the promise by defendants to pay a percentage of sales was held not binding.
In the case of Kedar Nath vs Gauri Mohd. 1886, the defendant had pledged 100/- for construction of town hall. The plaintiff started work on that pledge and so the defendant was held liable to pay.
Provider of the consideration (Privity)
The British law has two principle governing the consideration.
1. The consideration must move from the promisee to the promisor.
2. Only the person who is a party to the contract can sue for the performance.
Privity of Consideration
In India, the first rule is not followed at all. In fact section 2(d) specifically says that consideration can be provided by the promisee or any other person. This was held in the case of Chinnaya vs Ramaya 1882.
Privity of Contract
In the case of Tweddle vs Atkinson 1882, it was held by the privy council that the person who is not a party in the contract cannot sue. SC in the case of MC Chacko vs State Bank of Travancore 1969 has adopted the same principle and held that the since the bank was not a party to the contract between the father and the son, it cannot enforce the contract.
However, based on Privy Council's observation of the culture in terms of marriage and family relationship, in the case of Kwaja Mohd. Khan vs Hussaini Begum 1910, some exceptions to this rule have been accepted.
1. Trust or Charge
When an agreement forms a trust for the benefit of a third person, the third person can enforce the agreement. This was held in the case of Kwaja Mohd. Khan vs Hussaini Begum 1910 as well as in Rana Uma Nath Bakhs Singh vs Jung Bahadur AIR 1938.
2. Marriage, partition, and other family matter
In the case of Daropti vs Jaspat Rai 1905, it was held that the wife was able to enforce the husband to fulfill a promise that he gave to her father about providing her a separate residence.
3. Acknowledgement or Estoppel
Where by the terms of a contract a party is to make payments to a third party and the party acknowledges this to the third party, a binding obligation is created towards him. This was held in the case of Devraja Urs vs Ram Krishnaiya AIR 1952.
Rajlukhy Debi vs Bhootnath Mukherji - Court found no evidence of love.
Bhiwa vs Shivram - A person gave half of his property to his brother in order to be reconciled with him. Court held that it was due to natural love and affection.
Past and Executed Consideration
The definition in 2(d) says "...has done or abstained from doing...". Thus, an act already done can be a valid consideration. However, a past consideration and an executed consideration must be distinguished. For example, if A saves B from drowning and if B promises to pay A 50/-, under English law, B is not bound by the promise because there was no promise when the act was done. The act of saving is past consideration. On the other hand, if A promises to pay 50/- to who ever finds his dog and if B finds and produces the dog, A is bound to pay because the promise existed before the act. This is called executed consideration.
However, in Indian law, Section 25 (2) explicitly says that a promise to compensate a person who has voluntarily done something for the promisor is binding. Thus, if B saves A from drowning and if A promises to pay B, then A is bound by the promise.
Further, in the case of a past service on request without any promise to pay, it is construed that there is an implied promise to pay only the amount of payment is not fixed. Thus, a promise to pay for a past service upon request is a valid contract.
In the case of Sri Sandhi Ganpatji vs Abraham, it was held that services rendered to a minor, which were continued after his majority upon his request is a valid consideration for a promise to pay.
Value of the consideration
It is important that the consideration has some value in the eyes of law. If A promises to B to give his Rolls Royce if B brings it from the garage, the promise is not binding because the consideration has no value in the eyes of law. However, if A sells his horse worth 1000/- to B for 10/-, it is a valid consideration even if it is not adequate provided that the consent was free. Explanation 2 of section 25 says that inadequate consideration may be considered to be against free consent.
Haigh vs Brooks - A promise to pay for returning a document, which later on was found to be worthless, was held to be a valid because the document was considered of some value at the time of the contract.
However, consideration need not be adequate.
De La Bere vs Pearson - A person lost money due to a financial advice given in a newspaper. The newspaper was held liable because the consideration of buying the newspaper was of some value even if not adequate.
Debi Radha Ranee vs Ram Dass - Forbearance to sue to sue is a valid consideration.
Performace of existing duties
In general performance of something that one was already required to do is not a valid consideration.
Performance of Legal Obligation
For example, a policeman is under legal obligation and performance of his duties cannot be a valid consideration.
Performance of contractual Obligations
In the case of Ramchandra Chintaman vs Kalu Raju 1877, a lawyer was promised to get 100/- more if he wins the case. The promise was held not binding because the lawyer was already under contractual duty to do his best in the case.
However, a performance of a pre-existing contract with a third party was held a valid consideration. In the case of Shadwell vs Shadwell, an uncle's promise to pay his nephew if he married some girl was held valid. This was held by MP HC in the case of Gopal Co. vs Hazarilal Co AIR 1963.
Promise to pay less than the amount due.
Section 63 of Indian Contract Act says that payment of a smaller sum in satisfaction of a larger dept is valid if this has been done under an agreement between the creditors and the debtors. It further gives an illustration that if A owes B 5000 rs and if B accepts 2000Rs as a satisfaction of the whole amount at the time and place where 5000 rs were due, the payment of 2000 rs discharges A of his debt.
Q. What are the important components of a consideration?
Section 2(d) defines consideration as follows:
When, at the desire of the promisor, the promisee or any other person, has done or has abstained from doing, does or abstains from doing, or promises to to or abstain from doing, such an act or abstinence becomes a consideration for the promise.
At the desire of the promisor
To be a valid consideration, the act must be at the desire of the promisor and not of anybody else. In the case of Durga Prasad vs Baldeo 1880, the plaintiff had build the shops on the desire of the collector and not of the defendants. Therefore the promise by defendants to pay a percentage of sales was held not binding.
In the case of Kedar Nath vs Gauri Mohd. 1886, the defendant had pledged 100/- for construction of town hall. The plaintiff started work on that pledge and so the defendant was held liable to pay.
Provider of the consideration (Privity)
The British law has two principle governing the consideration.
1. The consideration must move from the promisee to the promisor.
2. Only the person who is a party to the contract can sue for the performance.
Privity of Consideration
In India, the first rule is not followed at all. In fact section 2(d) specifically says that consideration can be provided by the promisee or any other person. This was held in the case of Chinnaya vs Ramaya 1882.
Privity of Contract
In the case of Tweddle vs Atkinson 1882, it was held by the privy council that the person who is not a party in the contract cannot sue. SC in the case of MC Chacko vs State Bank of Travancore 1969 has adopted the same principle and held that the since the bank was not a party to the contract between the father and the son, it cannot enforce the contract.
However, based on Privy Council's observation of the culture in terms of marriage and family relationship, in the case of Kwaja Mohd. Khan vs Hussaini Begum 1910, some exceptions to this rule have been accepted.
1. Trust or Charge
When an agreement forms a trust for the benefit of a third person, the third person can enforce the agreement. This was held in the case of Kwaja Mohd. Khan vs Hussaini Begum 1910 as well as in Rana Uma Nath Bakhs Singh vs Jung Bahadur AIR 1938.
2. Marriage, partition, and other family matter
In the case of Daropti vs Jaspat Rai 1905, it was held that the wife was able to enforce the husband to fulfill a promise that he gave to her father about providing her a separate residence.
3. Acknowledgement or Estoppel
Where by the terms of a contract a party is to make payments to a third party and the party acknowledges this to the third party, a binding obligation is created towards him. This was held in the case of Devraja Urs vs Ram Krishnaiya AIR 1952.
Q. Agreements in restraint of Trade are void. Explain with leading
cases.
Section 27 "Agreement is restraint of trade, void" says thus,
Every agreement by which any one is restrained from exercising lawful trade, business, or profession of any kind is to that extent, void.
Exception: Saving of agreement not to carry on business, of which goodwill is sold.
Mahbub Chander vs Raj Koomar 1874 - Two shopkeeper entered into an agreement that one will pay the other to close his business in that locality. One closed the shop but the other refused to pay. It was held that the agreement was void. Since the wordings of section 27 do not do not use the word "absolute" as in section 28, even if the restraint is partial, it will be void.
Nordenfelt vs Maxim Nordenfelt Guns and Ammunition co ltd. 1894 - Inventor sold the goodwill of a gun company to a buyer. The agreement was - Seller will not practice the same trade for 25 and the seller will not do any business that will compete with the business carried on by the buyer at that time. It was held that the first part is valid because it is reasonable but the second part is invalid because it is unreasonable.
English law tests reasonability while Indian law sees if it is allowed under statutory exceptions or exceptions created by judicial decisions.
Collusion between Bidders and Tenderers
In general mutual arrangements between bidder so as to affect the final bid price are not considered in restraint of trade.
Mohd Isack vs Daddepaneni AIR 1946 - Two persons entered into an agreement where by one would not bid on a tender floated by Postal service and the other would pay him for that. The other person got the contract but refused to pay. It was held that it was a valid contract.
However, now such matters should be considered with respect to Monopolies and Restrictive Trade Practices Act 1969, which forbids such collusions.
Freedom of Press
An agreement that puts a restraint of press not to publish on the conduct of a person is void because it is opposed to public policy.
Restriction on Lease
Vidya Wati vs Hans Raj AIR 1993 - Lesor of a property can put a restriction on what kind of business can be done on the property. It is an outlet of carrying business and not a restraint.
Exceptions
1. Sale of goodwill
2. Partnership : Under Partnership Act, partners of a firm may restrict their mutual liberty to do any trade other than within their firm. An outgoing partner may also be restricted from carrying on similar trade for a period of time.
3. Trade Combinations : Companies doing business in the same field may regulate their trade practices for example opening and closing time of business even if they marginally put restraint. However, restrain on employment are not allowed in disguise of regulation.
Korus Mfg vs Koluk Mfg 1959 - Companies made an agreement that they would not hire anybody who has worked in the other company in past 5 yrs. Held void.
4. Exclusive dealing agreements
5. Restraint upon employees
Niranjan Shankar Golkari vs Century Spinning and Manufacturing Co 1976 - A company was offered collaboration by a foreign company on the condition that they will maintain complete secrecy. A person was employed in the company on the condition that he will not work for any other company in the same business for 5 years. SC held the agreement valid.
Q. What is a wagering agreement? What are its essential elements?
Section 30 - Agreement by way of Wager, void. -
Agreements by way of wager are void and no suit shall be brought for recovering anything alleged to be won, or entrusted to anybody to abide by the result of an game or uncertain event on which a wager is made.
Exception - Any amount more than 500 rs can be paid to the winner or winners of any horse race.
Nothing in this section shall deem to legalize any transaction connected to horse racing to which provisions of section 294-A of IPC apply.
Definition of wager was first given in Carlill vs Carbolic Smoke Ball Company 1892. It held that a wager contract is one in which parties professing opposing views on the result of an uncertain event, mutually agree that depending on the outcome of such event, one will pay or hand over a sum of money or other stake. Neither party has any other interest in the event other than their stake that they may lose or win.
Essential elements -
Section 27 "Agreement is restraint of trade, void" says thus,
Every agreement by which any one is restrained from exercising lawful trade, business, or profession of any kind is to that extent, void.
Exception: Saving of agreement not to carry on business, of which goodwill is sold.
Mahbub Chander vs Raj Koomar 1874 - Two shopkeeper entered into an agreement that one will pay the other to close his business in that locality. One closed the shop but the other refused to pay. It was held that the agreement was void. Since the wordings of section 27 do not do not use the word "absolute" as in section 28, even if the restraint is partial, it will be void.
Nordenfelt vs Maxim Nordenfelt Guns and Ammunition co ltd. 1894 - Inventor sold the goodwill of a gun company to a buyer. The agreement was - Seller will not practice the same trade for 25 and the seller will not do any business that will compete with the business carried on by the buyer at that time. It was held that the first part is valid because it is reasonable but the second part is invalid because it is unreasonable.
English law tests reasonability while Indian law sees if it is allowed under statutory exceptions or exceptions created by judicial decisions.
Collusion between Bidders and Tenderers
In general mutual arrangements between bidder so as to affect the final bid price are not considered in restraint of trade.
Mohd Isack vs Daddepaneni AIR 1946 - Two persons entered into an agreement where by one would not bid on a tender floated by Postal service and the other would pay him for that. The other person got the contract but refused to pay. It was held that it was a valid contract.
However, now such matters should be considered with respect to Monopolies and Restrictive Trade Practices Act 1969, which forbids such collusions.
Freedom of Press
An agreement that puts a restraint of press not to publish on the conduct of a person is void because it is opposed to public policy.
Restriction on Lease
Vidya Wati vs Hans Raj AIR 1993 - Lesor of a property can put a restriction on what kind of business can be done on the property. It is an outlet of carrying business and not a restraint.
Exceptions
1. Sale of goodwill
2. Partnership : Under Partnership Act, partners of a firm may restrict their mutual liberty to do any trade other than within their firm. An outgoing partner may also be restricted from carrying on similar trade for a period of time.
3. Trade Combinations : Companies doing business in the same field may regulate their trade practices for example opening and closing time of business even if they marginally put restraint. However, restrain on employment are not allowed in disguise of regulation.
Korus Mfg vs Koluk Mfg 1959 - Companies made an agreement that they would not hire anybody who has worked in the other company in past 5 yrs. Held void.
4. Exclusive dealing agreements
5. Restraint upon employees
Niranjan Shankar Golkari vs Century Spinning and Manufacturing Co 1976 - A company was offered collaboration by a foreign company on the condition that they will maintain complete secrecy. A person was employed in the company on the condition that he will not work for any other company in the same business for 5 years. SC held the agreement valid.
Q. What is a wagering agreement? What are its essential elements?
Section 30 - Agreement by way of Wager, void. -
Agreements by way of wager are void and no suit shall be brought for recovering anything alleged to be won, or entrusted to anybody to abide by the result of an game or uncertain event on which a wager is made.
Exception - Any amount more than 500 rs can be paid to the winner or winners of any horse race.
Nothing in this section shall deem to legalize any transaction connected to horse racing to which provisions of section 294-A of IPC apply.
Definition of wager was first given in Carlill vs Carbolic Smoke Ball Company 1892. It held that a wager contract is one in which parties professing opposing views on the result of an uncertain event, mutually agree that depending on the outcome of such event, one will pay or hand over a sum of money or other stake. Neither party has any other interest in the event other than their stake that they may lose or win.
Essential elements -
- Event must be uncertain : Outcome of an event cannot be predicted.
- Each party must either win or lose depending on the result of an event
Baba Saheb vs
Raja Ram 1940 : Two wrestlers agreed that if one fails to appear for a
match he will pay Rs 500 to the other and the winner will take Rs 1125 out of
the gate money. Defendant failed to appear and the plaintiff sued for Rs 500.
It was held that it was not wager because had the defendant appeared for the
match no one would have lost.
- Parties should not have any control on the event
- There should be no other consideration except the amount that one can win or lose - This is the difference between a wagering agreement and an insurance agreement.
Speculative Transactions - An agreement to pay the difference between current market price and a speculative price on a certain date is a wagering agreement. Such agreements are usually disguised as regular trade agreement and situation and facts of the case has to be looked into to decide whether it is a wager or not. In the case of Kong Yee Lone vs Lowjee Namjee 1901, a trader promising to deliver 199000 bags of rice while he had no such capacity was held a wagering agreement.
Effects of wagering agreement - Such an agreement being void, it cannot be enforced by the court.
Collateral Transactions - Wagering agreement is only void but not necessarily illegal, thus any agreement such as a loan given to a person to pay a wagering debt can be enforced.
Gherulal Parek vs Mahadeodas Maiya AIR 1959 - A partnership to participate in wagering agreement is not illegal and a parter who paid for wagering loses could sue other partners for contributing proportional funds.
Exceptions
1. Horse Race
2. Crosswords - Anything that requires skills to win. However, betting on a game being played by other people is wagering.
Moore vs Elphic 1945 - Literary competitions which involve skill and effort is made to select the best and most skillful competitor are not wagers.
Q. What is meant by Specific Performance of a Contract?
Specific performance is equitable relief granted by the courts in case of breach of contract in the form of a judgement that the defendant must actually perform the contract according to its terms and stipulations. From every contract arises an obligation for each party to do or to not do something. A breach of the contract by one creates a moral right on the other to either enforce the performance of the contract or to get a satisfactory compensation.
In many cases, a party to a contract is not interested in the compensation for breach of contract but the actual object of the contract. In some case, no compensation can be considered enough. In such cases, law provides a way to enforce the parties to actually fulfill their obligations. This is called "specific performance of a contract".
The obligations may not necessarily arise from contract but may also arise from tort.
Q. What contracts can be specifically enforced?
Section 10 of Specific Relief Act 1963 specifies the conditions in which a contract can be specifically enforced. These are as follows -
Specific performance is equitable relief granted by the courts in case of breach of contract in the form of a judgement that the defendant must actually perform the contract according to its terms and stipulations. From every contract arises an obligation for each party to do or to not do something. A breach of the contract by one creates a moral right on the other to either enforce the performance of the contract or to get a satisfactory compensation.
In many cases, a party to a contract is not interested in the compensation for breach of contract but the actual object of the contract. In some case, no compensation can be considered enough. In such cases, law provides a way to enforce the parties to actually fulfill their obligations. This is called "specific performance of a contract".
The obligations may not necessarily arise from contract but may also arise from tort.
Q. What contracts can be specifically enforced?
Section 10 of Specific Relief Act 1963 specifies the conditions in which a contract can be specifically enforced. These are as follows -
- When there exists no standard for ascertaining the actual damage caused by non-performance of the act agreed to be done.
- When the act agreed to be done is such that a compensation in the form of money would not afford adequate relief. Unless contrary is proved, the court shall presume that
- the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money.
- the breach of a contract to transfer a movable property can be so relieved except
- when the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff or consists of goods which are not easily available in the market.
- where the property is held by the defendant as the agent or trustee of the plaintiff.
Nivarti Govind
Ingale vs R B Patil 1997 SCC - A woman took a loan
from a relative and executed a deed of sale in favor of the relative's minor son
with an agreement of re-conveyance at the repayment of loan. This contract was
held to be specifically enforceable. The relative had sold the property off to
a buyer. This decree was allowed to be enforced against such buyer also.
M S Madhusoodhanan vs Kerala Kaumudi Pvt. Ltd. 2003 SCC - Shares of a private company were held to be goods of such a nature as are not easily obtainable in the market. Thus, SC allowed specific performance to be granted in such cases.
Section 11 says that specific performance can be enforced when the act agreed to be done is wholly or partly is in the performance of a trust. An exception is that the contract must not be in excess of the power of a trustee.
Section 12 says that if, in the discretion of the court, only a small part of a contract cannot be specifically performed and if such part can be alternatively compensated, the rest of the part can be specifically enforced.
According to Section 23, even if a contract includes a penalty or fixed amount of damages in case of default, its specific performance can be ordered depending on the intention of the penalty. If the intention of the compensation for damages is to secure the performance of the contract and not to give an alternative way of fulfilling the contract, it can be specifically enforced.
This principle was adopted in the case of Manzoor Ahmed Magray vs. Ghulam Hasan Aram 1999 and M L Devender Singh vs Syed Khaja 1973 by SC.
Q. What contracts cannot be specifically enforced?
Section 14 (1) of Specific Relief Act 1963 specifies the conditions in which a contract can be specifically enforced. These are as follows -
M S Madhusoodhanan vs Kerala Kaumudi Pvt. Ltd. 2003 SCC - Shares of a private company were held to be goods of such a nature as are not easily obtainable in the market. Thus, SC allowed specific performance to be granted in such cases.
Section 11 says that specific performance can be enforced when the act agreed to be done is wholly or partly is in the performance of a trust. An exception is that the contract must not be in excess of the power of a trustee.
Section 12 says that if, in the discretion of the court, only a small part of a contract cannot be specifically performed and if such part can be alternatively compensated, the rest of the part can be specifically enforced.
According to Section 23, even if a contract includes a penalty or fixed amount of damages in case of default, its specific performance can be ordered depending on the intention of the penalty. If the intention of the compensation for damages is to secure the performance of the contract and not to give an alternative way of fulfilling the contract, it can be specifically enforced.
This principle was adopted in the case of Manzoor Ahmed Magray vs. Ghulam Hasan Aram 1999 and M L Devender Singh vs Syed Khaja 1973 by SC.
Q. What contracts cannot be specifically enforced?
Section 14 (1) of Specific Relief Act 1963 specifies the conditions in which a contract can be specifically enforced. These are as follows -
- when compensation in money is an adequate relief.
Ordinary contract to lend or borrow money, whether with or withour security, is an example of a contract which cannot be specifically enforced.
Mennakshisundara vs Rathnasami 1918 - When a loan has already been advanced on the understanding that a security will be provided against it, this can be specifically enforced. - when a contract runs into such minute and complex details or is
dependent on personal qualifications or volition of the defendant, or
otherwise from its nature is such that a court cannot enforce specific
performance of its material terms.
Personal services such as painting, singing etc. cannot be specifically enforced. However, a contract to publish a piece of music or to build a house can be specifically enforced because they are purely mechanical functions. - when a contract is in its nature determinable i.e. can be brought to
an end under given conditions.
Illustration - A and B enter into a partnership to do certain business, without specifying the duration of the partnership. This cannot be specifically enforced because if enforced, either A or B might at once dissolve the partnership.
A contract to employment is not specifically enforceable. The remedy in such cases is to sue for damages.
Indian Oil Corp. vs Amritsar Gas Agency 1991 - A contract for distributorship cannot be specifically enforced. - when a contract, the performance of which involves performance of
continuous nature, which the court cannot supervise.
Examples - An agreement to keep an airfield in operation, or an agreement by railway to keep signals operating.
Rayner vs Stone 1792 - A tenant's undertaking to cultivate a farm in a specific way was held to be not specifically enforceable.
Section 14(2) - A contract to
refer a present or future dispute to an arbitration cannot be specifically
enforced.
Section 14(3) - A contract to execute a mortgage or furnish any other security for repayment of a loan, which the borrower is not willing to repay at once.
Section 17 - A contract involving transfer of property when the party does not have the title or ownership of the property.
Q. Can the following be specifically enforced - a contract to give money on loan, contract to write a book, contract to marry, an invitation to dinner, a contract to sell all goods of a class that a party may require, a contract to run a franchised shop?
1. No, because as per 14 (1) (a), a contract that can be adequately compensated in money cannot be specifically enforced.
2. No, because as per 14(1) (b), an act that depends on personal skills or volition of a party cannot be specifically enforced. Here, it depends on personal skills.
3. No, because as per 14(1) (b), an act that depends on personal skills or volition of a party cannot be specifically enforced. Here, it depends on personal volition.
4. No, because as per 14(1) (b), an act that depends on personal skills or volition of a party cannot be specifically enforced. Here, it depends on personal volition.
4. No, because as per 14(1) (b), a contract that is too complex to be supervised by the court cannot be specifically enforced.
5. No, because as per 14(1) (c), a contract that is determinable, i.e. can be ended, cannot be specifically enforced. Here, a franchisee agreement can be terminated.
Q. What grounds may be taken by a defendant in a suit for specific performance of the contract?
Section 14(3) - A contract to execute a mortgage or furnish any other security for repayment of a loan, which the borrower is not willing to repay at once.
Section 17 - A contract involving transfer of property when the party does not have the title or ownership of the property.
Q. Can the following be specifically enforced - a contract to give money on loan, contract to write a book, contract to marry, an invitation to dinner, a contract to sell all goods of a class that a party may require, a contract to run a franchised shop?
1. No, because as per 14 (1) (a), a contract that can be adequately compensated in money cannot be specifically enforced.
2. No, because as per 14(1) (b), an act that depends on personal skills or volition of a party cannot be specifically enforced. Here, it depends on personal skills.
3. No, because as per 14(1) (b), an act that depends on personal skills or volition of a party cannot be specifically enforced. Here, it depends on personal volition.
4. No, because as per 14(1) (b), an act that depends on personal skills or volition of a party cannot be specifically enforced. Here, it depends on personal volition.
4. No, because as per 14(1) (b), a contract that is too complex to be supervised by the court cannot be specifically enforced.
5. No, because as per 14(1) (c), a contract that is determinable, i.e. can be ended, cannot be specifically enforced. Here, a franchisee agreement can be terminated.
Q. What grounds may be taken by a defendant in a suit for specific performance of the contract?
- All the grounds upon which a contract is voidable - no free consent.
- Plaintiff has not performed the whole or part of his part of contract.
- All grounds in section 14 i.e. Compensation in money is adequate, Depends on personal qualification, or determinable contract.
- breach of trust or beyond its powers.
- Contract when made gave unfair advantage to the plaintiff.
- Involves hardship.
- Plaintiff has chosen his remedy and obtained satisfaction for the alleged breach of contract.
