Contract- I notes/llb books main/contract... · It is voidable under English Law, such contract can...

Marupaka VenkateshwarluM.A,B.Ed,L.L.BTheLegal.co.in

Contract- I

Question No. 1: Who is competent to contract Discuss the law relating to minor’s agreement in India, with help of decided cases. Also brief aboutEnglish Law Indian law in this context.ORMinor’s agreements are void at-initio. In which case the above rule wasestablished. Discuss in brief that case and also bring out the exceptions to theabove rule. ORWhat do you understand by “ capacity to contract” What is effect of Minor’sagreement and when can it enforced. OR“A minor’s bind others but is never bound by others.” Explain by givingillustrations.ORDiscuss the nature and effects of Minor’s Agreement. .

Answer – INTRODUCTION:- All agreements are not contracts. Only those agreements arecontract which fulfil he conditions of section 10 and according to section 10 for a contractparties must be competent, the consent must be free. Therefore the competency of theparties to a contract is most essentials element of a contract. According to section 11 of Indian contract Act 1872 which provided, “That everyperson is competent to contract who is of the age of majority according to law to which issubject and who is sound mind and not disqualified from contracting by any law to which heis subject.” The following persons are competent to contract -

i) Who is major.ii) Who is of sound mind. It is evident that minor’s and unsound mind person cannot make a contract. A Majorperson means who has attained the age of 18 years. The age of majority has been decidedby Indian majority act 1875. In case of guardian appointed by the court, the age shall be 21years. “ An agreement made by a minor is void.”, from the above statement we find thatthe minor is not competent to contract. Indian contract act is silent about whether it will bevoid or voidable up to 1903. But it is decided by the Court that these are void. Agreementby a minor is void-ab-initio, such contract cannot be enforced by law. Further the minorcannot authorise any other person to do a contract.

Marupaka Venkateshwarlu MA,B.Ed,LLB

Case Mohiri Bibi vs Dharamdass Ghosh (1903) A minor Mr. Dharamdass Ghosh executeda mortgage documents for Rs.20,000.00 in favour of a money lender Sh. Brahmo Dutt. Themoney lender actually paid Rs.8,000.00 to the minor. It is important that before thistransaction the guardian of the minor informed the Attorney of Money lender that he(Dharamdass Ghosh) is minor. Later on a suit was instituted by the minor DharmadassGhosh against the money lender Sh. Brahamo dutt with the intention that the mortgage beset aside. This suit was opposed by Money lender by saying that the above contract beingvoidable, he has the right to receive the amount of the loan under section 64 and 65 ofContract Act i.e. minor is bound to return back the amount. Privy council held that,“ the contract is void ab-initio which cannot be enforced.” Itwas also held that the minor could not be asked to repay the loan taken by him. It wasfurther held that law of estoppels cannot be applied against the minor Shri DharmodasGhosh being mis-stated falsely his age because he was minor at the time of the agreementand the agreement was void. The law of estoppels as stand in section 115 of IndianEvidence Act was not applicable to the present case as the plaintiff was minor at the time ofmaking agreement, this fact was also known to the agent of Brahmo Dutt defendant. UnderSpecific Relief Act 1877 Section 38 and 41 applies where party had the knowledge ofminority age gets restitute degree. A new concept of beneficial has come into existence now. It has been held invarious cases. A minor is bound for the beneficial contract. The beneficial contract arethose contracts which are for the benefit of minor. The first case was S.Subramanyam v/sSubha Roy-1948 - In this case transfer of inherited property of a minor affected by his guardian to pay off an in-herited debt was binding on him for hisbenefit. Here is a list of beneficial contract i) Contract of Insurance Such contracts are in the benefit of minors.ii) Contract to purchase the immoveable property Such contract are valid.iii) Contract of service - These are for the benefit for the monorsiv) Contract of apprentice ship Training period of any minor who is taking training from anyperson, because of the training minor will case his livelihood. It is for his benefit and mono isliable to compensate hat person.v) Contract of Marriage When guardian made an agreement for the marriage of the minorthen another party cannot enforce it, but minor can enforce it. If agreement is made jointlyby guardian and minor, it can be enforced again on majority age.vi) Contract of Necessities- Under section 68 of the Contract Act-1872, minor is also liablefor necessaries. Necessaries means the basic things of the life. These are mainly, ROTI –KAPRA-AUR MAKAAN. If any person supplied necessaries to minor then the minor is liableo compensate the supplier. A case Chapple vs Cooper The court held that necessariesare not only food, shelter, clothes but also education or religious and any such things whichare necessary for life, comes under the definition of necessaries. The following twoconditions are necessary for liable 1. The supply must not be more than sufficient.2. The supply must be according to the standard of minor.Case PETRESS VS FLEMINGThe supply of a watch to a minor whose study was considered as the necessity because tohave a watch for graduate person is his necessity.RATIFICATION OF THE MINOR’S AGREEMENT A minor’s agreement being void ab-initio, it is incapable of being validated a subsequentratification after the minor has attained the age of majority. Here is minor accepts thecontract in some terms is entered during minority then also he is not liable. If a minor takes2000.00 in minority and Rs.3000- after getting majority age and said major give backRs.5000- then this is valid and with consideration. After getting majority age if minor useshis option to be a partner, he will be bound for all the responsibilities of minority period,which are against the firm. CONTRACT BY MINOR GUARDIANS


1. If the agreement is on behalf of minor done by guardian.2. With in his Power.3. Guardian is capable to enter into contract.4. The agreement will be in the interest of minor. A case of Raj Rani vs Prem - Father agreed with the Director of Film, andaccording to this agreement Director of Film will give a role to Indrani. It was held voidbecause no consideration was therein. It this agreement is with the daughter then it is voidabs-intro. If it is with his father then it has no value even to think over it. DOCTRINE OF RESTITUTION Restitution means if an agreement is declared void, benefit should be returned. Undersection 64 & 65 of contract Act, that section 68 is applies only on voidable agreements,Section 56 is applies on the agreement which were valid at the time of formation but due tosome circumstances(as under sec.56) it becomes void. Under the equitable doctrine ofrestitution minor has to restore back the benefit so received by him the exact things but it isapplicable in case of goods and property not in the case of money. Restitution stop whererepayments begins. A case of Leslie vs Sheill- (1914) - It was held by the court of Appeal that the money couldnot be recovered. If there were allowed that would amounts to enforcing the agreement torepay loan, which is void under Inflants Relief Act-1874.Section 39(3) specific Relief Act 1877 If the court thinks he may pass an order of restitutionin any case, now a question arises whether he person did not know about the age of minor. If minor is also not know his age. In this stage plaintiff does not get compensation. Ifrespondent misrepresent his age on this point there are different view of court.Case KHARGIL VS LAKHAN SINGH -1928 LAHORE HIGH COURT. The court ordered a minor to refund Rs.17500- which he had taken in advance for the saleof land. When he refused to complete the contract. The court was of the opinion that still theSpecific Relief Act should apply whether the minor was the plaintiff or the defendant. Thedoctrine of restitution should apply whether the minor had taken the goods or money. Case Ajudhiya Parsad vs Chandan Lal – 1937Allahabad High Court refused to following, extended view of restitution and held that a minorwho had taken money by mortgaging his home was not bound to restore the money. Nowsection 33(2)(b) added according to this section, when a plaintiff wants to dissolve theagreement and says that at the time of agreement he is minor than he can get back all hisprofits.DOCTRINE OF ESTOPPELSAccording to rules contained in Sec.115 of Indian Evidence Act 1872, if you make astatement today, which misleads another person, you are not allowed to deny the statementto-marrow when the question of your liability arises. A question whether a minor who hasmade a false representation about his age is stopped from pleading his minority, was raised,but it was not decided in this case of Mohiri Bibi. Privy Council held that where the partyknows about the age of minor this principle could not apply. The question arises thatwhether minor can be stopped by false representation as to his age is now settled by thiscase. A Case Nawab Sadiq Ali Khan vs Bibi Jai Kishori- 1928 It was held by Privy Council that if a minor makes a contract by fraudulently expressing hisage more than actual then he cannot be stopped as per the rules of estoppels that he wasminor at the time of contract. INDIAN AND ANGLO LAW It is difficult to differentiate between both the law in respect of contract by minor’s butgenerally the difference in both the law is -1. Contract by minor under Indian law is void ab-initio.2. It is voidable under English Law, such contract can be declared void on the will of minor.If the contract is for the benefit or fulfilment of necessity of minor. Then it shall be binding.


Q. No 2:- State the difference between void agreement and illegalagreement OR All illegal agreements are void but all void agreement are not illegal.Comments Ans- INTRODUCTION Under section 2(g) of Indian Contract Act 1872, definition of voidagreement has been given and according to it , “ Agreement in not only enforceable by lawsaid to be void.” For instance, an agreement by a minor has been held to be void. Section24 to 30 of the Indian Contract Act 1872, make a specific mention of agreement which arevoid. Generally the following agreements are not enforceable by law. i) Whose parties are not competent to do a contract i.e. they are not adult and are unsoundmind.ii) Whose parties do not have free consent i.e. they are under coercion, undue influencefraud & misappropriation etc.iii) Whose consideration and object has not been lawfuliv) Which are immoral or against public policies.v) Which do not create valid (illegal) liabilities between the parties.vi) Which have been declared as void by the court etc.All above agreements are void because they cannot be enforced by law. ILLEGAL- AGREEMENTS Illegal agreements are such agreements whose consideration and object are not lawful i.e.they are illegal. Such agreements are mentioned in section 23 of the Indian Contract Act1872. The following agreements are considered as illegal-1. Which are prohibited by Law.2. Which is of such a nature if followed would defeat the provisions of law.3. Which is fraudulent.4. Which is causing injury to body or property of any other person.5. Which have been declared by the court as immoral or against public policies. After the definition of void and illegal agreements we have considered the followingstatements -“ That all illegal agreements are void agreements but all void agreements need notnecessarily be illegal.” It can be adjudged from the following -i) Illegal agreements are void – ab-initio which cannot be enforced by law at any timewhereas void agreement need not be void-ab-initio, such agreements could become un-enforceable by law later.ILLUSTRATION An agreement takes place between the citizen of India and Pakistan whichwas enforceable by law at the time agreement, but later on in the event of war between India& Pakistan the agreement becomes un-enforceable whereas agreement to pay money by Ato B for illegal intercourse is void ab-initio which cannot be enforced any time.” This showsthe illegal agreements are always void whereas void agreements are not always illegal.ii) Parties of illegal agreements can be punished whereas the parties of void agreementscannot be punished.ILLUSTRATION - An agreement to encourage any woman for prostitution by paying hermoney is punishable but an agreement by minor or without consideration is not punishable. This also proves the fact that every illegal agreement is void but every void agreement is notillegal because illegal agreement is of punishable nature whereas void agreement is not. Void agreement does not contain the element of illegal agreement whereas illegalagreement contains the elements of void agreement.


iii) Void agreement cannot be enforced at any time and illegal agreement is also neverenforceable by law. Hence illegal agreement contains impliedly the element of illegalagreement.iv) Illegal agreement are those which are mentioned in Sec. 23 of contract act whereas voidagreements included various other types of agreement, like agreement by minor or unsoundmind persons, agreement without consideration etc.v) Void agreements include illegal agreements which are not enforceable by law, but illegalagreements need not contain all types of void agreement. This shows that all illegalagreements are void but all void agreements are not illegal. DIFFERENCE BETWEEN VOID AGREEMENT & ILLEGAL AGREEMENTS. VOID AGREEMENT ILLEGAL AGREEMENT 1. All agreements are not void-ab-initio but become void later due to circumstances 2 The reason of void agreement could be incompetency of parties, lack of consideration etc.3 Parties of void agreements are not be punished.4 Collateral agreement to void agreements can be enforced.5 The area of void agreement is extremely void. It includes all illegal agreement. 1 Illegalagreements are void –ab-initio.2 The reasons of illegal agreement shall be those which are mentioned in sec.23 of theContract Act., like prohibited by law. Immoral against public policies, fraudulent etc.3 Parties of illegal agreement can be punished.4 Collateral agreement to the illegal agreement can also not be enforced.5 The area of illegal agreement is comparatively narrow. It does not include all types of voidagreement.

Question No 3 : All contracts are agreements but all agreements are notcontracts? ORDiscuss the rule for the formation of a valid contract when a contractbecomes complete? Introduction : - i) MULLA :- Every agreement or promise enforceable by law is a contract.ii) SALMOND :-Contract is an agreement creating defining obligations between parties.A contract is an agreement enforceable by law. An agreement is the prime stage of thecontract. If agreement is enforceable by law or if agreement is recognised by law then it willbecome a contract otherwise not. It is basically based upon British Law because theContract Act was passed by British Indian Govt., in 1872. To make contract an agreement it is essential that no contract is possible without anagreement, but we cannot say that all agreements are contracts. Section 2(y) of contract Actsays that, “ Contract is an agreement enforceable by law.” All agreement e.g. to see cinemais not contract, if offer is accepted then it becomes promise. Promise is followed byconsideration then it becomes agreement and if an agreement is enforceable by law then itbecomes CONTRACT, see below :-i) Proposal + acceptance = PROMISEii) Promise + consideration = AGREEMENTiii) Agreement+ Enforceability = CONTRACT AGREEMENT :- Agreement 2(e) promise or set of promises forming the consideration witheach other, is an agreement.PROMISE :- Promise is an important part of the agreement. A proposal when acceptedbecomes promise.


PROPOSAL/OFFER :- According to section 2(a) when one person signifies to other hiswillingness to do or to abstain from doing anything with a view of obtaining the assent of thatoffer to such act or abstinence, he is said to make a proposal.ACCEPTANCE:- According to section 29(b) of contract act when the person to whom theproposal is made signifies his assent there to the proposal then it is said to be accepted. Aproposal when accepted becomes promise.CONSIDERATION :- Section 2(d) of contract act defines consideration. Section 2 says thatan agreement made without consideration is void unless :-a) Natural love and affection. Sec.25 of contract act, the parties to the agreement must bestanding in a near relationship to each other. The promise should be made by one party outof natural love and affection for the other. The promise should be in writing and registered. b) Compensation for past voluntary services sec. 25(2) in case Sindha v.Abrahim-1895Bombay : The promise to compensate though without consideration is binding because ofthis exception. The exception also covers a situation where the promise is for doingsomething voluntarily”c) Promise to pay time barred debt: Sec.25(3): The promise must be to pay wholly or in parta time barred debt i.e. a debt of which the creditor might have enforced payment but for thelaw for the limitation of suit. The promise must be in writing and signed by the person to becharged therewith. Case Gobind Das v. Sarju das-1908, Ganesh Prasad v.Mt. Rambati Bai-1942.ENFORCEABLE BY LAW :- in Indian Contract Act 2(h) it says that contract is agreementenforceable by law. If an agreement is enforceable by law then it is CONTRACT, otherwisemerely an agreement.To make an agreement a contract in Indian Contract Act section 10, the following conditionsmust be fulfilled :-1. Competent Parties :- Section 11 says, contract should be made with person who must bemajor and sound mind not disqualified by law.2. Free Consent :- Section 14, says that consent must be free, when it is not caused bycoercion, undue influence under section 16, fraud under section 17, misappropriation undersection 18 and mistake under section 20. 3. Lawful consideration & object :- According to section 23, when agreements consideration or object are unlawful, they are void.4. Not expressly declare as void:- The such agreements which are made withoutconsideration or expressly declared to be void as per section (25) are no contract, these areas under:-i) Agreement in restrain of marriage section-26.ii) Agreement in restrain of trade section-27.iii) Agreement in restrain of legal proceedings section -28.iv) Agreement which is ambitious and uncertain sec.29.v) Agreement by way of wages section-30.vi) Agreement to do an impossible act section-56. 5.FORMALTIES PERFORMED IF NEEDED BY LAW:- The person by whom the contractmust be performed time and place and performance opportunity of payment. Thus whenthese conditions are fulfilled then an agreement is made contract because these areenforceable by law. But some agreements are not made contract because they are notenforceable by law. These are :-1. Social Agreement :- When agreements based only social relationship and parties, wecannot enforce these agreements by law, for example:-A case Jones v/s PadayIf ‘ A’ give invitation of dinner to ‘ B ‘ and ‘ B ‘ accept this but does not go to dinner then’ A‘suffers damage after this. But ‘ A ‘ cannot file a sue against ‘ B ‘ because it is SocialAgreement which is not enforceable by law.FAMILY LAW:- Family law are not made contract as in the case of :


Balfour v/s Balfour:- In this case the defendant who was employed in Govt.,job in Ceylonwent to England with his wife on love. For health reasons the wife was unable to return toCeylon. The husband promised to pay 30 ponds per month to his wife as maintenance forthe period she had to live abart. The husband failed to pay this amount. The wife filed a suitagainst her husband for this money. The court held that this agreement is not enforceableby law.Case : Jones v/s Padavllon :Where a girl left service to join legal education on the promise of her mother to stand theexpenses. It was held to be a family matter and not a binding contract. Thus we can say thatall the agreements are not contracts but all the contracts are not agreements. A Case LALMAN V/S GAURI DATT-1913 : The defendant’s nephew absconded from home.The Plaintiff who was defendant servant was sent to search for the missing boy. After theplaintiff had left in search of boy, the defendant issued handbill announcing a reward ofRs.501.00 to anyone who might find out he boy. The Plaintiff who was ignorant of thisreward, was successful in searching the boy. When he came to know of the reward, whichhad been announced in his absence, he brought an action against he defendant to claim thisreward. It was held hat since the Plaintiff was ignorant of the offer of reward, his act ofbringing the lost boy did not amount to the acceptance of he offer, and , therefore, he wasnot entitled to claim the reward. If a person has the knowledge of the offer, his acing inaccordance with the terms thereof amount to the acceptance of the same. In such a case, itis immaterial that at the time of accepting the offer, the acceptor does not intend to claim thereward mentioned in the offer. DIFFERENCE BETWEEN AGREEMENT AND CONTRACT

AGREEMENT CONTRACT1.Three important points for i) acceptance ii) Offer iii) and consideration

Two important points for contract are i)agreement ii) enforcement By law

2.An agreement could be legal or Illegal 2. Agreement in contract to be law Ful andenforceable by law.

3.Agreement may or may not be Enforceableby law

3. Contract is enforceable by law.E

4.Area of agreement is very wide As it canbe any type legal, moral Etc. Any agreementeven if not Enforceable by law remains anAgreement

4. Area of contract is limited as everyagreement can’t become contract

5.The certain of valid liability is not Requiresin all agreement like, moral Religious etc

5. In contract the valid liability is createdbetween the parties.

6.Every agreement does not requires .Competency of parties, free consent,Sufficient consideration etc., becauseAgreement could be by un-enforceable

6. Contract requires the competency ofparties, free Consent, sufficient considuration etc.

Law. Q. No 4 :- Discuss the meaning of consideration? When the consideration becomesunlawful? How does the Public Policy Effect he consideration? ORAn Agreement without consideration is void.” Discuss with Exceptions ? ORDefine consideration, Past Consideration, Contract without consideration andconsideration by a person unknown to contract with suitable examples. ORExplain consideration. In what cases the consideration of an agreement are said tobe unlawful under contract Act.? Illustrate with suitable examples.


Answer : INTRODUCTION : The consideration has important place in contract. It isimportant part of Contract. A valid contract requires a consideration. Agreement withoutconsideration are void. The study of consideration in respect of the subject matter isrequired. Section 2 (d) of the Indian Contract Act- 1872 defines consideration. It says, “When at the desire of the promisor, the promise or any other person has done or abstainedfrom doing or does or abstains from doing or promises to do or to abstain from doing-something, such act or abstinence or promise is called a consideration for promise.” In other words when a the desire of one person, another person does sense actor abstains from doing, then it consideration for the first person.ILLUSTATION :- ‘A’ purposes ‘B’ to buy his cycle for /rs.1000.00. ‘B’ agrees to buy that cyclefor Rs.1000/-. Here Rs.1000/- is the consideration for cycle.According to Pollock :- “ A party does or abstains from doing or promise to do or abstain fromdoing something, is a price for which the promise is bought, the promise thus given for valueis enforceable.According to Auson :- “ Consideration is that which is to be done abstain from doing, to bebear or promises to do or which the promises abstains from doing in respect of promise orbears it.”ELEMENS OF CONSIDERATION :- I) Consideration to be at the desire of promisor.II) Consideration can be given by the promise or any other person.III) Consideration may be past, future or present.IV) Consideration must be legally adequate and valuable.V) Consideration must be valid.A case : Mirahul Enterprises V/s Mrs. Vijaya Srivastav AIR 2003 : Delhi High Court said that a valid agreement requires the consideration to be definite.In a Case :-Durga Parsad v/s Baldev The Plaintiff constructed certain shops in a market atthe instance of the Collector of that place. Subsequently the defendants occupied one of theshops in the market. Since the Plaintiff had spent money for the construction of market, thedefendants in consideration thereof, made a promise to pay the plaintiff commission on thearticles sold through their (defendant) agency in that market. The plaintiff failed to pay thepromised commission. In an action by the plaintiff to recover the commission, it was observed that the consideration for the promise to pay the commission was the constructionof the market by the plaintiff. Such construction had not been done at the desire of thedefendants, but on the order of the Collector. It was therefore held that since theconsideration did not moved at the desire of the defendants ( Promisors in this case), this didnot constitute valid consideration and therefore the defendants were not liable in respect ofthe promise made by them.TYPES OF CONSIDERATION ;- There are three types of consideration which are asunder :-i) Past consideration.ii) Present consideration.iii) Future consideration.Present consideration means such consideration which is paid to the promissoryimmediately. Example : ‘A’ offers to ‘B’ to sell his vehicle for Rs.50,000/-, ‘B’ pays to ‘A’Rs.50,000/- at that moment, and ‘A’ gives the possession of vehicle to ‘B’. This is presentconsideration.Past consideration is the consideration for the service or promise performed in past.Example :- ‘A’ at the desire of ‘B’ takes care of the family of ‘B’. After three years ‘B’ promiseso ‘A’ that he shall pay him Rs.10000/- for his services given. Here, the services provided by’A’ in the past to ‘B’ shall be called past consideration. Future consideration means such consideration which shall be paid in future. Example:- ‘A’promises to sell his house for Rs.75,000/- to ‘B’ on 5th.Feb 2003, and both parties decidethat possession of house shall be delivered on 1st.Dec.2003 and on that day he payment of


Rs.755,000/- shall be made. This is future consideration, because the contract hadoriginated on 05.02.2003 but its consideration was to be paid on 1st December, 2003. WHEN THE CONSIDERATION IS ILLEGAL A valid contract requires the consideration to be valid or legal contract with illegalconsideration is not enforceable. Sec.23 of Contract Act mentions those situations in whichthe consideration shall be considered to be illegal. These situations are as under:-i) When it is prohibited by law.ii) When it is of such nature that if followed would defeat the provisions of law.iii) When it is fraudulent.iv) When it involves injury to the person or property of another.v) The court regards it as immoral or opposed to public policy.Consideration forbidden by Law:-Such agreements are void. An agreement or act forbiddenby law is that which is not permitted by law to be followed or which is against the law. A case:Ram Sewak v/s Ramcharan : AIR 1982 Allahabad. : The partners of a partnership firm madean agreement for the concealment of profit for the purpose of deceiving tax. It was heldillegal consideration or an agreement forbidden by law.Consideration to defeat the provisions of Law:- An agreement with such consideration is alsovoid, whose purpose is to defeat the provisions of law. In other words, where an agreementis done with such consideration that if applied would defeat the provisions of law, then suchconsideration and agreement shall be considered void.ILLUSTRATION : ‘A’ and ‘B’ agrees with the intention that they shall be able to take anydispute related to a particular subject to the court, even though the limitation for it has beendetermined,. This agreement defeats the provisions of Limitation Act, and is therefore void. IN Nutan Kumar v/s Additional District Judge, Banda (AIR 1994 Allahabad): Allahabad HighCourt held that such an agreement between landowner and tenant which is inconsistent tothe provision of Rent control Act shall be void. Such agreements cannot be enforcedthrough court.Fraudulent Consideration: Agreement with such consideration which are fraudulent, are void. For example: A, B and C agrees for the partition among themselves of the profits obtainedor to be obtained by fraud. Agreement is void because its object and consideration is againstlaw.Consideration to cause injury to Body or property of any other person:- Such agreement isvoid whose object and consideration are illegal owing to be causing injury to body orproperty of any other person. A case : K.Abdul `Qader v/s The Plantation Corporation ofKerla. AIR 1983: Kerla High Court said that a contract made with the object to cause injury tobody or property of any other person, is void and unenforceable.Immoral and Opposed to Public Policy:- Agreement with consideration being immoral andopposed to public policy are void and unenforceable. Several decisions of court in hisrespect have been made. Several judicial decisions have considered following object andconsideration to be immoral and opposed to public policy :-a) Agreement to lent house on rent for prostitution. b) Agreement to lent vehicle to be used for prostitution.c) Agreement to provide money to have cohabitation with the wife of any other person.d) Consideration of earlier cohabitation.e) Agreement to give consideration for future illegal cohabitation.A case of Subhash Chandra v/s Narbada Bai (AIR- 1982 of MP) A man made agreementfor maintenance with a woman. It was the result of an earlier cohabitation with a womanwith that man. Court held it to be void and unenforceable. Agreement with considerationbeing opposed to public policy are also void. The public policy does not have any universaldefinition, but several judicial decisions have considered following things to be against publicpolicy :-I) Insurance conscience.II) Obstruction in freedom.III) Elements creating restrain to trade or natural or legal rights.


IV) Against good conduct etc. The following agreements have been considered to be against public policy :a) Agreement to cause injury to public service.b) Transfer of decree for the purpose of avoiding the effect of decree to other creditors.c) Agreement to pay money in return of marriage.d) Agreement to bribe for adoption etc..A case : SBI v/s Aditya Finance and Leasing co. – 1999 Delhi) It was held that the landspotted or embarked for residential purposes is used for commercial purposes by anagreement which shall be void by being against public policy. Thus the agreement with suchconsideration that adversely effect over the interest of common people or which are notproper in respect of public shall unenforceable by being void.AGREEMENT WITHOUT CONSIDERATION ARE VOIDAs we have seen above that Consideration is essential for a valid contract. Agreementwithout consideration cannot be imagined. Section 25 of Indian Contract Act-1872 clearlyprovides that “ Agreement without consideration is void.”ILLUSSTRRATION :- ‘A’ promises ‘B’ to pay him Rs.2000/- without any consideration. Thisis void agreement.Exceptions :- But the above rule have some exceptions also i.e. an agreement withoutconsideration in following situation is valid and enforceable :-1. Agreement Under Natural Love and Affection:- Agreement without consideration due toNatural Love and Affection are valid and enforceable provided that they are written andregistered.ILUSTRATION : ‘A’ promise to pay his son ‘B’ a sum of Rs. 5000.00 under the Natural Loveand Affection. A writes his promise toward B and gets it registered. This is contract. Naturallove and affection includes relation between father-son husband-wife, brothers etc. Suchrelations do not require consideration for a valid agreement. A case : Manali Singhal V/sRavi Singhal-1999-Delhi), It was said by Delhi High Court that where any family agreementin relation to the amount of maintenance has been made for love and affection, family peace,harmony and satisfaction there consideration shall not be required. Such agreement shallbe enforceable by Court.2. Agreement to pay compensation for past service Where any person without theknowledge of promisor or otherwise than his prayer, does any service or has done serviceand the promisor promise to compensate him, there consideration shall not be required, withthe following thing which are necessary :-i) An act has been voluntarily done already for the promisorii) At the time of commission of that act, promisor was competent to contract.ILLUSTRATION ‘A’ at the desire of ‘B’ does service for the relatives of ‘B’. Later ‘B’ agreesto pay Rs.1000/- to ‘A’ for the service. This agreement been result of earlier service is validand enforceable. Such consideration is also called past consideration.3.Agreement for payment of Time Barred Debt. Such an agreement for payment of a debtbarred by time under limitation act, is considered to be lawful because a time barred debt isalso a good consideration as the debt remains ever after the completion of time of recovery.A case: Tulsiram v/s Samey Singh AIR-1981 Delhi Delhi High Court held that an agreementfor the payment of a time barred debt can be made under Se.25(3) but it requires that theagreement shall mention that consent has been given for the payment of time barred debt.

UNIT – IIIQuestion No. 5. Discuss contingent contract. Elaborate with suitableillustrations. How are such contract is different from Agreements? Answer :- INTRODUCTION : Contingent contract is special types of contract. Generally inmost contracts rights of parties are enforced immediately after the execution of contract, but


sometimes there are contracts whose enforcement depends upon happening or non-happening of an event.DEFINITION :-Section 31 of Indian Contract Act 1872 defines that Contingent Contract according to it : “Acontingent contract is a contract to do or not to do something, if some event, collateral tosuch contract does or does not happen.” ILLUSTRATION :-‘ A’ contracts with ‘B’ that if the house of ‘B’ destroyed by fire then he shall pay Rs.10,000/- toB. It is contingent contract because the enforcement of contract depends on the happeningor non happening of an event. Thus the contingent contract depends upon the happening of a uncertain event. If theevent is of certain nature, then it shall not be contingent contract.ELEMENTS OF CONTINGENT CONTRACTThese are as under:-1. The contingent contract depends upon the happening or non-happening of an event.2. Such event shall be of uncertain nature i.e. it may or may not be happen.3. Such event is not the part of mutual promises of parties.4. Happening or non happening of the event does not depend on the will of the parties.5. The future uncertain even is collateral to the main contract.In case : Ranchoddas V/s Nathmal Hirachand and company 1951 (Bombay)In this case the court decided and did not accepted the contention and said that reaching ofcloth to India was a method of delivery. This cannot be said contingent contract. NATURE OF CONTINGENT CONTRACT:-Section 32 to 36 of Act mention that various forms of contingent contract like:-i) According to Section 32 . Contingent contract to do or not to do be anything if an uncertainevent happens cannot be enforced by law unless and until that event has happened. If theevent becomes impossible such contract becomes void.ILLUSTRATION :- A contract to pay B a sum of money when B marries C. C dies withoutbeing married to B. The contract becomes void.ii) Section 33 says : contingent contract to do or not to do anything, if an Uncertain futureeven does not happens can be enforced by law when the happening of that event becomesimpossible.ILLUSTRATION :- A agrees to pay to B a sum money if a certain ship does not return. Theship is sunk. The contract can be enforced when the ship sinks.iii) Section 34 says : that if future event on which a contract is contingent is the way in whicha person will act at an unspecified time, the event shall be considered to become impossiblewhen such person does anything which renders it impossible that he should so act withinany definite time, or otherwise than under further contingencies.ILLUSTRATION :- A agrees to pay B a sum of money if B marries C. C marries D. Themarriage of B to C must now be considered impossible, though it is possible that D may die,and that C may afterwards marry B .iv) Section 35 says that :- contingent contacts to do or not to do anything if a specialuncertain event happens within as fixed time become void if, the expiration of the time fixed,such event has snot happened, or if, before the time fixed, such becomes impossible.ILLUSTRATION :- A promises to B to pay a sum of money if a certain ship returns within ayear. The contract may be enforced if the ship returns within a year, and becomes void if theship is burnt within the year.v) Section 36 says that : contingent contract to do or not to do anything if an impossibleevent happens, are void, whether the impossibility of the event is known or not to the partiesto the agreements at the time when it is made.ILLUSTRATION: - A agrees to B, a sum or Rs.1000.00, if two straight lines should on close aspace. The agreement is void.


Contingency dependent on the behaviour of the parties. It is important that if theperformance of the promise depends on the mere will and pleasure of the promisor, it is nopromise at all but promise to pay what a third party decide is valid promise. DIFFERENCE BETWEEN CONTINGENT CONTRACT & WAGER CONTRACT Contingent Contract Wager contract1. All contingent contract are 1. All wager contract have the element ofNot wager. Contingent contract.2. The interest of the parties 2. The interest of the parties is vested uponIs vested on the happening wining or losing sum of money.Or non-happening of event.3. The future event is collateral 3. The future event is the base of decision.To the contract.4. Only one party shall give 4. Parties give reciprocal promises.Promise.5. Win or loss of the parties is 5. One party has to win and other has to Not important. Lose.6. Contingent contract are 6. Wager contract are void with few Valid. Exceptions.

Question No.6 : Define Fruad? Distinguish between Fraud andMisrepresentation. Whether silence amounts to fraud? OR 2. What are the factors which vitiate consent and make the Agreement Void orvoidable? OR3. What is consent? When is consent said to be free under IndianContract Act? ORDistinguish between coercion and undue influence.

Answer : INTRODUCTION :- An agreement becomes contract if it fulfils the conditions of /section 10. According to sec. 10for an agreement becomes contract with law full object and consideration. It means freeconsent is not free then the contract is invalid. But it is voidable not void. Voidable means acontract which can be declared void by the court at the option of other party. under sec.2(1). Section 198, 10(a) also deines the term voidable.Section 13 : Consent : According to Indian Contract Act 1872:- “ Two or more persons aresaid to consent when they agree upon something in the same sense.” In the above definition it shows that (i) At least two persons are must (ii) for the same thingand same sense. ILLUSTRATION : At least two persons are must:- A agrees to sell his house to B forRs.50,000/- B accepts this proposal.For same thing and same sense:- ‘ A’ have two cars; one Maruti and the other is Fiat. Heagree to sell to B. A might be thinking to sell Maruti car while B might be thinking topurchase fiat car. In this example A & B do not agree upon the same thing in the samesense, hence there is snot contract in this case.


A Free Consent :- under sec.14 Consent: is said to be free when it not caused by : i) Coercion Sec. 5.15 (ii) Undue influence sec..16 (iii) Fraud sec..17 (iv) Misrepresentation .18 (v) Mistake 5.20.In other words consent is free if it is not affected by coercion, undue influence, fraud andmisrepresentation. In case of consent taken by mistake the consent shall be void.1. COERCION ( 5.15) :Coercion means by force or compulsion. Coercion is a method of doing consent. Thismethod is against the law. When any person by doing an illegal act gets the consent of anyother person on an agreement it is called coercion. It means:Explanation : It is immaterial whether the IPC-1860 is or is not in force in the place where thecoercion is employed.(a) Threading to commit any act forbidden by IPC: If consent obtained by threat ofcommitting act forbidden by SC it called is coercion. Example : A kidnapped a son of B, Asays you give me your scooter in Rs.50/- then I will give you your child. B agreed, it is acoercion. Case : Masjidi v/s Ashiya 1880: It was held that it cannot be simple upon thesefacts that the consent of such person was caused by coercion.Case:- Raganayaswami V/s Alyar Sette A Madrasi man died leaving behind a widow. Therelative of the dead threaded the widow to adopt a boy otherwise they will not allow her toremove the dead body of her husband. The widow adopted the boy and subsequentlyapplied to cancel the adoption. The court held the adoption is not valid. Muthiah Chettiar V/s Karupan ChettiarA was an agent of B. A at the end of his services denied to give account to other agent. Hesaid to B to release him from liabilities otherwise he shall not give the account book. It heldby coercion.(b) Threat to commit suicide: It comes under sec.15.Case: Ammiraja V/s SeshammaA person held out a threat to commit suicide to his son and wife, if they refused to execute arelease deed in his favour. They executed the deed in his favour. It was held by the courtthat this coercion. According to old filled J threat to commit suicide no body can bepunishable under IPC, and suicide itself not a crime under IPC, because after suicide nobody can be punished. Only attempt to commit suicide is punishable.(c) Un lawful detaining of any property : According to sec.15 coercion could also be causedby unlawful detaining or threatening to detain any property to the prejudice of any personwhatsoever with the intention of causing any person to enter into an agreement. Propertymay be moveable or immovable. If one person detains unlawfully, it is coercion.(d) To Prejudice of a person : Coercion may be against a party as well as against anyperson.(e) Legal Threatening not coercion:- A commits accident with B. B says you give me Rs.500otherwise I shall sue against you. It is not coercion.(f) Place of coercion: coercion may be committed at any place. It may also be committedeven outside India.(g) Burden of proof on Plaintiff:(h) Remedies: Voidable or restitution.8Andhra Sugar Ltd. v/s State of Andhra Pradesh – 1968 : It was held that the agreementcannot be said to be by lack of free consent.2. UNDUE INFLUENCE : SEC.( 16)Undue influence means unreasonable influence or improper or not right influence. Whenconsent is taken by way of unreasonable influence or improper way then it is not free. Theconsent can be declared void on this ground. Section 16 says that when any person hassuch position over the other person as to dominate his will, the person who dominates thewill of the other must have superiority over the other. This is done under the followingconditions. 1. Relationship superior or inferior may be real or apparent relationship as


(a) Money lender or borrower.(b) Income Tax Officer and shopkeeper.(c) Income Tax Officer and assessee.(d) Police and thief.Case :- J.R.Bhatt v/s State of U.P. Pt. Was employed in the court of UP. He wants a leave.Registrar said leave can be granted on the condition if you will not come in service after theend of leave. He wrote it. It was held by servant under undue reference influence.(B) Fiduciary Relationship :- 1. Advocate & Client. 2. Master & Servant. 3. Guru and chela 4. Father and children 5. Teacher & student. 6.Doctor & Patient. 7. Creditor and Debtor. 8.Trustier and benefishes. Case : Manu Singh v/s Umadat Pandey : An old Hindu womangifted the whole property to her religious guru to get peace in heaven. It held undueinfluence . Parda-Nashin women : contract with parda-nashin women is presumed to have beeninduced by undue influence. She can avoid the contract unless he other party can show thatit was her intelligent and voluntary act, A case : Ismiel v/s Amir Bibi 1902 : It was held thatthe women does not become parda-nashin women.Mental sickness:-If one party is not in position to think his interest due to mental sickness.Case : Rani Annpurna v/s Swami Nath. A widow who did not have any mental fitness went tocreditor, she got Rs.1500/- or 100% interest. It was held voidable because she was not in aposition to give free consent. The Party attempted to influence the will of other party. A stateof mental fear is not undue influence. If a party is in a position to influence other’s will it is notundue influence whether other party gets damaged.2. Real Damage :- If no damage is done to the Pt. Then it will not be undue influence.Remedies : 1. Voidable u/s 19.2. Restitution u/s 64 3.damages u/s 73. The court undersection 19 can declare the whole agreement as void or the court may be declared it void onreasonable condition.Burden of Proof. : Pt. Will have to prove that the def. Was in a position to dominate the will ofthe pt. Thus if such relationship is proved by the pt. The court will presume the undueinfluence. Now burden to disprove this presumption comes on defendant, that there was noundue influence. He should prove that he did not try to dominate other’ will.• He paid sufficient consideration to aggrieved.• That the plaintiff had opportunity to take free advice. • Effect of Undue Influence:- Section 19A says when consent to an agreement is caused byundue influence, the agreement is a contract, voidable at the option of the party whoseconsent was so caused. FRAUD UNDER SECTION (17):- Section 17 defines that “ Fraud “ includes any of the following act committed by a party to acontract or with his connivance or by his agent with intent to deceive another party there orhis agent or to include him, to enter into the contract( whenever a person obtains anymaterial advantage from another by unfair and wrongful means. It is said that he hascommitted fraud. Fraud is the wilful representation made by a party to contract with theintent to deceive the other party or to induce such party to enter into a contract. ESSENTIALS OF FRAUD :- (1) To give a suggestion that a fact is true, while it not true:(false suggestion) such suggestion, which is not true. Case : Mithu Lal v/s LIC of India :- In this case the court held that Devlata committed fraud.i) Active concealment of a fact which is in the knowledge of the person: Every body has theduty to disclose the defects in the material or the property while entering to the contract, if itis not done then the agreement is based on fraud.Example :- ‘A’ agrees to transfer his land to B but the land is already mortgaged to C, A doesnot disclose this fact. It is a fraud.ii) To do such promise without intention of perform(false promise ) iii) Any other act fitted to deceive.iv) Any act which is declared by law as fraudulent : such as in slavery act for companies ithas been specified that certain type of transfer of property is fraud.


v) Fraud committed by partner or agent of the firm: such as River silver mining v/s SmithAIR 1869: The court held that this act was done by the Agent of company u/s liabe.vi) There must be a false representation i.e. A shopkeeper tells B that these goods are fresh.It is A option to reject it. It will not be fraud.vii) Representation must have been made by the Party or by his agent: The representationmust have been made knowing that it is false without knowing its truth. In both cases it willbe fraud.viii) The representative must have been an intention to deceive.ix) Mere silence is no fraud: under sec.17: A contracting party is not obliged to disclose eachand everything to the other party. Merely because a person does not disclose the defects inthe goods sold by him, there is no fraud. Shri Krishan v/s Kurukshetra University- 1976 : Itwas held that there was no fraud by the candidate and the University has no power towithdraw the candidature of the candidate on that account.x) There are two exceptional cases where mere silence may amount to fraud :-1. Duty to speak : when the circumstances of the case are such that, regard being had tothem, it is the duty of the person keeping silence to speak. Keeping silence in such caseamounts to fraud.Case : Srinivasa Pillai v/s LIC of India, AIR-1977 : It was held that the claim is notmaintainable against the insured corporation.2. Duty to disclose changes :- If a statement is true when made, but subsequently becomesfalse by the change of circumstances, there is duty to disclose the change before the otherparty acts upon it.xi) Ratification : When even after the knowledge committing fraud party ratifiesagreement now he cannot repudiate. Damage, Restitution. Prof of FraudFraud is essentially a question of fact and has to be proved by the person who alleges thatthe fraud was done on him.

MISREPRESENTATION (UNDER SEC. 18)When a false statement is made with the knowledge that it is false and also with theintention to deceive the other party and make him enter into a contract on that basis, it isknown as Fraud, But when the person making a false statement believe the statement to be trueand does not intend to mislead the other party to the contract, it is known as“Misrepresentation” it is somewhat different from fraud. example : ‘A’ while selling his watchtells ‘B’ that his watch is made in Switzerland, A does not know that the watch is not made inSwitzerland. It is fraud because the watch is made in India. A is guilty of misrepresentation. It includes :- 1) The positive assertion, in a manner not warranted by theinformation of the person making it of that which is not true, though he believes it to be true.2. Any breach of duty which without an intention to deceive gains an advantages to theperson committing it.ESSENTIALS1. The positive assertion of material fact: When one party believes that his statement is truebut it is not true, it is called misrepresentation. Case: The Ocean steam Navigation comp. v/sSunderdas Dharmsay: ‘A’ sold ship telling it is of 28 tons but it was of less tons. ‘A’ did notknow about it. It held misrepresentation.2. Any Breach of duty : When on Party without intention of committing fraud breaches dutyand if he also takes benefit from the agreement it will be misrepresentation. Case : BamarsiDass v/s New India Assurance : Actually one liability of party released in that deed heldmisrepresentation. There was the duty of the party to disclose the fact of deed. B could notread it but he did not. It means he trusted on A and it is his false statement, which held thenit is Misrepresentation.


3. Innocent Misrepresentation: When false statement is made innocently then it isMisrepresentation. Smith v/s Land & House Property Corp.: A sold a hotel and said that allrent holders are gentleman. Actually they it all were defaulters. It held misrepresentation.Case : Derry v/s Peek(1889) it was held that the management of the company was guilty ofmisrepresentation, and not for fraud. Another Case : Noor-ud-din v/s Umerao Bibi 1998: Asale deed was challenged on this ground that it was executed under fraud andmisrepresentation seller was a blind person. He was also not paid sufficient consideration.The possession of property was also transferred to the buyer, court declared such sale deedto be set-aside.DIFFERENCE BETWEEN FRAUD & MISREPRESENTATION FRAUD MISREPRESENTATION1. Fraud contains the intention It does not contain any such intention.To deceive.2. The facts are altered with the No such thing in misrepresentation. AnyIntention to deceive the other is presented as such presented as such Person. Whereas it does not came out to be true3. The guilty person has the The guilty person has no knowledge of Knowledge of truth. Truth.4. Fraud is a type of tort and It does not come under tort.So punishable.5. Contract by fraud can be Contract by misrepresentation can only Rescinded to demand be rescinded not demand compensationCompensation.6. The guilty person can not Such defence could be availed.Take the defence that the Victim person as plaintiffCould have find out the Truth. MISTAKE (Section: 20-22)The fifth element defecting the consent is MISTAKE, contract by mistake are either void orvoidable. It is not a free consent. One or both of the parties may be working under same. Mistake is of three kinds :-1. Mistake in the mind of the parties is such that there is no genuine agreement at all. Thereis no meeting of minds or consensus ad idem. 2. There may be mistake as to a matter of fact relating to that agreement.3. The mistake essential to the agreement as to the subject matter. TYPES OF MISTAKE :-Mistake when there is no consensus ad idem: According to sec.13: two or more persons aresaid to consent when they agree upon the same thing in same sense. If there is no meetingof minds or consensus ad idem, there arises no contract which could be enforced.Section 20 requires that:- Mistake of both the parties : The agreement is void if there ismistake on the part of both the parties. A case Ayekam Angahal Singh v/s Union Bank OfIndia, AIR- 1970: It was held that since the mistake was unilateral, the contract was notaffected thereby and the same could not be avoided.According to Sec.21 of the Contract Act which lays that mistake of law of country is notexcusable i.e. any contract is done under a mistake of law being followed in India then suchcontract shall not be voidable, but if contract is under a mistake of foreign law that i shall bevoid, i.e. Mistake of Foreign Law and Mistake as to individual rights. Case : Cooper v/sPhibbs-1867: The court held that the mistake related to general ownership shall the sameeffect what the mistake of fact would have. Mistake of fact is not excusable. ILLUSTRATION :- ‘A’ agrees to buy horse from ‘B’ at the time of agreement, the horse hadalready died but both the parties had no knowledge of it such, agreement is void.The following points are important in respect of Mistake of Fact :-


1. Mistake must be mutual. Case: Courturier v/s Hastie: 1856: It was held that theagreement was void because of the mutual mistake as to existence of the subject matter.2. Mistake must relate o any substantive fact, like mistake as to identity of the parties,identity of subject matter identity of nature of transaction etc.3. Mistake must relate to present or existing fact.Case : Raffles v/s Wichellehaus – 1864 : It was held that owing to mistake as to the identityof subject matter of contract, such contract was void.4. Mistake as to Promise:- If a mistake because of which the promise does not reflect thereal intention which was there in the proposed agreement, such an agreement would bevoid. Case :Hartog v/s Colins& Shields: 1939 It was held that there had arisen no contract inthis case because the buyer could have noticed the mistake.

Q.No. 7:- Explain the law relating to agreement in restraint of trade withreference to Indian Law along-with exceptions.Answer :-INTRODUCTION : Section 25 to 30 of the Indian Contract Act-1872 mentions thatthose agreement which are void. Void agreement are defined in sec. 2(g) of the act. According to it :- “An agreement not enforceable by law is said to be void.” Thus sec.25 to30 of the act mentions following agreements to be void :- AGREEMENT IN RESTRAINT OF TRADESection 27 of the act mentions that all such agreements shall be void which creates restraintor partial restraint in any type of occupation, trade or business of a person. In simplelanguage, agreements creating restraint in lawful trade, occupation or business are void.Indian constitution provides every person the freedom to trade, occupation or business. Thisfreedom cannot be interfered except in certain situation. Freedom of trade, occupation orbusiness is in accordance to public policy. This is the reason that this provision has beenmentioned in sec.27 of the act. But it is important that a reasonable restraint on trade,occupation or business shall not make an agreement void. The requirement is that restraintshall be reasonable. Case : Northernfelt v/s M.N.Felt Guns and Ammunition Co. Ltd. 1894: It was held that beforedeclaring agreement in restraint of trade to be void, the reasonability of restraint shall beexamined and the examination shall consider mainly that whether it is reasonable or not forparties or public interest.Illustration : If two neighbouring land owner agrees that they shall not organise market forcattle on their lands on the same day then such agreement shall not be void because it is inthe interest of both.Case : Ms.S.Dey Forments Industrial Ltd v/s Ravindera Nath S.Kamath 1999: It was heldthat where any person is appointed in a company as an advisory and a condition is laid thathe shall not act anywhere during his service, there such an agreement shall not be void.The above rules does have few exceptions which are under :-1. Sale of Goodwill : Where the goodwill of any trade, occupation or business is sold, therethe buyer shall have an agreement with the seller that the seller shall not do any suchbusiness within the local limits for a specific time which shall be done by the buyer with thatgoodwill. Four things are necessary for the exception:i) Trade is similar.ii) Within specified local limits.iii) Buyer is doing such business.iv) The restraint is reasonable in the eye of court.Case : Gujrat Bottling Co. Ltd. v/s Coca Cola Co. 1995: It was held that provisions related oagreement in restraint of trade shall not apply in such matters in which are prohibited only forthe time of existence of contract. If they are applied even after the termination of contract,then i shall be void.


2. Partnership Agreements : Where there is an agreement between partners at the time offormation of firm that any partners shall not carry a similar or otherwise any trade during theexistence of partnership, then such an agreement is not considered to be creating restraint.3. Dissolution of Partnership :- If any agreement is made between the partners at the timedissolution of partnership or a partner shall not carry a business similar to that of firm for a

specific time, then such agreement shall not be void provided that it is reasonable.

Question No.8 : What do you understand by ‘Quasi-contract? State itsessential features. ORQuasi-Contract are in law but not in fact. Explain. ORQuasi- contract is not the product of an agreement entered into partiesbut a creation of law on the basis of equitable principles.” Discuss theabove statement and state the quasi contract relations recognised by theIndia in Contract Act.? ORWhat do you understand by Quasi-contracts? Explain some relationswhich are resembling to those created by contracts as incorporatedunder the Indian Contract Act 1872.Answer :- INTRODUCTION: For a valid contract there must be offer, acceptance andconsideration with some other requirements. But sometime the position comes when there isneither offer not acceptance still there is contract. Such position is put under the category of“ Quasi- Contract” or relation resembling to those contract. The term Quasi Contract generally means half or ‘semi’. It means Quasi contract is halfor semi contract. But this meaning does not fulfil our aim. It is a confusing term. Howeverwe can say that ‘quasi contract’ means the contract, which is equal to that of a valid contract.Chapter 5 of the Indian Contract Act deals with such situations under the heading of certainrelations resembling to those created by contract. The chapter avoids the word ‘quasi-contract’.Generally the contracts or agreements are the result of acts of parties. Parties agree to do ornot to do something but several times there is no agreement between the parties, but still theliabilities arise between the parties such liabilities are called by, Quasi-Contract. Definition : Indian Contract act does not define the Quasi-contracts. It only mentions that,certain relations resembling those created by contract. However the various jurists havedefined the Quasi-contract as under:-:According to Wharton’s Law Lexicon: “ An act whichhas not strict form of a contract but has the effect of it, is an implied Contract.”According to Desai : Quasi contract or implied contracts are exceptional kind of contracts bywhich one party is bound to pay money in consideration of something done or suffered bythe other party. They are not founded on actual promises but arise when one party soconducted himself that he must be deemed as if had made promise although he has not,”According to Pollock:- “Quasi contracts are contracts in law but not in fact.” In other words itcan be said that Quasi contracts is not a product of an agreement entered into parties but acreation of law on the basis of equitable principles.Basic of Quasi-Contract : Lord Mansfied is considered as the father of this contract.According to him, ‘Natural justice demands that one should not get unjust profit at the cost ofanother unjust loss. This order has been laid down in the case of :- MOSES v/s MACFERLAN : Such action lies for money paid by mistake or upon a consideration whichhappens to fail or for money got through imposition or extortion or oppression or for anundue knowledge taken of the pt’s situation. Country to the law made for protection ofpersons under those circumstances of the case. It is obliged by lies of natural justice andequity o refund the money.


Under section 68 to 72 It has been recognised by Indian Contract act under the heading of ,Certain relations resembling to those contracts.

CHARACTER/SKETCHES OF QUASI-CONTRACTS1. These agreement are never made by parties but imposed by law.2. One party is bound to pay money to other party.3. Such contract gives right to one party. Again the other party in not against world.4. Only money can be obtained not the liquidated damages.KINDS/ESSENTIAL OF QUASI-CONRACT1. Necessaries supplied to a person of contracting: Sec. 68 says that if a person who isincapable to enter into a contract is supplied necessaries, then he is bound to compensatethe suppler. Incapable means, who are not capable under sec. 11 and 12, Minor is insane ordisqualify by law. If basic necessities are supplied to this, it will be deemed quasi contractand its price can be recovered through medical aid, clothes, food, marriage of minor’s sisteretc., that is depending upon him. Minor’s marriage is not a basic necessity. The ingredientsof sec.6 are as under :i) Necessaries supplied to a person not competent to make contracts.ii) These goods must be for the basic needs.iii) The goods must be according to the status of minor.iv) The supplier can recover the price against the property of minor. It is not personal liability.Case : Chapple v/s Cooper: 1844: It was held the things for necessities shall be consideredthose without which it is not possible to live. The food, clothing, shelter, medicine etc., arethe necessaries to minor or lunatic. But it must not be more than sufficient. 2. PAYMENT BY AN INTERESTED PERSON : Section 69 of act is provides that a personwho is interested in the payment of money which another is bound by law to pay, and whotherefore pays it, is entitled to be reimbursed by other.ILLUSTRATION : ‘B’ holds land in Bengal, on a lease granted by A, who is a zamidar. Therevenue payable by A to the government being in Wlaw, the consequences of such sale willbe the annulment of B’s lease. B prevent the sale and consequent annulments of his ownlease, pays to the government the sum due from A. A is bound to make goods to B theamount so paid.i) Person is legally bound to pay money.ii) The person paying has the interest in such paymen.iii) Payment is t o be made to another person.Case : Govind Ram Gordhan dass Sekajri v/s State of Himachal : Where Maharaja, havingsold mills without paying the overdue municipal taxes was sued by the buyer, who had topay to save the property from being old. The Privy Council held that he was bound by law topay without the meaning of the sec. Where a person is only morally bound and is not legallycompellable to pay he will not bound to pay.3. LIABILITY TO PAY FOR NON-GRATUITOUS ACT: - When any person lawfully does any act for another person not gratuitously and the otherperson has enjoyed the benefit of that act then he is bound to compensate him.ILLUSTRATION:- ‘A’ is a trade man leaves goods at B’s house by mistake. B treats thegoods as him own. He is bound to pay ‘A’ for them. A Case : Subramanyam v/s Thaippa1961: A contractor did more build more that what was required by the contract and did notintended act gratuitously. Court held that the contractor was entitled to compensation forextra work.Essential conditions of section 70:-i) One person legally works for otherii) The act is done voluntarily.iii) He gets some benefit for this work.iv) To whom it is done takes benefit of that act.v) Act has been done not gratuitously.


A case : Kanhiya Lal v/s Inder chand: The court held that section 68 does not apply becauseshe was a minor at sec.70 also does not apply because she did not get any benefit.Because it was not a quasi-contract as his friend having no interest in this payment.4. Responsibility of Finder of Goods:- Section 71 of the Act provides that a person who findsbelonging to another there will be a quasi contract . If bailment between two looses all therights and duties of bailer and balee will be presumed under section 165 & 169( rights andDuties of bailee).5. MISTAKE OF COERCION:- Section 72 of the act says that, “ when anything is deliveredby way of mistake then it is the duty of the person to return that things to the concern personor to compensate him.”A case :- Sales Tax Officer Banaras v/s Kanhayya Lal : In this case it was held that thetransactions is to be ultra-wires. The firm was allowed to recover back the tax which he hadpaid. Similarly if any person takes any thing from another person by coercion i.e. by way of forceunder this petition also the person is bound to return the goods to the concerned personunder quasi-contract obligation.For example :- A at the point of pistol takes some gold rings from ‘B’. Here ‘A’ is bound toreturn the gold rings to ‘B’ under quasi contract obligation. The word coercion is same asdefined in sec.15 and the word mistake is same as defined under sec.20. There are theprovisions with regard to quasi-contract.CONCLUSIONThus, in all above matters there is no agreement between the parties but the conduct andactions of parties show that an agreement has originated between them and get binding insimilar way as like a contract. This is called Quasi-Contract.

UNIT-IIIQuestion No.9:- Explain the term ‘Anticipatory Breach of Contract’ anddiscuss the consequences of such a breach. ORDiscuss the consequences of breach of contract with relevant case. ORWho must perform the Contract? Who can demand for the performanceof Contract?Answer: INTRODUCTION ; Contracts are important when they are performed. There aretwo main questions in this respect :-i) Who shall perform the contract,ii) Who can enforce the performance of the contract.i) Who shall Perform a Contract :- Section 40 of the Act mentions that generally the contractshall be performed by the promisor itself if the parties has such intentions. Otherwise thepromisor can employ any other person for the performance of contract.

Generally contract based on personal qualifications shall be performed by the promisorhimself. For example, ’A’ promise to paint a picture for B. The performance of contractrequires it to be done by the promisor himself because painting in personal skill of ‘A’.Whereas the contract of sale of property can be performed by promisor himself or by someother person.Promisor can perform a contract by himself in the following conditions :a. Where the intention of parties was that the contract shall be performed by the promisoronly.b. Where the performance depends upon personal skill of promisor. Such contracts getterminated on death.


c. By Agent :- If the performance of contract does not depend upon personal skill, then suchcontract can be performed by the agent of promisor. Generally such contracts are contractsfor the sale of property.d. By Legal Representative : Where the promisor dies before the performance of contractand the performance does not depend upon personal skill of promisor, there such contractsshall be performed by the legal representatives of deceased promisor, but only up to thatlimit to which the legal Representative had the interest in the property of deceased.e. By Third Person:- Where promises accepts the performance from a third person, theresuch promise can be performed by that third person. In such mattes, promise cannot enforceperformance from promisor under section 41 of the Indian Contract Act. PERFORMANCE OF JOINT PROMISESThere are provisions in the Indian Contract Act in this respect:- i) Under section 42 of the act when two or more persons have made a joint promise, all suchpersons must jointly fulfil the promise.ii) When any one of joint promisor dies, his legal representatives shall perform the promise.iii) Under section 43 of the act when two or more persons make a joint promise, the promisemay compel any of such joint promisors to perform the whole promise.iv) Section 44 of the act says that where two or more persons have made a joint promise, arelease of one of such joint promisor, by the promisee does not discharge the other promisorof joint promisors neither does it free the joint promisor so released from responsibility to theother joint promisor or joint promisors. WHO CAN DEMAND FOR THE PERFORMANCE OF CONTRACT. The following persons can demand for the performance of the contract :-a) The first right for the performance of contract is with the promisee. He can demand for theperformance of contract.b) If the contract is not of personal nature then on the death of promisee his legalrepresentative or representatives can demand the performance.c) Where there is joint promise, there all the joint promisors can jointly demand.d) Where any one of the joint promisee dies, then the legal representative of such deceasedshall demand for the performance. e) Where are promisee dies, then their legal representatives can demand the performance. ANTICIPATORY BREACH OF CONTRACT:Section 39 of the Act provides for the Anticipator Breach of Contract which means :-“ That before the performance of the contract, any party to contract refuse to perform thepromise or contract or makes itself disable for performance is breach of contract.ILLUSTRATION :- A singer enters into a contract with B the manager of theatre to sing at histheatre for two nights in every week during the next two months and B agrees to pay herRs.1000/- for each night’s performance. On the sixth night A wilfully absents herself from thetheatre. B is at liberty to put an end to the contract. In such cases promisee can cancel thecontract.The base of section 39 is “ when a party to a contract has refused to perform or disablehimself from performing his promise in its entirety, the promisee may put an end to thecontract, unless he has signified by words or contract his acquiescence in its continuance. REMEDIES :The following remedies are available against the anticipatory breach of contract :-1. The promisee can file a suit for the breach of contract considering it to be actual breach.2. The promisee shall wait till the actual date of performance and then file the suit.3. Specific performance and Injuction : sometimes a party to the contract instead ofrecovering damages for the breach of contract may have protection to the alternative remedyof specific performance of the contract.4. Damages : Remedy by way of damages is the most common remedy available to theinjured party. This entitles the injured party to recover compensation for the party whocauses the breach. Sec.73 to 75 incorporate the provisions in this regard. A case : Hadley


V/s Baxendale-1854: It was held that the special circumstances were not communicated bythe plaintiffs to the defendants. The plaintiffs were therefore not entitled to recover the loss.Victoria Loundry Ltd. v/s Newman Industries Ltd. 1949.It was held that the defendant had the knowledge of the fact. The case was referred toofficial Referee to determine the damages payable in this case. 5. Quantum Meruit:- When the injured party has performed a part of his obligation under thecontract before the breach of contract has occurred, he is entitled to recover the value ofwhat he has done under this remedy.6. Measure of Damages :- That after certain result of the breach of contract in nearest time isto be compensated. Damages are therefore, to fix amount of that basis if a party takessecurity deposit from the other for the due performance of the contract.A case : State of Kerla V/s K.Bhaskaran 1985.It was held that generally 10% profit is taken as an element in the estimation of the contractand the contractor was entitled to claim compensation on that basis.


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