tax and legal

7/28/2019 tax and legal

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Slide 1

Legal & Tax Aspects of Business

Slide 2

THE INDIAN CONTRACT ACT, 1872 Law in its legal sense means those principles &rules that

govern &regulate social conduct & the observance of which

can be enforced in courts.

Law is a rule of civil conduct, prescribed by the supreme

power of a State, commanding what is right &prohibiting

what is wrong.

- Blackstone

Law is the body of principles recognised &applied by the

State in the administration of justice.

- Salmond

Slide 3

Need For Law

Justice

Continuity &Uniformity

Impartiality

Rule of Law


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Slide 4

Definition of Contract An agreement which creates legal obligations is a contract.

The obligation is an under taking to do or abstain from doing

some definite act or acts.

Section 2(h) of the Indian Contract Act 1872 definescontract

as follows:

An agreement enforceable by law is an contract.

-An Agreement

-Enforceable by law.

Slide 5 Section 2(e) of the Indian Contract Act defines an agreement as :

Every promise &every set of promises, forming consideration foreach other, is an agreement.

Section 2(b) of the Indian Contract Act defines apromiseas :

A proposal when accepted, becomes a promise.

Thus, an agreement is an accepted proposal.

Consensus ad idemmeans identity of mind.

Agreement=Offer+Acceptance

* In social, domestic, moral or religious agreements, the usual

presumption is that the parties do not intend to create legal

obligations ; so they dont form part of law of contract.

Slide 6

Features Of Indian Contract Act, 1872

Enforcement of the Act:

- 1 september 1872

-not retrospective

-applies to whole of India except Jammu &Kashmir

Lays Down the Principles, not the Rights &Duties of the

Parties:

-formation, novation, alteration, performance &discharge ofcontract

-principles within which parties are free to make their own

terms &conditions of a contract subject to provisions of the

law of the land.


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Slide 7 Act is not Complete &Exhaustive:

-it does not incorporate law relating to all kinds of contracts. Eg. Sale

of Goods, Partnerships, Negotiable Instruments, Insurance

Creates Right in Personam:

-The Right in Personamor Jus in Personammeans a right against a

particular person or persons.

-The right in Remor Jus in Remimplies a right available to a person

against the whole world.

* The rights created by a contract are purely personal in nature &only

enforceable by action against the party in default.

Slide 8

Essential Features Of A Valid Contract Offer & Acceptance

Intention to Create Legal Relations

(Balfour Vs Balfour 1919)

Lawful Consideration

Capacity of Part ies

Free & Genuine Consent

Lawful Object

Agreement not declared Void

Certainity & Possibility of Performance

Legal Formalities

Slide 9

CLASSIFICATION OF CONTRACTS

Accordi ng to According to Accordi ng to

Enforceabil it y Formati on Perf ormance

(l egal validit y) (mode of creation)

-Valid Contract -Express Contract -Executed Contract

-Void agreement -Implied Contract -Executory Contract

-Void Contract -Quasi Contract -Unilateral Contract

-Voidable Contract -Bilateral Contract

-Illegal agreement

-Unenforceable Contract


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Slide 10

Classification Acc. To Legal Validity

Valid Contract: A contract which satisfies all the legal requirements

laid down in sec. 10 of the act, is known as a valid contract. Void Agreement: An agreement not enforceable by law is said to be

void.

Void Contract: A contract which is enforceable by law at the time itwas made, but later on if it becomes legally unenforceable due tosome reasons.

Voidable Contract: An agreement which is enforceable by law at theoption of one or more of the parties thereon, but not at the optionof the other or others, is a voidable contract.

Slide 11 Illegal Agreement: An agreement is illegal &void if its object or

consideration is:

-is forbidden by law

-is of such nature that,if permitted, it would defeat the provisions of

any law

-is fraudulent

-involves or implies injury to the person or property of another

-the court regards it as immoral, or opposed to public policy (Sec.23)

Unenforceable Contract:These cannot be enforced in a court of law

because of some technical defects.

Slide 12

Classification Acc. To Formation Express Contract: When the proposal or acceptance of any

promise is made in words(spoken or written), the promise is

said to be express.

Implied Contract: When the proposal or acceptance of any

promise is made otherwise than in words, the promise is saidto be implied.

Quasi Contracts: It is an obligation which the law creates in the

absence of any agreement.


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Slide 13

Classification Acc. To Performance Executed Contract: When both the parties have completely

performed their respective obligations, under the contract.

Executory Contract: In this contract the obligations of theparties are to be performed at a later time.

Unilateral Contract: In this one party has to fulfil hisobligations, whereas the other party has already performedhis obligations. Also known as unilateral, one sided contractor contract with executed consideration.

Bilateral Contract: In this the obligation on the part of both theparties to the contract are outstanding at the time offormation of the contract.

Slide 14

Offer & AcceptanceOffer or Proposal: Acc. to Sec. 2 (a) of the Indian ContractAct When one person signifies to another his willingness todo or abstain from doing anything with a view to obtainingthe assent of that other to such act or abstinence, he is said tomake a proposal.

- The person making the proposal or offer is calledproposer,offerororpromisor.

- The person to whom the offer or proposal is made is calledproposeeorofferee.

- When the offeree accepts the offer, he is calledpromiseeoracceptor.


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Slide 15

How An Offer is Made

An offer may be express or implied.

An offer may be general or specific.

An offer may be cross offer or counter-offer or standing offer

Slide 16 Essential & Legal Rules For a Valid

Offer The offer must be communicated to the other party.

(Lalman ShuklaVs Gauri Dutt 1913)

The terms of the offer must be definite &clear.

The offer must be capable of creating legal relationship.

(Balfour Vs. Balfour 1919)

The offer must be made with a view to obtain acceptance.

(Harris Vs. Nickerson 1873)

An offer may be positive or negative.

The offer should not contain any term the non-compliance ofwhich amounts to acceptance.

Slide 17

Special terms &conditions of the offer be communicated.

(Henderson Vs. Stevenson 1875)

(Parker Vs. South Eastern Railway Co. 1877)

Two identical cross-offers do not result in a contract.


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Slide 18

Acceptance

Sec. 2(b) defines acceptance as When one person to whom

the proposal is made signifies his assent thereto, the proposal

is said to be accepted.

An offer can be accepted only by the person or persons forwhom the offer is intended.

(Boulton Vs. Jones 1857)

Slide 19 Essential & Legal Rules For a Valid

Acceptance Acceptance must be absolute &unqualified.

Acceptance must be communicated to the offeror.

(Mere mental acceptance is no acceptance)

The acceptance must be in the prescribed manner.

The acceptance must be in response to offer.

The acceptance must be by the offeree.

The acceptance must be given before the offer lapses or is

revoked.

Acceptance may be express or implied.

Slide 20

Revocation of An Offer By notice

By lapse of time

After expiry of reasonable time

By death or insanity

By non-fulfillment of conditions

By counter-offer

By rejection by offeree


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Slide 24 No Consideration No Contract -Exceptions

Agreement on account of natural love &affection.

Compensation for past voluntary service.

Promise to pay a time-barred debt.

Contract of agency Completed gift.

Remission.

Contract of guarantee

Contract of gratuitous bailment.

Slide 25

Capacity to Contract Sec.11 of the Indian contract Act :

Every person is competent to contract who is of the age of the

majority according to the law to which he is subject, &who

is of sound mind, &is not disqualified from contracting by

any law to which he is subject.

Hence, exceptions are:

-Minors

-Persons of Unsound Mind

-Persons disqualified by any law to which they are subject.

Slide 26

Minor Sec 3 of the Indian Majority Act 1875 defines A minor is a

person who has not completed 18 years of age.

Minors Agreement:

-An agreement with a minor is void ab-initio.(Mohiri Bibiv.DharmodasGhose1903)

-He can be a promisee or beneficiary.

-His agreement cannot be ratified by him on attaining the age of

majority.-If he has received any benefit under a void agreement, he

cannot be asked to compensate or pay for it.

-He can always plead minority


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Slide 27

There can be no specific performance of the agreements entered

into by him as they are void ab initio.

He cannot enter into a contract of partnership.

He cannot be adjudged insolvent.

He is liable for necessaries.

He can be an agent.

His parents/ guardian are/ is not liable for the contract entered

into by him.

A minor is liable in tort.

Slide 28 There can be no specific performance of the agreements entered

into by him as they are void ab initio.

He cannot enter into a contract of partnership.

He cannot be adjudged insolvent.

He is liable for necessaries supplied or necessary services

rendered to him or anyone whom he is legally bound to support.

He can be an agent.

His parents/ guardian are/ is not liable for the contract entered

into by him even though the contract is for the supply of

necessaries to the minor.

A minor is liable in tort(civil wrong).

Slide 29

Persons of Unsound Mind Sec.12 lays down a test of soundness of mind. It read as

follows:

A person is said to be of sound mind for the purpose ofmaking a contract if, at the time when he makes it, he iscapable of understanding it & of forming a rational

judgement as to its effect upon his interests.

*A person who is usually of unsound mind, but occasionally ofsound mind, may make a contract when he is of sound mind.

* A person who is usually of sound mind, but occasionally ofunsound mind, may not make a contract when he is ofunsound mind.


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Slide 30 Persons of unsound mind:

-Lunatics

-Idiots

-Drunken or intoxicated persons.

*Agreements entered into by persons of unsound mind are void. Buthowever they are liable for necessaries supplied to them or to

anyone whom they are legally bound to support.

Slide 31

Persons Disqualified By Law Alien Enemies

Foreign Sovereigns &Ambassadors

Convicts

Insolvents

Professional Persons (England)

Corporations &Companies

Slide 32

Free Consent Two or more persons are said to consent when they agree

upon the same thing in the same sense. (Sec 13)

Acc to Sec 14 consent is said to be free when it is not caused

by:

-Coercion

-Undue Influence

-Fraud

-Misrepresentation

-Mistake


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Slide 33

Coercion: Consent is said to be caused by coercion when it is

obtained by:

-Committing or threatening to commit any act forbidden by the

Indian Penal Code,1860.

-Unlawful detaining or threatening to detain any property.

* When contract to an agreement is caused by coercion, the

agreement is a contract voidable at the option of the party whose

consent was so caused .

Slide 34

Undue I nfluence:

A contract is said to be induced by undue influence where the

relations subsisting between the parties are such that one of the

parties is in a position to dominate the will of the other &uses

that position to obtain an unfair advantage over the other.

- Authority, Fiduciary Relation, Mental Capacity

*When contract to an agreement is obtained by undue influence,

the agreement is a contract voidable at the option of the party

whose consent was so obtained .

Slide 35 Misrepresentation: It is a false statement which the person

making it honestly believes to be t rue or which he does not knowto be false. It also includes non-disclosure of a material fact or factswithout any intent to deceive the other party.

It must be false, but the person who made it honestly believes it tobe true.

It must relate to the material facts of the contract

It must have been made without any intention to deceive the otherparty.

The other party must have believed in it &acted upon It must induce the other party to make a contract.

It must have been made before conclusion of contract

It may be caused by representing half truth

It must subsequently become false.


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Slide 36

When contract to an agreement is caused by

misrepresentation, the agreement is a contract voidable at the

option of the party whose consent was so caused .

The aggrieved party may

Avoid or rescind

Accept the contract but insist that he shall be placed in the

position in which the would have been if the representation

made had been true.(Sec 19)

Slide 37

Fraud

Acc to Sec 17 fraudmeans &includes any of the following actscommitted by a party to a contract, or with hisconnivance(intentional active), or by his agent with intent todeceive or to induce a person to enter into a contract:

-the suggestion that a fact is true when it is not true &the personmaking the suggestion does not believe it to be true.

-the active concealment of a fact by a person having knowledge orbelief of the fact

-a promise made without any intention of performing it.

-any other act fitted to deceive.

-any such act or omission as the law specially declares to befraudulent.

Slide 38

There must be false representation

It must relate to material fact

Made before conclusion of contract with intention to deceive.

Statement made with knowledge of its falsity.

Other party induced to act upon representation.

Other party must have relied upon representation

Other party must have suffered some loss acting onrepresentation.

When contract to an agreement is caused by fraud, the agreementis a contract voidable at the option of the party whose consent wasso caused .


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Slide 39

Mistake

Mistake may be defined as an incorrect belief which leads one

party to misunderstand the other.

Sec 20 lays down that, where both the parties to an

agreement are under a mistake as to a matter of fact essential

to the agreement, the agreement is void. Mistake of law of the land

Mistake of Foreign Law

Slide 40

Discharge of Contracts When the rights &obligations arising out of a contract are

extinguished, the contract is said to be discharged orterminated. Thus the discharge means that the parties are nomore liable under the contract.

Various Modes Of Discharge

-By Performance

-By Agreement

-By Impossibility of Performance

-By Lapse of Time

-By Operation of Law

-By Breach of Contract

Slide 41

Discharge by Performance of Contract

By Actual Performance

By attempted Performance


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Slide 42By Agreement

Novation

Rescission

Alteration

Remission

Waiver

Accord &Satisfaction

Merger

Slide 43By Impossibility of Performance

Initial Impossibility (at beginning) Subsequent Impossibility

-destruction of subject matter

-death or per sonal incapacity

Change of law

Declaration of war

Failure of pre-condition

Slide 44By Lapse of Time

If the contract is not performed &if no action is taken by the

promiseein the Court of Law within the specified period, he

is debarred from enforcing the contract.


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Slide 45By Operation of Law

UnauthorisedMaterial Alteration

Death

Insolvency

Merger

Slide 46By Breach of Contract

Actual Breach of Contract- at the time when the performance is due

-during the performance of the contract

Anticipatory Breach of Contract

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