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Matters relating to property are governed by the Transfer of Property Act, 1882 in India. The object of the Transfer of Property Act (called the 'TPA' under the unit of Property Law) is to regulate the transfer of property between living persons. It shall also serve as the code of contract law governing immovable property.
The Transfer of Property Act, 1882 provides clarity on the subject: it is a systematic and uniform law on the transfer of immovable property in India.
Types Of Property: Movable And Immovable The term 'Property' or the term 'Transfer of Property' are not defined in the Act. Though not defined, the word 'property' has been used in a broad sense throughout the Act. Every interest or right that has an economic value denotes property. Property is of two kinds - movable and immovable. Movable property is one which can be transferred from one place to another and is governed by the Sale of Goods Act. Immovable property governed by the Transfer of Property Act is not defined in the Act. However, under Section 3, immovable property does not include standing timber, growing crops or grass. Immovable property includes lands, buildings and benefits arising out of land and things attached to the earth.In simple words, any property that is attached to the earth and cannot be transferred from one place to another is called immovable property.
In Shanta Bai vs State of Bombay (1958 SC 532), the distinction between movable and immovable property was observed. If the intention is to reap fruits from the trees, then it is regarded as an immovable property. But if the intention is to cut down the tree and use it as timber, it would be regarded as movable property.In Marshall vs Green (33 LT 404), there was sale of trees wherein the trees were cut and taken away. The Court held that the sale was not that of immovable property.
Transfer Who can transfer property? Any person who is competent to contract (person above 18 years of age, having sound mind and not disqualified by any law in force) and authorized to dispose off property viz., owner of the property or any person authorized to sell the property, can make a transfer. The person who transfers the property is called the Transferor and the person to whom the transfer is made is called the Transferee.
How can property be transferred? The mode of transfer of property varies according to the value of the property. If the value of the property is more than ' 100, then transfer has to be made only by a registered instrument. If the property is tangible and the value of the property is less than ' 100, irrespective of the value of the property, then transfer has to be made only by delivery; whereas for intangible property, irrespective of the value of the property, transfer has to be made only by registered instrument. (A registered instrument contains the records of the owner of the property - for example: shares, bonds, etc.) A registered instrument has to be attested at least by two persons who are parties to the transfer. Attestation means affixing the signature in the registered instrument. The witnesses should mark their signature too on the instrument with an intention to attest. Registration of the instrument is an essential legal formality. During registration, the parties to the transfer must be present to affix their signatures in the document and complete the transaction with regard to immovable property. While doing so, the document containing the rights, obligations and liabilities of the parties should be clearly mentioned in the document which is registered. Registration shall take place by affixing a seal of the Registrar office which shall be subsequently included in the official records.
Law Of Property
Essentials For A Valid Transfer The following are the essentials for a valid transfer: - In a transfer of property, the transfer should be between two or more living persons. - The property that is going to be transferred should be free from encumbrances (hindrances of any form) and be of a transferable nature. - The transfer should not be: q for an unlawful object or an unlawful consideration q involving a person legally disqualified to be a transferor or transferee. - The transferor who transfers the property must: q be competent to make the transfer; q be entitled to the transferable property; q be authorized to dispose off the property if the property is not his own property. - The transfer should be made according to the appropriate mode of transfer. Necessary formalities like registration, attestation, etc. should be complied with. - In the case of a conditional transfer, where an interest is created on the fulfillment of a condition, the condition should not be illegal, immoral, impossible or opposed to public policy.
Doctrine Of Election According to the principle of Doctrine of Election [Section 35 of the TPA], a party to the transfer cannot accept as well as reject in a single transaction. In other words, while claiming advantage of an instrument, the burden of the instrument should also be accepted.In a person to the transfer gets two selections (a benefit and a burden), then he has to accept both the benefit and the burden or none. He cannot accept the benefit and reject the burden in a single transaction. Illustration: A sells his garden as well as his house through one instrument to B. Whereas, B wants to retain only the house and wants to cancel the transfer regarding the garden. According to the Doctrine of Election, B has to retain the garden if he wants to retain the house, or cancel the whole transaction. B cannot retain the house and cancel the transfer regarding the garden.In Cooper vs Cooper (1874, LR 7 HL 53), the Court held that the doctrine of election applied on every instrument and all types of property.
Doctrine Of Lis Pendens The Doctrine of lis pendens emerged from the Latin maxim 'ut lite pendent nihil innoveteur' meaning 'nothing new should be introduced in a pending litigation'. When a suit or litigation is pending on an immovable property, then that immovable property cannot be transferred. To constitute lis pendens, the following conditions should be satisfied: - A suit or proceeding involving the immovable property should be pending; - The right to the immovable property must be in question in the suit or proceeding; - The property in litigation should be transferred; - The transferred property should affect the rights of the other person to the transfer.
Illustration: A has a litigation in determining the title of the property with X. During the period of litigation, A initiates a sale of the property in favour of B. According to the Doctrine of Lis Pendens, the property cannot be sold because the property is involved in litigation.
Sale Sale means a transfer of ownership (right to possess something) of the property in exchange for a price (money) [Section 54 of the TPA]. Seller is the person who transfers the property and buyer is the person to whom the property is transferred. The consideration in a sale is usually money. Illustration: A sells his house for ' 2 lakhs to B. This is called sale. Here, A is the seller and B is the buyer. ' 2 lakhs is the consideration which is money.
The following are the essentials for a sale to be valid: - There should be two different parties—the seller and the buyer; - Both the parties should be competent to transfer; - The property to be transferred should be in existence; - Consideration for the transfer should be money; - The contract should be in accordance with law.
Rights and Liabilities of Buyer and Seller Liabilities of Seller - Disclose defects of the property which is known to the seller and is not known to the buyer; - Produce to the buyer all documents of title (documents regarding ownership) relating to the property; - Answer all the questions put to him by the buyer in relation to the property; - Take care and preserve the property and the documents of title between the date of the contract of sale and the delivery of the property; - Bear all public charges and rent with regard to the property up to the date of sale; - To give the buyer possession of the property.
Rights of Seller - Collect the rents and profits of the property till the ownership passes to the buyer; - When ownership has passed on to the buyer from the seller before payment of money in full, claim the amount from the buyer that is due to him.
Liabilities of Buyer - Disclose to the seller any fact with regard to the property that will increase the value of the property that is known to him; - Pay to the seller purchase money at the time of completing the sale; - To bear any loss that arises from the destruction, injury or decrease in value of the property after the ownership has passed to the buyer; - To pay all public charges and rent that becomes payable after the ownership passed to the buyer.
Rights of Buyer - After the ownership has passed to the buyer, perform any lawful action to increase the value of property and the rents and profits with regard to the property; - Where the buyer has paid the purchase money, he can compel the seller for registration of sale.In Madam Pillai vs Badar Kali (45 Mad 612 FB), the plaintiff being the first wife made a claim for maintenance to her husband. The husband orally transferred his lands of the value of ' 100 to the plaintiff. Later, he executed an instrument of sale in favour of the defendant for the same property. The plaintiff initiated a suit stating that the transfer was initially made in her favour and the subsequent sale to the defendant was not valid. The defendant stated that the transfer in favour of the plaintiff failed for want of a registered instrument. The Court held that the plaintiff acquired a title by way of oral transfer and she is entitled to the property though the instrument of sale was not registered.
Lease We must have observed some people in our locality give possession of the property to another for some period of time for money but does not constitute sale. It is called lease. Lease is a transfer of right to enjoy a property for a specific period of time in consideration for a price. Lessor is the person who lets out the property for lease or transferor, and lessee is the person to whom the property is leased or the transferee in a lease. The lessee can also sublet the lease and the relation between the lessee and the sub-lessee will be that of lessor and lessee. Illustration: A for a period of 3 years lets out his property for use to B for a sum of ' 50000 this is called lease. A is the lessor and B is the lessee. If B sublets the property to C, then B will be the lessee and C will be the sub-lessee. The relation between B and C will be of that relation that is between A and B.
Rights and Liabilities of Lessor and Lessee
Rights and Liabilities of the Lessor - Disclose defects of the property which is known to him and is not known to the lessee; - Give possession of the property to the lessee; - The lessor shall let out the property for lease to the lessee and make sure the lessee enjoys the property without any interruption upon payment of money.
Rights and Liabilities of the Lessee - If any addition is made to the lease property during the lease period, then the addition can be comprised in the lease; - If any part of the lease property is destroyed or made unfit by flood, fire, etc., then the lease shall be voidable by the lessee (the lessee gets a right to accept or reject depending on his wish); - If the lessor fails to make repairs to the leased property, the lessee may make the repairs himself and recover the amount for the repairs from the lessor; - If the lessor fails to make any payment with respect to the property and is recovered from the lessee, the lessee shall get it reimbursed from the lessor; - At the time of completion of the lease, the lessee should hand over the property to the lessor in the state in which it was received; - The lessee may transfer, rent or sublet the leased property with the consent of the lessor; - Disclose to the lessor any fact that lies in the property that will increase the value of the property; - The lessee should pay rent at a proper time and place as specified by the lessor; - The lessee is bound to keep the leased property in good condition when he is in possession of the property; - When notice of any defect is given to the lessee, he is bound to rectify it within a period of three months; - The lessee may use the property and its products and must not do anything that is destructive to the property; - The lessee should not erect any permanent structure in the property without the consent of the lessor; - The lessee is bound to put the lessor in possession of the property for determination of lease.In Gajadhar vs Rombhaee (1938 Nag. 439) a theatre was sub-leased and the sub-lessee was prevented from using the theatre by the original lessor on the ground that a notice was served on the lessee for determining the lease. The sublessee had to pay an additional amount to the proprietor (the original lessor) and then take the lease. It was held that there is violation on the part of the original lessor and the sub-lessee can sue the original lessor for damages for violation of quiet enjoyment of the property.
Exchange When two persons transfer ownership of one thing for the ownership of another, it is called exchange [Section 118 of the TPA]. Transfer of property by exchange can be made only by way of sale. The rights and liabilities of the parties to exchange shall be that of the rights and liabilities of the buyer to the extent of receiving and that of the seller to the extent of giving.
Illustration: A offers to sell his cottage to B. B in consideration of the cottage sells his farm to A. Instead of getting money for his cottage, A has received a farm from B. This is an example for Exchange. The rights and liabilities of A will be that of seller towards the sale of the cottage and will be that of buyer towards the sale of the farm. Similarly, the rights and liabilities of B will be that of buyer towards the sale of the cottage and that of seller towards the sale of the farm.
Gift A transfer of ownership of property that is made voluntarily and without consideration is called Gift [Section 122 of the TPA]. The person making the transfer is called the donor and the person to whom it is made is called the donee. If the donee expires before accepting the gift, it becomes void.
Illustration: A gives his car to B. B accepts the car, but B does not pay anything in return for the car. This is known as Gift. In this case, A is the donor and B is the donee. Sale, Lease, Exchange and Gift Basis Sale Lease Exchange Gift Transfer Transfer of ownership for price Transfer of limited ownership for rent Transfer of ownership for some other property Transfer of ownership without consideration Consideration Price Rent Another Property No consideration Mode Sale deed should be registered Lease deed should be registered Sale deed should be registered Gift of immovable property should be registered.
Intellectual Property Intellectual property is another kind of property which does not involve movable or immovable property. Any work such as invention, artistic work or literary work, design, symbol, name, image, etc. created by the knowledge or intellectual capacity of a person is called intellectual property. Such intellectual property can be protected by law. The following are the types of intellectual property: - Trademarks; - Patents; - Copyrights; - Designs; - Geographical indications.
Trademarks: Any mark put on the product such as the name of a product or service (Brand name) which helps people to distinguish it from other products and services is called a Trademark. The names of a products, companies, etc. are Trademarks. (Example: Apollo Pharmacy, Titan watches, etc.) Patents: The right granted over the invention of a product is called Patent. In other words, when a person makes a new product, he can get a Patent for the product. The person who made the invention is called Patent owner. The Patent owner can decide upon the usage of the product and who should use the product. Copyrights: Copyright is the right obtained over the creation of any literary or artistic work. Books, music, films, paintings, scriptures, etc. are covered under Copyright. Any person who wants to write a book or make a film based on the writing or idea of another person should seek his permission for the idea that he has used. Designs: Any design invented by a person shall be protected by Designs. Shape, colour, line, pattern, etc. are covered under Designs. (Example: Design of the wrapper of a biscuit or chocolate, Design of a car, Design of the shape of a cold drink bottle, etc.) Geographical Indications: Certain products or goods have a specific geographical origin and possess characteristics that attribute to the place of origin. Such goods and products bear the name of the geographical origin. This is called geographical indication. (Example: Darjeeling tea, Tirupathi laddu, etc.)
A number of international treaties deal partly or entirely with the protection of geographical indications or appellations of origin. Below are links to relevant treaties administered by WIPO, as well as to the World Trade Organization's Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).
Relevant Treaties Administered by WIPO - Paris Convention - Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods - Lisbon Agreement - Madrid Agreement - Protocol Relating to the Madrid Agreement
Law of Contracts in India defines contract as an agreement enforceable by law which offers personal rights, and imposes personal obligations, which the law protects and enforces against the parties to the agreement. The general law of contract is based on the conception, which the parties have, by an agreement, created legal rights and obligations, which are purely personal in their nature and are only enforceable by action against the party in default. Section 2(h) of the Indian Contract Act, 1872 defines a contract as 'An agreement enforceable by law'. The word 'agreement' has been defined in Section 2(e) of the Contract Act as 'every promise and every set of promises, forming consideration for each other'.
Contracts have always been an indispensable part of our lives. Knowingly or unknowingly, we enter into a contract hundreds of times in a year. Even when we buy candy, we are entering into an agreement with the shopkeeper. Every time we visit a restaurant or book a cab, we are entering into a contract. Although the law of contract is developing with time, the jurisprudence of contract remains the same.
We know what a contract is all about but new situations arise every day and a new question appears in the mind of whether this particular agreement should be regarded as a contract or not! A. Agreement (Section 2(e)) A. agreement is a promise between two entities creating mutual obligations by law. Section 2(e) of the Indian Contract Act, 1872 defines an agreement as 'Every promise and every set of promises, forming the consideration for each other, is an agreement'.
To form an agreement, the following ingredients are required: - Parties: There need to be two or more parties to form an agreement. - Offer/ Proposal: When a person signifies to another his willingness of doing or omitting to do something with a view to obtain other's assent. [Section 2(a)] - Acceptance: When the person to whom the proposal is made signifies his assent for the same thing in the same sense as proposed by the offeror. [Section 2(b)] - Promise: When a proposal is accepted, it becomes a promise. [Section 2(b)] - Consideration: It is the price for the promise. It is the return one gets for his act or omission. [Section 2(d)]
Contracts may come in many forms, each with its own use and purpose.
Law Of Contracts Express and Implied Contracts: An express contract has terms that are stated expressly, or openly, in either writing or orally, at the time of contract formation. These are the kinds of contracts that most people think of when they think of contracts.70A Implied contracts, on the other hand, have terms that must be inferred by actions, facts, and circumstances that would indicate a mutual intent to form a contract. Such contracts may be as binding as express contracts, despite their lack of formal agreement, although if a court perceives doubts in minds of the parties as to whether or not a contract existed, it may choose not to enforce such a contract.
Unilateral and Bilateral Contracts: Unilateral contracts involve only one party promising to take action or provide something of value. These are also known as one-sided contracts, and a common example of them is when a reward is offered for something being found: the party to whom the reward is offered is under no obligation to find the lost item, but if they do find it, the offering party is under contract to provide the reward.
Bilateral contracts, on the other hand, involve both parties agreeing to exchange items or services of value. These are also known as two-sided contracts and are the kind of contract that is most commonly encountered. Unconscionable Contracts Unconscionable contracts are contracts that are considered unjust by being unfairly weighted to give advantage to one side over the other. Examples of elements that may make a contract unconscionable include: - A limit on the damages a party may receive for breach of contract. - A limit on the rights of a party to seek satisfaction in court. - An inability to have a warranty honoured.
Whether or not a contract is unconscionable is a matter left for interpretation by the courts. They usually rule a contract to be unconscionable if it is perceived as being a contract that no mentally able person would sign, that no honest person would offer, or that would undermine the court's integrity where it was enforced.
Adhesion Contracts An adhesion contract is one that is drafted by a party with a great deal more bargaining power than the other party, meaning that the weaker party may only accept the contract or not. Often called 'take it or leave it' contracts, these contracts lack much, if any negotiation, since one party will have little to nothing to negotiate with. Such contracts should not be confused with unconscionable contracts, since a lack of bargaining power does not necessarily mean that the terms set out will be unfair. That said, courts may still not enforce adhesion contracts if they believe a meeting of the minds never existed.
Aleatory Contracts Aleatory contracts are agreements that are not triggered until an outside event occurs. Insurance policies would be examples of this, as they are agreements involving fiscal protection in the face of unpredictable events. In such contracts, both sides assume risks: the insured that they are paying for a service they will never receive, and the insurer that they must pay out potentially more than they receive from the insured.
Option Contracts Option contracts allow a party to enter another contract with another party at a later time. Entering into a second contract is called exercising the option, and a good example of this is in real estate, where a prospective buyer will pay a seller to take a property off the market, then, at a later date, have a new contract made to buy the property outright, should they choose to do so.
Fixed Price Contracts Fixed price contracts involve a buyer and seller agreeing on a fixed price to be paid for a project. Also known as lump sum contracts, these contracts entail a great deal of risk for the seller, since if the project takes longer or is more extensive than anticipated, they will still only be paid the agreed-upon price.
When Does a Contract Exist? When a party files a suit claiming a breach of contract, the first question the judge must answer is whether a contract existed between the parties. The complaining party must prove four elements to show that a contract existed:
1. Offer: One of the parties made a promise to do or refrain from doing some specified action in the future.2. Consideration: Something of value was promised in exchange for the specified action or non-action. This can take the form of a significant expenditure of money or effort, a promise to perform some service, an agreement not to do something, or reliance on the promise. Consideration is the value that induces the parties to enter into the contract. The existence of consideration distinguishes a contract from a gift. A gift is a voluntary and gratuitous transfer of property from one person to another, without something of value promised in return. Failure to follow through on a promise to make a gift is not enforceable as a breach of contract because there is no consideration for the promise. 3. Acceptance: The offer was accepted unambiguously.
Acceptance may be expressed through words, deeds or performance as called for in the contract. Generally, the acceptance must mirror the terms of the offer.In not, the acceptance is viewed as a rejection and counter-offer.In the contract involves a sale of goods (i.e., items that are movable) between merchants, then the acceptance does not have to mirror the terms of the offer for a valid contract to exist, unless: (a) the terms of the acceptance significantly alter the original contract; or (b) the offeror objects within a reasonable time.<br>4. Mutuality: The contracting parties had 'a meeting of the minds' regarding the agreement. This means the parties understood and agreed to the basic substance and terms of the contract. When the complaining party provides proof that all of these elements occurred, that party meets its burden of making a prima facie case that a contract existed. For a defending party to challenge the existence of the contract, that party must provide evidence undermining one or more elements.
How is a Contract Interpreted? The court reads the contract as a whole and according to the ordinary meaning of the words. Generally, the meaning of a contract is determined by looking at the intentions of the parties at the time of the contract's creation. When the intention of the parties is unclear, courts look to any custom and usage in a particular business and in a particular locale that might help determine the intention. For oral contracts, courts may determine the intention of the parties by considering the circumstances of the contract's formation, as well as the course of dealing between the parties.
Offer And Acceptance Offer/proposal (Section 2(a)) - The entire process of entering into a contract begins with the proposal or an offer made by one party to another. The proposal must be accepted to enter into an agreement. - According to the Indian Contract Act 1872, proposal is defined in Section 2(a) as 'when one person will signify to another person his willingness to do or not do something (abstain) with a view to obtain the assent of such person to such an act or abstinence, he is said to make a proposal or an offer.'
Features of a valid offer The person making the offer/proposal is referred to as the 'promiser' or the 'offeror'. And the person who accepts an offer is referred to as 'promisee' or the 'acceptor'. - The offeror must express his willingness to do or abstain from doing an act. Only willingness is not adequate. Or just an urge to do something or not to do anything will not be an offer. - An offer can either be positive or negative. It can be a promise to do some act, and can also be a promise to abstain from doing any act/service. Both are valid offers.
The element of a valid offer Here are some essentials which make the offer valid:
There must be two parties: There have to be at least two parties: a person making the proposal and the other person agreeing to it. All the persons are included i.e., legal persons as well as artificial persons. Every proposal must be communicated: Communication of the proposal is mandatory. An offer is valid if it is conveyed to the offeree. The communication can either be expressed or implied. It can be communicated by terms such as word of mouth, messenger, telegram, etc. Section 4 of the Indian Contract Act says that the communication of a proposal is complete when it comes to the awareness of the person to whom it is made. Example 'A' proposes to sell a car to 'B' at a certain price. Once 'B' receives the letter, the proposal communication is complete.In must create legal relations: An offer must be such that when accepted it will result in a valid contract. A mere social invitation cannot be regarded as an offer, because if such an invitation is accepted it will not give rise to any legal relationship. Example 'A' invited 'B' to dinner and 'B' accepted the invitation. It is a mere social invitation. And 'A' will not be liable if he fails to provide dinner to B.In must be certain and definite: The terms of the offer must be certain and clear in order to create a valid contract, it must not be ambiguous.In may be specific or general: The specific offer is an offer that is accepted by any specific or particular person or by any group to whom it is made. Whereas, the general offers are accepted by any person.
Classification Of Offer An offer can be of many types, ranging across the spectrum.
There are basically 7 kinds of offers: - Express offer - Implied offer - General offer - Specific offer - Cross offer - Counter offer - Standing offer
Express offer and Implied offer (Section 9) Section 9 of The ICA, 1872 defines both of them as: In so far as the proposal or acceptance of any promise is made in words, the promise is said to be expressed. In so far as such a proposal or acceptance is made otherwise than in words, the promise is said to be implied. Therefore, any offer that is made with words, it may be regarded as express. Any promise that is made otherwise than in words is implied. A bid at an auction is an example of an Implied offer.
General Offer A General Offer is an offer that is made to the world at large. The genesis of a General Offer came about from the landmark case of Carlill vs. Carbolic Smoke Ball Co. A company by the name Carbolic Smoke Ball offered through an advertisement to pay 100 Pounds to anyone who would contract increasing epidemic influenza, colds or any disease caused by cold after taking its medicine according to the prescribed instructions. It was also added that 1000 Pounds have been deposited in Alliance Bank showing our sincerity in the matter. One customer Mrs Carlill used the medicine and still contracted influenza and hence sued the company for the reward. The Defendants gave the argument that the offer was not made with an intention to enter into a legally binding agreement, rather was only to Puff the sales of the company. Moreover, they also contended that an offer needs to be made to a specific person, and here the offer was not to any specific person and hence they are not obliged to the Plaintiff.
Setting aside the arguments of the Defendant, the bench stated that in cases of such offers i.e., general offers, there is no need for communication of acceptance, anyone who performs the conditions of the contract is said to have communicated his/her acceptance, and moreover, the money deposited by the Defendant in Alliance Bank clearly shows that they intended to create a legally binding relationship. Hence the Plaintiff was awarded with the amount. An Indian authority in this regard is Lalman Shukla vs. Gauri Dutt, wherein a servant was sent by his master to trace his missing nephew. In the meanwhile, he also announced a reward for anyone finding his nephew, this in itself is an example of an offer that is made to the world at large and hence a General Offer.
Valid acceptance based on fulfilment of condition. This concept has been given statutory authority under section 8 of the ICA, 1872: Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.
This section was applied by YEARS CJ of Allahabad high court in the case of Har Bhajan Lal vs. Har Charan Lal, wherein the father of a young boy who ran from home issued a pamphlet for a reward for anyone who would find him. The Plaintiff found him at the railway station and sent a Telegram to his father. The Court held that the handbill was an offer that was made to the world at large and anyone who fulfilled the conditions is deemed to have accepted it. In the State of Bihar vs. Bengal Chemical and Pharmaceutical Works LTD, the Patna HC held that where the acceptance consists of an act, e.g., dispatching some goods, the rule that there shall be no communication of acceptance will come into play.
General offer of continuing nature When a general offer is of continuing nature, like it was in a carbolic smoke ball case, it can be accepted by a number of people till it is retracted. However, when a similar offer requires information regarding a missing thing, it is closed as soon as the first information comes in.
Specific Offer A specific offer is an offer that is made to a specific or ascertained person, this type of offer can only be accepted by the person to whom it is made. This concept was seen briefly in the case of Boulton vs. Jones, wherein the Plaintiff had taken the business of one Brocklehurst, the defendant used to have business with Brocklehurst and not knowing about the change in ownership of business, sent him an order for certain goods. The Defendant came to know about the change only after receiving an invoice, at which point he had already consumed the goods. The Defendant refused to pay the price, as he had a set off against the original owner, for which the plaintiff sued him.
The Judges gave a unanimous judgement holding the Defendant not liable. Pollock CB held that the rule of law is clear, if you intend to contract with A, B cannot substitute himself as A without your consent and to your disadvantage.In was also held that whenever a person makes a contract with a specific personality, a specific party, so to say, for writing a book, for painting a picture or for any personal service or if there is any set off due from any party, no one has the authority to come in and maintain that he is the party contracted with.
Cross Offer When two parties make an identical offer to each other, in ignorance to each other's offer, they are said to make cross offers. Cross offers are not valid offers. For example — if A makes an offer to sell his car for 7 lakhs to B and B in ignorance of that makes an offer to buy the same car for 7 lakhs, they are said to make a cross offer, and there is no acceptance in this case, hence it cannot be a mutual acceptance.
Basic essentials of a cross offer
1. Same offer to one another: When the offeror makes an offer to the offeree and the offeree without prior knowledge makes the same offer to the offeror, then both the object and the party remain the same. 2. Offer must be made in ignorance of each other: The two parties must make their offer in ignorance of each other.
An important case in this aspect is the English case of Tinn vs. Hoffman, the defendant wrote to the complainant an offer to sell him 800 tons of iron at 69s per ton, at the same time the complainant also wrote to the defendant an offer to buy the iron at similar terms. The issue in this case was that, was there any contract between the parties, and would simultaneous offers be a valid acceptance. The court held that these were cross offers that were made simultaneously without knowledge of one another and would not bind the parties. Here it is imperative to deduce that for a valid contract to be formed there needs to be an offer and acceptance of the same, whereas in a cross offer there is no acceptance, but only simultaneous offers being and therefore a cross offer will not lead to the formation of a contract.
Counter Offer When the offeree offers a qualified acceptance of the offer subject to modifications and variations in terms of the original offer, he is said to have made a counter offer. A counter offer is a rejection of the original offer. An example of this would be if A offers B a car for 10 lakhs, B agrees to buy for 8 lakhs, this amounts to a counter offer and it would mean a rejection of the original offer. Later on, if B agrees to buy for 10 lakhs, A may refuse. Sir Jenkins CJ in Haji Mohd Haji Jiva vs. Spinner, held that any departure from original offer vitiates acceptance. In other words, an acceptance with a variation is not acceptance, it is simply a counter proposal which must be accepted by the original offeror, for it to formulate into a contract.
The Bombay High Court gave this decision based upon the landmark judgement of Hyde vs. Wrench, in which an offer to sell a farm for 1000 pounds was rejected by the Plaintiff, who offered 950 for it. Subsequently the Plaintiff gave an acceptance to the original offer. Holding that the Defendant was not bound by a contract, the court said that the Plaintiff accepted the original offer of buying the farm at the price of 1000 pounds, it would have been a completely valid contract, however he gave a counter proposal to it, thus rejecting the original offer.
Partial acceptance Counter offer also includes within its contours Partial acceptance, meaning that a party to the contract cannot agree to those conditions of the agreement that favour him and reject the rest, the acceptance should be of the complete agreement i.e., all its parts. In Ramanbhai M. Nilkanth vs. Ghashiram Ladli Prasad, the plaintiff made an application for certain shares in a company with the underlying condition that he would be made the cashier in its new branch. The Company did not comply with this and hence the suit. The court held that the Petitioners application for shares was condition on him being made the cashier and that he would have never applied for the shares had there been no such condition.
Acceptance of a counter proposal:In Hargopal vs. People's Bank of Northern India LTD, an application for shares was made on a conditional undertaking by the bank that the applicant would be made the director of the new branch. The shares were allotted to him without fulfilling the condition. The applicant did not say anything and took his dividends, a subsequent suit by him failed as the court held that he through his conduct had waived the condition. When a counter proposal is accepted the contract arises in terms of the counter proposal and not in terms of the original contract.
Standing Offer: An offer which remains open for acceptance over a period of time is called a standing offer. Tenders that are invited for supply of goods is a kind of Standing Offer. In Percival Ltd. vs. London County Council Asylums and Mental Deficiency Committee, the Plaintiff advertised for tenders for supply of goods. The Defendant took the tender in which he had to supply to the company various special articles for a period of 12 months. In-between this the Defendant didn't supply for a particular consignment. The Court held that the Tender was a standing offer that was to be converted into a series of contracts by the subsequent acts of the company and that an order prevented the possibility of revocation, hence the company succeeded in an action for breach of contract.
Difference between an Offer and Invitation to Offer Although Invitation to offer is not a type of offer per se, it is imperative to distinguish both to even construe what an actual offer is. An invitation to offer is an offer to negotiate, an offer to receive offers, offers to chauffeur. An offer is a final expression of willingness to get into a contract upon those following terms. The concept of Invitation to offer was explained in the Privy Council case of Harvey vs. Facey, the Plaintiffs in this asked two questions from the Defendant i.e., Would you sell me your Bumper Hall pen, telegram at the lowest price, the Defendant only gave the answer to the latter question, post which he refused to sell.
The Court held that the Defendant was not to sell as he had only answered the second question and reserved the same for his first question. Thus, this clearly shows the distinction between an offer and invitation to offer.In Adikanda Biswal vs. Bhubaneswar Development Authority, when a development authority made an announcement for allotment of plots on first come first serve basis on payment of full consideration. An application against this with full consideration was only considered to be an offer, as the Development authority only gave an invitation to offer, and the offer can only be formalized into a contract when it is accepted by the development authority.
Legal rules and conditions for acceptance - Acceptance must be absolute and unqualified: The offeree's approval cannot be conditional. For example, 'A' wants to sell her car to 'B' for ' 2 lakh, 'B' cann't come back and says that she accepts the offer but will buy the same for ' 1 lakh. - Acceptance must be told to the offeror: If the acceptor just accepts the offer in his head and he does not mention the same to the offeror, it can not be called an Acceptance, whether in an express manner or an implied manner. - Acceptance must be recommended in the following mode: Acceptance is sometimes required in a prescribed/specified communication mode. - In a reasonable amount of time, the acceptance is given: It's very rare that an offer is always to get acceptance at any time and at all times. Therefore, the offer defines a time limit. If it does not, it should not be acknowledged forever.
Mere silence is not acceptanceIn the offeree fails to respond to an offer made to him, his silence can not be confused with acceptance. But, there is an exception to this rule. It is stated that, within 3 weeks of the date on which the offer is made, the non-acceptance shall be communicated to the offeror. Otherwise, the silence shall be communicated as acceptance.
When communication is complete - Communication of acceptance (Section 4): Communication of acceptance is complete when it is put in the course of transmission to him as to be out of the power of the acceptor to withdraw the same and when it comes to the knowledge of the proposer.
Time of revocation of acceptance An acceptance may be revoked at any time, but not afterward, before the communication of the acceptance is complete as against the acceptor. Acceptance with subsequent conditionIn the Law of contract, the term 'condition' is used in a loose sense and it is used synonymously as 'terms', 'condition' or 'clause'. In its proper sense, the term condition means some operative term subsequent to acceptance and prior to acceptance, it is a fact on which the rights and duties of the parties to the contract depend on. The fact can be any act or omission by any of the contracting parties, an act of the third party or happening or not happening of any natural event. Conditions are of three types, which are as follows: - Express condition: In an express condition, certain facts can operate as condition as it has been expressly agreed upon by the parties to the contract; - Implied condition: When certain facts which operate as a condition are not expressly mentioned by the parties but can be inferred by the conduct of the parties to contract is known as an implied condition; - Constructive condition: When the court believes that the parties to a contract must have intended to operate certain conditions because the court believes that the
Justice requires the presence of the condition. These conditions are known as constructive conditions. A contract comes into force by the acts or conduct of one party to the other party. The acts or conduct of the party can be turned into a promise only by meeting of mind or an agreement between both the parties. An acceptance that carries a subsequent condition may not have the effect of counter-proposal. Thus, where a person 'A' accepted the terms of the contract for the sale of a good by accompanying the acceptance with the warning that if money was not delivered to him by a particular date, then the contract will remain repudiated. The acceptance of the offer would not be deemed to be a counter-proposal.
Acceptance of counter proposalsIn certain cases, the person whose proposal or offer has not been accepted absolutely or unqualifiedly by the offeree as the offeree attaches a counter-proposal to the original proposal, the offeror becomes bound by the counter-proposal. If, by the conduct of the offeror, he indicates that he has accepted the terms of the counter-proposal laid down by the offeree.In the case of Hargopal vs. People's Bank of Northern India Ltd., an application for shares was made with a conditional undertaking by the bank that the applicant would be appointed as a permanent director of the local branch. The shares were allotted to the applicant by the Bank without fulfilment of the condition and the applicant was given his shares and the applicant accepted the same without any protest regarding the non-fulfilment of the terms of the contract. When there arose a dispute between the parties in a court of law, the applicant contended that the allotment was void on the ground of non-fulfilment of the conditions which were stipulated in the original contract. The court rejected the contention from the applicant's side by holding that the same can not be pleaded by him as he has waived the condition by his conduct.In Bismi Abdullah and sons vs. FCI, the court held that where tenders were invited subject to the deposit of money, it was open to the tenderers to waive the requirement and acceptance given to a tender without making the deposit is binding upon the tenderer.In D.S. Constructions Ltd vs. Rites Ltd, the court held that where the tenderer made variations to the terms of his tender within the permissible period, but the variations were only partly accepted by the other side without the tenderer's consent lead to repudiation of the contract and so there was no contract at all. Therefore, the earnest money deposited by the party can not be forfeited.
Provisional Acceptance Provisional acceptance is the type of acceptance by the offeree which is made subject to the final approval. A provisional acceptance does not ordinarily bind either party to the contract until the final approval is given to the provisional acceptance made by the offeree. Until the approval is given, the offeror is at liberty to cancel the offer made to the offeree.In Union of India vs. S. Narain Singh, the High Court of Punjab held that where the condition attached to the auction sale of the liquor was that the acceptance of the bid shall be subject to confirmation by the Chief Commissioner. The contract will not be complete till the highest bid is confirmed by the Chief Commissioner and till the confirmation is made the person whose bid is provisionally accepted is at liberty to withdraw the bid.
Essential Elements of a Contract Section 10 of the Contract Act, 1872 provides for the essential elements of a valid contract. To constitute a valid contract, following elements are essential— Legal Studies 25<br>1. Offer and Acceptance: An offer or proposal is an expression of willingness to do or not to do something to obtain the assent of the other person. When an offer is made by one party and communicated to the other party to obtain his assent, the other party either accepts it or rejects it or he can make a counter offer. If he accepts, his act is known as 'acceptance', he becomes offeree or acceptor. An agreement comes into existence. If he makes a counter offer, he becomes the offeror or proposer and it is upon the original offeror to accept the offer and complete the agreement or reject it.
Offer and Invitation to Offer Further an offer is different from an invitation to offer. For example, the display of goods in a shop window or the display of books in a book store is not an offer to sell the book rather it is an invitation for the buyer to make an offer to purchase the book. Therefore, the buyer cannot force a shopkeeper to sell particular goods which are displayed in his showcase. He can just make an offer to buy those goods, it is upon the shopkeeper to accept or reject the offer to make a contract.
Offer and General Offer Further, an offer may be a specific offer or a general offer. A specific offer is an offer made to a particular person and it can be accepted only by him. A general offer is an offer to the world at large. Anyone can accept it, fulfil the terms of the offer and make it into an agreement. For example, Mr. X makes an offer that whoever finds his lost dog, will get ' 10,000 from him, through a newspaper advertisement.In Mr. V reads the advertisement and finds his lost dog, he is entitled to get the said amount, as a valid contract has been made.
Communication of Offer One important thing has to be noted that an offer must be communicated to the other party i.e., a valid acceptance is a must which can take place only after the knowledge of the offer. Take the above mentioned example and suppose Mr. V has not read the advertisement. He has just got the dog stray on the road and submitted it to the police. Can he claim the amount later on?
Or, suppose Mr. Y happens to be the neighbour of Mr. X. He finds the dog during his morning walk. He takes it to the owner, Mr. X. Later on, he comes to know that a reward of ' 10,000 is announced for finding the lost dog. Can he claim so, from Mr. X?
The answer to both the questions is negative. There was no communication of the offer to Mr. Y. Hence, there can not be a valid acceptance of the offer and hence, no contract is formed. 2. Intention to Create Legal Relationship: An offer must be made with an intention to create legal relationship. A. offer is not a valid offer if it does not create a legal obligation upon the other party. Mere trifles do not constitute an offer. For example, an offer to a friend to show movie or a dinner at a five star hotel cannot be a valid offer. This is because an intention to create legal relationship is not evident in such case. 3. Parties must be Competent to Contract: Every person who has attained the age of majority and who has not been disqualified from entering into a contract is competent to contract. Therefore, the following persons are parties incompetent to contract— - A minor i.e., a person below the age of 18 years, - A person of unsound mind or insane, - A person disqualified by any law to contract. Thus, an agreement with a minor is absolutely void.In a very popular case, Mohirt Bibee vs. Dharmodas Chose, [ILR (1903) 30 Cal 539] a minor mortgaged his house in favour of a money-lender and received certain amount from him. The Privy Council held that the money-lender is not entitled to get the money back which was advanced to a minor. This is because only a person capable of entering into an agreement can make a contract. No contract took place in the above case. The agreement was void ab initio.<br>4. Lawful Consideration and Object: A contract cannot be made and enforced for an unlawful or illegal object, e.g. drug-trafficking or smuggling. Suppose, a trader in narcotics has an agreement with a supplier to supply one quintal of opium every month at a price pre-determined. If the supplier stops his supply without notice, to the financial loss of the trader, the trader can not sue the supplier for enforcement of the contract.
This is only because of illegality of the object. As per the Contract Act, the object and consideration of an agreement is unlawful, if— - it is forbidden by law, - it is of such nature that, if permitted, it would defeat the provisions of any law, - it is fraudulent, - it involves injury to the person or property of another, and - the court regards it as immoral or opposed to public policy.
Similarly, a contract-killer can not sue the other party if he refuses to pay howsoever big amount, after the performance of the illegal contract i.e., killing of someone.
5. Free Consent of the Parties entering into Contract: Consent is the essence of a contract and the consent must be free. A consent is said to be a free consent when it is not vitiated by— (a) coercion, (b) undue influence,(c) fraud, (d) misrepresentation, and (e) mistake.
6. Must not be Expressly Declared Void: Void agreements are those agreements which are not enforceable at law. The Indian Contract Act, 1872 declares certain agreements to be specifically void. These agreements are— (a) Agreement in restraint of marriage. (b) Agreement in restraint of trade. (c) Agreement in restraint of legal proceedings. (d) Agreement which is not certain or capable of being made certain. (e) Wagering agreements. (f) Agreements to do impossible acts. (g) Agreement with a minor. (h) Agreement without consideration. (i) Agreements which has been declared by laws as illegal or opposed to public policy.
Law Of Torts Functional Definition: 'Tort' essentially means a 'wrong' and originates from the Latin word 'tortum', which means 'twisted' or 'crooked'. In law, tort is defined as a civil wrong or a wrongful act, of one, either intentional or accidental, that results in the injury or harm to another who in turn has recourse to civil remedies for damages or a court order or injunction. The definitional features of tort are that it is a civil wrong as distinguished from criminal wrong; both the procedures and remedies are different in civil law and criminal law. In a criminal case, the state initiates legal proceedings in a criminal court on behalf of the victim and is punished when found guilty by the court. A civil action, like the tort suit, is pursued in a civil court where the victim or victim's representatives or survivors prosecute the wrong-doer usually for compensation in the form of money payment and also at times for other liability or injunction. Generally, tort cases result in compensating the victim and criminal lawsuits are about punishments. Injunctions are court orders that, for example, may prohibit the wrong-doer from harming the victim or prevent the former from trespassing the latter's property.
Occasionally, courts may also grant punitive damages, which are costs or damages in excess of the compensation. Tort can be intentional or accidental and include wrongful acts of the kinds of battery and assault (physical or mental injury to the claimant), nuisance (intrusion with one's enjoyment), defamation (where claimant's reputation is injured), property damage, trespass (to claimant's land or property), negligence (careless behaviour), and others; some of these are discussed in the paras below. These wrongs may also have aspects and overlaps with other areas of law like the criminal law and the contract law, examples of which may be found in the chapters on criminal law and contract law elsewhere; here, we are concerned only with the some of the basic features of tort law in relation to these wrongs.
Sources of Tort Law — Common Law Versus Statute Law Torts are mostly a common law subject; it is common law in the sense that tort law or the rules of tort law developed not from a statute or an act passed by the Parliament, but from centuries of judicial decisions - case by case in English courts as well as in courts of other countries following common law system like India and the United States of America. In other words, for example, in India, both criminal law and contract law are based on statute laws like the Indian Penal Code and the Indian Contract Act respectively; however, there are no statutes that comprehensively deal with tort law as a separate area of law. A contract lawyer would look up the Contract Act to look for rules to be applicable in a given fact situation. A tort lawyer would look for rules as developed by courts in similar cases. However, there are couples of areas of tort law where countries have enacted statute laws. In India for instance, automobile accidents as well as harms caused to consumers of goods and services are covered by the Motor Vehicle Act of 1988 and the Consumer Protection Act of 1986 respectively.
What this means is that if a case involves a car accident or injury due to defective products or deficiency in services the set of rules of the respective statutes apply.
Kinds Of Wrongful Acts In tort cases, the victim or the claimant claims that the defendant or the wrong-doer has conducted the wrongful act or is liable for injury incurred by the claimant. Primarily, there are three kinds of wrongs in tort law - the wrongful acts can occur either intentionally or negligently on part of the wrong-doer, or the defendant is strictly liable for the wrongful act. These three are considered here.
Intentional Tort An intentional tort requires the claimant to show that defendant caused the injury on purpose. Furthermore, the claimant must show that he or she suffered a particular consequence or injury, and that the defendant's actions caused the consequence or injury. Different intentional torts deal in different consequences and intents. So depending on the contexts and situations, there are various kinds of intentional torts; they include assault, battery, false imprisonment, unlawful harassment, invasion of privacy and so on. These may also have aspects of criminal law, but treating them also as torts increases the possibility of higher compensation. The kinds of intentional torts are explained below.
Battery and Assault The intentional tort of battery occurs when the defendant causes the touching of the claimant with the intent to cause harm or offense. Both 'intent' and 'causation' are required for the tort of battery to occur. For example, if the defendant intends to commit battery by hitting the claimant in the head but ends up killing him, this amounts to battery as his intentional act (intention to commit harm) caused the death. The act of touching doesn't necessarily have to be done with defendant's fist always, it could be anything touching plaintiff like throwing hot water at someone. The intentional tort of assault occurs when the defendant intends to cause in the claimant a reasonable apprehension (feeling of anxiety or fear) of an imminent harmful or offensive touching to the claimant; and when this causes the claimant to suffer a reasonable apprehension of an imminent harmful or offensive. In other words, assault is when the defendant intends to make claimant think that he is about to suffer a battery and as a result the claimant does think that he is about to suffer a battery. Imminent means imminent and 'in your face' — assault is about thinking that you are about to be touched. For example, if the defendant throws an iron ball at the claimant and misses his head as the claimant moves his head away from the direction of the iron ball, this amounts to assault. The perception of the claimant is important. So if the defendant points an unloaded gun at the claimant who does not know that it is unloaded and he thinks he is about to get shot, this amount to assault, which can take place without battery. Likewise, battery can take place without assault; for example, someone may hit another person from behind.
False Imprisonment The intentional tort of false imprisonment is satisfied whenever there is intent to unlawfully confine or restrain the claimant in a bounded area and when this actually causes the claimant to be knowingly confined or restrained in a bounded area unlawfully. For example, the defendant intentionally locks the claimant in the classroom without having the legal authority to do so, and the claimant knows he is trapped. Sometimes courts allow the actual harm to substitute for the awareness of the imprisonment — so even if the claimant is unaware that he is trapped but suffers injury, the tort of false imprisonment is satisfied. However, the claimant should not be trapped willingly and consensually.
Trespass to Land The tort of trespass to land occurs when the defendant has the intent to physically invade real property of the claimant and does invade physically without the claimant's approval or consent. The invasion can happen with objects or by people and includes invasion of some area of air above the land and some area below the land. For example, the defendant may litter the claimant's land, or may create a drainage outlet below the land of the claimant.
Trespass to Chattels When the defendant has the intent to use or intermeddle with a chattel (moveable personal property), which was in the possession of the claimant and when this actually happens and causes significant or perpetual dispossession, deprivation of use, or damage as to condition, quality, or value of the chattel, or causes some other harm to claimant's legally secured interest, it amounts to the trespass to chattels. For example, if the defendant paints the car of claimant that was parked on the side of the street, without the consent of the claimant while the claimant was away, this amounts to trespass to chattels.
Conversion The tort of conversion is somewhat related with the tort of trespass to chattels. Conversion occurs when the defendant intentionally uses or intermeddles with the chattel of the claimant in such a serious way that it becomes fair to ask for compensation or money payment for the total prior value of the chattel. In other words, the defendant is forced to buy the chattel for a purchase price based on the original value. So the remedy in conversion is forced sale. Conversion is applicable in many situations including where the chattel is taken, transferred to someone else, changed, misused or damaged. Unlawful Harassment Defendant may be held liable for any act of deliberate physical harm to the victim even where no battery or assault is involved. For example, if the defendant lies to the claimant that the latter's son met with a road accident, which causes nervous shock to the claimant resulting in illness, this constitutes tort of unlawful harassment. Sexual harassment may also amount to tort of unlawful harassment. For example, if one follows another person, sends unwanted messages or phone calls; although there is no violence or threat of violence involved, this act amounts to a tort of harassment.
Invasion of Privacy Tort law with respect to invasion of privacy as a distinct entity is still underdeveloped. However, as many academics hold the view, there is potential for the development of tort of invasion of privacy. For example, one's right to personal life and family may fall under this category of tort law and may attract any deliberate invasion of privacy like, photographing the personal lives of the claimant without the latter's consent.
Negligence The basic understanding of negligence is that wrong-doer or the defendant has been careless in a way that harms the interest of the victim or the claimant. For example, when the defendant carries out an act of constructing something on her premises, she owes a duty of care towards the claimant and that the standard of duty of care depends on whether the claimant was on the site or in the neighbourhood as well as whether the claimant was a lawful visitor or a trespasser. Generally, in order to argue successfully that the defendant has been negligent, the victim or the claimant must establish three elements against the defendant in a tort of negligence case— (1) the defendant owes a duty of care to the victim; (2) there has been a breach of duty of care on part of the defendant; and (3) the breach of the duty to care resulted in the harm suffered by the claimant. Let's consider these elements here.
Duty of Care The duty of care principle can be explained by citing an actual case law. In a 1932 English case of Donoghue vs Stevenson, the claimant Donoghue drank a soft drink manufactured by the defendant Stevenson. The drink had a decomposed snail in the bottle that made the claimant ill. The court held that the manufacturer owed duty of care to those who are 'reasonably foreseeable' to be affected by the product. So the duty of care is owed to those whom one can reasonably foresee as being potentially harmed. This principle is applicable to numerous fact situations; as another example, a landlord owes a duty of care with reasonable foresight to his tenants and should ensure that no hazardous substance like petrol is stored by him in the basement of the apartment being dwelt by the tenants.
Breach of Duty of Care Once the duty of care is proven the claimant then must establish that the duty of care was broken; i.e., the defendant was unsuccessful in fulfilling the duty of care in accordance with the standard of 'reasonableness'. The standard is that of 'reasonable conduct' or 'reasonable foresight', however, the act need not be flawless. In the case of Donoghue vs Stevenson above, the court held that the manufacturers of products owe a duty of reasonable care to the consumers who use the products. Similarly, the standard of duty of reasonable care will vary based on the peculiar fact situation of every case. Harm to the Claimant:In the case of Donoghue vs Stevenson, the negligence on part of the manufacturer of the soft drink resulted in the illness or injury to the claimant. Or, in the second example, the apartment catches fire because of petrol being stored in the basement causing damage to the tenants.
Strict Liability Strict liability torts do not care about the intention or carelessness of the defendant when the defendant caused the injury. The claimant does not have to establish any sort of or level of blame attributable to the defendant based on the intention or the degree of carelessness. Strict liability is available in a very limited context. For example, where the defendant's animals may cause an injury to the claimant or where the defendant is involved in an unusually hazardous activity like blasting dynamite. Let's elaborate these two examples. If the defendant possesses an animal with a known and unusual dangerous tendency, say a dog that bites, the defendant is strictly liable for the harm resulting from the dangerous tendency of the dog. But in the case of the defendant possessing a bull that harms the claimant is not strictly liable as the act of the bull is considered as, not unusual, rather a normal dangerous tendency.
The general rule with respect to ultra-hazardous activity is that when the defendant carries out or keeps an unusually hazardous situation or activity on his or her building or involves in an activity that offers an inevitable danger of injury to the claimant or his or her property, the defendant could be responsible for the damage caused even if the defendant has exercised reasonable care to prevent the harm.In India, a related principle of Absolute Liability was introduced by the Supreme Court in the aftermath of the two instances of gas leaks from factories injuring many. The first case was about the infamous Bhopal gas leak disaster of 1984 where a factory of the Union Carbide Corporation located in Bhopal had a major leakage of the gas Mythyl isocynate that killed 2260 and injured around 600,000 people. In the second incident of 1985 in Delhi, a factory of the Shri Ram Foods and Fertilizer Industries leaked Oleum gas that killed one person that had few others hospitalized and created huge panic among the residents. The then Chief Justice of India P.N. Bhagwati, in the famous 1987 case of M.C. Mehta vs Shri Ram Foods and Fertilizer Industries, held: 'We are of the view that an enterprise, which is engaged in a hazardous or inherently dangerous industry, which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to any one on account of hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm is done on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part.'
Summary Of The Kinds Of Harms Here is the summary of the examples of the many ways in which the claimant may suffer injuries that have been discussed in this chapter.
Property Interests in land The law of tort protects the claimant's interests in her landed property by preventing intentional intrusions or trespass of the property by the defendant or the wrong-doer. The claimant may also suffer harm by the damage caused due to careless or negligence of the defendant. When the defendant interferes with the claimant's right to enjoy his/her land, the defendant commits the tort of nuisance.
Other Types of Property Tort law prohibits taking away of tangible property deliberately, which amounts to the tort of 'conversion'. The damage to the property may also occur due to carelessness or negligence.
Bodily Injury Tort law protects the claimant against any harm to his/ her interests of bodily integrity. Tort of battery and assault applies to any intentional harm caused to the body. Harm may also be caused by negligence as well as any breach of statutory duty like, traffic laws, health laws and so on. Mental distress is an element in bodily injury which raises any compensation to the victim.
Economic Interests To a lesser extent, the economic interests are also protected by the law of tort. Injury caused by both intentional as well as negligence can cause economic harm to the claimant.
Purpose Of Tort Law Three important objects of tort law are - deterrence, fair and just response, and loss-spreading.
Purpose of Tort Law Explanation 1. Deterrence Tort law ensures that the defendant compensates the victim for a wrongful act. This deters one from injuring others as it encourages defendants to be mindful and careful. 2. Loss-spreading Tort law can be used as a tool to spread loss to a wider community. For example, where the manufacturer of a product has to pay compensation, the manufacturer may recover the costs by transferring this to the consumers by increasing the price of the product.In another example of automobile insurance, all drivers are required to pay auto insurance premiums, which are then used by the insurance companies to compensate the victims. 3. Fair and just response Tort law ensures that the victim is compensated by the defendant to satisfy the demands of justice. The defendants are made liable for their wrongful act.
Introduction To Criminal Laws In India In plain terms, 'crime' is an action (doing something not supposed to be done) or omission (not doing something which is supposed to be done) that is punishable by law. Essentially, acting against or deviating from the norms of acceptable behaviour that exist in society constitutes the commission of a 'crime'. For any act or omission to be called as a crime, it must necessarily be punishable under some law. Remember, law is a codified form of logic which also takes into account the threshold/limit of what any society perceives to be acceptable or unacceptable. Anything which is acceptable in the society will never be prohibited under law so it will never constitute a crime and anything which is unacceptable may or may not constitute a crime depending upon whether a law has been made to punish the same. Accordingly, certain acts which are though unacceptable still do not constitute a crime because the society is tolerant towards them and therefore has not chosen to have a law in place for punishing the carrying of these acts. For example, sneezing in public without covering your mouth is not acceptable but if you do so, it is not a crime because there is no law punishing sneezing in public. No law is there for it only because sneezing in public is of an insignificant nature which the society tolerates to some extent.
On the other hand, the murder of a person is a crime because firstly, it is totally unacceptable in the society and secondly, a law has been made punishing the same. Law of Crimes, as the name indicates, is the law governing prevention of crimes and providing a mechanism for punishing those persons who have committed a crime.In has two parts namely,<br>1. Substantive law which provides as to what acts or omissions constitute a crime and also fixes punishment for the same depending on how severe the crime is, and<br>2. Procedural law which merely details the procedural aspects of catching a person who has supposedly committed a crime and thereafter holding a trial against him in a court of law to determine whether he is guilty or innocent.In the Indian context, the Substantive law is the Indian Penal Code, 1860 (IPC) which lists out the various crimes punishable in India and the Procedural law is the Code of Criminal Procedure, 1973 which makes provisions for aspects such as how any suspect should be arrested by police, how the police should conduct investigation of any crime, trial for which particular crime can be conducted by which court etc.
The provisions contained in the IPC and the Code of Criminal Procedure are commonly referred to as 'Sections'.
Mens rea Mens rea means a guilty mind or 'intention' to commit a crime. 'Actus non facit reum nisi mens sit rea' is a fundamental principle of criminal law. It means that an act is not a crime in itself unless done with a guilty mind. The IPC makes mens rea an essential element of most crimes specified in the Code. For example, Section 321 which talks about voluntarily causing hurt begins with the words 'whoever does any act with the intention of thereby causing hurt to any person ...'.In you focus on the underlined words, it becomes clear that the intention of causing hurt must exist before it can be said that an act committed by a person has amounted to voluntarily causing hurt.
Theft: In simple language, theft means taking away another person's property without their consent. The IPC defines theft as moving any movable property with the intention of taking away that property out of the possession of any person without the person's consent. Since it is not possible for a person to move immovable property like land or building without the help of any external force, the definition focuses only on movable property. Also, note that the definition does not state that one must have taken the property completely out of possession of the concerned person but theft occurs even if the property has been moved only slightly with intent to take it out of possession. For example, A cuts a tree on Z's ground with the intention of taking it out of possession of Z without Z's consent. Now even if the tree remains on Z's ground after being cut, A will still be held liable for theft because he cut it without Z's consent with the intention of removing it out of Z's possession. Since the definition uses the words 'person' instead of 'owner', it will also cover cases where the concerned movable property is under the possession of some person other than owner such as a caretaker.
Extortion
In simple terms, extortion means making threats to another person or forcing them to give up something they have in their possession. The IPC defines it, in section 383, as intentionally putting any person in fear of any injury to that person or to another and thereby inducing the threatened person (the person who has been put in fear) to deliver any property/ valuable security/anything signed or sealed to any person. For example, A threatens Z to keep Z's child in wrongful confinement unless Z signs an agreement by which Z would be bound to pay some money to A and being pressurized by such threat, Z signs the agreement.In this case, A has committed the offence of extortion.
Here also, note that section 383 uses the word 'intentionally' which means that it follows the principle of mens rea explained above.
Cheating: In simple terms, cheating means acting dishonestly to take advantage. Section 415 of IPC defines cheating as deceiving any person and fraudulently/dishonestly inducing them to either - deliver any property to any person, or - give consent to the effect that any person will retain any property belonging to the deceived person or - do or omit (meaning not do) anything which the deceived person would otherwise not do or omit where such doing or omission is likely to cause damage or harm to the person physically or mentally or damage or harm such person's property.
For example, A deceives Z, a money-lender, to lend him some money by pledging as diamonds, certain articles which A knows are not diamonds. In this case, A has committed the offence of cheating.
So, as per IPC, cheating means fraudulent or dishonest inducement by any person to deceive another person into doing either of the acts mentioned in (a), (b) and (c) above in this sub-section.
Criminal Conspiracy: Act Done by Several Persons Section 34 of the IPC lays down the principle of joint criminal liability.In is worded in simple English and states that 'when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone'.In other words, it means that if two or more persons intentionally commit a crime jointly (meaning together), it is the same as if each of such persons had individually committed the crime. For example, in the case of Barendra Kumar Ghosh vs King-Emperor, decided by Privy Council in the year 1925, 3 persons tried to commit robbery in a post office and killed the postmaster when he did not give them money on demand. All 3 persons ran away without taking the money and were tried for offence of murder. During the trial, one of the accused pleaded that he was not guilty of murder as he was only standing on guard outside the post office where the postmaster was killed and had no intention of killing the victim.
However, the concerned trial court held that since the killing took place as a result of the 'common intention' of all 3 accused persons, this plea of standing on guard outside could not be accepted and the accused making such plea was also held guilty of murder even though he had not personally fired the pistol which caused the death of postmaster.In the appeal against the judgement given by the trial court, the concerned High Court and Privy Council also took the same view as the trial court and held all 3 accused guilty of murder.
Kidnapping In a layman's terms, kidnapping means forcibly taking away and detaining a person without his/her consent. The IPC classifies kidnapping into two kinds:
1. kidnapping from India and
2. kidnapping from lawful guardianship and defines both these types. In CLAT, questions are often asked on kidnapping from lawful guardianship. Section 361 of the IPC defines kidnapping from lawful guardianship to mean taking away a minor person who is under 16 years of age (in case of male) or under 18 years of age (in case of female) or taking away any person of unsound mind out of the lawful custody of such minor/unsound person's lawful guardian.
The section also defines the term 'lawful guardian' to mean any person lawfully entrusted (meaning kept in charge of or made responsible for) the care or custody of such minor or person of unsound mind who is being kidnapped. So, kidnapping will include not only parents of a child but any other person who is lawfully acting as guardian of the child for a temporary period or forever.
Attempt to Commit Offences The IPC not only makes offences punishable but even the attempt to commit any offence which is punishable under IPC is also made an offence under section 511 of IPC. So, merely attempting to commit an offence is also punishable under IPC even if the attempt fails and no offence is actually committed due to such failure. For example, A is a pickpocket who tries to steal money from the pocket of Z's pants which later turns out to be empty. Even though A could not actually steal any money because the pocket was empty, A will be guilty of attempting to steal and liable to punishment accordingly.
Generally, for most of the offences defined under the IPC, the punishment for attempting to commit a particular offence is provided in the same section which provides punishment for actually committing the offence or is provided in a separate section. In all other cases, punishment is computed as per section 511.
Assault In layman's terms, assault means physically attacking another person. The IPC defines assault in Section 351 as making any gestures or any kind of preparation with the intention or knowledge that such gestures or preparation are likely to make any person present nearby to apprehend use of criminal force by the person who makes the gestures or preparation. For example, A shakes his fist at Z knowing it to be likely that by shaking his fist, he will cause Z to believe that A is going to hit Z. In this case, A has committed assault. Note that the section does not actually require that the person to whom gestures/preparation were made must have actually gotten threatened about the possible use of force before it can be concluded that assault has been committed. The likelihood is the key focus in the provision hence merely making gestures or preparation with the intention of causing apprehension of use of force or with the knowledge that such gestures or preparation are likely to cause apprehension of use of force will constitute assault.
Private Defence The IPC gives the right of private defence which means that certain acts done in order to defend oneself shall not constitute an offence. This right is given in section 96 of IPC which states that no act which is done in the exercise of right of private defence will be considered as an offence. What constitutes the right of private defence is defined in section 97 of IPC which states that a person has a right to defend (a) his/her own body and the body of any other person against offences affecting human body, and (b) movable/immovable property belonging to him/her or any other person against the offences of theft, robbery, mischief or criminal trespass or the attempt to commit any of these offences. Offences affecting human body referred in point (a) here include murder, assault, kidnapping, rape etc.In is important to remember that the right of private defence has to be exercised reasonably and hence force used by the victim who chooses to exercise the right of private defence to save himself/herself from an imminent threat must be proportional to the force used by the perpetrator of the threat/attack. For example, suppose A is chasing B, a thief who has stolen A's wallet. Now, A has a right to chase and catch hold of the thief in order to recover his wallet. Suppose A catches the thief and recovers his wallet after which the thief starts apologizing and begging to let go of him. Now, at this stage, if A gets angry and kills the thief in anger, A will be charged for murder and cannot take the plea of private defence because this right was available to A only upto the stage of being able to recover his wallet from the thief. Once the wallet got recovered, the right to private defence would not continue to exist unless the thief makes an entirely new threat like, for instance, beating and killing A for recovering his wallet.
General Exceptions The IPC provides certain exceptions which can be pleaded by a person, accused of committing a punishable offence, before the concerned court of law to prove his innocence or to convince the court to impose less severe punishment on the accused. The exceptions relevant to be studied for CLAT are as follows: (1) Act of a child under 7 years – The IPC states that no act done by a child under 7 years of age shall constitute an offence. This is because a child under 7 years of age is regarded as incapable of properly being able to understand the true consequences of his/her actions.
For example, if a child of 6 years playfully throws a stone in the air which accidentally hits another person and kills him, the child will not be put on trial before a court of law for the accusation of murder. (2) Intoxication – The IPC states that no act done by a person is an offence if (a) he/she was affected by intoxication at the time of doing the act and (b) by virtue of such intoxication, he/she was incapable of knowing the nature of the act or being able to understand that the act which he/she is doing is wrong or contrary to law and (c) the intoxication was administered to the concerned person without his/her knowledge or against his/her will.
So, for example, if A forces B to consume alcohol at gunpoint as a result of which B gets severely drunk and thereafter shoots and kills C in a state of drunkenness, then B can take the defence of intoxication. Note that there are 3 conditions (a), (b) and (c) mentioned here and all of these conditions must simultaneously be satisfied in order for the accused to plead intoxication as a defence.
So, suppose B consumed alcohol willingly and not against the will or without the knowledge or suppose B killed C after the drunkenness got subsided, in that case, he will not be able to plead intoxication as a defence.<br>3. Unsoundness of mind – The IPC states that no act done by a person is an offence if (a) he/she was affected by unsoundness of mind (that is – insanity) at the time of doing the act and (b) by virtue of such unsoundness of mind, he/she was incapable of knowing the nature of the act or being able to understand that the act which he/she is doing is wrong or contrary of law.
So, if A who is a mentally ill person and unable to understand the consequences of his actions, kills B by shooting him with a pistol, A can plead unsoundness of mind as a defence while being charged for murder by a concerned court of law.
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