Legal Framework

State
An entity becomes state if it posses the followings essential of statehoods

 Population

 Territory

 Government

 Sovereignty

The aim of State is administration of Justice

Government – The agent or instrument of state for the administration of Justices. State
is a larger body consisting of entire population.

Government consisting of few

Organs or wings of Government and their functions

Legislature

1. To make law

The products are called Act/Statutes/Enactments/Enacted Law/ Supreme Legislation

E.g. Indian Penal Act, Indian contract Act, Dowry prohibition Act, RTI etc...

Executive administrative

1. To frame Policy

Socialism policy in tune with that policy the legislature has to make law.

2. Execute or implement law

3. To make law

(Due to reasons like delay in passing of Bills on the part of legislature, technical subject
matters, etc... The legislature gives some of its law making power to the executive. They
also started law making)

The products are called Subordinate Legislation/ Delegated Legislation

E.g. Ordinance, rules, regulations, order, notification, circular etc...

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 4. Adjudication (theerpu kalpical) debarring a student for malpractice, cancelling
driving license, dismissing employee etc...

Judiciary

1. Adjudication

2. To interpret law and there by administer to Justice

E.g. Air India v. Nargesh Mirza Air India Service rules providing termination of service
on pregnancy – Supreme Court held it insult to womanhood unconstitutional and void

3. To make law

Whenever a gap is left by the legislature or executive that gap can be filled by the
judiciary. The products are called Judicial Legislation.

Eg. 1. Vishaga v. State of Rajasthan – (AIR 1997 SC 3011) All India Report – sexual
harassment of woman in work place

1.1. CPIM v. Bharat Kumar -Bhand unconstitutional

1.2. Murali v. Union of India – Smoking banned in public place

1.3. DK Basu v. West Bengal – Police arrest guide line

Law
Body of Principles recognized and applied by the state for the administration of Justice

Term includes Supreme Legislation (legislature), Subordinate Legislation (Executive)

and judicial Legislation (Judiciary)

French scholar Montesquieu propounded the doctrine of separation of powers he

argued that Governmental power must be divided and distributed between and among
three bodies, Legislature, executive and judiciary. One shall not encroach into the
sphere assigned to another. But a strict separation of power is not possible in a modern
welfare state hence overlapping of functions is inevitable.

In addition to Supreme legislation, Subordinate legislation, Judicial legislation,

customs (Hindu in Tamilnadu can marry her mother’s brother) and international
treaties (abolish of death sentence) also form part of law.

Jurisprudence (Juris= law, prudence = knowledge) is the science or knowledge

of law. The knowledge that we gathered by answering the following question

1. What is law

2. What are the sources of law

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 3. What make the law binding

4. What are the elements of law?

Person, property, right, duty, liability, ownership, possession and title

Answers to above questions

1. What is law- by definition

2. Sources of law
1.1. Legislation (Supreme legislation as well as Subordinate Legislation)

1.2. Precedent (Decision of a court especially that of High court and Supreme
court)

1.3. International treaties or conventions e.g. environmental protection-

Stock Home Declaration, Rio Declaration, Kyoto, Copán Hagen etc...

Doctrine of Sustainable development now applied in India by the judiciary

was evolved in the Rio declaration (Development and environmental
protection must go hand in hand)

1.4. Customs – But only valid customs becomes part of law. A custom can be
valid only if posses essentials

1.4.1. Immemorial antiquity- origin must be beyond human memory

1.4.2. Reasonableness e.g. Sathi , devadasi, grandfather marry

granddaughter reddiyar community etc... are not reasonable.

1.4.3. Peaceful enjoyment - no bloodshed in the name of such a custom

1.4.4. Continuity

1.4.5. Clarity not vague

3. What makes the law binding -

1. Legislation (Supreme as well as Subordinate) – punishment is the law

binding

2. Precedent - Doctrine of stare of diseases (binding)– evolved by the House of

Lords in England. The phrase means previous decisions shall not be
disturbed, let it stand as it is. In India Article. 141 contain this doctrine that is
law declared by Supreme Court is binding on all courts in India. But if there is
compelling circumstances the Supreme Court can overrule, moreover, only
the Ratio Decidendi reason for the decision- has to be followed by the lower
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 courts. Mere saying by the or casual comments (obiter dictum) can be
ignored.

3. International treaties and conventions – Pacta Sunt Servanda (Treaties

must be obeyed in good faith), as well as sanctions

4. Customs - Via trita, Via tuta (frequent path is reliable path)

Elements of law
1. Person- Natural and artificial person (artificial e.g. company and corporation)-
Any object capable of having rights and duties can be termed person, law confers
right s to unborn person and even dead person (descend burial, not to be
defamed and implement testament or will)

2. Property - Proprietary right in rem (available against whole world). Property

can be movable or immovable, tangible and intangible (incorporeal)

3. Right - An interest protest by law, rights can be

a. Right in personum available against particular person, wife’s claim for

maintenance from husbands

b. Right in rem – available against whole world – right to prevent anybody

from entering to a house

c. Perfect right - enforceable through a court of law – e.g. disowner cheque

Imperfect right – there is right but it cannot be enforced e.g. time barred
dept

4. Duty – obligation – contractual obligation - e.g. An offer to sell his house to B for
5 lack and B accepts it. A is having an obligation to give the house and B have an
obligation to pay

5. Liability – a tie or bond which comes in to existence- a person commit breach of

duty. E.g. A gives the house but B fails pay, B is liable to compensate

6. Ownership – A relation between a person and property or thing

a. Sole ownership – owned by a single person

b. Duplicate /co ownership- thing owned by two or more persons

c. Corporeal ownership – Ownership owner a tangible thing

d. Incorporeal ownership – ownership over intangible things, like

intellectual property as patent, copy right, goodwill etc

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 7. Possession – Premafacie (first sight) evidence of ownership

e.g. – Defacto possession (possession in fact) (vasthuda prakaram)

Dejuri possession – Possession in law (Corpus possessionist + animus

possidendi) that is physical possession of the property plus intention to
possess for himself.

8. Title – The source of a right – e.g.

a.i. Original Title (previously owned by none)

a.ii. Derivative title – that derived from another person

Illustration – A catches a fish, B buys it from A. Hare A's title is Original

and that of b is Derivative.

Administration of Justice – The Basic Aim of State

Administration of Civil Administration of Criminal Justice

Justice

Here law enforces rights and Here law punishes the offender
duties of parties and provides
e.g. by imposing fine, imprisonment, death sentence
for compensation or damages

With the aid of civil laws like With the aid of Criminal Laws like IPC, Narcotic drugs
Indian Contract Act, Sale of and psychotropic substances (NDPS) Act, Arms Act,
Goods Act and Transfer of Explosive Act etc...
Property Act.

Through Civil Courts like Through Criminal Courts – Two type

1. Munsiff Court Executive and Judicial

2. Sub Court Executive- Collector, RDO To preserve Public piece and

Tranquillity. E.g. Sec 144 CRPC
3. Tribunals
Judicial- To punish the Criminals
4. District Court
1. Second Class Magistrate ( 1 year Imprisonment)
5. High Court
2. First Class Magistrate (3 years) in metros called
6. Supreme Court
Metropolitan Magistrate

3. Chief Judicial Magistrate (CJM)- (7 years)- in metros

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 Chief Metropolitan Magistrate

4. Assistant Sessions Judge (10 years)

5. Sessions Judge (10+, life imprisonment, death

sentence)

6. High Court

7. Supreme Court

8. President or Governor under Indian Constitution

Procedure to be followed in a The procedure to be followed in a Criminal Case is given

Civil Case is contained in the in Code of Criminal Procedure -1973 (CRPC)
Code of Civil Procedure - 1908
(CPC)

It is to be noted that certain acts are regarded both as Crimes as well as Civil Wrongs

E.g. Defamation is a Crime as per Sec 499 and 500 of IPC; it is a Civil Wrong also which
entitle the victim to get compensation.

More over CRPC not applicable if the accused is a Juvenile – below 18 years.
Juvenile Justice (Care and Protection of Children) Act, 2000 provides special provision
in this regards.

In criminal Cases law punishes the Criminal. There are many theories relating to the
question – why punishment is given or what must be the aim of punishment.

1. Retributive theory – Eye for eye, tooth for tooth

2. Deterrent theory – Maximum punishment must be given

3. Preventive theory - Prevention is better than cure

4. Reformative theory / rehabilitation theory - no one is borne is criminal,

circumstances make him criminal crime the disease. Kill the crime not the
criminal. Justice VR Krishnayya, PN Bagavathi were strong supporters of this
theory. In Buchan v. State of Punjab Supreme Court held Death sentence, it can
be given only in the rarest of rare cases.

Steps or Stage in Criminal Case (CRPC provisions)

The aim of the administration of criminal justice is punishment of criminal. The
following sub systems are involved in this process

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 1. Public - Give information regarding crimes

2. Police – arrest, search, seizer and investigation etc...

3. Court – trial – Collection of evidence, Judgment etc...

4. Public Prosecutors and Assistant Public Prosecutors – To represent the

Government in the court

5. Defense lawyer – to represent the accused in the court

6. Government Officials like village officer – furnishing sketches and maps of a

locality

7. Experts – forensic experts, Ballistic experts, Finger print experts and Doctors
etc...

8. Correctional Services and Institutions – to reform and rehabilitate offenders

9. Media – if proceeding are incamara (excluding outsiders) media shall not publish
the details of court proceedings. e.g. Name of a rape victim

For the purpose of procedure to be followed by them offences are classified as

follows (procedure differs for different offences)

1. Bailable offence – Bail as a matter of accuse, usually lighter offences.

2. Non- bailable – Bail at the discretion of court, serious offences.

3. Cognizable offences – arrest without warrant, serious offences.

4. Non-Cognizable offences – arrest only with warrant.

5. Summons case – punishment up to two years.

6. Warrant Case – Punishment exceeding two years.

7. Compoundable Offence – that can be compromised e.g. Defamation (murder is

not comprisable)

8. No-Compoundable – that cannot be compromised.

9. Summary Trialable Offence – That can be tried without lengthy procedures e.g.
Theft involving a property less than Rs 2000

How a Criminal Case is brought before court?

1. Suomoto (swamedaya) by the court

2. Complaint (allegation made orally or in writing before the court)

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 3. Up on Police report (A person gives information to the police station regarding a
cognizable and no-bailable offence (FIS). The station house officer (SHO) has to
reduce it in to writing, read over to the informant, get it sighed by the informant
and counter sighed by the SHO it is called FIR. The police start investigation
(whether the information is correct? If so by whom? Against whom? When?
Where? Why? Who witnessed? What the accused took away? What the accused
left – slipper, kerchief etc... ?

Procedures in a cognizable and non-cognizable Offence

A person giving information about a cognizable offence to police station

Sec 154 of CRPC requires the station house officer to get it reduced to writing to
prepare a report their own (FIR). If the information is related to non-cognizable offence
the person has to be directed to court. After making the FIR, police starts investigation
(whether the information was correct? If so committed by whom? Against whom?
When? Where? Why? How? Who witnessed? What the accused took away? What the
accused left in the crime scene). After the completion of investigation report has to be
forwarded to the court (investigation report). During investigation, the investigation
officer has to maintain a diary called Case Diary or Police Diary or Special Diary
(General Diary is kept at police station to record day to day activities.)

The Court conducts inquiry (whether there is a premafacie case?) if no

premafacie case, the accused is discharged. If premafacie case, court give charge to the
accused (charge is formal accusation containing the name of Court, accused, address,
offence committed, relevant law, relevant provisions of Act etc...). Trial commences
(collection of evidences), after trial judgment is pronounced. It culminates either in
acuter or convector (as per Sec.300 CRPC, a person ones accused or convicted for an
offence shall tried again for the same offence – aurtefois -acquitted or aurtifois convict.
In addition Indian constitution guarantees a fundamental right against double Jeopardy
under Article (20) - a person shall not be prosecuted and punished for the same offence.

Inquest - In the case of un-natural death the police has to inform the executive
magistrate, and there after proceed to the spot and make investigation in the presence
of local witnesses and prepare a report.

CRPC also contain provisions for appeals, review and transfer of case etc...

Steps or Stages in a Civil Case (Under the provisions of CPC)

Illustration: B, an engineer executed a contract in favor of A wherein it was agreed that
the construction of house shall be completed on or before 1st January 2010, but
committed a breach. A wish to recover a sum of Rs 80000 as compensation from B.
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I. Outside the Court

1. Notice- not mandatory if the case is against private individuals,

But if the opposite party is Government Sec. 80 require two months notice. However
after 1976 amendment, if urgent relief is sort against Government, the court can
dispense with the requirement of notice.

2. Reply Notice –

II. Inside the Court

1. Filing of Plaint – Document containing the material facts relied on by the plaintiff.

2. Court sent Summons to defendant.

(Summons- is an intimation sent to a person by a court, requiring him to attend

before a particular court on a particular day)

3. Defended files Written Statement. (Admissions denials etc... in reply to the plaint)

4. Framing of issues (the point of controversy) after reading the pleadings (plaint
and written statement) the judge has to frame the issue.

E.g. Whether B executed a contract in favor of A? Whether the B purposefully

committed the breach? Whether A suffered a loss worth Rs 80000.

5. Trial (collection of evidence) – Indian evidence Act 1872 applicable

6. Judgment - Statement showing the reasons for the decision

7. Decree (relief granted) – the person in whose favor the decree has been passed is
called Decree Holder and the person against whom it has been passed is called
Judgment Debtor.

8. Execution of Decree – e.g. Actual delivery, attachment of movable and immovable,

sale though public auction, arrest and detention in civil prison.

The stage between the filing of pliant and passing of decree is called inter locutory stage.
In this stage the plaintiff or defended can seek many remedies e.g. Appointment of
receiver, Appointment of Commission, injunction, attachment before judgment etc...

In addition, there are provisions for appeal, second appeal, review etc...

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Indian Contract Act 1872
Freedom of contract is an accepted by norms. But in India this freedom is not absolute –
it has to be excised within the four corners of this Act. After the commencement of this
Act the term Contract signifies “An agreements enforceable by law”.

Ie, Contract = Agreement +Enforceability

Agreement + Enforceability condition, Sec 10

Offer or proposal + 1. Parties must be competent (not a minor, lunatic,

acceptance (there is meeting drunken, disqualified by any law)
of minds- consensus ad idem
2. Consent of parties must be free (not obtained by the
illustration: A offers to sell vitiating elements like Cursing undue influence,
his house for Rs 1000000, B misrepresentation, fraud, mistake)
agrees to buy it for Rs
3. There should be lawful consideration (something in
1000000
return or cuid pro quo)

4. Lawful object

5. Not expressly declared to be void e.g. Certain

agreements are regarded as void in the Act itself. To do an
impossible thing, uncertain agreements, in restraint of
There for all contracts are
trade, marriage or legal proceedings, wagering agreements
agreements but all
(bet) etc...
agreements are not
contracts.

Scheme of Study (essay on each)

1. Offer

2. Acceptance

3. Competency of Parties

4. Free consent

5. Consideration

6. Lawful Object

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7. Void Agreements

8. Types Of Contracts

1. Expressed

2. Implied

3. Void Agreements

4. Valid Contract

5. Voidable Contract

6. Void Contract

7. Bilateral contract

8. Unilateral Contract

9. Quasi Contract

9. Discharge

As soon as a valid contract is concluded a legal bond or tie comes into existence. The
process by which the parties get free from this tie is called. The major means of
discharge are

1. By performance,

2. By impossibility of performance (subsequent impossibility or super winning

impossibility or doctrine of frustration) at the time of making the contract act
was quite possible to be performed, but something happened which render the
performance impossible. e.g. Destruction of subject matter, Death or incapacity,
war

3. Alteration or novation or substitution

4. By breach – if one party commits a breach the other party will be discharged.
Subsequently the agreed party can seek the following remedies.

I. Under Indian Contract Act

1. Suit for Damages

1. General damages

2. Special damages

3. Exemplary /vindictive damages

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 4. Nominal damages

II. Under Specific Relief Act, 1963

1. Suit for injunction

2. Suit for Specific performance

3. Suit for cancellation rectification of instruments

I. Offer
1. The starting point of a contract,

2. As per Sec.2 of the Indian Contract Act, when a person express his willingness to do
something or abstain from doing something, to another persons, with an intention of
getting accent thereto from the letter, the former is said to have made an offer or
proposal (in Indian law - Proposal, English law – Offer)

3. The person who makes the offer is called offerer or proposer; and whom it is made
is called offeree or proposee.

When the offer is accepted, it becomes promise and the parties become promiser and
promisee.

4. Offer can be

a. Specific Offer (addressed to a particular person)

b. General Offer- addressed to public at large (Carl-ill v. Carbolic smokball

Company – A medical preparation claimed to be panacea to cold related
diseases – through news papers, court held it a general offer)

5. Offer is different from “invitation to offer”, Saree displayed with a price tag – here
offer must come from the customers

6. Offer must be communicated to the offeree, then only acceptance possible

7. Cross offers do not constitute agreement

Illustration - From Trivandrum A posts an offer to B residing at Ernakulum. On the same

day without any knowledge about A's offer B sends a letter regarding the same matter
to A. The two letters crossed each other in postal transit.

8. Quitting the lowest selling prize cannot be regarded as an offer, to sell on that prize

9. Offer must be accepted before it lapses.

Offer lapses in the following ways

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 1. If the offerer prescribes a time for acceptance it automatically lapses at the
expire of time

2. If no time prescribed it lapses within a “reasonable” time (time depends up on

the facts and circumstances of case

3. Revocation of the offer, by the offerer before acceptance

Death and insanity of offerer

2. Acceptance
1. If the person to whom the offer is made gives his accent thereto, he is said to
have acceptance

2. If the offeree makes any condition it is only counter offer

3. Acceptance must be made before the offer lapses

4. If the offerer prescribed a mod of acceptance e.g. email, telephone, fax etc...
acceptance must be made in that mod

5. The usual mod is through post- the law relating to postal acceptance in England
has been aptly summarized by Anson as follows “acceptance is to offer what a
light match is to a train of gun powder” that is as soon as the letter of acceptance
is posted offerr and offeree become bound, and acceptance is irrevocable

But Indian law is different. As soon as the letter of acceptance is posted the offerer
becomes bound, but the accepter can revoke the acceptance by a speedily mode before
the letter of acceptance reaches the offerer

2. Competency of Parties
1. As per Indian Contract Act the parties must be competent, that is they must not be

a. minor b. lunatic c. Drunken d. Disqualified by any law (insolvent, alien enemy, ) e.

Panchayath and Municipality members disqualified from becoming parties to
Government projects, under Kerala Municipality Act 1994

Minors agreements is void abinitio (from the very beginning) – Mohory Beebies Case,
but if the minor fraudulently induces another person to enter in to agreements and
subsequently approaches the court to get it declared void the court can direct the minor
to restore the benefit received under the agreements: that it is traceable in the hands of
minor (doctrine of restitution)

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In the case of lunatic and drunken person Indian contract act considers, the mental
condition at the time of making the agreements, hence a lunatic can enter in to a valid
agreements during his lucid interval

4. Free Consent
Indian contract act mandates that the consent of parties must be free, that is consent
shall not be obtained by the following vitiating elements

1. Coercion Sec 15

2. Undue influence Sec 16

3. Fraud Sec 17

4. Misrepresentation Sec 18

5. Mistake Sec 20, 21 etc...

The term coercion is used in the Indian contract act. In England the term duress is used.
The term imp lice a threat to commit any offense e.g. showing a gun or attempt to
commit suicide to compel a party to sign an agreement.

In the case of undue influence one party is in a superior position and other is in a
inferior position so that the former may superimpose his will over the later (Alcade v.
Skinner (mother superior case)). Law usually presumes undue influence in the
following relations: Doctor and patient, Spiritual leader and Disciple

In Derry v. Peek the court brought out the distinction between misrepresentation and
fraud, the facts of case as follows; a company engaged in a business using horse driven
carriages, in order to get converted in to steam driven carriages company made an
application along with the plan before the Board of trade. The application was accepted.
The company issued a prospectus inviting the public to invest money stating that the
company has the right to use steam driven carriages , but after the allotment process
was over the application was rejected by the Board of trade. Public suede against the
directors on the ground of fraud.

The court held that it was only an innocent misrepresentation. The court further
enumerated the essentials of fraud as follows

1. Suppressio very – suppression of a vital fact and

2. Suggessio falsi – suggesting a fall thing to be true

There for intentional misrepresentation is fraud

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Mistake is also a vitiating element. There is no conscientious ad idom on the same
subject matter. Illustration A owns a Maruti 800 and a Swift he offers to sell to B for
rupees 2 lacks. B accepted. A had in his mind Maruti 800, but B had in his mind Swift

Consequences of Vitiating elements

If Consent is obtained by 1,2,3,4 the contact is voidable that is valid until set aside by a
court at the instance of agreed party, but consent is obtained by mistake it is void.

5. Consideration
1. A lawful consideration is an essential ingredient of valid contract, the term means
something in written or quide pro co

2. An agreements without consideration is void – (ex nudo pacto non oritor actio- no
cause of action arise from a nude agreement or bare promise)

Exception: Gift deed (registered is enforceable even in the absence of consideration)

3. The consideration must be “at the desire of the promiser”

4. the consideration must move from the promisee or any other person (but in England
the consideration must move from the promisee only – in England there is doctrine of
privity of consideration)

5. Consideration can be past, present or future (but in England, subject to some

exceptions, past consideration is no consideration)

6. Consideration need not be adequate but must be real and having some value in the
eyes of law

Doctrine of Privity of Contract (Dunlup v. Selfridge) a third party to contract cannot

sue up on a contract – that is if the contract is between A and B, a stranger C cannot sue
upon it.

Exception 1. Third party insurance contract executed between the insurance company
and owner of vehicle - Accident victim sues up on that contract for compensation

Exception 2. Family settlements: Illustration two sons agreed to provide maintenance

for their mother- in the case of failure, mother can sue up on the agreements enter
between two sons

Exception 3. In trust the beneficiary can sue the trust deed entered in to between and
trustee

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6. Law Full Objects
The object of the agreements must be lawful, that is not prohibited any existing law.

7. Not declared to be void

This is a basic condition for the enforceability of an agreement. The Indian contract act
itself expressly explains certain to be void.

Examples

1. Object or consideration is unlawful – unlawful agreements (Sec 23)

2. Object or consideration or partly unlawful(Sec 24)

3. Agreements without consideration (Sec 25)

4. Agreements in restraints of marriage (Sec 26)

5. Agreements in restraints of trade (Sec 27)

6. Agreements in restraints of legal proceeding (Sec 28)

7. Uncertain agreements (Sec 29)

8. Wagering agreements (Sec 30) Ex Bet a promise to pay money or monies worth
up on the happening or non happening of uncertain event

9. To do an impossible act (Sec 56)

10. Both parties are under a mistake as to the subject matter of contract (Sec 19, 20,
21)

1. Unlawful Agreements – an agreements is regarded unlawful in the following

circumstances

1. Prohibited or forbidden by law

2. Defeat the provisions of any law

Ex. Employees are entitled to get minimum wage under minimum wages act 1948,
bonus under bonus act 1965, PF under employees PF act. An employee executing an
agreement in favor of his employer where by waving his right to get bonus minimum
wage PF etc (contracting out) the intension is to defeat the provisions of labor laws-
hence void

3. Causing injury to person or property

4. If court regard it as immoral

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 5. Agreements against public policy – Ex

1. Maintenance – (unnecessarily financing a litigation) 2. Champerty (claiming the

percentage of the proceeds of litigation

2. Object or consideration or partly unlawful

3. Agreements without Consideration (refer topic consideration)

4. In restraints of Marriage - any agreements which restraints a person marriage a

particular person for a particulate period is void – Exception Minors marriage

5. In restraints of trade – any agreements where by a person is absolutely

restrained or from a business or trade is void (Norden felt case)

Exception 1 Partial restraints permissible

Example film star prevented from engaging simultaneously in two or more films

Exception 2 Partnership act permits total restraints in business that of the partnership
firm

Exception 3 In the case of sale of good wills that buyer can prevent seller absolutely

6. In restraints of legal proceeding - Parties cannot be excluding or oust the

jurisprudence of court in legal disputes.

But arbitrator can be appointed by the parties.

7. Uncertain agreements – 100 tones of oils

8. Wagering Agreements- Exception in the case of horse race if the above Rs 500

9. To do impossible act – initial impossibility makes an agreements void- An act

which is impossible to do at the time of making the agreements

10. Mistake “ for both parties”

There for one can conclude that “all contract are agreements, but all agreements are not
contracts”.

Types
1. Expressed Contracts - expressed by words spoken or written

2. Implied or inferred or tacit contract – implied by the conduct of parties-

consuming food , stepping in to the KSRTC bus

3. Valid contracts - valid offer plus valid acceptance plus enforceability condition.

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 4. Void agreements – void ab initio (null from the very beginning miners
agreements, uncertain agreements are examples)

5. Void contract – a valid contract which subsequently becomes impossible be

performed and consequently becomes void, example A sells his horse to B before
delivery horse dies.

6. Voidable contracts – valid until set aside by a court at the instance of the agreed
party. Example if consent is obtains by coercion, fraud undue influence

7. Unilateral contracts – obligations outstanding from one side only

Illustration: House given by A – amount to be paid by B on a future date

8. Bilateral contract – obligation outstanding from both sides. Example A

promises to give his house to B for 10 lakh, B promises to pay the amount to A

9. Contingent Contract – A contract does or not does something on the happening

or non happening of an event.

A condition in a contract can be

Condition Precedent – on the happening of it a right gets vested

Illustration: A gives his house to B on a condition that he shall marry daughter, till
marriage B's right is contingent, on marriage it becomes vested right

Condition subsequent – On the happening of condition an already vested right

divested.

Illustration: A gives house to B ha shall not marry C's daughter

Conditional limitation – On the happening of a condition a right gets divest from one
person to another person: illustration: A transfers his property to his son on the
condition that, if a daughter is born it will go to her

Law always leans in favor of vesting and is against divesting

Illustration: A transfer his property to B on a condition that he should marry druthers of

C after getting consent of X, Y and Z. B obtain the consent of X and Y and Z dies here law
applies the doctrine of cypres (as near as possible) and enable to have the right. It is to
be noted that court applies this doctrine only in the case of a condition precedent. In the
case of condition subsequent court mandate strict complaints of the conditions

10. Quasi contract (quasi as if) - Sec 68 to 72 of Indian contract act deals with
quasi contracts. That uses the phrase certain transactions creating obligations
resembling that created by contract.

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Example 1: Necessaries supplied to minor lunatic etc...(Sec 68)

Illustration: A supplies to B a minor, subsequently a can the amount reimbursed from

the property of B.

Ex 2. Payment made by one person for another person bound by law to pay (Sec 69)

Illustration: Building tax paid by tenant – he can subsequently gets it from the land load.

Ex 3. Payment for non gratuitous services (Sec 70) – if a person enjoys the benefit of a
non gratuitous service; he has to give reasonable sum for the service returned.

Illustration: Producer hired a script writer. Script was completed mean while the
Producer doped the project; court held the script writer entitled to get reasonable
remuneration to the service rendered (quantom meruit)

Ex 4. Finder of goods

Ex 5. Benefits received under agreements.... on the ground of mistake coercion etc...

The law relating to quasi contract is based on the doctrine of unjust enrichment that is
one person shall not grow rich at the loss of another

Discharged of contract
As soon as a valid contract is made, a legal bond or tie comes in to existence. Discharge
is the process by which the parties get free from this bond. The modes of discharge are
1. By performance, 2. By agreements (alteration, novation and substitution) 3. By
Subsequent impossibility or super winning impossibility or doctrine of frustration, 4. By
breach

I. By Performance (Sec 37)

Parties may either perform or “offer to perform” (tender of performance)

Assignment of Contract – Parties can transfer the rights or liabilities to known party to
contract (Example Sub contracting), in that case that party has to perform. But in
personal rights or liabilities (to sing or paint) vicarious performance is not necessary.

II. By agreements
Parties can alter the terms; substitute the existing contract with a new one

III. Subsequent impossibility

Doctrine of frustration – At the time of making the contract a thing or act was quite
possible to be performed. Subsequently something happens which render the
performance impossible. Law does not compel a person to do an impossible thing

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Specific Grounds of Frustration

a) Destruction of Subject matter – example: horse dies

b) Legislative intervention – Illustration: agreement was to cut and remove 100
coconut trees, subsequently legislature made a law prohibiting it.

c) War or like situations – Example blockage of Suez Canal

d) Material change of Circumstances (Rebus Sic Standibus in international law)

Example: At the time of making the contract good was possible to be delivered on Rs
10 per Subsequently shortage of raw material and hike in cost of material increased
it to Rs 100

e) Death or incapacity
f) Nonoccurrence contemplated event – Illustrative case law: Krel v. Henry Coronation
procession case, room hired to view the coronation procession, but the event
postponed.
IV. By breach

Failure on the part of one party to perform his part. It can be one

 Anticipatory – before the date of performance a party repudiates

 Present Breach – On the date of performance

Remedies against Breach
1. Non legal remedy (without the interference of court) Doctrine of Accord and
Satisfaction
Accord is an agreement t where in a party is in not in fault in agrees to get satisfied by
any consideration his legal remedy

2. Legal Remedy
a) Under Specific Relief Act 1963 – Suite for Injection (to do or not do), Specific
Performance (if loss cannot be compensated in terms of money), Cancellation or
rectification of instruments

b) Under Indian Contract Act 1872 (Suite for Damages or Compensation)

Extend of liability to pay compensation, rule in Hadley v. Bexandale 1784

The defended is liable to compensate to extend of foreseeable limit. There is a limit for
foreseen ability beyond that limit, the damage is said to be remote and defended is not
liable. Facts of the case Crankshaft in Plaintiff's mill was damaged. It was entrusted with
the defended to get it replaced from the manufacturer, but delayed and hence loss of
profit to Plaintiff. Court held defended not liable to pay loss of profit.

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Court categorized two types of damages

a) General damages – as a result of natural consequences of the breach.

b) Special damages – Defended had prior knowledge about “unusual circumstances”
affecting the Plaintiff.

In addition damages can be either 1. Vindictive damages or exemplary damages (as a

punishment) - Breach of promise to marry, disowned check 2. Nominal or Petty
Damages plaintiff is having no damage in order to recognize his right to sew for
breach, court awards a nominal amount
Illustration: 'A' booked a car from a dealer but fail to get it within the agreed date.
After two months the dealer sold the car for an higher amount.

Additional topics
Appropriation of payments (Sec 59, 60 and 61)

1. By deter (One creditor deter owes several debts a payment made by the deter
with a request to wipe out a particular deter

2. By Creditor – If no request made by deter the creditor can excise his discretion
3. By law – If neither nor the creditor makes appropriation, law wipe out the dept
in the order of time.

Contracts (Uberimafides) of absolute faith

Example insurance policy- the insurer is unaware etc. of the person to be insured, hens
the later has a duty to speak, here silent amount to fraud.
Documents non est factum (mistakenly signed)

This is defense available to a person in court the aim is to protect illiterate and blind
persons

Service level agreements (SLA) – An agreement between a costumer and service

provider. It contains the level of services including availability serviceability quality and
other aspects like billing etc... That is what the entire customer receives and not how the
provider delivers it.

Request for proposal (RFP)

It is step or stage an earlier stage in procurement process – the aim is to assert the
suitability of suppliers. The contents of proposal not only includes price but also
includes corporate information and history, financial soundness, client reference etc...

There can also be request for quotation (RFP) request for Information (RFI) request for
Qualification (RFQ) Annual maintenance Contract (AMC)

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Cyber Jurisprudence
What does the term- Cyber, netizen

The term cyber is originated from cybernetics Science of Communication and control
over man and machine

Cyber Space denotes a system controlled by machine for communication between

human beings sance geographical boundaries. The term cyber space was first used by
Willem Diction in his fiction ‘Neuro-Mansor’ to denote the apace where hackers live.

Netizen is person who lives in cyber space and constantly interacts with the INTERNET.
What is Cyber Crime – Crime committed with the aid of computer and
telecommunication systems. In such case computer can be offender as well as victim.

Type of Cyber Crimes.

Hacking – unauthorized access to the contents of computer
The term hacker is used in positive sense also to refer a computer expert how solves
complicated problems. The term cracker is used negatively for malicious hacking which
cause damage to the contents
Phreaker -One who manipulate telecommunication system

Today telecommunication system has been computerized the term hacker covers
Phreaker etc...

1. Pornography – Displaying sexual activities to arouse erotic feelings

2. launching Virus – Friday 13 Michel, Angelo, Ping-Pong

3. Cyber terrorism – by Bin Laden Site explaining the manufacturing of RDX.

4. Bank fraud, forgery – R v. Thomson (Kuwaiti bank managers case)

5. Salami Technique – unnoticed debiting small amount from a huge amount

6. Cyber Stacking – online harassment
7. Piracy – unauthorized copying

8. Data deadlining – taking away data so that it cannot be put back

9. Cyber Squaterring- changing the letter of reputed domain names so as to
fraudulently induce customers. Instead of philis.com philipps.com
10. Meta tagging – using a registered trademark or domain name of well reputation
in one domain name so that search engine may hit more.

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Illustration: Play boy and playmate registered trade mark of plaintiff the defender used
it as playboyxxx.com

The above said crimes adversely affect the following legally protected interests.
1. National Security – Cyber terrorism

2. Economic Security – bank Fraud

3. Information Security – data deadlining Hacking

4. Human Dignity – Pornography

5. Reputation – Online harassment, Morphing

6. Intellectual Property Right like Copy rights Piracy

Legal Measures to Prevent Cyber Crimes

I. Extra judicial method without the help of court

1. Vaccine software

2. Internet Service Providers can take steps to prevent piracy

1. Cryptography

II. Judicial Means (with help of court)

In US there are Protection of privacy Act, INTERNET School filtering Act etc... 1980

In England there is Computer misuse Act 1990

In India IT Act 2000

IT Act 2000
Aim of Act
1. legalize e-commerce – alternative for paper based documents of communication
and storage

2. Provide e-Filing with Government

3. Amend Indian Penal Code (IPC), Evidence Act, bankers book of evidence
4. To constitute a cyber regulation applet tribunal (CRAT)

5. An adjudication Authority with powers of civil court

6. To make certain acts as civil wrongs or crimes

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Civil Wrongs, Crimes,

Chapter 9 Chapter 11

Sec 41-47 Sec 65-78

However without consent or 1. Source code attack, includes listing of

knowledge of the owner the
computer system- Hacks launch
virus, cause damage to data etc... -
liable to pay compensation to the
victim up to Rs one crore
programs commands etc...
2. Hacking
3. Pornography
4. Attacking protected systems
5. failure to obey the controllers order for
decryption
6. publishing falls digital certificates

7. Making available falls digital signature

certificates fraudulent activities

8. Breach of confidentiality etc…

Computers can be ceased. Investigating officers can seek the help of Internet service
providers. One of the peculiar characteristic of cyber crime is that it can be committed
in any jurisdiction without having physical jurisdiction. Hence international law of
extradition is necessary. Another major defect is LOVE (lack of visual evidence)

Note: Writ before High Court or Supreme Court

Article 226 – High Court

Article 32 – Supreme Court

Habeous Corps – To produce a body before the court to find out whether the detention
legal or not (can be filed against private person also)

Mandamus (we command) - to command a public body to public duty

Quowarranto (by what authority) - a person occupies a substantial public office

Prohibition – To prevent a body from exceeding the limits of jurisdiction

Certiorari – To quash an order made without jurisdiction.

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