LAW END TERM 2009

LAW END TERM 2009

SECTION A

1. Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim.

For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case

5. Liquidated damages (also referred to as liquidated and ascertained damages) are damages whose amount the parties designate during the formation of a contract for the injured party to collect as compensation upon a specific breach

e.g : late performance

6. What is meant by quasi- contract

a)     Under the law of contracts obligations are voluntarily created upon each other by parties to the contract

b)     In certain circumstances obligations may be created or imposed by law even without the existence of a contract

Such imposed obligations are called quasi- contractual obligations 

d)     Such obligations are imposed by courts on the equity principle that no man should grow rich at the cost of another

e)     Quasi- contracts are not contracts, but the relationship or obligations resemble the relations/ obligations arising out of contracts

f)      The 5 types of quasi-contractual obligations are outlined in sections 68 – 72 of the  ICA 1872

7. CONTINGENT CONTRACT : A CONTRACT TO DO OR NOT TO DO SOMETHING IF SOME EVENT COLLATERAL TO SUCH CONTRACT DOES OR DOES NOT HAPPEN

8. Agency coupled with an interest is when an agent has possession or control of the property of his principal and possesses a legal rights against interference by third parties.

9. A lien is a right of any one person to retain that, which is in his possession, belonging to another, until certain demands of a person in possession are satisfied.

  

Possession is necessary to create a right of lien.

Lien does not include right of sale

Lien is two kinds:

i)  General

ii) Particular or specific

11. According to sec 148 of the Indian contract Act, bailment is the delivery of goods by one person to another for some purpose upon a contract that they shall when the purpose is accomplished, be returned or otherwise disposed of according to the direction of the person delivering them.     

SECTION B

13.

15. Elements of Contract

·        Offer and acceptance

·        Intention to create legal relationship

·        Lawful consideration.

·        Legal Capacity.

·        Free consent.

·        Lawful Object.

·        Certainty and Possibility of performance.

·        Agreement not declared void.

·        Legal formalities.

16. Discharge of Contract By agreement or consent:  As it is the agreement of the parties which binds them, so by their further agreement or consent the contract may be terminated. This means a contractual obligation may be discharged by agreement which may be ‘express’ or ‘implied’.

17.  Restrainment of  Trade

Full Restriction - Void

Partial Restriction - Valid

   The law has, as a matter of public policy, always opposed any interference with the freedom to contract and restraints on the liberty of an individual, unless injurious to the interests of the state. This principle is not confined to restraints of trade in the ordinary sense of the word “trade,” but includes restraints on the right of being employed.

  Exception

}  The owners of the business will agree to a non-compete in exchange for consideration for the goodwill associated with the business .

}  To be enforceable, the non-compete will need to be reasonably limited in time and scope, and consideration will need to be attributed to the goodwill in the transaction, as evidenced in the documentation. 

}  A non-compete clause in a joint venture in which shareholders mutually agree not to compete with each other on certain terms and conditions, which include time and geographic restrictions, will generally be enforceable in India.

}   Non-solicitation obligations post-termination of employment may be enforced in limited circumstances, based upon the facts of each individual case.

      For example, they were upheld in the Desiccant case, in which the High Court did allow an injunction against the manager prohibiting him from soliciting Desiccant’s customers and suppliers to stand in effect.

18. “Rights and duties of pawnee”

         1) Right to receive payment from the debtor or obtain the performance of promise        with interest and expenses.

2) Right of particular lien

3) Right to receive extraordinary expenses

4) Pawnee’s right in case of default of the pawner

5) Pawnee must not use the goods pledged

19. Finder of goods

Rights:

n  To retain possession of such goods against the whole world except the true owner.

n  May sue for reward

n  May sell the goods if : the thing is dangerous or perishable

Duties

n  Must use reasonable diligence and try to find out the true owner

n  Must take care of the goods

n  Must not use the goods for his own purpose.

20.   What is bailment?  

      

                     According to sec 148 of the Indian contract Act, bailment is the delivery of goods by one person to another for some purpose upon a contract that they shall when the purpose is accomplished, be returned or otherwise disposed of according to the direction of the person delivering them.     

Essentials of a Bailment:

n  Contract

n  Delivery of goods and change of possession

n  For specific purpose

n  Moveable goods

n  Return of specific goods

Pledge

n  It is the bailment of goods as security for the payment of a debt or performance of a promise.

n  Bailor in this case is called  the “pawner” and the bailee is called the “pawnee”.

n  Pawner must deliver the goods pledged to the pawnee either actually or constructively.

n  Pledge is not necessary that delivery of the goods and making of the advance should be simultaneously to create a valid pledge . Pledge can be made only of movable properties. Properties which can not be the subject matter of sale.

n  Pledge is not necessary terminated by return of goods to the owner