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B.Com(H),B.Ed,M.Com,MBA,CA,
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Sec. 13: “Two or more persons are said to consent when they agree upon
the same thng in the same sense.”
According to Sec.14, “Consent” is said to be free when it is not caused by:
a) Coercion, or b) Undue influence, or c) Fraud, or d) Misrepresentation,
or e) Mistake
CONSIDERATION
According to Sec.2(d) “When, at the desire of the promisor, the promisee or
any other person has done or abstained from doing, or does or abstains from
doing, or promises to do or to abstain from doing, something, such act or
abstinence or promise is called a consideration for the promise”.
Thus “Consideration” means something in return, i.e.quid pro quo.In a
contract, both parties must exchange something of value, in order to make
the contract enforceable. Thereby, establishing the rule:” No consideration,
No Contract”. Where only one party to the agreement gives and the other
party does not give anything in reciprocation, it is said to be a gift and not a
contract.
Essential elements of a valid consideration:
• It must be given only at the desire of the Promisor :
A’s son is lost and B goes in search of him: B would get the reward (if any)
only if he acts at the request of A, unless it is a public offer made by A.
• Reciprocation may be made by any one, either the promisee himself
or a third party.
• It may be Past, Present or Future
• It must have some value although it need not be adequate.
• It must be real and not illusory
FOR A LAWFUL CONSIDERATION AND OBJECT –
Consideration or object is UNLAWFUL if
(1)It is forbidden by law,
(2) Is of such a nature if permitted it would defeat the provisions of any law,
(3) It is fraudulent,
(4) The court regards it immoral,
(5) The court regards it opposed to public policy. Every agreement of which
the consideration or object is unlawful is void.
may not have been given of free will. In this case, one of the parties is
aggrieved and hence has an option either to cancel the contract or to
continue.
VOIDABLE CONTRACT
OPTION I OPTION II
The party may repudiate (not accept) The party may choose to continue with
the contract even if he had earlier the contract, even if his consent was
consented to it, since his consent was not free.
not free.
QUASI-CONTRACTS
A contract which is implied in law is also called a quasi-contract, because it is
not in fact a contract; rather, it is a means for the courts to remedy situations
in which one party would be unjustly enriched were he or she not required to
compensate the other. For example, an unconscious patient treated by a
doctor at the scene of an accident has not agreed (either expressly or by
implication) to pay the doctor for emergency services, but the patient would
be unjustly enriched by the doctor's services were the patient not required to
compensate the doctor.
FORMATION OF A CONTRACT
For the formation of a contract the process of proposal or offer by one party
and the acceptance thereof by the other is necessary. This generally
involves the process of negotiation where the parties apply their minds, make
an offer, give acceptance and create a contract.
Offer[ S. 2(a)] When one person signifies to another his willingness to do or
abstain from doing anything with a view to obtaining the assent of the other
to such act or abstinence, he is said to make a proposal.
Requisites of a valid Offer - An offer to be valid must fulfill the condition
mentioned herein below:
a. Intention to create legal relationship
b. Certain and Unambiguous terms
c. Must not be a mere declaration of intention
d. Should be different from an invitation to offer
e. Should be properly communicated
voidable, if the party whose consent was so caused had the means of
discovering the truth with ordinary diligence.
Explanation: A fraud or misrepresentation which did not cause the consent to
a contract of the party on whom such fraud was practiced, or to whom such
misrepresentation was made, does not render a contract voidable.
Illustrations
(a) A, intending to deceive B, falsely represents that five hundred maunds
of indigo are made annually at A's factory, and thereby induces B to buy the
factory. The contract is voidable at the option of B.
(b) A, by a misrepresentation, leads B erroneously to believe that five
hundred mounds of indigo are made annually at A's factory. B examines the
accounts of the factory, which show that only four hundred maunds of indigo
have been made. After this B buys the factory. The contract is not voidable
on account of A's misrepresentation.
1. Minors: The law protects minor’s rights because they are not mature
and may not possess the competency to judge the implication of their
acts and omissions .An agreement with a minor, as such, is void ab
initio, i.e unenforceable right from its inception.
Mohori Bibee v. Dharmodas Ghose
D, a minor borrowed a sum from M by executing a mortgage of his property
in favour of M. Subsequently, D sued for setting aside the mortgage. The
Privy Council held that Sections 10 & 11 of the Indian Contract Act make the
minor’s agreement void and therefore the mortgage was not valid. M prayed
for refund of the amount by the minor. It was held that the money advanced
to the minor cannot be recovered because minor’s agreement is void.
CONSIDERATION
(1) it is expressed in writing and registered under the law for the time being in
force for the registration of documents, and is made on account of natural
love and affection between parties standing in a near relation to each other;
or unless.
but for the law for the limitation of suits. In any of these cases, such an
agreement is a contract.
Explanation 1 : Nothing in this section shall affect the validity, as between the
donor and donee, of any gift actually made.
PERFORMANCE OF CONTRACTS
If it appears from the nature of the case that it was the intention of the parties
to any contract that any promise contain in it should be performed by the
promisor himself, such promise must be performed by the promisor. In other
cases, the promisor or his representatives may employ a competent person
to perform it.
Illustration
A promises to pay B a sum of money. A may perform this promise, either by
personally paying the money to B, or by causing it to be paid to B by another;
and, if A dies before the time appointed for payment, his representatives
must perform the promise, or employ some proper person to do so. .
DISCHARGE OF A CONTRACT
Discharge of a contract means termination of the contractual relations
between the parties to a contract. A contract is said to be discharged when
the rights and obligations of the parties to the contract come to an end.
MODES OF DISCHARGE OF A CONTRACT [Ss.37 to 75]
1.Discharge by Performance: A contract can be discharged by
performance in the following ways:
a. By Actual Performance: A contract is said to be discharged by actual
performance when the parties to the contract perform their promises in
accordance with the terms of the contract.
b. By Attempted Performance or tender: A contract is said to be
discharged by attempted performance when the promisor has made
an offer of performance to the promisee but it has not been accepted
by the promisee.
2. Discharge by Mutual Agreement:
a. Novation: means the substitution of a new contract for the original
contract.Such a new contract may be either between the same parties
or between different parties.The consideration of the new contract is
the discharge of the original contract.
b. Rescission: means the cancellation of the contract by any party or all
the parties to a contract.
c. Alteration: means a change in the terms of a contract with mutual
consent of the parties.Alteration discharges the original contract and
creates a new contract.However, parties to the new contract must not
change.
d. Remission: means acceptance by the promisee of a lesser fulfillment
of the promise made.
e. Waiver means intentional relinquishment of a right under the contract.
Thus it amounts to releasing a person of certain legal obligation under
the contract.
5.Discharge by Breach
A contract is said to be discharged by breach of contract if any party to the
contract refuses or fails to perform his part of the contract or by his act
makes it impossible to perform his obligation under the contract. A breach of
contract may occur in following two ways;
a. Anticipatory breach of contract: occurs when the declares his intention
of not performing the contract before the performance is due. [Frost v.
Knight]
b. Actual breach – a breach that occurs during the course of
performance or on the due date of performance.
BREACH OF CONTRACT
The parties to a contract must either perform or offer to perform, their
respective promises, unless such performance is dispensed with or excused
under the provisions of the Act, or any other law.
caused thereby, to receive from the party who as broken the contract
reasonable compensation not exceeding the amount so named or, the
penalty stipulated for.
Illustrations
(a) A contracts with B to pay B Rs. 1,000 if he fails to pay B Rs. 500 on a
given day. A fails to pay B Rs. 500 on that day. B is entitled to recover from A
such compensation, not exceeding Rs. 1,000, as the court considers
reasonable.
(b) A contracts with B that, if A practises as a surgeon within Calcutta, he
will pay B Rs. 5,000. A practises as a surgeon in Calcutta. B is entitled to
such compensation; not exceeding Rs. 5,000 as the court considers
reasonable.
5. Specific Performance
CONTRACT OF INDEMNITY
A contract by which one party promises to save the other from loss caused to
him by the contract of the promisor himself, or by the conduct of any other
person, is called a "contract of indemnity".
Business Environment CA Amit Kumar Gupta
MBA-I Semester-10-12 B.Com(H),B.Ed,M.Com,MBA,CA,
M.Phill,UGC NET
Business Environment CA Amit Kumar Gupta
MBA-I Semester-10-12
B.Com(H),B.Ed,M.Com,MBA,CA,
M.Phill,UGC NET
Illustration
A contracts to indemnify B against the consequences of any proceedings
which C may take against B in respect of a certain sum of 200 rupees. This is
a contract of indemnity.
Anything done, or any promise made, for the benefit of the principal debtor,
may be a sufficient consideration to the surety for giving the guarantee.
Illustrations
(a) B requests A to sell and deliver to him goods on credit. A agrees to do so,
provided C will guarantee the payment of the price of the goods. C promises
to guarantee the payment in consideration of A's promise to deliver the
goods. This is a sufficient consideration for C's promise.
The liability of the surety is co-extensive with that of the principal debtor,
unless it is otherwise provided by the contract.
Illustration
A guarantees to B the payment of a bill of exchange by C, the acceptor. The
bill is dishonoured by C. A is liable not only for the amount of the bills but
also for any interest and charges which may have become due on it.
MODES OF DISCHARGE OF A SURETY FROM HIS LIABILITY
Any variance made without the surety's consent, in the terms of the contract
between the principal debtor and the creditor, discharges the surety as to
transactions subsequent to the variance.
Illustrations
(a) A becomes surety to C for B's conduct as manager in C's bank.
Afterwards, B and C contract, without A' s consent, that B' s salary shall be
raised, and that he shall become liable for one-fourth of the losses on
overdrafts. B allows a customer to over-draw, and the bank loses a sum of
money.
A is discharged from his suretyship by the variance made without his
consent, and is not liable to make good this loss.
(b) A guarantees C against the misconduct of B in an office to which B is
appointed by C, and of which the duties are defined by an Act of the
Legislature. By a subsequent Act, the nature of the office is materially
altered. Afterwards, B misconducts himself. A is discharged by the change
from future liability under his guarantee, though the misconduct of B is in
respect of a duty not affected by the later Act.
A contract between the creditor and the principal debtor, by which the
creditor makes a composition with, or promises to give time to, or not to sue,
the principal debtor, discharges the surety, unless the surety assents to such
contract.
Surety not discharged when agreement made with third person to give
time to principal debtor[S. 136]
Where a guaranteed debt has become due, or default of the principal debtor
to perform a guaranteed duty has taken place, the surety upon payment or
performance of all that he is liable for, is invested with all the rights which the
creditor had against the principal debtor.
A surety is entitled to the benefit of every security which the creditor has
against the principal debtor at the time when the contract of suretyship
entered into, whether the surety knows of the existence of such security or
not; and if the creditor loses, or without the consent of the existence of such
security or not; and if the creditor loses, or without the consent of the surety,
parts with such security, the surety is discharged to the extent of the value of
the security.
Illustrations
(a) C advances to B, his tenant, 2,000 rupees on the guarantee of A. C has
also further security for the 2,000 rupees by a mortgage of B's furniture. C,
cancels the mortgaged. B becomes insolvent and C sues A on his guarantee.
A is discharged from liability to the amount of the value of the furniture.
(b) C, a creditor, whose advance to B's is secured by a decree, receives also
a guarantee for that advance from A. C afterwards takes B's goods in
execution under the decree, and then, without the knowledge of A, withdraws
the execution. A is discharged.
(c) A, as surety for B, makes a bond jointly with B to C, to secure a loan from
C to B. Afterwards, C obtains from B a further security for the same debt.
Subsequently, C gives up the further security. A is not discharged.
Any guarantee which the creditor has obtained by means of keeping silence
as to material circumstances, is invalid.
Illustrations
(a) A engages B as clerk to collect money for him. B fails to account for
some of his receipts and A in consequence call upon him to furnish security
for his duly accounting. C gives his guarantee for B's duly accounting. A does
not acquaint C with B's previous conduct. B afterwards makes default. The
guarantee is invalid.
(b) A guarantees to C payment for iron to be supplied by him to B to the
amount of 2,000 tons. B and C have privately agreed that B should pay five
rupees per tonne beyond the market price, such excess to be applied in
BAILMENT
The person delivering the goods is called the "bailor". The person to whom
they are delivered is called the "bailee".
Explanation: If a person already in possession of the goods of another
contract to hold them as a bailee, he thereby becomes the bailee, and the
owner becomes the bailor of such goods, although they may not have been
delivered by way of bailment.
The delivery to the bailee may be made by doing anything which has the
effect of putting the goods in the possession of the intended bailee or of any
person authorised to hold them on his behalf.
DUTIES OF THE BAILOR AND THE BAILEE
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MBA-I Semester-10-12 B.Com(H),B.Ed,M.Com,MBA,CA,
M.Phill,UGC NET
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MBA-I Semester-10-12
B.Com(H),B.Ed,M.Com,MBA,CA,
M.Phill,UGC NET
The bailor is bound to disclose to the bailee faults in the goods bailed, of
which the bailor is aware, and which materially interfere with the use of them,
or expose the bailee to extraordinary risk; and if he does not make such
disclosure, he is responsible for damage arising to the bailee directly from
such faults.
If such goods are bailed for hire, the bailor is responsible for such damage,
whether he was or was not aware of the existence of such faults in the goods
bailed.
Illustrations
A lends a horse, which he knows to be vicious, to B. He does not disclose
the fact that the horse is vicious. The horse runs away. B is thrown and
injured, A is responsible to B for damage sustained.
In all cases of bailment the bailee is bound to take as much care of the
goods bailed to him as a man of ordinary prudence would, under similar
circumstances, take of his own goods of the same bulk, quantity and
value as the goods bailed.
The bailee, in the absence of any special contract, is not responsible for the
loss, destruction or deterioration of the thing bailed, if he has taken the
amount of care of it described in section 151.
A contract of bailment is voidable at the option of the bailor, if the bailee does
any act with regard to the foods bailed, inconsistent with the conditions of the
bailment.
Illustration
A lets to B, for hire, a horse of his own riding B drives the horse in his
carriage. This is, at the option of A, a termination of the bailment.
If the bailee makes any use of the goods bailed which is not according to the
conditions of the bailment, he is liable to make compensation to the bailor for
any damage arising to the goods from or during such use of them.
Illustration
A lends a horse to B for his own riding only. B allows C, a member of his
family, to ride the horse. C rides with care, but the horse accidentally falls
and is injured. B is liable to make compensation to A for the injury done to
the horse.
Where the bailee has, in accordance with the purpose of the bailment,
rendered any service involving the exercise of labour or skill in respect of the
goods bailed he has in the absence of a contract to the contrary, a right to
retain such goods until he receives due remuneration for the services he has
rendered in respect of them.
Illustrations
(a) A delivers a rough diamond to B, a jeweller, to be cut and polished,
which is accordingly done. B is entitled to retain the stone till he is paid for
the service he has rendered.
(b) A gives cloth to B, a tailor, to make into a coat, B promises A to deliver
the coat as soon as it is finished, and to give a three months' credit for the
price, B is not entitled to retain the coat until he is paid.
2.4 PLEDGE
2.4.1 Section 172 of the Indian contract Act defines "Pledge", "pawnor",
and "pawnee" as under:
The pawnee may retain the goods pledged, not only for payment of the debt
or the performance of the promise, but for the interests of the debt, and all
necessary expenses incurred by him in respect of the possession or for the
preservation of the goods pledged.
2.4.3 Pawnee not to retain for debt or promise other than that for which
goods pledged-Presumption in case of subsequent advances
The pawnee shall not, in the absence of a contract to that effect, retain the
goods pledged for any debt or promise of other than the debt or promise for
which they are pledged; but such contract, in the absence of anything to the
contrary, shall be presumed in regard to subsequent advances made by the
pawnee.
CHAPTER VI
2.5.1 Section 182 of the Indian Contract Act, 1872 defines "Agent" and
"Principal"
Any person who is of the age of majority according to the law to which he is
subject, and who is of sound mind, may employ an agent.
As between the principal and third persons, any person may become an
agent, but no person who is not of the age of majority and sound mind can
become an agent, so as to be responsible to the principal according to the
provisions in that behalf herein contained.
2.5.4 CREATION OF AGENCY
Agency may be created by delegation of authority by the Principal; the
authority may be express or implied, by virtue of which the agent is bound
and accountable to the principal. However, the primary liability lies with the
Principal and he is, in most situations liable to third parties.
When one person acts on behalf of another, without his express
consent(obtaining approval later – i.e ratification), or he acts in an
emergency or in case of necessity, he is said to have acted with implied
authority
MODE1: AGENCY BY AUTHORITY; EXPRESS OR IMPLIED
An agent has authority, in an emergency, to do all such acts for the purpose
of protecting his principal from loss and would be done by a person or
ordinary prudence, in his own case, under similar circumstances.
Illustrations
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MBA-I Semester-10-12 B.Com(H),B.Ed,M.Com,MBA,CA,
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MBA-I Semester-10-12
B.Com(H),B.Ed,M.Com,MBA,CA,
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A "sub-agent" is a person employed by, and acting under the control of, the
original agent in the business of the agency.
first agent , thereafter ceases to continue as agent and the newly appointed
agent then takes over.
The termination of the authority of an agent does not, so far as regards the
agent, takes effect before it becomes known to him, or, so far as regards
third persons, before it becomes known to them.
Illustration
A directs B to sell goods for him, and agrees to give B five per cent
commission on the price fetched by the goods. A afterwards by letter,
revokes B's authority. B after the letter is sent, but before he receives it,sells
the goods for 100rupees. The sale is binding on A,and B is entitled to five
rupees as his commission.
An agent is bound to conduct the business of the agency with as much skill
as is generally possessed by person engaged in similar business unless the
principal has notice of his want of skill. The agent is always bound to act with
reasonable diligence, and to use such skill as he possesses; and to make
compensation to his principal in respect of the direct consequences of his
own neglect, want of skill, or misconduct, but not in respect of loss or
damage which are indirectly or remotely caused by such neglect, want of
skill, or misconduct.
Illustration
A, a merchant in Calcutta, has an agent, B, in London, to whom a sum of
money is paid on A's account, with order to remit. B retains the money for
considerable time. A, in consequence of not receiving the money, becomes
insolvent. B is liable for the money and interest, from the day on which it
Business Environment CA Amit Kumar Gupta
MBA-I Semester-10-12 B.Com(H),B.Ed,M.Com,MBA,CA,
M.Phill,UGC NET
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MBA-I Semester-10-12
B.Com(H),B.Ed,M.Com,MBA,CA,
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ought to have been paid, according to the usual rate, and for any further
direct loss as, e.g., by variation of rate of exchange-but not further.
d. Consideration i.e.”Price”
e. All the essential elements of a valid contract.
2. "buyer" means a person who buys or agrees to buy goods .Sec2(1)
3."delivery" means voluntary transfer of possession from one person to another.
Sec2(2)
4."document of title to goods" includes a bill of lading, dock- warrant,
warehouse keeper's certificate, wharfingers' certificate, railway receipt, 1 [multi
modal transport document], warrant or order for the delivery of goods and any
other document used in the ordinary course of business as proof of the possession
or control of goods, or authorizing or purporting to authorize, either by
endorsement or by delivery, the possessor of the document to transfer or receive
goods thereby represented. Sec.2(4)
5."future goods" means goods to be manufactured or produced or acquired by
the seller after the making of the contract of sale. Sec.2(6)
6."goods" means every kind of moveable property other than actionable
claims and money: and includes stock and shares, growing crops, grass, and
things attached to or forming part of the land which are agreed to be severed
before sale or under the contract of sale Sec.2(7)
7."price" means the money consideration for a sale of goods. Sec.2(10)
8."property" means the general property in goods, and not merely a special
property Sec.2(11)
9."quality of goods" includes their state or condition Sec.2(12)
10."seller" means a person who sells or agrees to sell goods. Sec.2(13)
11"specific goods" means goods identified and agreed upon at the time a
contract of sale is made Sec.2(14)
CHAPTER II
4. 2 GOODS--Meaning of
Under the definition of "goods" as given in the Sales of Goods Act, "goods" must
be property and must be movable. Any kind of property which is movable would
fall within the definition of "goods" provided it was transmissible or transferable
from hand to hand or capable of delivery which need not necessarily, be in a
tangible in a physical sense.
Goods means every kind of immoveable property other than actionable claims and
money, and includes the following:
Stocks and Shares
Growing crops, grass and things attached to or forming part of the land
which are agreed to be served before sale or under the contract of sale
What is an “Actionable Claim”?
A claim to any debt or any beneficial interest in moveable property not in
possession. Such claims cannot be sold or purchased like goods, they can only be
assigned, e.g.a debt due from another person. In other words, an actionable claim
is one which can be enforced in the court of law; it is a mere right and hence an
abstract in nature… not qualifying as goods.
TYPES OF GOODS
A. Existing Goods – The goods, which are either owned or possessed by the
seller at the time of the contract of Sale. These goods may further be sub-
divided as:
(i) Specific Goods—These are goods which are identified and
agreed upon at the time when a contract of sale is made. E.g an
automobile or a mobile phone.
(ii) Ascertained Goods – Goods are said to ascertained when out of
a massof unascertained goods, the quantity or number contracted
for is identified and earmarked for sale.
(iii) Unascertained Goods -- These are the goods which are not
identified and agreed upon at the time when a contract of sale is
made e.g goods in stock or lying in lots.
B. Future Goods – Means goods to be manufactured or produced or acquired
by the seller after the making of the contract of sale. In this case there can
only be an Agreement to Sell rather than a contract of sale.
4.2.1EFFECTS OF DESTRUCTION OF GOODS - ALREADY CONTRACTED
There are various kinds of goods and the parties have various options to agree
about the delivery of the goods. What shall be the fate of a contract if the goods are
perished or destroyed?
A) Destruction before making of contract -- Where in a contract for sale of
specific goods, at the time of making the contract, the goods, without knowledge of
the seller, have perished or become so damaged as no longer to answer to their
description in the contract, the contract shall become null and void. This is based
on the rule of impossibility of performance. Since the subject matter of the contract,
which is one of its essential ingredients, itself is destroyed, the contract cannot be
carried out.
'Perishing of goods' includes not only complete destruction of the goods when the
seller has been irretrievably deprived by the goods or when the goods have been
stolen or have in some other way been lost and are untraceable, but also when the
goods become un merchantable i.e. when the goods has lost their commercial
value.
B) Destruction After the Agreement to Sell but before Sale -- Where in an
agreement to sell specific goods, if subsequently the goods, without any fault on
the part of the seller of buyer, perish or become so damaged as no longer answer
to their description in the agreement, the agreement shall become void, provided
the goods are perished before the ownership and risk passes to the buyer. This
rule is based on the ground of impossibility of performance.
If the title to be goods has already passed to the buyer, he must pay for the goods
though the same cannot be delivered.
4.2.2DOCUMENTS OF TITLE TO GOODS
A document of title to goods is one, which entitles and enables its rightful holder to
deal with the goods represented by it, as if he were the owner. It is used in the
ordinary course of business as proof of the ownership, possession or control of
goods. It authorises the possessor to receive the goods. It also confers a right on
the possessor to transfer the goods to another person, by mere delivery or by
proper endorsement and delivery.
Cash memo, bill of lading, dock warrant, warehouse keeper's or wharfinger's
certificate, lorry receipt (L/R), railway receipt (R/R) and delivery order are some of
the instances of document of title to goods.
CHAPTER III
3.3 DISTINCTION BETWEEN “SALE” AND “AGREEMENT TO SELL”
A 'sale' must be distinguished from an 'agreement to sell' since the legal
implications of the two terms are vastly different. A contract wherein, the property in
the goods is transferred from the seller to the buyer, the contract is called a sale,
but where the transfer of property in the goods is to take place at a future time, or
subject to some conditions, thereafter to be fulfilled, it is called an agreement to
sell. An agreement to sell becomes a sale when the time elapses or the conditions
are fulfilled subject to which the property in the goods is to be transferred.
1. Transfer of Ownership:
In sale transfer of ownership of goods takes place immediately.
In agreement to sell- transfer of ownership of goods is to take
place at a future time or subject to the fulfillment of some condition.
2. Executed or Executory Contract:
Sale is an executed contract because nothing remains to be done.
An agreement to sell is an executory contract because something
remains to be done.
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MBA-I Semester-10-12 B.Com(H),B.Ed,M.Com,MBA,CA,
M.Phill,UGC NET
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B.Com(H),B.Ed,M.Com,MBA,CA,
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3. Conveyance of Property:
Buyer gets a right to enjoy the goods against the whole world
including the seller. Therefore, a sale creates a jus in rem (Right
against property).
Buyer does not get such right to enjoy the goods. It only jus in
personam (Right against the person)
4. Transfer of Risk:
Transfer of risk of loss of goods takes place immediately because
ownership is transferred. As a result, in case of destruction of
goods, the loss shall be borne by the buyer even though the goods
are in the possession of the seller.
Transfer of risk of loss of goods does not take place because
ownership is not transferred. As a result, in case of destruction of
goods, the loss shall be borne by the seller even though the goods
are in the possession of the buyer.
5. Consequences of breach:
In a sale, if the buyer fails to pay the price of the goods he
purchases or if there is a breach of contract by the buyer, the seller
can sue for the price, even though goods are in his possession.
In agreement to sell, if there is any breach of contract by the
buyer, the seller can sue for damages only.
CHAPTER IV
rank as condition and warranty All such stipulations may not be of equal
importance. Some of them may be so important that the non-performance of
such stipulations may amount to a breach of contract. Such stipulations are
called conditions. There are certain stipulations, which are not of vital
importance --- these are called warranties.
Stipulations in the contract of sale regarding the quality and quantity of
goods, its colour and design, packing of delicate, valuable and breakable
goods etc. are considered as conditions and a seller has to deliver as per
conditions. Such conditions are stipulations which are essential to the main
purpose of the contract and the breach of such conditions give rise to a right
to treat the contract as repudiated.
Sec. 12(2) of the Act defines a condition as, “A condition is a stipulation
essential to the main purpose of the contract, the breach of which gives rise
to a right to treat the contract as repudiated.”
Those stipulations that are only collateral to the conditions in any contract are
said to be warranties, such as free enjoyment of goods and perhaps time of
delivery (where time is not essence of the contract).Breach of a Warranty
would enable the aggrieved party only to claim compensation and he cannot
repudiate the contract.
Sec. 12(3) defines warranty as, “A warranty is stipulation collateral to the
main purpose of the contract which gives a right to claim for damages, but
not a right to reject the goods and treat the contract as repudiated.”
Conditions and warranties may be express or implied.
Express conditions and warranties are which, are expressly provided in the
contract. Implied conditions and warranties are those which are implied by
law or custom; these shall prevail in a contract of sale unless the parties
agree to the contrary. Sections 14 to 17 contain provisions pertaining to
implied conditions and warranties. These may be cancelled or varied by
express agreement or by the course of dealings or by usage and customs.
3.5.1 IMPLIED CONDITIONS
i) Condition as to title [Sec.14(a)] -- In every contract of sale, unless the
circumstances of the contract are such as to show a different intention, there
is an implied condition on the part of the seller, that :
a. In case of a sale, he has a right to sell the goods, and
b. In case of an agreement to sell, he will have a right to sell the goods at
the time when the property is to pass.
The words 'right to sell' contemplate not only that the seller has the
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title to what he purports to sell, but also that the seller has the right to
pass the property. If the seller's title turns out to be defective, the
buyer may reject the goods.
ii) Condition as to Sale by Description [Sec. 15]-- In a contract of sale by
description, there is an implied condition that the goods shall correspond with
the description. The term ' sale by description' includes the following
situation;
a. Where the buyer has not seen the goods and buys them relying on
the description given by the seller.
b. Where the buyer has seen the goods but he relies not on what he has
seen but what was stated to him and the deviation of the goods from
the description is not apparent.
c. Packing of goods may sometimes be a part of the description. Where
the goods do not conform to be method of packing described (by the
buyer or the seller) in the contract, the buyer can reject the goods.
iii) Conditions in a Sale by Sample [Sec. 17]: A contract of sale is a
contract for sale by sample where there is a term in the contract, express or
implied to that effect. Usually, a sale by sample is implied when a sample is
shown and the parties intend that the goods should be of he kind and quality
as the sample is.
iv) Conditions in a sale by Sample as well as by Description [Sec.15]: A
vast majority of cases where samples are shown , are sales by sample as
well as by description. In a contract for sale by sample as well as by
description, the goods supplied must correspond both with the sample as
well as with the description. However, if the goods correspond to the
description but do not correspond to the sample, it will be treated as a breach
of Warranty and not Condition; in case of vice-versa, it will be treated as a
breach of Condition and not Warranty.
Section 16 describes the Doctrine of “Caveat Emptor”, which means ”buyer
beware”. This implies that the buyer must take all due care and sstisfy
himself as to the quality and fitness of the goods while purchasing.
Therefore, the buyer purchases the goods at his own risk, relying upon his
own skill and judgement.
However, in today’s concept of “Customer is King”, the doctrine of “Caveat
Emptor” will hold no substance as it amounts to putting the buyer at great risk
and thereby intimidating buyers instead of encouraging them to come and
buy. As such there are certain exceptions to this doctrine that act in favour of
the buyer. These exceptions thus cast a duty on the seller to meet every
reasonable expectation of the buyer. These exceptions are thus in line with
the implied conditions of sale.
v) Condition as to Quality or Fitness [Sec.16(1)-being the first exception
to caveat emptor] -- Where the buyer, expressly or by implication, makes
known the seller the particular purpose for which goods are required, so as to
show that the buyer relies on the seller's skill or judgement and the goods
are of a description which it is in the course of the seller's business to supply
(whether or not as the manufacturer of producer), there is an implied
condition that the goods shall be reasonably fit for such purpose. In other
words, this condition of fitness shall apply, if:
a. The buyer makes known to the seller the particular purpose for which
the goods are required,
b. The buyer relies on the seller's skill or judgement,
c. The goods are of a description which he sellers ordinarily supplies in
the course of his business, and
d. The goods supplied are not reasonably fit for the buyer's purpose.
iv) Condition as to Merchantability[Sec.16(2)- being the second
exception to caveat emptor] -- Where the goods are bought by description
from a seller, who deals in goods of that description (whether or not as the
manufacturer or producer) there is an implied condition that the goods shall
be of merchantable quality.
Merchantable quality ordinarily means that the goods should be such as
would be commercially saleable under the description by which they are
known in the market at their full value.
v) Condition as to Wholesomeness -- In case of sale of eatable provisions
and foodstuff, there is another implied condition that the goods shall be
wholesome. Thus, the provisions or foodstuff must not only correspond to
their description, but must also be merchantable and wholesome. By
'wholesomeness' it means that goods must be for human consumption.
vi) Condition Implied by Custom or Trade Usage: An implied warranty or
condition as to quality or fitness for a particular purpose may be annexed by
the usage of trade. In certain sale contracts, the purpose for which the goods
are purchased may be implied from the conduct of the parties or from the
nature or description of the goods. In such cases, the parties enter into the
contract with reference to those known usage. For instance, if a person buys
a perambulator or a medicine the purpose for which it is purchased is implied
from the thing itself; the buyer need not disclose the purpose to the seller.
A condition becomes a warranty when --
a) the buyer waives the conditions or opts to treat the breach of the
condition as a breach of warranty ; or
b) The buyer accepts the goods or a part thereof, or is not in a position
to reject the goods.
3.5.2 IMPLIED WARRANTIES
i. Implied Warranty of Quiet Possession [Sec.14(a)]-- In every
contract of sale, unless there is a contrary intention, there is implied
warranties that the buyer's shall have and enjoy quiet possession of
the goods. If the buyer's right to possession and enjoyment of the
goods is in any way disturbed as consequences of the seller's
defective title, the buyer may sue the seller for damages for breach of
this warranty.
ii. Implied Warranty of Freedom from Encumbrances [Sec.14(b)]--
The buyer is entitled to a further warranty that the goods shall be free
from any charge or encumbrance in favour of any third party not
declared or known to buyer before or at the time when the contract is
made. If the buyer is required to discharge the amount of the
encumbrance it shall be a breach of this warranty and the buyer shall
be entitled to damages for the same.
CHAPTER V
3.6 TRANSFER OF PROPERTY IN GOODS
Sections 18 to 26
The property in the goods is said, to be transferred from the seller to the
buyer when the latter acquires the proprietary rights over the goods and the
obligations linked thereto. 'Property in Goods' which means the ownership of
goods, is different from ' possession of goods' which means the physical
custody or control of the goods.
The transfer of property in the goods from the seller to the buyer is the
essence of a contract of sale. Therefore the moment when the property in
goods passes from the seller to the buyer is significant for following reasons:
a. Ownership -- The moment the property in goods passes, the seller
ceases to be their owner and the buyer acquires the ownership. The
buyer can exercise the proprietary rights over the goods. For example,
the buyer may sue the seller for non-delivery of the goods or when the
seller has resold the goods, etc.
b. Risk follows ownership -- The general rule is that the risk follows the
ownership, irrespective of whether the delivery has been made or not.
If the goods are damaged or destroyed, the loss shall be borne by the
person who was the owner of the goods at the time of damage or
destruction. Thus the risk of loss prima facie is in the person in whom
the property is.
c. Action Against Third parties -- When the goods are in any way
damaged or destroyed by the action of third parties, it is only the
owner of the goods who can take action against them.
d. Suit for Price - The seller can sue the buyer for the price, unless
otherwise agreed, only after the gods have become the property of the
buyer.
e. Insolvency - In the event of insolvency of either the seller or the buyer,
the question whether the goods can be taken over by the Official
Receiver or Assignee, will depend on whether the property in goods is
with the party who has become insolvent.
Essentials for Transfer of Property -- The two essentials requirements for
transfer of property in the goods are:
1. Goods must be ascertained: Unless the goods are ascertained, they
(or the property therein) cannot pass from the seller to the buyer.
Thus, where there is a contract for the sale of unascertained goods,
no property in the goods is transferred to the buyer unless and until
the goods are ascertained
2. Intention to PASS Property in Goods must be there: In a sale of
specific or ascertained goods the property in them is transferred to the
buyer at such time as the parties to the contract intend it to be regard
shall be had to the terms of the contract, the conduct of the parties
and the circumstances of the case.
3.6.1TRANSFER OF TITLE
Where the goods are sold by a person who is not the owner thereof and who
does not sell them under the authority or with the consent of the owner, the
buyer acquires no better title than the seller had. As a general rule, no one
can sell the goods and give a title thereof unless he is the owner thereof.
This general rule is expressed by the maxim “Nemo dat quod non habet”—
meaning ‘one cannot give a better title than that he himself has’. Thus, the
seller cannot give the buyer of the goods a better title to the goods than he
himself has.
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There are, however, certain exceptions to the above maxim, which thus
make it possible for a Non-owner to sell goods in his own name. These
exceptions are as under:
1.Sale by Estoppel
Where the owner of the goods, by his words or conduct or by an act or
omission causes the buyer to believe that the seller has the authority to sell
the goods and induces the buyer to buy them, he cannot afterwards, contest
the claim of title set-up by the seller.
2.Sale by mercantile agent
Where a mercantile agent, with the consent of the owner, is in possession of
the goods or of documents of title to the goods, any sale made by him when
acting in the ordinary course of business, shall be binding on the owner and
shall be valid as if he were expressly authorized by the owner of the goods to
make the same
3. Sale by one of several joint owners
If one of the several joint owners of the goods has the sole possession of
them with the permission of the other co-owners, the property in the goods is
transferred to any person who buys them from such joint owner.
4.Sale by an unpaid Seller
Where an unpaid seller who has exercised his right of lien or stoppage in
transit, re-sells the goods, the buyer acquires a good title to the goods as
against the original buyer. (this topic is discussed subsequently)
5. Sale by Seller in possession of goods after sale & Sale by Buyer in
possession of goods before Sale:
In both the above situations, both, the seller as well as the buyer do not have
authority to sell and yet may effect a sale in which the eventual buyer gets a
good title to the goods.
The bottom-line, however, in all the above cases of sale by non-owners is
that the buyer must have bought the goods in “GOOD FAITH” i.e without
knowing about the ‘history’ of the goods and the fact that the seller is NOT
the owner of the goods. In other words if he is an innocent buyer he will get
good title(ownership) to the goods.
CHAPTER VI
3.7 PERFORMANCE OF THE CONTRACT
The most usual form of performance of a contract of sale is by delivery
Section 2(2) of the Act defines delivery as a voluntary transfer of possession
of goods from one person to another.
Delivery of goods may be Actual, Symbolic or Constructive.
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a. 1. Actual delivery: Handing over of the goods by the seller to the buyer is
called actual delivery.
b. 2. Symbolic delivery: Delivery is said to be symbolic where some symbol of
the real possession or control over the goods is handed over to the buyer for
e.g. X sells to Y 100 bags of wheat lying in the godown of Z and hands over
the key of the godown to Y.
c. 3.Constructive Delivery: Delivery is said to be constructive where a person
who is possession of the goods, acknowledges to hold the goods on behalf
of the buyer. For e.g, X sells to Y 100 bags of wheat lying in Z’s warehouse.X
orders Z to deliver the wheat to Y.Z agrees to hold the 100 bags of wheat on
behalf of Y and makes the necessary entries in his books.
TYPES OF CONTRACTS (WITH REGARD TO DELIVERY OF GOODS)
There are various types of contracts from the point of view of the delivery of
goods.
i) F.A.S. or F.A.R. Contract - F.A.S. stands for 'Free Alongside Ship' and
F.A.R. stands for 'Free Along with Rail'. Under FAS or far contracts, the seller
is required to deliver the goods alongside the ship or rail named in the
contract and to notify the buyer that the goods have been so delivered. The
property in the goods passes to the buyer when the seller delivers the goods
alongside the ship or rail. Thereafter, it is the buyer's duty to arrange for the
contract of affreightment and insurance of the goods while the transit.
ii) F.O.B. OR F.O.R Contracts -- F.O.B. stands for 'Free on Board' and
F.O.R. stands for 'Free on Rail'. In a F.O.B. (or F.O.R.) contract, the seller is
required to deliver the goods on board the sip (or on rail), named in the
contract. Thus, the seller has to bear all expenses upto and including
shipment of goods on behalf of the buyer, who is responsible for their freight,
insurance and subsequent expenses.
Thus, as soon as the goods are put on board the ship, the property in them
passes to the buyer. This will be so even if the goods are not specific or
ascertained. The buyer is liable to pay the price even if the goods are lost in
transit. The property in goods shall, however not pass if the seller reserves
the right of disposal.
iii) C.I.F. Contract -- The words 'C.I.F.' stand for cost, insurance and freight.
A CIF contract is a type of contract wherein the price includes cost, insurance
and freight charges. Under a CIF contract the seller is required to insure the
goods, deliver them to the shipping company, arrange for their affreightment
and send the bill of lading and insurance policy together with the invoice and
a certificate of origin to a bank. The documents are usually delivered by the
bank against payment of seller since he continues to be the owner of goods
until the buyer pays for them and obtains the documents. The property in the
goods passes to the buyer on the delivery of documents. The buyer is
equally protected as he is called upon to pay only against the documents and
the moment he pays, he obtains the documents, which enable him to get
delivery of the goods. If in the meantime the goods are lost neither the buyer
nor the seller is put to loss, whoever is the owner at the time of the loss can
recover it from the insurer.
iv) Ex-ship contracts -- Under an 'ex-ship contract the seller has to delivery
the goods to the buyer at the port of destination. In such contracts the
property in the goods does not pass until actual delivery. The goods are at
the seller's risk during the voyage. It is therefore, for the seller to insure the
goods to protect his interest. The seller is to pay the freight, or otherwise
release the ship owner's lien and to furnish the buyer with a delivery order or
an effectual direction to the ship owner to deliver.
CHAPTER VII
3.8 RIGHTS OF AN UNPAID SELLER
Meaning of an unpaid seller[Sec.45(1)(2)]
The seller of goods is deemed to be an unpaid seller-
a.When the whole of the price has not been paid or tendered(offered).
b.When a bill of exchange or other negotiable instrument (such as cheque)
has been received as conditional payment, and it has been dishonoured.
The rights of an unpaid seller can broadly be classified under the following
two categories;
1. Right against the Goods
2. Right against the buyer personally
3.8.1 RIGHTS AGAINST THE GOODS
a) Where the property in the goods has passed to the buyer.
b) The goods have been sold on credit, but the term of credit has
expired or
Where the goods have been sold on credit, the right of lien shall
remain suspended over the period of credit and shall revive on the
expiry of that period.
The right of lien is linked with possession of the goods and not with
the title. It is not affected even if the seller has transferred the
documents of title till he remains in possession of the goods. However,
2) In case of other goods, when after giving a notice to the buyer of his
intention to resell the goods, the buyer does not pay the price within a
reasonable time; and
3) Where the seller has expressly reserved the right of resale in the
contract. No notice to the buyer is required in that case.
b) Where the property in the goods has not passed to the buyer
1.Right of with holding Delivery -- Where the property in the goods has not
passed to the buyer, the unpaid seller has the right to withhold delivery of the
goods, which is similar to and co-extensive with his rights of lien and
stoppage in transit which he would have had if the property had passed.
2.Stoppage in Transit.
3.8.2 RIGHTS AGAINST THE BUYER PERSONALLY
a) The seller may treat the contact as rescinded and sue the buyer for
damages. This is also known as 'damages for anticipatory breach'.
The damages will be assessed according to the prices prevailing on
the date of breach.
b) The seller may treat the contract as subsisting and wait till the date
of delivery. The contract remains open at the risk and for the benefit of
both the parties. If the buyer subsequently chooses to perform there
shall be no damages; otherwise he shall be liable to damages
assessed according to the prices on the day stipulated for delivery.
4. Suit for Interest (S.61) --The seller may recover interest or special
damages whereby law interest or special damages may be
recoverable.