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Q. Define Tort and Law of Tort. Discuss its nature. What are its various ingredients?

What conditions must


be satisfied before a liability in Tort arises? "A tort is a civil injury but all civil injuries are not Torts". Explain.
Distinguish between Tort and Crime. How many kinds of Torts are there?

The word tort has been derived from the latin word "tortum" which means to twist. In general, it means conduct
that adversely affects the legal right of others and is thus, "wrong". For a healthy society it is necessary that it be free
of anti-social elements and that an individual should have freedom to exercise his rights without being restricted by
others. Further, if there is a transgression of any right, there must be a way to compensate or to restore the right.
This is essentially what the maxim, "Ubi just ibi remedium" implies. Where ever there is a right, there is a remedy.
Indeed, a right has no value if there is no way to enforce it. Such rights of individuals primarily originate from two
sources - contractual obligations and inherent rights that are available to all the citizens against every other citizen,
aka rights in rem. While the violation of contractual right has clear remedy that arises from the contract itself, the
violation of rights that are available to all the persons in general does not have a clear remedy because there is no
explicit contract between the two parties. Such violations are called wrongs and it is for such wrongs that the law of
torts has been developed. For example, one has a right against all other persons to be free of noise in the night. If
somebody starts playing music loudly, then he violates one's right to be noise free. He is, thus, doing a wrong and
even though there is no contract between the two, one can sue him for damages.

There can be innumerable types of acts that can transgress the rights of others and it is not possible to come up with
a definition that can accommodate all the cases. However, the following are some definitions from the experts -

Salmond - A tort is a civil wrong for which the remedy is action in common law for unliquidated damages and which
is not exclusively a breach of contract or breach of trust or other equitable obligation.

Winfield - Tortious liability arises from the breach of duty primarily affixed by law. The duty is towards persons in
general and its breach is redressable by an action for unliquidated damages.

Fraser - Tort in an infringement of a right in rem of a private individual giving a right of compensation at the suit of
the injured party.

Thus, it can be seen that tort is an act while the law of tort is the branch of law that provides relief to the person who
has been injured due to a tortious act.

From the above definitions, it is clear that the nature of a tort is that it is a civil wrong. However, not all civil wrongs
are torts. For example, breach of contract and breach or trust are civil wrongs but are not torts because their
remedies exist in the contract itself. To determine if a particular act is a tort or not, we must first make sure that it is a
civil wrong. We should then make sure that it is NOT a breach of contract or breach of trust.

Historically, crime and tort originated from the same root. Later on, they separated on the account that a crime does
not only affect the victim but also to the society as a whole to a great extent. Thus, the branch of law that deals with
criminal conduct evolved a lot faster than the branch of law that deals with torts.

The nature of tort can be understood by distinguishing it from crime and contractual civil liabilities. It can be said that
tort is the residual of wrongful acts that are not crime and that do not fall under contractual liabilities. Thus, if a
wrongful act is neither crime nor a violation of a contract, it may fall under tort. The damages are unliquidated and are
decided only by the common sense of the courts. The following differences between Tort and Crime and Tort and
Breach of Contract, shows the true nature of Tort.

Distinction between Tort and Breach of Contract


Tort Breach of Contract

A breach of contract occurs due to a breach of a


Tort occurs when the right available to all the persons in general
duty (right in persona) agreed upon by the
(right in rem) is violated without the existence of any contract.
parties themselves.
Victim is compensated for unliquidated damages as per the Victim is compensated as per the terms of the
judgment of the judges. Thus, damages are always unliquidated. contract and damages are usually liquidated.
Duty towards each other is affixed by the contract
Duty is fixed by the law of the land and is towards all the persons.
agreed to by the parties.
Doctrine of privity of contract does not apply because there is no
Only the parties within the privity of contract can
contract between the parties. This was held in the case
initiate the suit.
of Donaghue vs Stevenson 1932.

When a contract is void, there is no question of


Tort applies even in cases where a contract is void. For example, compensation. For example, a contract with a
a minor may be liable in Tort. minor is void ab initio and so a minor cannot be
held liable for anything.
Justice is met by compensating the victim for his injury and
exemplary damages may also be awarded to the victim. In Bhim Justice is met only by compensating the victim for
Singh vs State of J K AIR 1986 - the plaintiff was awarded actual loss.
exemplary damages for violation of his rights given by art 21.

In the case of Donaghue vs Stevenson 1932, A purchased ginger beer in a restaurant for his woman friend. She
drank a part of it and poured the rest into a glass. Thereby, she saw a dead snail in the drink. She sued the
manufacturer. It was held that the manufacturer had a duty towards the public in general for making sure there are no
noxious things in the drink even though there was no contract between the purchaser and the manufacturer.

The same principal was applied in the case of Klaus Mittelbachert vs East India Hotels Ltd AIR 1997. In this case,
Lufthansa Airlines had a contract with Hotel Oberoi Intercontinental for the stay of its crew. One of the co-pilots was
staying there took a dive in the pool. The pool design was defective and the person's head hit the bottom. He was
paralyzed and died after 13 yrs. The defendants pleaded that he was a stranger to the contract. It was held that he
could sue even for the breach of contract as he was the beneficiary of the contract. He could also sue in torts where
plea of stranger to contract is irrelevant. The hotel was held liable for compensation even though there was no contract
between the person and the hotel and the hotel was made to pay 50Lacs as exemplary damages.

Distinction between Tort and Crime

Tort Crime

Tort occurs when the right available to all the


Tort occurs when the right available to all the persons in general (right
persons in general (right in rem) is violated
in rem) is violated without the existence of any contract.
and it also seriously affects the society.
Act is comparatively more serious and
Act is comparatively less serious and affects only the person.
affects the person as well as the society.
Intention is the most important element in
Intention is usually irrelevant. establishing criminal liability. A crime cannot
happen without Mens Rea.
It is a private wrong. It is a public wrong.
Since it is a private wrong the wronged individual must file a suit Since it is a public wrong, the suit is filed by
himself for damages. the govt.
The suit is for damages. The suit is for punishment.
There is no compromise for the punishment.
Compromise is possible between the parties. For example, a person
For example, if a person is guilty of murder,
who has been defamed, can compromise with the defamer for a
he cannot pay money and reduce his
certain sum of money.
sentence.
Compounding is possible. Compounding is generally not possible.
Justice is met by compensating the victim for his injury and exemplary Justice is met by punishing the aggressor by
damages may also be awarded to the victim. In Bhim Singh vs State prison or fine. In some specific cases as
of J K AIR 1986- the plaintiff was awarded exemplary damages for given in IPC compensation may be given to
violation of his rights given by art 21. the victim.
Several criminal acts such as assault and
Tortious acts are usually not criminal acts.
battery are also grounds for tortious suit.
Ingredients of Tort (Conditions that must be satisfied before a liability in Tort arises.)

There are three essential elements for an act to be liable under Tort.

1. Wrongful act or omission - There must be some act or omission of a duty on the part of the defendant. For a tort
to happen, the person must have first either done something that he was not expected to do or omitted to do
something that he was supposed to do.
Municipal Corp of Delhi vs Subhagvanti AIR 1966 - A clock tower was not in good repairs. It fell and killed
several people. MCD was held liable for its omission.

2. Duty imposed by law - The act or omission of an action must be required by law or the duty must be imposed by
law. This means that if an act that is prohibited by law causes harm, it is liable under tort. Similarly, if the omission of
an act that is required by law, causes harm, then it is liable under tort. For example, law requires that the driver of a
vehicle must drive carefully and if driving without care, a pedestrian is hit, the omission of the act of driving carefuly is
liable under tort. However, if the worshipers stop going to a temple and thereby cause the priest to lose money, this
action is not liable under tort because going to temple is not an act that is required by law. Such duties that are
required by law are usually towards all the people in general.
Donaghue vs Stevenson 1932 - Held that the manufacturer of a drink has a legal duty towards the
consumers to ensure that noxious substances are not included in the drink.

3. Injury - The act or the omission must result in legal damage or injury i.e. violation of a legal right vested in the
plaintiff. This means that the act or omission must cause a damage that is recognized by law as wrongful. For
example, a person has a legal right to enjoy his property and if someone throws trash in it, this is a violation of his
legal right and is liable under tort. However, it is possible that a legal right is violated without causing any physical or
real damage. This is explained in the maxim - Injuria Sine Damno.
Injuria Sine Damno -
Ashby vs White 1703 - The defendant wrongfully prevented the plaintiff from voting. Even though there was
no damage, the defendant was held liable.
Bhim Singh vs State of J K AIR 1986 - Plaintiff was an MLA and was wrongfully arrested while going to
assembly session. He was not produced before a magistrate within the requisite period. It was held that this was the
violation of his fundamental rights. Even though he was release later, he was awarded 50,000RS as exemplary
damages by SC.

On the other hand, it is possible that a person suffers a huge loss or damage but none of his legal rights are violated.
This is called Damnum sine Injuria. In such cases, there is no tortious act.
Damnum Sine Injuria -
Glaucester Grammar School's case 1410 - Defendant opened a rival grammar school in front of an existing
one thereby causing the fees of the existing one to be reduced from 40pence to 12 pence. He was not held liable as
he did not violate any legal right of the plaintiff.
Ushaben vs BhagyaLaxmi Chitra Mandir AIR 1978 - Plaintiff sought a permanent injunction against the
cinema house to restrain them from showing the movie Jai Santoshi Maa. It was contended that the movie depicts
the goddesses Laxmi, Saraswati, and Parvati in bad light, which is offensive to the plaintiff. It was held that hurt to
religious sentiments is not recognized as a legal wrong. Since there was no violation of a legal right, an injunction
was not granted.
Chesmore vs Richards 1879 - Plaintiff had been drawing water from underground for past 60 yrs. The
defendant sunk a bore well on his land and drew huge quantity of water which diminished the water supply of the
plaintiff. It was held that the defendant was not liable because he was only exercising his right and did not violate any
right of the plaintiff.

Harm due to negligence - A person is not liable in tort even if he causes harm due to negligence but does not
cause injury. In Dickson vs Reuter's Telegram Co 1877, the defendant company delivered a telegram that was not
meant for the plaintiff to the plaintiff. Based on the telegram, the plaintiff supplied some order which was not accepted
by the sender of the telegram. Plaintiff suffered heavy losses and sued the defendant company. It was held that the
company owed a contractual duty only to the sender of the telegram and not to the receiver. Hence they were not
liable.

Harm due to malice - If a person has not caused an injury even if he does an act with malice, he is not
liable. In Bradford Corporation (mayor of) vs Pickles 1895, the defendants sunk a shaft in their own land which
caused the water to become discoloured and unsuitable for the plaintiff. It was held that even if the defendant did it
with malice, he had not violated any right of the plaintiff and hence was not liable.

4. Legal Remedy - Historically, a person whose legal right was violated was allowed to sue only upon a permission
from the King. There were only certain predefined torts for which the king's permission could be obtained. Thus, it
was necessary to have legal remedy for that particular violation before an action for damages could be started.
However, now, such a requirement is not there. It has been accepted that there can be many kinds of torts and if a
violation of a legal right has happened, the person is enttitled to sue.

Kinds of Torts
As mentioned before there can be innumerable type of acts that violate the legal right of others. The law of tort is
therefore ever evolving. New ways in which the rights are violated come to light everyday. However, they can be
classified on the basis of way of incurrment of liability into the following three categories -

1. Intentional - Wrongful acts that are done intentionally, irrespective of with or without malice, belong to this
category. For example, torts such as assault, battery, trespass to land, false imprisonment are intentional
torts.
2. Negligent Conduct - Wrongful acts that are done without any intention but because of not taking proper care
that is required by law fall into this category.
3. Strict Liability - Acts that are neither done intentionally nor do involve any negligence, but still cause an injury
to other are liable under the concept of strict liability as propounded in Rylands vs Fletcher. In strict liability
cases, the defendant is liable even if it acted reasonably. There are 3 types of strict liability cases:
1- keeping wild animals
2- dangerous, legal activities such as blasting roads
3- the manufacture of products (products liability)

Torts can also be classified according to the type of damage -

1. Physical Torts - Causing physical hurt to body such as assault, battery. It can happen with intention or even
with negligence.
2. Abstract Torts - Causing damage to mind or reputation such as defamation.
3. Tort involving property - For example, Trespass to land.
4. Tort involving legal right - For example, false imprisonment.
5. Nuisance - Causing unreasonable restriction towards exercise of one's legal right.

Discharges of Tort
Law Academy for CIVIL JUDGES and LL.B Exams
Mohsin Ehsan Advocate High Court (Pakistan) LL.B, LL.M (P.U) 0333-4854801 & 0314-4229144
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Prelude:
Discharge of Tort means extinction of liability in Tort. There are seven important modes amongst many in which a tort
can be discharged which mean the remedy ceases to operate.
In other words discharge of tort also means that though there is a vested right of action for a tort, yet such a right of a
action may be discharged by the following ways:
1. The death of the parties.
2. Waiver and compromise.
3. Accord and satisfaction
4. Release
5. Acquiescence
6. Judgment recovered
7. Statutory of limitation.

1- The death of the Parties:


This head falls into two natural parts i.e. death of plaintiff, death of defendant. There is a maxim
Actio personalis morutur cum persona
Which means a personal right of action dies with hat person.
Example:
If an injury is done either to the person or property of another, for which damages can only be recovered in
satisfaction and if such person dies then satisfaction is impossible and here right of action will die with the death of
such person.
Exceptions: - In English law there are some cases in which right of action does survive to the hares of deceased party
(legal representative).
The law reform Act 1914:-
Since the passing of this Act the above mention maxim no longer holds good. Under this act on the death the right of
action survive to the hairs expect action for (i) Defamation (ii) Seduction (iii) Claim for damages for adultery.
The Fatal Accidents Act 1846:
Under this Act a widow of children can proceed on behalf of their husbands or fathers in court of law.
The workmens compensation Act 1923:
By this Act the defendant of a workman can claim for compensation.

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Mohsin Ehsan Advocate High Court LL.B, LL.M (P.U) 0333-4854801 & 0314-4229144
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2- Waiver:
The second thing which will discharge a tort is waiver. It means that if a man has more than one remedies for the
same wrong and he elects to pursue one of them. Ten the other remedies are said to have been waived by him.
Example: If the injured person has two remedies, one is remedy in tort and the other is breach of contract and he
selects the remedy of breach of contract then the cause of action in tort is waived.
3- Accord and Satisfaction:
The third ground for discharge in tort is known as Accord and Satisfaction which means mutual agreements to pay
or to do something in satisfaction of the parties and satisfaction means the actual payment of sum.
When such an agreement is executed and satisfaction has been made the arrangement is called Accord and
Satisfaction and the right of action for tort is discharged.
4- Release:
A release means the surrender of a right of action against a wrong-door. It is open to an injured party to release the
wrong-door from liability to compensation, voluntarily at any time.
5- Acquiesce:
Where, a person who knows, that he is entitled to enforce a right, neglects to do so, for a length of time then the other
party may request the court that he has waived his right of action. There is also a maxim in law which is
Law does not help those who sleep over their rights.

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Mohsin Ehsan Advocate High Court LL.B, LL.M (P.U) 0333-4854801 & 0314-4229144

6- Judgment Recovered:
The principle of Res Judicata prevents a court from hearing the same matter which has been decided by a
competent court in a previous suit. This is based on a maxim.
More than one actions will not lie on the same case of action.
Case Law:
Brunsden vs Humphry (1881)
Fact: The plaintiff, a cab driver in a suit has already recovered compensation for damage done to his cab by an
accident with defendants car, he again filed a second suit of personal discomfort on the same cause of action.
Held:
Damage to property or damage to person are two different rights hence second suit is maintainable.
7- Statutory Limitation
Action for tort must be brought within the statutory limitation otherwise the right to sue is barred according to limitation
act.
Conclusion:
From the above discussion one can easily conclude that, though to file a civil suit for the remedy in tort is a matter of
right, yet there are certain conditions which bars this right and discharge the right of action.
Q.3 What do you mean by defamation?Bring out the differences between Libel and Slander ?

Ans. Defamation consists in injury to the reputation of a person if a man injures the reputation of another, he does so
at his own risk. English law divides actions for defamation into Libel and Slander. Libel is a representation made in
some permanent form, as writing printing, picture, effigy or Statute. In Yousoupoff v. M.G.M. Pictures Ltd. it was
decided that in a Cinema film, not only the photographic part is considered to be a libel but also the speech which
Synchronises with it is also a libel. Defamation is defined by the Eminent jurists as under SALMOND Defamation
is the publication of false and defamatory statement regarding another without any justification. DR.WINFIELD -
Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking
members of Society generally or which tends to make them shun or avoid that person. KINDS OF DEFANATION
Defamation is a generic term containing is two form i.e. (1) Libel (2) Slander Essentials of Defamation THE
STATEMENT MUST BE DEFAMATORY Defamatory statement is one which tends to injure the reputation of the
plaintiff. Whether a statement is defamatory or not depends upon how the right thinking members of the society are
likely to take it. If the likely effect of the statement is the injury to the plaintiff?s reputation, it is no defence to say that
it was not intended to be defamatory. THE STATEMENT MUST REFER TO THE PLAINTIFF If the statement is
taken to be referring to the plaintiff, the defendant will be liable and it will be no defence that the defendant did not
intend to defame the plaintiff. Some Cases Hulton and Co. v. Jones (1910) Newstead v. London Express
Newspapers Ltd. (1939) The Statement must be PUBLISHED Publication means making the defamatory matter
known to some person other than the person defamed. Communication to the plaintiff himself is not enough because
defamation is injury to the reputation and reputation consists in the estimation in which others hold him and not a
man?s own opinion of himself. If a defamatory letter sent to the plaintiff is likely to be read by somebody else, there is
publication. Some Cases THEAKER V. RICHARDON P.RAVINDRAN V.P.L.Amma, AIR 2001 Mad 225

Difference between Libel and Slander


Libel
Slander
Libel is the defamation in a written permanent form, normally addressed to the eye. In case of Libel, there exists
malice and greater deliberation In India as well as in England libel is both a tort and crime In case of libel, the actual
publisher may be an innocent person and thus, may not be liable. Libel is the defamation in a permanent form,
whether exhibited to the eye as in the case of Statue, effigy, caricature and the like or only to the car, as the case of a
photographic record.
Slander is the defamation is an oral or transient form addressed to the ear : e.g.-defamation through parrot. Slander
may be uttered in the heat of the moment and under sudden provocation. In India, Slander is also both a tort and
crime but a England slander is a Civil Wrong only. In case of Slander, the publisher acts consciously and voluntarily
and must always be liable. Slander is the defamation in a transient form, whether audible, as in spoken words, or
visible, as in the case of gesture.

Q.4 Define Negligence and write its essential elements with the help of important cases?

Ans. Negligence - In everyday usage, the word negligence denotes mere carelessness. Secondly, in legal usage it
signifies failure to exercise the standard of care which the does as a reasonable man should, by law, have exercised
in the circumstances : if there is no legal duty to take care, lack of care has no legal consequences. In general, there
is a legal duty to take care where it was or should have been reasonably foreseeable that failure to do so was likely to
cause injury. Negligence is, accordingly, a made in which many kinds of harms may be caused by not taking such
adequate precautions as should have been taken in the
circumstances to avoid or prevent that harm, as contrasted with causing such harm intentionally or deliberately. The
various jurists defined negligence as under - Dr. Winfield, Negligence as a tort is the breach of a legal duty to take
care which results in damage undesired by the defendant to the plaintiff. 2. B.S.Sinha Negligence as a tort is the
breach of a legal duty to take care According to circumstances which results in damages undesired by the defendant
to the plaintiff. In an action for negligence, the plaintiff has to prove the following essentials. The defendant owed a
duty of care to the plaintiff : The defendant made a breach of that duty : and The plaintiff suffered damage as a
consequence thereof. Duty of Care to the plaintiff It means a legal duty rather than a mere moral, religious or social
duty. It is not sufficient to show that the defendant was careless, the plaintiff has to establish that the defendant owed
to the plaintiff a specific legal duty to take care. In Donoghue v. Stevenson A purchased a bottle of ginger bees,
from a retailer for the appellant, a lady-friend some of the contents were poured into a tumbler and she consumed the
same. When the remaining contents of the bottle were poured into her tumbler, the decomposed body of snail.
Floated out with the ginger-beer. The appellant alleged that she seriously suffered in her health in consequence of
her having drunk part of the contaminated contents. The bottle was said to have been of a dark coloured glass and
closed with a metal cap so that the condition of its contents could not be ascertained by inspection. She brought an
action against the manufacturer for damage. It was held by the house of Lords that the manufacturer owed her a duty
to take care that the bottle did not contain noxious matter, and that he would be liable on the breach of duty. The
house of Lords also held that even though there was no contractual relationship between the manufacturer and the
consumer, the consumer could bring an action and this case thus has done away with privity of contract fallacy.
Some other cases 1. Ishwar Devi v. Union of India 2.Rural Transport Service V.Bezlum Bibi 3. Sushma Mitra v.
M.P.S.R.T. Corp. Breach of duty Breach of duty means not taking due care which is required in a particular case.
The standard of care demanded is that of a reasonable or a prudent man. If the defendant acted like a reasonable
prudent man, there is no negligence. The laws requires taking of three points into consideration to determine the
standard of care required. The importance of the object to be attained The law does not require greatest possible
care but the care required is that of a reasonable man under certain circumstances. The law permits taking chance of
some measure of risk so that in public interest various kinds of activities should go on. The Magnitude of the risk
The degree of care varies according to the likelihood of harm and seriousness of injury. A person handling a loaded
gun is expected to take more care than a person an ordinary stick. When there is some apparent risk due to
abnormal conditions, necessary care must be taken to prevent the harm. In Nirmala v.T.N.Electricity Board a high
tension electric wire snapped and resulted in the death of a person due to electrocution, the defendants, who were
maintaining the said wire, were held liable. The fact that the wire snapped and also that it did not become deed after
snapping proved that the wire was not being maintained properly. Some other case Bhagwat Sarup v. Himaliya Gas
Co. Glass gow Corporation v.Taylor Smt. Shivkor v. Ram Naresh.
The amount of consideration for which services etc are offered The degree of care depends on the kind of services
offered and the consideration charged therefore from the plaintiff, Seller of bottled mineralwater, who charges higher
price than a road side seller of a glass of water, is supposed to take more care as higher standard of purity is
expected from him. A luxury hospital has to offer higher degree of care to its patients than a hospital admitting a
patient in the general ward. Refer Klaus Mittelbachert v. East India Hotels Ltd. (1997) 3) Damage It is also
necessary that the defendant?s breach of duty...

Q. What are the torts relating to the absolute liability? What are its kinds? What is
Ryland vs Fletcher rule? What are its exceptions? Is this rule applied in India in
present circumstances? If not, why?
In certain situations, a person is held liable for the damages caused by his actions even when the actions are done
without any ill intention or negligence on account of equity and justice. For example, if a person keeps a lion for a pet
and despite of all the precautions the lion escapes the cage and kills someone. In this case, the owner of the lion will
be liable even though he had no ill intention to cause death and had taken all the precautions to keep the lion in the
cage. This seems just because the damage happened only because he brought a dangerous thing on his property.
He was also aware of the consequences if the lion escapes the cage and so he should be made liable if it escapes
and causes damage.

This principle of holding a person liable for his actions without any kind of wrong doing on his part is called the
principle of absolute liability or no fault liability. This principle was first upheld in the case of Ryland vs Fletcher by
the privy council in 1868. However, later on some exceptions to this were also established due to which "strict
liability" is considered a more appropriate name for this principle. In this case, the defendant hired contractors to
build a reservoir over his land for providing water to his mill. While digging, the contractors failed to observe some old
disused shafts under the site of the reservoir that lead to plaintiff's mine on the adjoining land. When water was filled
in the reservoir, the water flooded the mine through the shafts. The plaintiff sued the defendant. The defendant
pleaded that there was no intention and since he did not know about the shafts, he was not negligent even though the
contractors were. Even so, he was held liable. J Blackburn observed that when a person, for his own purposes,
brings to his property anything that is likely to cause a mischief if it escapes, must keep it at his peril and if it escapes
and causes damage, he must be held liable. He can take the defence that the thing escaped due to an act of the
plaintiff or due to vis major (act of God) but since nothing of that sort happened here, then it is unnecessary to inquire
what excuse would be sufficient.
To this rule promulgated by J Blackburn, another requirement was added by the Court of Exchequer Chamber, that
the use must be a non-natural use of land as was the case in Ryland vs Fletcher itself. For example, growing of
regular trees is a natural use but growing poisonous trees is not. Keeping dogs as pet is a natural use but keeping
wild beasts is not. Thus, the conditions when this rule will apply are -

1. The thing kept must be dangerous - The thing kept on the land must be as such as is likely to cause
mischief if it escapes. For example, storing gas or explosives or wild beasts are all likely to cause damage if
they escape.
2. The thing must escape - If the thing is within the boundary of the defendant's land, he is not liable. The
thing must escape out of his land for him to be liable. In Crowhurst vs Amersham Burial Board 1878,
branches of a poisonous tree were hanging outside the land of the defendant. Plaintiff's cattle ate them and
died. Defendant was held liable because protrusion of branches out side his property were considered as
escaping from his property. However, in Ponting vs Noakes 1994, when the plaintiff's horse intruded over
his boundary and ate poisonous leaves of the defendant's tree, he was not held liable because there was no
escape.
3. The thing must be a non natural use of land - The use must not be an ordinary use of the land. There
must be a special purpose because of which it brings additional danger to other. In Noble vs Harrison
1926, a branch of a tree growing on defendant's land broke and fell on plaintiff's vehicle. It was held that
growing regular trees is not a non natural use of land and the branch fell because of an inherent problem
and not because of any negligence of the defendant and so he was not liable.

As mentioned before the following are exceptions or defenses against this rule -

1. Plaintiff's own default - If the thing escapes due to plaintiff's fault the defendant cannot be held liable.
In Eastern and South African Telegraph Co. Ltd. v Capetown Tramway Co 1902. the plaintiff's
submarine cable transmissions were disturbed by escape of electric current from defendant's tramway. It
was held that since the current was not causing any problem to regular users and it was causing problem to
the cables only because they were too sensitive and so the defendant cannot be held liable. One cannot
increase his neighbor's liabilities by putting his land to special uses.
2. Act of God - In circumstances where no human has control over, no one can be held liable. In Nichols vs
Marsland 1876, the defendant created artificial lakes to store rainwater. In that particular year, there were
exceptionally heavy rains, which caused the embankments to break causing floods, which broke defendant's
bridges. It was held that since there was no negligence on the part of the defendant and the flood happened
only because of rains so heavy that nobody could imagine, the defendant was not liable.
3. Consent of the plaintiff - If the plaintiff has consented for the accumulation of the dangerous thing, he
cannot hold the defendant liable. This is also the case when an activity is done for mutual benefit. For
example, A lives on the ground floor and the defendant lives on the floor above A's. Now, a water tank is
built by the defendant to supply water for both of them. The defendant will not be held liable for leakage of
water fro m the tank.
4. Act of third party - When a third party, who is not an employee or a servant or a contractor of the defendant
is responsible for causing the dangerous thing to escape, the defendant will not be held liable for the
damage. In Box vs Jubb 1879, the overflow from the defendant's reservoir was caused by the blocking of a
drain by some strangers. The defendant was held not liable. However, if such act can be foreseen, this
defence cannot be pleaded because the defendant must take precautions to prevent such an act. In M.P.
Electricity Board vs Shail Kumar AIR 2002, a person was killed by a live electric wire lying on the road.
SC applied the rule of strict liability and held that the defence of act of stranger is not applicable because
snapping of wire can be anticipated and the Electricity Board should have cut off the current as soon as the
wire snapped.
5. Statutory Authority - When an act is approved by the legislature or is done on the direction of the
legislature, it is a valid defence for an action of tort even when the rules of Ryland vs Fletcher apply.
However, it is not application when there is negligence.

Position in India
The principle of strict liability is applicable in India as well. For example, Motor Vehicles Act 1938, recognizes no fault
liability. Similarly, the liability of a public carrier such as railways has also been increased from that of a bailee to an
insurer. However, there has been a deviation in the scope of this rule. Depending on the situation, its scope has been
increased as well as decreased by the courts. For example, in Madras Railway Co. vs Zamindar 1974, the water
collected in a pond for agricultural purposes escaped and caused damage to the railway track and bridges. Here,
the application of this rule was restricted because the collection of water in such a way is a necessity in Indian
conditions and so it is a natural use of the land. This mechanism to store rainwater is used throughout the country
and since ages. Therefore, the defendant was not held liable.

A landmark case in this respect was the case of M C Mehta vs Union of India AIR 1987. In this case, oleum gas
from a fertilizer plant of Shriram Foods and Fertilizers leaked and caused damage to several people and even killed
one advocate. In this case, the rule of Ryland vs Fletcher was applied. However, the company pleaded sabotage as a
defence. SC went one step further and promulgated the rule of Absolute Liability. It observed that the rule of Ryland
vs Fletcher was a century old and was not sufficient to decide cases as science has advanced a lot in these year. If
British laws haven't progressed, Indian courts are not bound to follow their law and can evolve the laws as per the
requirements of the society. It held that an enterprise that engages in dangerous substances has an absolute
responsibility to ensure the safety of the common public. It is only the company that can know the consequences of
its activities and so it must take all the steps to prevent any accident. If, even after all precautions, accident happens,
the company still should be made absolutely liable for the damages. The reason being that the company has a social
obligation to compensate the people who suffered from its activity. SC also laid down that the measure of
compensation should depend on the magnitude and capacity of the enterprise so that it can have a deterrent effect.

Q. How can liability in Torts be discharged?


The following are the modes through which liability in Torts can be discharged -

1. Death of a party - "Actio personalis maritur cum persona" means Personal actions of a person die with the
person. But not always. In several cases, the cause of action remains valid even after death of wrongdoer.
For example, Workers' Compensation Act, Fatal Accidents Act, etc.
2. Acquiescence - If the party whose right is being violated does not protest and allows the transgression to
happen without any restriction.
3. Waiver - If the plaintiff starts proceedings for one remedy for example, Civil suit, he cannot file another suit
under another remedy such as Tortios Suit for the same cause.
4. Release - If the plaintiff voluntarily releases the wrongdoer from liability. In England, consideration is must.
In India, no consideration is required.
5. Accord and Satisfaction - If the parties compromise and settle the dispute.
6. Judgement Recovered - "res judicata" - upon the damages awarded by the court.
7. Statute of limitation - Suit must be filed within the time frame provided by statutes of limitations.

Q. Explain various Judicial remedies that are available to a plaintiff in an action of tort. Are there
any extra judicial remedies too? If so, enumerate them. What are the general types of damages
available in cases of Torts? Explain with examples. What is the doctrine of remoteness of
damages? Discuss law on this point.

Judicial Remedies -

1. Damages - It is the most important remedy of all.


1. Nominal Damages - In cases of Injuria Sine Damnum (Ashby vs White)
2. Contemtuous Damages - When plaintiff has suffered a wrong but does not deserve compensation.
For example, if the reason for battery was plaintiff's offensive remarks, judge may think that the
plaintiff does not deserve compensation.
3. Compensatory, Aggravated, and Exemplary Damages
4. Prospective Damages - Compensation for damages that haven't yet happened but are likely
happen because of defendant's tortious action.
2. Injunctions - An injunction is an order of the court directing the doing of some act or restraining the
commission or continuance of some act. The court has the discretion to grant or refuse this remedy and
when remedy by way of damages is a sufficient relief, injunction may not be granted. It includes temporary
and permanent injunction.
3. Specific restitution of Property

Extra Judicial Remedies


Besides going to the court for justice, a person, in certain situations, can also have recourse to remedies without
going to any court. Such remedies are called extra judicial remedies and are availed by a person by his own strength
as self-help. These are -

1. Removal of trespasser - A person is entitled to remove the trespasser by force.


2. Recaption of chattels (personal belongings) - A person is entitled to take possession of his goods by
force.
3. Abatement of nuisance - An occupier of a land is permitted to abate any nuisance that is affecting his land.
4. Distress Damage feasant - A person has the right to seize goods or cattle that has strayed on his land until
compensation is paid.
Remoteness of Damage
The law allows only those losses which are not too 'remote'. There are two main tests of remoteness which are
applied in tort, namely direct consequences and reasonably foreseeable consequences.

Direct Consequence - Provided some damage is foreseeable, liability lies for all the natural and direct
consequences flowing from the breach of duty. In Re Polemis [1921] 3 KB 560 (CA), stevedores, who were servants
of the defendant, negligently let fall a plank into a ships hold containing petrol in metal containers. The impact of the
plank as it hit the floor of the hold caused a spark, and petrol vapour was ignited. The ship was destroyed. Arbitrators
found that the spark could not have been reasonably foreseen, though some damage was foreseeable from the
impact. The defendant was found liable because the claimants loss was a direct, though not reasonably foreseeable,
result.

Reasonable Foreseeability - In The Wagon Mound (No. 1) [1961] AC 388, the defendant carelessly discharged oil
from a ship in Sydney Harbour, and the oil floated on the surface of the water towards the claimants
wharf. The claimants servants, who were welding on the wharf, continued their work after being advised (non-
negligently) that it was safe to do so. Sparks from the welding equipment first of all ignited cotton waste mixed up in
the oil; then the oil itself caught fire. The claimant sued for destruction of the wharf by fire. The defendant was found
not liable in negligence, because it was not reasonably foreseeable that the oil might ignite on water in these
circumstances. Damage by fouling was foreseeable; damage by fire (the case here) was not foreseeable. The Privy
Council said that in the tort of negligence Re Polemiswas no longer good law, and liability
would lie only for foreseeable damage of the kind or type in fact suffered by the claimant.

Q. Describe general exceptions regarding Torts that are not actionable / General Defences for
Torts.

Even when a plaintiff provides proof for the existance of all the essential elements of a tort, it is possible in some
cases for the defendant to take certain defences which can remove his liability, These defences are nothing but
specific situations or circumstances in which a defendant is given a waiver for his tortious action. These are as
follows -

1. Volenti Non fit Injuria


When a person consents for infliction of an harm upon himself, he has no remedy for that in Tort. That means, if a
person has consented to do something or has given permission to another to do certain thing, and if he is injured
because of that, he cannot claim damages. For example, A purchases tickets for a Car race and while watching the
race, an collision of cars happens and the person is injured. Here, by agreeing to watching the race, which is a risky
sport,it is assumed that he voluntarily took on the risk of being hurt in an accident. Thus, he cannot claim
compensation for the injury.
Such a consent may be implied or express. For example, a person practicing the sport of Fencing with another,
impliedly consents to the injury that might happen while playing.

In Woolridge vs Sumner 1963, the plaintiff a photographer was taking photographs at a horse show, during which
one horse rounded the bend too fast. As the horse galloped furiously, the plaintiff was frightened and he fell in the
course. He was seriously injured. It was held that the defendants had taken proper care in closing the course and the
plaintiff, by being in the show, agreed to take the risk of such an accident. The defendants were not held liable.

However, the action causing harm must not go beyond the limit of what has been consented. For example, in a sport
of fencing, a person consents to an injruy that happens while playing by the rules. If he is injured due to an action that
violates the rules, he can claim compensation because he never consented to an injury while playing without rules.
In Laxmi Rajan vs Malar Hospital 1998, a woman consented for a surgery to remove a lump from her breast. But
the hospital removed her uterus as well without any genuine reason. It was held that removing of her uterus exceed
beyond what she had consented for.

Also, the consent must be free. It must not be because of any compulsion. Thus, if a servant was compelled by the
master to do a certain task despite his protests, and if he is injured while doing it, the master cannot take the defence
of volenti non fit injuria because the consent was not free.
Exceptions - In the following conditions, this defence cannot be taken even if the plaintiff has consented -

1. Rescue Conditions - When the plaintiff sufferes injury while saving someone. For example, A's horse is
out of control and is galloping towards a busy street. B realizes that if the horse reaches the street it will hurt
many people and so he bravely goes and control's the horse. He is injured in doing so and sue's A. Here A
cannot take the defence that B did that act upon his own consent. It is considered as a just action in public
interest and the society should reward it instead of preventing him from getting compensation.
2. Unfair Contract Terms - Where the terms of a contract are unfair, the defendant cannot take this defence.
For example, even if a laundry, by contract, absolves itself of all liability for damage to clothes, a person can
claim compensation because the contract is unfair to the consumers.

2. Plaintiff the wrongdoer


A person cannot take advantage of his own wrong. This principle has been in use since a long time as it is just and
equitable. For example, a person trespassing one another's property is injured due to darkness. He cannot claim
compensation because he was injured due to an action which was wrong on his part. However, this defence exists
only if the injury happens because of a wrongful act of the plaintiff. It does not exist if the injury happens because of a
wrongful act of the defendant even if the plaintiff was doing a wrongful but unrelated act. For example, in Bird vs
Holbrook 1828, the plaintiff was trespassing on the defendant's property and he was hurt due to a springgun. The
defendant had put spring guns without any notice and was thus held liable.

3. Inevitable Accident
Accident means an unexpected occurance of something that could not have been predicted or prevented. In such a
case, the defendants will not be liable if they had no intention to cause it and if the plaintiff is injured because of it. For
example, in Stanley vs Powell 1891, the plaintiff and the defendant were members of a shooting party. The
defendant shot a bird but the bulled ricocheted off a tree and hit the plaintiff. The defendant was not held liable
because it was an accident and the defendant did not intent it and could neither have prevented it.

However, the defence of Inevitable Accident is not a license to negligence. For example, A has hired B's car. While
driving, one of the tires bursts and causes accident injuring A. Here, if the tires were worn out and were in bad
condition, it would be negligence of B and he would be held liable for A's injuries.

4. Act of God
An act of God in a legal sense is an extraordinary occurance of circumstance which could not have been predicted or
prevented and happens because of natural causes. Nobody can predict, prevent, or protect from a natural disaster
such an an earthquake or flood. Thus, it is unreasonable to expect a person to be liable for damages caused by such
acts of God. There are two essential condtions for this defence - the event must be due to a natural cause and it must
be extraordinary or some thing that could not have been anticipated or expected. For example, heavy rains in the
monsoon are expected and if a wall falls and injures someone, it cannot be termed an act of god because protection
for such expected conditions should have been taken. But if a building falls due to a massive earhquake and injures
and kills people, this defence can be used.
In Ramalinga Nadar vs Narayan Reddiar AIR 1971, it was held that criminal activities of an unruly mob is not an act
of God.

5. Private Defence
As per section 96 of IPC, nothing is an offence that is done in exercise of the right of private defence. Thus, law
permits the use of reasonable and necessary force in preventing harm to human body or property and injuries caused
by the use of such force are not actionable. However, the force must be reasonable and not excessive. In Bird vs
Hollbrook 1892, the defendant used spring guns in his property without notice. It was held that he used excessive
force and so was liable for plaintiff's injury even though the plaintiff was trespassing on his property.

6. Mistake
Generally, mistake is not a valid defence against an action of tort. Thus, hurting a person under the mistaken belief
that he is trespassing on your property, will not be defensible. However, in certain cases, it could be a valid defence.
For example, in the case of malicious prosecution, it is necessary to prove that the defendant acted maliciously and
without a reasonable cause. If the prosecution was done only by mistake, it is not actionable.
Further, honest belief in the truth of a statement is a defence against an action for deceit.

7. Necessity
If the act causing damage is done to prevent a greater harm, it is excusable. For example, a Ship ran over a small
boat hurting 2 people in order to prevent collision with another ship which would have hurt hundreds of people is
excusable. Thus, in Leigh vs Gladstone 1909, force feeding of a hunger striking prisoner to save her was held to be
a good defence to an action for battery.

8. Statutory Authority
An act that is approved by the legislature or is done upon the direction of the legislature is excused from tortious
liability even though in a normal circumstances, it would have been a tort. When an act is done under the authority of
an Act, it is a complete defence and the injured party has no remedy except that is prescribed by the statute.
In Vaughan vs Taff Valde Rail Co 1860, sparks from an engine caused fire in appellant's woods that existed in his
land adjoining the railway track. It was held that since the company was authorized to run the railway and since the
company had taken proper care in running the railway, it was not liable for the damage.

Consumer Protection

Q. What are the aims and objects of the CPA, 1986? Describe the constitution, functions and the procedure
of District Forum under the CPA. What are the provisions of appeal under the CPA and before which
authority an appeal lies against an order of an agency? Explain the composition, jurisdiction, and powers of
State Consumer Forum (State Consumer Redressal Commission) under CPA. Define and discuss the
word"consumer" and "service" under CPA. Illustrate with cases.

Making money quickly is a very tempting proposition. Businesses, companies, shopkeepers, retailers, and sellers are
all interested in maximizing their profits. In doing so, very often they neglect the best interests of the buyer. Many
times, a buy gets a defective product, or a product that fails to perform as promised. Besides losing money put in
purchasing a product, some times, due to defects in the product, the buyer is injured as well. In all such cases, there
is a violation of a legal right of the buyer and he is entitled to sue the seller. Before enactment of the Consumer
Protection Act, 1986, filing a civil suit for damages was the only option available to an aggrieved buyer. However,
such a suit is very expensive and time consuming, because of which, buyers were not able to use this mechanism for
relatively smaller amounts. This gave a field day to the traders because making substandard products or not
delivering on promises was a cheap option to make quick money, after all, very few buyers would go to court. A
common man was completely helpless because of no control and penalty over unscrupulous sellers.

In this background, the CPA 1986 gave power in the hands of the buyer by allowing an easier and cheaper way to
redress their grievances, thereby holding the sellers accountable for their actions more often. It provides redress to a
consumer when the purchased product is defective or when there is a deficiency in service. The following are aims
and objectives of this act -

1. The most important objective of this act is to provide a fast and cheap way for consumers to hold the sellers
accountable for their products or services.
2. Justice to consumers.
3. Protection of consumers from fraudsters or companies selling substandard products and services.
4. Penalty to sellers for substandard product or service.
5. Check on sellers and service providers.
Besides the above objectives, Section 6 of CPA 1986 also provides certain rights as objectives to the consumers.
These are -

1. Right to be protected against goods that are hazardous or dangerous to life and property.
2. Right to be informed about the quality, quantity, potency, purity, standard and price or a product and service.
3. Right to competitive pricing.
4. Right to be heard and to be assured that consumer interest will receive due consideration at appropriate
forum.
5. Right to redressal against unfair trade practices and exploitation of consumers.
6. Right to consumer education.

It is a complete code in the sense that it provides complete details of the constitution and jurisdiction of the
commission and procedure for filing the complaint and appealing the decision. It does not depend on CPC and the
cases can be finalized completely under this act. In fact, as held in Ansal Properties vs Chandra Bhan Kohli 1991,
Consumer Disputes Redressal Agencies provide complete machinery for justice including a final appeal to the
Supreme Court and so are outside the scope of High Courts and HCs can't entertain writ petitions against their
judgments.

Under Section 9 of this act, three agencies are established to hear consumer complaints -

1. A Consumer Disputes Redressal Forum in each district (For amounts up to 20 Lakhs)


2. A Consumer Disputes Redressal Commission in each state. (For amounts from 20 Lakhs to 1 Cr)
3. A National Consumer Disputes Redressal Commission in the center. (For amounts above 1 cr)

District Forum
Composition (Section 10)
1. Each District Forum shall consist of -

a. A person who is, or who has been or is qualified to be, a District Judge, who shall be its President
b. two other members, one of whom shall be a woman, who shall have the following qualifications, namely -
1. be not less than thirty-five years of age,
2. posses a bachelor's degree from a recognized university,
3. be persons of ability, integrity and standing,
4. and have adequate knowledge and experience of at least ten years in dealing with problems
relating to economics, law, commerce, accountancy, industry, public affairs, or administration

1-A. Every appointment under sub-section (1) shall be made by the State Government on the recommendation of
selection Committee consisting of the following namely:

1. The President of the State Commission - Chairman,


2. Secretary, Law Department of the State - Member,
3. Secretary, in charge, of the Department dealing with Consumer affairs in the State - Member.

2. Every member of the District Forum shall hold office for a term of five years or up to the age of sixty-five years/
whichever is earlier:

3. The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the
members of the District Forum shall be such as may be prescribed by the State Government.
Jurisdiction (Section 11)

1. Pecuniary Jurisdiction - Subject to other provisions of this Act, the District Forum shall have jurisdiction to
entertain complaints where the value of the goods or services and the Compensation if any, claimed does
not exceed rupees twenty lakhs.
2. Territorial Jurisdiction - A complaint shall be instituted in a District Forum within the local limits of whose
jurisdiction, -
1. The opposite party or each of the opposite parties, where there are more than one, at the time of
the institution of the complaint, actually and voluntarily resides or carries on business or has a
branch office, or] personally works for gain or
2. Any of the opposite parties where there are more then one, at the time of the institution of the
complaint, actually and voluntarily resides, or carries on business or has a branch office, or
personally works for gain, provided that in such case either the permission of the District Forum is
given, or the opposite parties who do not reside, or carry on business or have a branch office, or
personally works for gain, as the case may be, acquiesce in such institution; or
3. The cause of action, wholly or in part arises.

For a complaint to lie in a district forum, at least a part of the transaction of the actual business must have occurred in
that district. In National Insurance Co vs Sonic Surgical 2003, a fire accident took place in Ambala and a part of
the claim was partly processed in Chandigarh. It was held that merely processing of claim in one place does not form
a ground to file a case in that district.

Functioning of a District Forum


Who can file a complaint (Section 12)
The following can file a complaint -

1. The consumer to whom the goods or services have been sold or are agreed to be sold.
2. Any recognized consumer association even if the consumer is not a member of the association. Recognized
means any voluntary association registered under Companies Act 1956 or any other law for the time being
in force.
3. One or more consumers, where there are numerous consumers all having same interest, with the
permission of district forum.
4. The state or central government.

The complaint must be accompanied with such amount of fee and payable in such manner as may be prescribed.
The forum may accept or reject the complaint. The complainant must be given an opportunity to be heard before
rejection. The acceptance or rejection will be decided in 21 days.

Procedure on admission of complaint (Section 13)


Upon acceptance of the complaint, the forum will send a copy to the opposite party within 21 days, who has to
respond with his version of the complaint within 30 days (extendable by 15 days). Upon receipt of the response, the
forum will give its decision. If no response is received, the forum will give and ex parte decision. An effort will be
made by the forum to make a decision within 3 months of date of receipt of notice by the opposite party where no
goods testing needs to be done or within 5 months otherwise.

Powers (Findings) of District Forum (Section 14)


If, after conducting the procedure in Section 13, the forum finds that there was a defect in the product or a deficiency
in service or that any of the allegations in the complaint are true, it can ask the opposite party to do any of the
following -

1. to remove the defect pointed out by an appropriate laboratory from the goods in questions.
2. to replace the goods with new goods of similar description which shall be free from any defect.
3. to return to the complainant the price or as the case may be, the charges paid by the complainant.
4. to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury
suffered by the consumer due to the negligence of the opposite party.
5. to discontinue the unfair trade practice or restrictive trade practice or not to repeat it.
6. not to offer the hazardous product for sale.
7. to cease manufacture of hazardous goods and to desist from offering services that are hazardous.
8. when injury has been suffered by may customer who are not easily identifiable, the opposite party may be
required to pay such sum as the forum deems fit.
9. to issue any corrective advertisement to neutralize the effect of any misleading advertisement.
10. to provide adequate costs to parties.

The District Forum also has the power to grant punitive damages in such circumstances as it deems fit.
The forum must take into account all the evidence and the documents produced by the parties and the order of the
forum should be a speaking order, which means that it should detail the reasons behind the order. In K S Sidhu vs
Senior Executive Engineer 2001, the complaint was dismissed by the District Forum by a non speaking order. It did
not discuss the evidence or the documents submitted before it and thus it was held that the order was unjust and fit to
be set aside.

Provisions for Appeal (Section 15)


From District Forum to State Commission (Section 15)
Any person aggrieved by an order by the District Forum may prefer an appeal against such order to the State
Commission within a period of 30 days from the date of the order. The state commission may entertain an appeal
after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it with in that
period. With the appeal, the appellant must deposit 50% of the amount that he is required to pay or 25000/-
(whichever is less).

From State Commission to National Commission (Section 19)


Any person aggrieved by an order by the State Commission may prefer an appeal against such order to the National
Commission within a period of 30 days from the date of the order. The commission may entertain an appeal after the
expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing it with in that period.
With the appeal, the appellant must deposit 50% of the amount that he is required to pay or 35000/- (whichever is
less).

As per section 19-A, appeal to the State Commission or the National Commission shall be heard as expeditiously as
possible and an effort shall be made to dispose off the appeal within a period of 90 days from the date of admission.
If the appeal is disposed of after this time, the commission shall state the reasons for the delay.

From National Commission to Supreme Court(Section 23)


Any person aggrieved by an order made by the National Commission in exercise of its power conferred by sub-clause
(i) of clause (a) of section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty
days from the date of the order. Provided that the Supreme Court may entertain an appeal after the expiry of the said
period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period. Provided Further
that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall
be entertained by the Supreme Court unless that person had deposited in the prescribed manner fifty per cent. of that
amount or rupees fifty thousand, whichever is less.]

State Commission
Composition (Section 16)
1. Each State Commission shall consist of -
a. a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its
President :
Provided that no appointment under this clause shall be made except after consultation with the Chief
Justice of the High Court;
b. two other members, who shall be persons of ability, integrity and standing and have adequate knowledge or
experience of, or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy,
industry, public affairs or administration, one of whom shall be a woman :
Provided that every appointment made under this clause shall be made by the State Government on the
recommendation of a selection committee consisting of the following, namely :-
(i) President of the State Commission - Chairman,
(ii) Secretary of the Law Department of the State - Member,
(iii) Secretary, in charge of Department dealing with consumer affairs in the State - Member.

2. The salary or honorarium and other allowances payable to, and the other terms and conditions of service of the
members of the State Commission shall be such as may be prescribed by the State Government.

3. Every member of the State Commission shall hold office for a term of five years or up to the age of sixty-seven
years, whichever is earlier and shall not be eligible for re-appointment.

4. Notwithstanding anything contained in sub-section (3), a person appointed as a President or as a member before
the commencement of the Consumer Protection (Amendment) Act, 1993, shall continue to hold such office as
President or member, as the case may be, till the completion ] of his term.

Jurisdiction (Section 17)


1. Pecuniary Jurisdiction - Subject to other provisions of this Act, the State Commission shall have
jurisdiction to entertain complaints where the value of the goods or services and the Compensation, if any,
claimed exceeds rupees 20 lakhs but does not exceed rupees 1 crore.
2. Territorial Jurisdiction - It can entertain appeals against the orders of any District Forum of the state.

As per section 17 A , on the application of the complainant or of its own motion, the State Commission may, at any
stage of the proceeding, transfer any complaint pending before the District Forum to another District Forum within the
State if the interest of justice so requires.

Procedure (Section 18)


The provisions of sections 12, 13 and 14 and the rules made there under for the disposal of complaints by the
District Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the
State Commission.

National Commission
Composition (Section 20)
1. The National Commission shall consist of-
a. a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who
shall be its President
Provided that no appointment under this clause shall be made except after consultation with the Chief Justice
of India
b. not less than four, and not more than such number of members, as may be prescribed, and one of whom shall
be a woman, who shall have the following qualifications, namely:-
(i) be not less than thirty-five years of age;
(ii) possess a bachelor's degree from a recognized university; and
(iii) be persons of ability, integrity and standing and have adequate knowledge and experience of at least ten
years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or
administration:

Provided that not more than fifty per cent, of the members shall be from amongst the persons having a judicial
background

Provided also that every appointment under this clause shall be made by I. Central Government on the
recommendation of a Selection Committee consisting the following, namely:-
(a) a person who is a Judge of the Supreme Court, to be nominated by the Chief Justice of India - Chairman:
(b) the Secretary in the Department of Legal Affairs in the Government of India - Member;
(c) Secretary of the Department dealing with consumer affairs in the Government of India - Member;

Jurisdiction (Section 21)


Subject to the other provisions of this Act, the National Commission shall have jurisdiction -
(a) to entertain -
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees
twenty lakhs; and
(ii) appeals against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has
been decided by any State Commission where it appears to the National Commission that such State Commission
has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in
the exercise of its jurisdiction illegally or with material irregularity.

Power and Procedure (Section 22)


The National Commission shall, in the disposal of any complaints or any proceedings before it, have -
(a) the powers of a civil court as specified in sub-sections (4), (5) and (6) of section 13;
(b) the power to issue an order to the opposite party directing, him to do any one or more of the things referred to
in clauses (a) to (i) of sub-section (1) of section14, and follow such procedure as may be prescribed by the Central
Government.

Section 22A. Power to set aside ex parte orders - Where an order is passed by the National Commission ex parte
against the Opposite party or a complainant, as the case may be, the aggrieved party may apply to the Commission
to set aside the said order in the interest of justice.

Section 22B. Transfer of cases - On the application of the complainant or of its own motion, the National
Commission may, at any stage of the proceeding, in the interest of justice, transfer any complaint pending before the
District Forum of one State to a District Forum of another State or before one State Commission to another State
Commission

Who is Consumer?
As per Section 2 (1) (d) of CPA 1986 - "Consumer" means any person who, -
(i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or
under any system of deferred payment and includes any user of such goods other than the person who buys such
goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment
when such use is made with the approval of such person but does not include a person who obtains such goods for
resale or for any commercial purpose; or
(ii) Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any beneficiary of such services other than the
person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or
under any system of deferred payment, when such services are availed of with the approval of the first mentioned
person but does not include a person wo avails of such services for any commercial purpose;

Based on this definition, the following are essential elements of a Consumer -

1. Buys goods or Hires Services - Physical products such as Car, TV, Utensils etc as well as intangible services
ranging from Hair Cutting Saloon to Banking etc. are both valid purchases for being a consumer. The scope of
services is quite wide and more and more things are coming into its ambit slowly. For example, in the landmark case
of Indian Medical Association vs VP Shantha and others 1995, SC held that patients treated by a medical
professional is also a consumer of medical services and is covered by CPA.

2. For consideration - To be a consumer, paying consideration is a must. However, consideration may be an


immediate payment or a promise of future payment in full or in part. It can also be any arrangement of deferred
payments. Further, unlike in Sale of Goods Act, consideration need not only be in the form of money but transaction
of services, exchange or barter is also valid. In Motor Sales & Service vs Renji Sebastian 1991, the complainant
booked a motor cycle to be delivered on a given date for a consideration. His turn was ignored. The dealer was
ordered to give him the motorcycle for the price of that date and also 500/- as compensation.

3. For personal Use - The goods or service must be bought for personal use. Originally, a person who bought a
product or a service for commercial use was not considered a consumer but after the amendment in 1993, use of
such goods for making a livelihood is accepted. Thus, a self employed person who buys a Photocopy machine for
his own shop is a consumer. However, goods must not be bought for resale.
In Anant Raj Agencies vs TELCO 1996, a company bought a car for personal use of a director of the company. It
was held that since the car was bought for personal use and not for commercial use or for making a profit on a large
scale, the company was a consumer.

4. Use by the purchaser or any body else - It is not necessary that only the purchaser of the goods or services be
the user. Anybody who uses the goods or services with due permission of the purchaser, is also a consumer. Thus, in
a landmark case of Spring Meadows Hospital vs Harjot Ahluwalia AIR 1998, SC held that the parents of the child
who was treated by the hospital were hirers of the service while the child was the beneficiary and thus both were
consumers.

What is a Service?
As per Section 2 (1) (o) "Services" means service of any description which is made available to potential users and
includes, but not limited to, the provision of facilities in connection with banking, Financing insurance, transport,
processing, supply of electrical or other energy, board or lodging or both, housing construction entertainment,
amusement or the purveying of news or other information, but does not include the rendering of any service free of
charge or under a contract of personal service;

Based on this definition, the scope of services is quite wide. It will not be an exaggeration to says that any thing for
which a customer pays and that is not a physical product is a service. Cinema halls, Health clubs, University, College,
are all service providers.
In the landmark case of Indian Medical Association vs VP Shantha and others 1995, SC held that patients treated
by a medical professional is also a consumer of medical services and is covered by CPA.
In Union of India vs Mrs S Prakash 1991, Telephone facility was held as a service and the telephone rental paid by
the consumer was the consideration for the service.

The service must be a paid service. Free or non-profit services do not fall under this category and claims cannot be
made regarding such services under the CPA. In A Srinivas Murthy vs Chairman, Bangalore Development
Authority 1991, the question before the court was whether a tax payer is a consumer or not. A person, who paid
house tax, was bitten by a stray dog and he sued Bangalore Development Authority for not taking care of the menace
of stray dogs. It was held that there was no quid pro quo between the tax and the services rendered by BDA. The
removal of stray dogs was a voluntary action of BDA and was done free of cost. Thus, the complainant was not a
consumer and removal of dogs was not a service under this act.

Just like a defect, which renders a product not as useful as promised, there can be a deficiency in service, which
render a service not as useful as promised at the time of sale. CPA 1986 allows consumers of services to take action
against service providers for compensating for the deficiency in the promised service. As per section
2(1)(g), "Deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
Thus, in Mahanagar Telephone Nigam vs Vinod Karkare 1991, when a complaint with the telephone dept. was
pending for more than six months, it was held to be a deficiency in service.

In Indian Airlines vs S N Singh 1992, a metallic wire was present in the food given to a traveler because of which
his gums were hurt. He was awarded 2000 Rs as compensation for deficiency in service.

WHAT IS ADMINISTRATION OF JUSTICE? EXPLAIN ITS KINDS. DISTINGUISH BETWEEN CIVIL AND
CRIMINAL JUSTICE.
INTRODUCTION:-Administration of Justice:- According to Salmond : -The administration of justice
implies the maintenance of right within a political community by civilized substitute for the primitive
practice of private vengeance and violent self-help. This has been criticized on the ground that it is not
the force of the state alone that secures the obedience of law. There are a number of other factors such
as the social sanctions, habit and convenience which help in the obedience of law. In civilized societies,
obedience to law becomes a matter of habit and in very rare cases the force of the state is used to secure
it
According to Austin: Law is the aggregate of rule set by men as politically superior, or sovereign, to men
as politically subject. It means law is command of sovereign. In his definition Command, duty and
sanction are the three elements of law.
The fundamental difference between the definitions of the two jurists is that whereas in the definition of
Austin, the central point of law is sovereign, in the definition of Salmond, the central point is Court. In
fact, both the definitions are not perfect and present two aspects of law.
Salmond : Points out that men do-not have one reason in them and each is moved by his own interest
and passions. The only alternative is one power over men. Men is by nature a fighting animal and force
is the ultima ratio of all mankind. As Hobbes puts it without a common power to keep them all in awe, it
is not possible for individuals o live in society. Without it injustice is unchecked and triumphant and the life
of the people is solitary, poor, nasty, brutish and short. Salmond says however orderly a society may be,
the element of force is always present and operative. It may become latent but still exists.
KINDS OF ADMINISTRATION OF JUSTICE
The administrative of justice may be divided into two parts:-
1) Civil.
2) Criminal.
1. Administration of Civil Justice: The wrongs which are the subject-matter of civil proceedings are called
civil wrongs. The rights enforced by civil proceedings are of two kinds (1) Primary and (2) Sanctioning or
remedial rights. Primary right are those rights which exists as such and do not have their source in some
wrong. Sanctioning or remedial rights are those which come in to existence after the violation of the
primary rights. The object of the civil administration of justice is to ascertain the rights of the parties and
the party who suffers from the breach of such rights is to be helped by way of paying damages or getting
injunction, restitution and specific performance of contract etc.
2. Administration of Criminal Justice:- The object of the criminal justice is to determine the crime of a
person who is charged with the doing of an offence. The criminal court after proving that the offender is
guilty of the offence charged awards him the punishment of fine, imprisonment as prescribed by criminal
law. A convicted person is awarded physical pain. Thus the main purpose of the criminal justice is to
punish the wrongdoer.
DIFFERENCE BETWEEN CIVIL AND CRIMINAL ADMINISTRATION OF JUSTICE
Civil Administration of Justice
In the civil case the suit is Filed in the civil court. Criminal Administration of Justice
In the criminal cases the proceedings Is filed in the criminal court.
The main remedy in civil Cases is damages. The main remedy in criminal cases is to Punish the
offender.
In the civil cases, the court Follows the procedure Prescribed in Civil Procedure Code. In the criminal
cases, the court follows the procedure laid down in criminal Procedure Code.
In civil cases the action is taken By the injured party and the Suit is established by himself By giving
evidence. In criminal cases the proceeding is taken by the state and the injured party is called out
as a witness by the state.

2 What is Law? Discuss. Definition given by various jurists?


INTRODUCTION: It is easier to explain than to define it. It means that things are easy to explain than to
define it. Definition is very necessary for the study of the subject, because the beginning and in one
sense it ends is also its definition. To give a definition of Law is comparatively a hard task due to many
reasons :
1. In Hindu :- Dharma
2. In France :- Droit
3. In Rome :- Jur.
4. In Muslim :- Hukma
All these above words conveys different meaning. And we can say that a definition which contain all the
above meaning and all elements would be a good definition of law. Endlly definition given by every
person is always different. Because definition given by a lawyer a philosopher, a student or a lecturer is
always different. A definition which doesnt cover all these elements would be an in-perfect definition.
DEFINITION OF LAW:- The word, Law has been taken from the latin word which means The body of
Rules various scholars has attempted to define this term according to their own prospective. Some of
them are as under:-
According to Roman Scholars:- The law is concerned with the parameters which is right or wrong, fair and
unfair.
ULPIAN:- The famous Roman scholars and a Juries, he defined the term , Law as standard of what is
just and unjust.
According to Salmond:- The law is the body of principals recognised and applied by the state in the
administration of justice.
According to Positivist Definition :- They are known as a modern thinkers and they propounded a new
school in the Law namely, Analytical School. This school is also known as a scientific
school. Benthem, Austin and Kelson define the term of Law in the following manners:-
1. AUSTIN:- Austin is the father of English Jurisprudence and according to him, Law is the
command of sovereign There are three elements of law according to Austin :
a) Command )
b) Duty ) = LAW
c) Sanction )
According to him every law have a command and due to this command we have the duty to obey
this command and if we dont obey this duty then there is a sanction.
2. As per Benthem:- The law is the violaion of some declarations by the political head with utiity
ensuring maximum happiness of he maximum people in the society. Benthm concept of law revolves
around individual utilitarianism and its concern with the theory of pain and pleasure, which means that the
purpose of Law to reduce the pain and harms and pleasure in the society.
3. According to Kelson:- The law is depsycholigically command. He is concern with those
commands which purely rest upon the formal expression of law.
3. Sociological Definition: The sociological approach is not a single approach but it includes a number of
thoughts, but all these thought related to society, that is why heading is given them to sociological. And
we shall discuss some of true definitions :-
DUGUID :- According to him the law is a set of sosme formal norms aiming an creation of soliditary in
society.
IHERING :- According to Ihering the Law is a form of guarantees of the conditions of life in society which
are assured by the states power of constraint.
EHRLICH :- Ehrlich lays down, that the law consists of norms coverings social life. But only the living
Law is the actual law.
ROSCUEPOUND :- According to him Law is an instrument for balancing, conflict or completing interest
of people in the society.
REQUIREMENTS FOR LAW
The followings are some requirements for the definitions of law :-
i) Before the law there is a State.
ii) Before the State there must be a society.
iii) State & society develop a legal order to be followed.
iv) And finally law always has a purpose.
CONCLUSION:-
In end we can say that law is the important and necessary part of the state and developing the human
beings. Law gives rights and duties to human beings. And law is the essential part of a State. Law is an
instrument of social control as well as social change.

3 Define Right and discuss the essential elements of legal right. OR


What is a Legal Right? Discuss the characteristics of a legal right.
INTRODUCTION: Right generally means an interest or facility or a privilege or immunity or a freedom. In
this way right for the purpose of jurisprudence is called legal right. Austin in his theory has separated the
subject matter of jurisprudence from morality or materiality. He gave the concept of positive law. So here
also right means positive law right only, which is term of legal right. Legal right is recognised by law. It is
different from moral right. Moral right if violated is called moral wrong. The violatin of natural right is
called natural wrong. But these wrongs are not remedial under law while if a legal right is violated then it
will be legal wrong which is remedial under law. The different jurists have defined legal right in different
ways:- According to Austin : Right is a faculty which resides in a determinate party or parties by virtue of
a given law and which avails against a party or parties other than the party or parties in whom it resides.
According to Salmond :- Right is an interest recognised and protected by the rule of right. Here rule of
right means rule of law or law of country. When an interest of a person is protected by the rule of law then
it is called right. Salmond definition involves two points, firstly that right is an interest and secondly it is
protected by rule of right. It means that it relates to his (person) interest i.e., life liberty, heath and
reputation etc. Grey has criticised the interest theory propounded by Salmond, Ihering and Heck and he
has supported the view that right is not an interest but that means by which the interest is secured.
According to Holland, right is as a capacity residing in one man of controlling, with the assent and
assistance of the state the action of others.
According to Paton : That legal right is that it should be enforceable by the legal process of the state.
He however says that there are three exceptions to this rule :-
1. It is not necessary that the state should always necessarily enforce all the legal rights.
2. There are certain rights which recognised by law but not enforced by it for example : In a time
barred debt, the right of the creditor to recover the debt is an imperfect right
3. There are certain laws which do not confer right of enforcement to the courts, for example :
International Court of Justice has no power to compel enforcement of its decrees under International
Law.
THEORIS OF RIGHT :- There are two theories of right :
1. WILL THEORY : This theory is based upon the will of human beings. It says that a right reflects
the inner will of a human being. Austin, Holland, Halmes and Dov recognised this theory of
right. According to them a person wants o remain in the world freely and according to his own choice
because a man is born free.
2. Interest Theory:- This theory says that interest is the base of the right. It is only interest which is
recognised by law. This theory reflects the external nature of the human beings. Supporter of this theory
say that there are many interests in the world. These interest which are protected and recognised by law
are called right.
ELEMENTS OF LEGAL RIGHT:- Following are the elements of Rights :-
1. Subject: here means a person who has right. So there must be a person for rights
2. Act of Forbearance :- Right means some standard of action permitted by law. In a right either an
act is done or an act is forbidden. This is also called as content of right.
3. Object:- There must be a object upon which the right is exercised. Mainly there are three
essential elements of right e.g. Lives in a house. Here : (i) A has the right to live in the house. (ii) A is
subject, house is object and (iii) His living in the house is act content. But some writers give some more
elements of right.
4. Correlative duty: For right there must be a correlative duty. In the above example A has the right
to live in the house but other persons have correlative duty not to disturb him. Almost all jurists agree on
the point because one cannot exists without the other. Here Austin is not agree to this He says that the
duty may be divided into two kinds i.e. (1) Absolute and (ii) Relative.
5. Title: Salmond gives one more element of rights in the form of title. He says that a right has got
also a title. Title may be in the form of the owner or co-owner or mortgager or leaser or buyer etc.
ILLUSTRATION: If, A buys a piece of land from B. A is the subject or owner of the right so required.
The person bound by the co-relative duty is persons in general because a right of this kind avails against
the world at large. The right consists in non-interference with the purchasers exclusive use of the land.
KINDS OF RIGHTS :- The following are the kinds of rights :-
1. Primary right and secondary right : Primary right is an independent right while secondary right
means dependent right. They are also called as principal right and helping right or remedial right.
ILLUSTRATION:- A has right of reputation which is his primary and independent right. If any person
defames A then A has the right of damages against the defamer. This right of damages is called
secondary right or remedial right.
2. Positive and Negative Right:- Positive right is linked with negative and negative right is linked with
duty. Positive right permits to do an act while negative right prohibit doing an act.
ILLUSTRATION:- A has the right of reputation. This is his positive right and any person should not
defame him. The defaming his reputation called negative right.
3. Right Rem and Personam:- Right in Rem means right against the whole world while right in
persosnam means right against a definite person.
ILLUSTRATION: A has not to be harmed by any person. This is right in rem. On the other hand, A has
entered into a contract with B and B has broken +ve contract. A can enforce this right against
B. This is known as right in personam.
1. LEGAL AND EUITABLE RIGHT (NATUAL JUSTICE):- The division of right has its origin in
England. Legal ight is recognised by Law. While equitable right has been recognised by natural justice. In
England there were two types of courts: (i) Legal courts (ii) Chancery courts
Chancery Courts recognised the conquerable rights on the basis of justice, equity and good conscience.
4. Vested & Contingents Right:- These rights is of permanent nature that depends upon the
happening of an uncertain event. Thus contingents right becomes full right only when such uncertain
events happen according to the condition.
5. Proprietary and Personal Right:- Proprietary rights which are concerned with property. A person
possessing any property has the proprietary right over it, and personal right means the right related with a
person or a body. Every person has a status. He should not be injured or defamed. If any person injures
or defames another person then the wrong doer infringes the personal right of a person.
6. Perfect or Imperfect Right:- These rights which are enforceable by law are perfect and which law
does not enforceable are imperfect rights.
7. Right of Re-propia and Right in re-alena:- Right in re-propia means the right in ones own thing
whereas right in re-aliena means the right in the things of others.
4 Law is the command of sovereign comment. Critically examine the main features of Analytical
School? OR
Discuss the essential characteristics of the Analytical School?
INTRODUCTION : The main features/essential characteristics of Analytical School of Jurisprudence are
as under:- The jurists of analytical school consider that the most important aspect of law is its relation to
the State Law is treated as an imperative or command emanating from the state. For this very reason this
school is known as the Imperative school.
The exponents of this school are concerned neither with the past nor with the future of law but
with law as it exists, i.e. as it is (positus).For this reason this school is termed the positive school. Its
founder is John Austin who was the professor of jurisprudence in the University of London.
He is also considered as the father of English jurisprudence. He studied the Roman Law in
Germany. There he was that Roman Law is very systematic and scientific whereas English Law is not
systematic and scientific. So he tried to make English law in well manner. For this purpose he wrote a
book Province of English Jurisprudence. In this book he difined English law and made it in a systematic
way.
Austin said that only positive law is the subject matter of jurisprudence. He separated both the morals
and the religion from the definition of the law. Prior to Austin the law was based upon customs and morals
but Austin reduced all things from the definition of law. He divided law into two parts :
(i) Law propriety so called (II) Law impropriety so called.
It further divided into two parts :-
(1) Law of God (Divine Law) (II) Law of Men ( Human Law)
Law of God is also called divine law. It is a law set by God for human beings on earth. Men also make
law of men is made by men, so it is called human Law. This law makes a relationship between persons
and the Law. This law is imposed upon persons and is made by persons. Human law is further divided
into two parts :-
(I) Positive Law (II) Positive Moral Law
Positive Law is main subject of jurisprudence. This classification can be seen as under :-

LAW
(A) Law propriety so called (b) Law impropriety so called

A.1) Law of God A.2) Law of Men

A.2.i) Positive Law A.2.ii) Positive moral Law

Law of analogy law by Metaphor


Law impropriety so called:- There are certain laws, which are called impropriety laws e.g. Divine Law,
Moral Law and religious Law. But his law is not the subject of jurisprudence. This law is concerned only
with the administrations of jurisprudence. The law is the subject matter of jurisprudence.
Analytical school of jurisprudence deals with the following matter:-
(I) An Analysis of the conception of civil law.
(II) The study of various relations between civil law and other forms of law.
(III) An inquiry into the scientific arrangement of law.
(IV) An account of legal sources from which the law proceeds.
(V) The study of the theory of liability.
(VI) The study of the conception of legal rights and duties.
(VII) To investigate such legal concepts as property, contracts, persons, acts and intention etc.
DEFINITION OF THE LAW
Austin has defined the law is hiss Command Theory. He says that, Law is the command of sovereign.
Sovereign here means a politically superior body or a determinate person or determinate body of persons
like king of council. The command of these persons shall be the law in the country. This law must be
obeyed by certain persons. If it is not obeyed hen the order of these persons shall not be law. It means
there must be politically inferior persons. If the command is disobeyed then the political superior should
have the power to punish, those persons who have disobeyed the law.
CHARACTERISTICS OF COMMAND THEORY
From the above facts we find that the following characteristics of Analytical School :-
1. Sovereign (II) Command (III) Duty (IV) Sanction Power.
SOVEREIGN: Means the political superior person or a determinate person or body of person or
intelligent persons. This may be compared with the kind or the head of state in monarchy system and
parliament in democracy system.
COMMAND:- There must be some order of the Sovereign. This order may be oral or written. The
Sovereign which is followed by force, is called command.
DUTY:- This command must be followed by some persons, it means the political inferior persons who are
under the control of Sovereign, are under a Duty to follow the order of the Sovereign.
SANCTION:- There must be sanction or the power of force behind the command of Sovereign and it there
is no force or sanction then such command shall not be law. The sovereign must have power to punish
those who do not obey this command. In this way the above mentioned things are essential then it will be
the law. But Austin excluded some commands from the concept of the law. These are :-
(I) Explanatory Law :- If there is a command for the explanation of already existed law command
shall not be the law.
(II) The Repeal Law : I there is a command for the repealing of already existed law then the second
command shall not be law.
AUSTIN LAW (AUSINS METHOD) Austin adopted analytical method which excluded all types of morals
and religion from Law. His school is also called analytical school or imperative school. Imperative means
force behind law.
CRITICISM OF ANALYICAL SCHOOL
Various writers have criticised the command theory of Austin on the following ground :
1. Customs ignored:- Analytical school is based upon the law. According to Austin the law does not
include customs but we see that customs are a very important part of the society. There were customs by
which the society and later on state came into existence. In state also customs played an important role
in the administration of justice. Even in the modern times the customs play an important role in the
formation of law. So we cannot ignore customs from law.
2. Precedents ignored:- Precedent means the decisions of the court, which are also called as judge
made laws. Judge made laws because these laws were not the command of the Sovereign. These laws
were not enforceable at that time, so he excluded these laws from his concept of the law.
3. Conventions Ignored:-There are certain conventions or methods, which are observed or followed
by the coming generation. These conventions or methods later on take the form of law. The become law
afterwards by their regular observance. In England the base of English Law is conventions, which is very
popular in the World. So we cannot ignore conventions. But Austin did not include conventions in his
concept of law.
4. International Law Ignored:- Austin did not include international law in his law. According to his
law there is no Sovereign for enforcing the international law. But in modern days we cannot exclude
international law from the field of law because it plays an important role in maintaining peace and society
at international level. In other words it is also a form of municipal law of civil law.
5. Command Theory is not suitable:- It is not easy to understand the Commands Theory for
common persons. It is not necessary that all should be enforceable or all common person should be
considered as law. Only those commands which are related with law and order, should be law. It is
difficult to separate those commands from others by the common people or persons. So this theory is not
suitable in modern times. It is also an artificial theory haveing no sense in the modern world.
6. Only Power Is Not Necessary:- According to the Command Theory, law can be imposed only
with the help of power, But we have the result of the tyrants or forced rules which were thrown away by
the people of French Revolution, of Panamaeto. Law can be enforced even without power, it they are
suitable to the society.
7. Moral Ignored:- The Command Theory has also excluded morals from the field of law. But we
have observed that morals have also an important role in the formation of law. We cannot ignore morals
from law because laws are meant for the society and such laws must be according to the feelings of
society. The feelings of society are based upon morals. So we cant ignore morals from the field of law.
CONCLUSON :-In this way he theory of command has been criticised and which is not considered as
suitable in the modern time. But we also cant ignore the contribution of Austin for giving he meaning of
law in a systematic way. He give the concept of law in scientific manner. This views became the base for
the coming writers, jurists and philosophers. So we can say that Austin contributed a lot in the field of
jurisprudence.

5 Define and distinguish law and morals. Up to what extent morals help in the development of law.
Introduction:- Play an important role in the development of law. In the ancient society there was no
difference between law and morals. The Vedas and suteras which are the main ancient sources of law
are based upon morals. In the western society also the position was the same. The legal system of Greek
was also based upon the doctrine of natural rights, which was in fact founded upon morals. So the
Roman law also recognised the doctrine of natural law, which was founded upon morals. In the middle
period also morals were the basis of law. In the 17th and 18th centuries natural law theories become
very popular which were also based upon morals. However in modern times it was only Austin who
discarded morals from law. He said that law is a command of sovereign. But after him there came the
Historical School that recognised morals as the part of law.
DIFFERENCE BETWEEN LAW AND MORALS
When the Austin did not give any place to morals in law then there came a question of the difference
between law and morals. Later on the courts tried to make difference between law and morals. In the
modern times there is clear difference between law and morals. In every developed and civilized society
the following are the differences between morals and laws:-
MORALS LAWS
1.The morals are concerned with individual and are the laid down rules for the moulding of his character.

2.Morals are mainly concerned with the internal conduct of the nature of a person.
3.The morals are an end in themselves.
4. The observance of morals is a matter of individuals conscience.
5. Morals are considered to be universal in nature and value. 1. The laws are mainly concerned with
the society as a whole and lay down the rules for relationship of individual with each other and with the
state.
2. Law is concerned with the external conduct of the individuals.
3. Laws are meant by which the evils ends. The justice is achieved.
4 The observance of law is concerned with duty towards the state.
5 Law is concerned only with a particular state and society which differ from place to place & from time to
time.
RELATIONSHIP BETWEEN LAW & MORALS
In the ancient society there was no difference between laws and morals, but in modern times various
theories of law separate morals from laws so many differences as pointed out above came into picture. In
spite of these differences there is a clear relationship between law and morals. For this purpose it can be
noticed from the following three points :-
1. Morals as the basis of law:- In the ancient society morals were the basis of all laws. All the rules
originate from the common sources i.e. morals. The reason behind them was in the form of supernatural
fear. The state picked up those rules which were necessary for the society of the state.
The state put its own sanctions behind their rules and enforced them and these rules were called laws.
The rules for which the state could not ensure their observance wee known as morals. Thus laws and
morals have common origin. We cannot totally separate law from morals. Queen v/s Dudley: It was held
that moral are the basis of law on the ground of morality, it was not necessary to kill the boy for saving
their lives. One cannot take the law into ones own hands. The rule is that none has the power/right to
take anothers life to save his own.
2. Morals as the list of law:- It has been argued that the law must conform to morals. It means the law
must be based upon morals and it should not be against morals. The Roman law was based upon natural
law and Christian morals and principles say that any law that is against morals is invalid. The natural law
theories were enforcing which were also according to morals.
In the modern times the laws which are not in conformity with morals are not good laws. However in
practice to a great extent law conforms to morals. Laws cannot depart from morals due to many
reasons. The conformity of law with morals is a very important factor even in the modern times.
3. Morals as the end of Law:- Sometimes morals are considered as the end f law. Justice in its popular
sense is based upon morals. The word used for law conveys an idea of justice and morals in the same
area of law. Sociological school says that law always has a purpose. Law is a means to get the end. This
aim of law is to secure social test of law. This can be done properly in the contest of socially recognize
values which are closely related to morals. Thus ultimately morals become the end of law. In India the
legal system is engaged from the personal laws and local customs. In addition to this there are certain
other factors like public opinion, political, ethical, social and economical ideas which are directly or
indirectly under the influence law. CONCUSION:- So morals also have influence to a great extent in the
development of law. Morals also check the arbitrary powers of the legislature. All human conduct and
social relations cannot be regulated and governed only by law. A considerable number of them are
regulated by morals. Thus we can say that the morals are the very important factor in the development of
law. Morals are basis of law.
6 Professor Hart claims of make a fresh start in legal theory. Discuss.
INTRODUCTION:- Hart is one of the great jurists of that time. He belongs to analytical school. HLA Hart
was the Principal and Professor in Brasenose College Oxford His theory about the law named as
concept of Law. He talks about the realty. His theory mainly based on primary and secondary rules and
also based on the relationship between law and society. His theory described about two words i.e. Pre-
legal world and Legal world.
DEFINITION AND MEANING: Sir HLA Hart define Law, that law is the system of rules, a union of
primary and secondary rules. He means to say that law is the system of rules and these rules are
primary which are pre-legal rules and secondary which are legal rules and the main based of his theory
on the relationship between Law and Society.
Body : Sir HLA Hart theory talks about the two words. These words are:-
Concept of Law

Pre-legal world Legal world

No legislature Rule of recognitaion


No executive Rule of Change
No court Rule of Adjustice
1. Pre-Legal World :- This pre legal world belongs to old age. According to Sir, HLA Hart pre legal
world there was primitive society. And in this society there was no legislature which can make the rules.
There was no executive also which can change the rules besides this there was no court also to decide
the disputes. In the primitive society there were three defects which are as under :-
2 Un-certainty :- Since there was no Parliament in the primitive society which causes the un-
certainty in the law.
3 Static character:- In the primitive society there were customs and these customs were not
changed. It means there have static character.
4 Inefficiency :- In the primitive society there were no power of Jurisdiction. It means that there
were no courts followed by the people.
2. Legal World :- This legal world belongs to modern age. According to Sir HLA Hart in the legal
world there are modern society. Because of modern society there are rules of recognition which means
that there is a Parliament/State Executive. The function of the Executive to change or to amend the rules.
In modern age there are courts which decides the disputes. Judges applies the earlier laws in deciding
the disputes. These rules/laws are the secondary rules. Thus we can say that Law is the union of
Primary and Secondary rules. In other words it can be said that the Law is the journey of rules.
RELEVANCY OF HLA HARTS THEORY
Sir HLA Harts theory concept of Law is the most important theory of analytical school. Because this
theory tells us about the old age and for the modern age. In the old age there were primitive society which
did not have any legislature, executive and court. Therefore only custom and usages which were not
allowed to change them by any person.
The theory of concept of law tells us about the legal world. In the legal world there is a legislature
which makes the rules and these rules are changed or amended by the executive when it
necessary. There are courts which apply the rules on party. So we can say that in modern age the law is
certain not static in character. Sir HLA Hart also gives the place of Morality in his theory because the
moral have an important role in every legal world and these morals are not changed by passing any Act.
We can say that Sir HLA Hart theory, Concept of Law has the most important place in the theory of
Analytical School.
CONCLUSIION:- Sir, HLA Hart theory Concept of Law have no conclusion because this theory talks
about both the pre-legal world and the legal world which updates and tells us that how the law comes. So
we can opined that such best and usable theory needs no conclusion as it has its self conclusion.

7 Define Natural Law theory. Also explain its relevancies in the Modern times.
INTRODUCTION: The Natural Law school is not independent school. It has deep concern with historical,
analytical school. The main contents of this theory is that it has been interpreted differently at the different
times depending on the needs of the developing legal thought but the greatest attribute of the Natural la w
theory is its adaptability to meet new challenges of the transient society.
According to the pro pounder of this theory says that, Law is a product of the straight thinking of human
mind. According to Socrates, he duely assert it that the positivist authority should be obeyed but not
blindly and it ought to be subject to criticism if deserve so. Plato: He was in the view that each individual
be given best suitable role by reason of his capacity and abilities. Thomas Acquinas (Roman Thinker):-
He means that Natural Law is a part of Divine Law. This part is applied by human beings to govern their
affairs and relations. Thomas Hobbes (Roman Thinker) :- According to him that there should be an
absolute authority which should govern and control the affairs of human beings in the reciprocal
transmission of concerned with every span of life. Rousseau (Roman Thiner) : He held that there two
types of will:1. The will of individual and 2. General will. The authority through his rule must respect the
both and in the administration of rule making process. These will should be reflected.
Definition:- From the jurisprudence point of view Natural law is not a body of actual enacted or interpreted
law enforced by courts. It is in fact a way of looking at things and a humanistic approach of Judges and
Jurists. It embodies within it a host of ideals such as morality, justice, reason, good conduct, freedom,
equality, liberty, ethics and so on. The phrase Natural Law has a flexible meaning. The chief
characteristic feature of natural law may be briefly stated as follows :-
i) It is basically a priori method which is different from empirical method. It used to stress upon a
cause and effect relationship between the facts on the verge of logic.
ii) It symbolizes physical law of nature based on moral ideals which has universal applicability at all
places and times.
iii) It has often been used either to defend a change or to maintain status quo according to needs of
the time.
iv) The concept of Rule of law in England and India and due process in USA are essentially based
on Natural Law philosophy.
MODEN NATURAL LAW THEORIS:- The following are the three main thinker who contribute to the
Modern Natural Law theories:-
1. Stammler:- He was much more influence by Positive Law. He says that all positive law is an
attempt at just law with regard to will and purpose of the law maker should have the proper
understanding and knowledge of actual social world or social reality. Various a time in his concept he
inter changeable used the word will with the purpose and he conclude that it is the will of the people
which enable them to secure their purpose under social reorganisation.
2. KOHLER:- His thoughts were influenced by Hegal. According to him Law is standard of conduct
which is consequence of in the impulse of human being that urges him towards a reasonable form of life.
It also derives its validity from the moral and ethical standard in society. So that he laid down stress upon
moral and cultural development of society.
3. Finnis: Finnis also is a very famous jurists of the present century. He has given the definition and
place to natural law. According to finnis Natural Law is the set of principles of practical reasonableness in
ordinary human life and human community. He sets up the proposition that there are certain basic goods
for human being. Fennis lists them as under :-
i) Life:- The term life signifies every aspect of vitality in good shape for self determination.
ii) Knowledge: Knowledge is a process of knowing of unknown with the help of sense.
iii) Sociability of Friendship:- Doing something best for the sake of ones friends purposes, ones
well being.
iv) Role:- It is the expression of a status of human being in practical form such role is protected and
recognised by law.
v) Religion:- Question of the origins of cosmic order and of human freedom and reason expressed
thus this view is a good that even an ethicist can value.
vi) Practical reasonableness :- This is the logic expression of the ideas and decision in practical
circumstances. This the measurement of just or unjust in a real situation.
Despite the merits of Natural Law philosophy it has been criticized for its weakness on the following
grounds. In other words the demerits of the Natural Law may be read as follows :-
i) Moral proposition i.e. ought to be may not always necessarily conform to the needs of the society.
ii) The concept of morality is a varying content changing from place to place, therefore it would be
futile to think of universal applicability of law.
iii) The rules of morality embodied in natural law are not amendable to changes but legal rules do
need a change with changing of the society.
iv) Legal disputes may be settled by law courts but disputes relating to moral and law of nature
cannot be subjected to judicial scrutiny.
CONCLUSION:-The brief survey of the theories of Natural law reveals that its concept has been changing
from time to time.

8 Explain the importance of Legislation as source of Law. OR


Distinguish between supreme and subordinate legislation?
INTRODUCTION:- Legislation means the process of law making. This law making power is vested in the
legislation body which is sovereign body. It is called Parliament at the centre level and legislative
assembly at the state level. Legislation is the most important and modern source of Law. This source has
played an important role in the development of modern law and also different from custom and precedent
etc.
LEGISLATION AS A SOURCE OF LAW:- The importance of legislation starts from the beginning of
analytical school. This school ignored the importance of custom and gave the stress on command of
sovereign which can make law only through legislation. This school also ignored the judge made law.
About custom they say that the custom are not law but they are the source of law.
HISTORICAL SCHOOL:- It gives no importance to the legislation rather gives more importance to
custom. According to them the function of law in only to specify and to correct the custom into law
whereas in the modern times the importance of legislation has considerably been increased. With the
coming of existence of the State the legislation has also been come into existence and become most
important source of law. The scope of legislation has become very wide in the modern times.
KINDS OF LEGISLATION:- There are two kinds of the legislation :-
1. Supreme Legislation:- It has the powers of making law and is known as supreme legislation in each
country. This power is vested in sovereign body in India i.e. Parliament at the centre and legislation in the
State.
2. Subordinate Legislation: It is inferior from supreme legislation and is indirect legislation. It takes power
to make law indirectly from Parliament, who gave him power to make law that is why is called subordinate
legislation authority. It is further divided into the following parts :-
i) Autonomous Laws : A group of persons for making law is known as autonomous law and body i.e
University or Boards.
ii) Judicial Rule :- means the rules made by judicial body under power owed from supreme authority i.e.
High courts or supreme court etc.
iii) Local Law: means law made by local bodies under the control of SC i.e Zila Parishad, Municipal
Corporation.
iv) Colonial Law: It is for those countries who are under the control of any other country can make laws
with the permission that country.
Executive Law:- The law and the rule can be made by the executive body in the State under the power
conferred by the Sovereign/ Parliament which is also known as delegated legislation. It includes the
following origins :
I) Legislation:- The legislation is the super power to make law for a country.
II) Executive:-The executive body of the nation is to imposes law in the country.
III) Judiciary:- The Judiciary is to explain and implies the law so passed.
Parliament in India delegates its laws making power to the executive body and this power is called
legislated or delegated legislation.
Many reform acts were handing power of making reforms, controlling of employment, development
of education. In 20th century some important matters were given to delegated legislation to restrict the
State to interfere in the daily life of the citizens.
CRITICISM:- Many of the writers has criticized this power because it gives much power to the executive
body and administration body. The legislation has passed by facing the complicated problems in the
constitution. There were some supporters also who were in the favor of this delegation of power.
REASONS FOR DELEGATED LEGISLATION
i) Lack of Time:The parliament has the shortage of time because of a Public welfare state. It has to pay
much time towards national problems.
ii) Technicality of Matters:- With the progress of society the things have become more complicated and
technical. Therefore the policy is made by the Parliament and the imposing matter is left on the masters
of it.
iii) Flexibility: Law should be flexible and according to the need & conditions of the Public along-with the
local matters which are different from area to area, So keeping in view of this reason the power is handed
over to the executive.
There are some dangers in delegations of this power:-
i) The executive body may uses the more powers than the powers delegated by the Parliament. (ii)
The Parliament has no time to examine the rules passed by the executive under delegated legislation.
In India there is a Parliament form of legislation and it is a welfare state and the Parliament cannot go
aside from the constitution. Any cut against the constitution is void. The Main power of delegated
legislation & CONCLUSION is :
Power of facing an act into operation. Power to apply the Act.
Power to increase or to decrease the scope of the Act. There is a parliamentary as well as judiciary
control over delegated legislation. This power in India has also on constitutional basis.
9 Discuss the nature and scope of Jurisprudence. What is the importance of this subject in the study of
law? OR Jurisprudence is the eye of law.
INTRODUCTION :- Jurisprudence in its nature is entirely a difference subject from other social
science. The reason for this is that it is not codified but a growing and dynamic subject having no
limitation on itself. Its inquiry system is of different status from other subjects. Every jurist does not base
his study on the rules made but tries to understand their utility after due deliberation Thus the
jurisprudence has no limited scope being a growing subject. There is difference of opinion about the
nature of jurisprudence. It is called both art and science. But to call it science would be more proper and
useful. The reasons for this is that just as in science we draw conclusions after Making a systematic study
by investing new methods. In the same way jurisprudence is concerned with the fundamental principles
of law systematic and scientific study their methods.
Scope of Jurisprudence:- According to justice P.B.Mukherjee: , Jurisprudence is both an intellectual and
idealistic abstraction as well as behavioural study of man in society. It includes political, social, economic
and cultural ideas. It covers that study of man in relation to state and society.
Jurisprudence involves certain types of investigations into law, and investigation an abstract, general and
theoretical nature which seeks to lay the bare essential principles of law and legal systems.
Salmond observed: In jurisprudence we are not concerned to derive rules from authority and apply them
to problem, we are concerned rather to reflect on the nature of legal rules, on the underlying meaning of
legal concepts and on the essential features of legal system. It therefore follows that jurisprudence
comprises philosophy of law and its object is not to discover new rules but to reflect on the rules already
known.
CONTENTS OF JURISPRUDENCE:- The following are the contents of jurisprudence:-
i) Sources It is true that the basic features of a legal system are mainly to be found in its
authoritative sources and the nature and working of the legal authority behind these sources. Under this
head matters such as custom, legislation, precedent as a sources of law, pros and cons of codification of
laws, methods of judicial interpretation and reasoning, an inquiry into the administration of justice etc., are
included for study.
ii) Legal Concepts :- Jurisprudence includes the analysis of legal concepts such as rights, title,
property, ownership, possession, obligations, acts, negligence, legal personality and related issues.
Although all these concepts are equally studied in the ordinary branches of law, but since each of them
functions in several different branches of law, jurisprudence tries to build a more comprehensive picture
of each concept as a whole.
iii) LEGAL THEORY :- Legal theory is concerned with law as it exists and functions in the society
and the manner in which law is created and enforced as also the influence of social opinion and law on
each other. It is therefore necessary that while analysing legal concepts, and effort should be made to
present them in the background of social developments and changing economic and political attitudes.
UTILITY OR IMPORTANCE OF JURISPRUDENCE
It is often said that jurisprudence being an abstract and theoretical subject, is not of any practical
use. But it is not correct to say so. Its utility is as under :-
1. Salmond pointed out that jurisprudence has its own intrinsic interest like and other subject of
serious scholarship, likewise the writer on jurisprudence may be impelled to his subject by its intrinsic
interest. The legal researches on jurisprudence may well have their effect on contemporary socio-political
thought and at the same time may themselves be influenced by these ideologies.
2. Jurisprudence also has its practical applicability. In other words it serves to render the
complexities of law more manageable and rational and in this way theory can help to improve practice in
the seats of law.
3. Jurisprudence has great educational value. The logical analysis of legal concepts widens the
outlook of lawyers and sharpens their logical technique. It helps them in shading aside their rigidity and
formalism and trains them to concentrate or social realities and the functional aspects of law. It is not the
form of law but the social function of law which has relevance in modern jurisprudence. For instance, a
proper understanding of law of contract may perhaps require some knowledge of economic and economic
theory or a proper grasp of criminal law may need some knowledge of criminology and psychiatry and
perhaps also of sociology.
4. Commenting on the significance and utility of jurisprudence : Holland observed, the ever
renewed complexity of human relations call for an increasing complexity of legal details, till a merely
empirical knowledge of law becomes impossible. Thus jurisprudence throws light on the basic ideas and
the fundamental principles of law in a given society. This why it has been characterised as The eye of
law.
5. Jurisprudence helps the Judges and the Lawyers in ascertaining the true meaning of the laws
passed by he legislature by providing the of interpretation.
6. The study of jurisprudence helps in rationalising the thinking the students and prepares them for
an upright civil life. The knowledge of law and legal precepts also helps them to face every exigency of
human affairs boldly and courageously.
7. Jurisprudence may also be helpful o legislators who play a crucial role in the process of law-
making. The study of jurisprudence may familiarise them with technicalities of law and legal precepts
thus making their job fairly easy as also interesting.
According to Dias the study of jurisprudence provides an opportunity for the lawyer to bring theory and life
into focus for it concerns human thought in relation to social existence. The law should serve the purpose
of social-engineering by preserving societal values and eliminating conflicting interests of individuals in
the society.
JURISPRUDENCE IS THE EYE OF LAW:- On account of importance of jurisprudence in the field of law it
is called, The eye of Law. The eyes are one of the most important parts of human body. Almost all
human activities and the movements of body are possible only through them. Unless man can see
anything properly, he cannot do any work. The reason of calling jurisprudence the the eye of law is that
jurisprudence functions for law in the same manner as the eyes do in human body. For example- the
interpretation of law is a very difficult task, It cannot be done without the help of
jurisprudence. PATON in this connection says that, Jurisprudence is a particular method of study, not
the law of one particular county but of the general notions of law itself. Whenever any complicated
problem regarding law like:-
1 How and when the law developed. 2 What is its object. 3 Whether the law was made by people
or it was due to the inspiration of some Divine force. 4 Whether the law is a command of a sovereign or it
is a result of gradual development of civilization in society. The main function of jurisprudence is to study
the origin of law, its development and its contribution towards society.
The matters to birth, marriages, death, succession etc., are equally controlled through laws. It is the well
known saying that, ignorance of law is no excuse, hence it is essential to know the correct basic
principles of law which are contained only in the jurisprudence. Law is also connected with civil life. A
person who obeys laws is known as a civilized citizen. A person who does not obey law is punished. It is
therefore necessary that all the people should have the sound knowledge of law which is possible only
with the help of jurisprudence. Therefore, jurisprudence, having so much importance for the society, has
rightly been called the eye of law.

10 Judges are the makers of law not discovers of law. Do you agree with this view?
INTRODUTION:- There are two contrary theories regarding the question as to whether Judges declare
the existing law or make the law. There are two which are as under :-
1. Theory that judges declare the law or Declaratory Theory.
2. Theory that judges make the law or legislative theory. (Law making theory)
1. DECLARATORY THEORY :- The first theory is the declaratory theory as described by Hall and
Blackstone and they supported by Dr. carten also.
According to the declaratory theory no new law is created by the Judge, Courts of Justice do not
make law, their province is to ascertain and declare what the law is. Judges only discover the existing
laws.
Hale enunciates declaratory theory of precedents and contends that whilst Parliament alone legislates
in the strict sense the Judges only expound the law and their decisions are the best evidence of what
law is. The result of his theory is that the effect of the decision is retrospective for it does not only declare
what law is but what it always has been. Nevertheless as Maine has pointed out once the Judgement
has been declared and reported we start with a new train of thought and frequently admit that the law has
been modified.
According to Lord Esher, There is in fact no such hing as Judge-made law, for h judge do not make
the law, though they frequently have to apply the existing law to the circumstances as to which it has not
previously been authoritatively laid down that such law is applicable.
Declaratory theory is based on the fiction that the English law is an existing something which is only
declared by the Judges. This theory is known as the theory of judicial precedent.
LAW MAKING THEORY
The second theory is that the Judges do not declare law but make the law in the sense of manufacturing
of creating entirely new law. Bentham and Austin, have opposed the traditional view as a childish fiction
and have declared that Judges are in fact the makers and fulfill a function very similar to that of the
legislature.
Lord Becon: The new point decided by the Judges is a direct contribution towards law-making. Professor
Dicey supported this view and gives example of English common law which has been made by the judges
which has been made by the judges through their judicial pronouncements.
Prof. Gray : supports this law making theory and says that judges alone are the makers of law. He
discredits the declaratory theory.
Judges are without any query law-makers but their power of law making is not un-restricted. It is strictly
limited for instance they cannot over rule a statute where the statute clearly lays down the law. The
legislative powers are restricted to the facts of case before them.
According to Salmond : Who is strong support of this view says that he is evidently troubled in mind as
to the true position of precedent. He further says that both in law and in equity declaratory theory
altogether totally rejected.
Such cases which are not covered by existing laws the judicial decisions created new notions and
formulae new principles which were never contemplated earlier. Supreme court over-ruled the Golak Nath
decision in Keshwanand Bharis case and laid down a new basic structure theory and in Golak nath case
the new principle of prospective over-ruling was evolved by Judges.
RECONCILAION OF THE TWO THEORIES
The above two views about making of law by judges are not exclusive of each other but they are rather
complementary. It will be seen that neither the purely declaratory theory nor the purely legislative theory
represents the whole truth. Judges develop the law but cannot be said to legislate. The common law is
not made but has grown and the more it changes the more it remains the same thing.
The answer to the question whether the Judges make or discover law much depends upon
the nature of the particular legal system. In common law system it may be stated that the Judges make
law while in other countries where is law is codified the judges only supplement the law. It is true that
custom and statutes do not render the judges some super fulvous knowledge.

11 Explain the phrase, Law is social Engineering as propounded by Roscoe Pound.


INTRODUCTION:- Roscoe Pound is considered to be the, American Leader in the field of Sociological
jurisprudence. He comes from Harvard Law School and had a great academic favour. According to him,
the end of law should be to satisfy a maximum of wants with minimum of friction. He defined law as
containing the rules, principles, conceptions and standards of conduct and decision as also the precepts
and doctrines of professional rules of art. He considers law as a means of a developed technique and
treats jurisprudence as social engineering.
The main propositions of Roscoe Pound theory of Social Engineering are as under:-
i) POUND CONCENTRATES ON THE FUNCTIONAL ASPECT OF LAW:- Pound concentrates
more on the functional aspect of law, that is why some writers name has approach as functional school
the law is an ordering of conduct so as to make the goods of existence and the means of satisfying claims
go round as far as possible with the least friction and waste.
ii) THE TASK OF LAW IS SOCIAL ENGINEERING:- He says, for the purpose of understanding of
law of today. I am content with a picture of satisfying as much of the whole body of human wants as we
may with the least sacrifice. I am content to think of law as a social institution to satisfy, social wants, the
claims and demands involved in the existence of civilized society.
iii) SOCIAL ENGNEERING MEANS A BALANCE BETWEEN HE COMPETING INTEREST IN
SOCIETY :- He lays down a method which a jurist should follow for social engineering. He should study
the actual social effects of legal institution and legal doctrines, study the means of making legal rules
effective sociological study in preparation of law-making, study of judicial method, a sociological legal
history and the importance of reasonable and just solutions of individual cases. He himself enumerates
the various interests which are to be protected by the law. He classifies them under three heads:
i. Private Interests (ii) Public Interests (iii) Social Interests.
PRIVATE INERESTS:- Such as interest of physical integrity, reputation, Freedom of volition and freedom
of conscience. They Are safe-guarded by law of crimes, contracts.
PUBLIC INTERESTS:- Main public interests are preservation of the State, State as a guardian of social
interests such as Administ-Ration of trusts, charitable endowments, protection of Natural environment,
territorial waters, sea-shores, Regulation of public employment and so on.
SOCIAL INTERESTS:- Preservation of peace, general health, preserving of Social institutions such as
religion, political and Economic institutions, general morals, promotes Human personality, cultural and
economic life.
Pound tackled he problem of interests in term as of balancing of individual and social interests. It is
through the instrumentality of law that these interest are sought to be balanced. Justice Cardozo
remarked that, Pound attempted to emphasize the need for judicial awareness of the social values and
interests. Roscoe Pound regarded law as a basic tool of social engineering. How in India the society and
law are acting and reacting upon each other can be adjudged from the following enactments passed after
India became Independent:-
a. The special Marriage Act 1954 2. The Hindu Marriage Act 1955 3. The Hindu succession Act
1956 4. The Hindu Minority and guardianship Act 1956 5. The Hindu Adoptions and Maintenance Act
1956 6. The Dowry Prohibition Act 1961 7. Child Marriage Restraint (Amendment Act) 1978 8. The
Consumer Protection Act 1986 9. The S.C & S.T.(Prevention of Atrocities) Act 1989 10. Commission of
Sati (Prevention) Act 1987 11. Bonded labour(Abolition) Act- 1976
INTERESTS AS THE MAIN SUBJECT-MATTER OF LAW:- Pounds theory is that interests are the main
subject matter of law and the task of law is the satisfaction of human wants and desires. It is the duty of
law to make a valuation interests in other words to make a selection of socially most valuable objectives
and to secure them.
To concluding the theory, Pound says that the aim of Social Engineering is to build an
efficient structure of the society as far as possible which involves he balancing of competing interests.
CRITICISM AGAINST POUNDS THEORY :-
i. Engineering not a happy word : It suggests a mechanical application of the principles to social
needs but really the word engineering is used by Pound metaphorically to indicate the problems which the
law has to face.
ii. Classification of interests not useful: Freidmann doubts the value of classification of interests and
the value of such classification.
iii. Ihering & Bentham concludes the theory of Pounds that, such classifications greatly helps to
make legislature as well as the teacher and practitioner of law conscious of the principles and values
involved in any particular issue. It is an important aid in the linking of principle and practice.
POUNDS CONTRIBUTION
Social Engineering stands on a practical and firm ground. He points out the responsibility of the lawyer,
the judge and the jurists and gives a comprehensive picture of the scope and field of the subject.

12 What do you mean legal personality and its different theories? Whether the following are legal person
:-
1. President of India 2. Council of Ministers 3. Company 4 Un-born child. 5. Animals.
INTRODUCTION:- Natural Persons are all human beings who are capable of rights and duties in law, i.e.
who have a status. Legal persons are those to whom law is recognised as a person. It is either a thing or
a mass of property or group of human beings to which law attributes personality the law confers a legal
status and who thus in the eye of law possess rights and duties as a natural person. Person is of two
types :- 1. Natural Person II. Legal Person
According to Gray, A person is an entity to which rights and duties may attributed.
According to Salmond, person is, any being to whom law regards a capable of rights and duties.
According to Paton, Legal personality is a medium through which some such units are created in whom
rights can be vested.
In the development of society, law developed and with the development of law the concept of legal
personality come into existence. In the ancient times there was no concept of legal personality but as the
society developed the person was recognised as the representative of the State and a separate
personality was given to him. In the due course of time corporation and companies came into existence
such companies and corporate were given the separate personality so in this way these bodies are now
called as legal persons.
There are the following two types of persons :-
i) NATURAL PERSONS ( HUMAN PERSONS):- All human beings are natural persons but in
ancient society the slaves were not recognised as natural persons. Similarly outlaid persons, unsound
persons were not natural persons. In Hindu Law, Manu has mentioned some persons who were not
recognised as natural persons i.e. Born child, deaf persons, sanyasi and those who are living dead.
1. Unborn person: Unborn person is not a natural person because he is not in existence, but a child
in the womb is natural person because he bears the rights and duties under law. Person in the womb can
represent the position after birth. In IPC the child in the womb is considered as a natural person as soon
as any of his organ will come out from the womb.
2. If the pregnant lady gets the punishment of death sentence. She will be hanged only after
delivery.
3. ANIMALS:- In ancient time the animals were legal persons but in modern time animals are not the
legal persons but in law we find come cases in which some animals have some rights and duties. Today
also the protection of animals some laws have been made which give rights to the animals. These laws
prohibit people to kill them. In this theory the personality has also been confirmed.
4. Dead Person:- In law dead person has no existence as the dead person has no personality. But
in certain cases they are considered as person in law. First if any person defames the dead person and
such defamation lowers the reputation of the family members of the dead person, then a legal action be
taken against the wrongdoer who defamed the dead person. Secondly if any person defames the dead
body of deceased person then such person is liable for damages under law.
ii) LEGAL PERSONS:- Legal person are artificial or imaginary beings to whom law attributes
personality by way of fiction, i.e. law gives them rights and duties like of natural persons, e.g. King of
England has two personalities- first a human being second as head of state, being head of state he is
known as a legal person. Similarly he President of India and the Governors of the states are legal
persons.
CORPORATE PERSONALITY:- Main form of legal personality is the corporate personality. It is of two
kinds :-
1. Corporate sole: means a single body representing any state or any other object. It is called series
of the successive persons. The King of England or the President of India is the corporate sole. They
represent only one man in successive period. The post of corporate sole remains always alive while the
human beings who sit on the post may die.
2. Corporate Aggregate :- When law confers single personality to a group of person then it is called
corporate aggregate e.g. companies are registered according to law of societies or according to law of
land. These companies or corporations etc., are legal persons.
3. In the ancient time the Karta represented the whole Hindu family who was considered as legal
person. It is same as in Roman Society. It is adopted in the shape of Indian companies Act 1956. The
advantages of the corporate personality because they represent an association of persons as a single
person which is helpful in business.

13 Lay down the essential features of the Historical school. Discuss the views of Society in this
regard. OR Discuss the philosophy of law as given by Sovging under Historical School? OR Write
critically note on the following Soveging (Volkgeist Theory).
INTRODUCTION:- Jurisprudence is a subject in which the definition nature and the sources of law are
studied various writers under various schools have defined law. Austin under Analytical school says that
law is the command of sovereign. He added only the law in the study of jurisprudence. But under
historical school Soviging says that law is the general consciousness (Volkgeist) of the people. It means
what the common people think or behave is the base of law. Law shows the general nature of the
common people. This theory of Volkgeist is bassed on the historical method. Soveging is the father of it.
According to Soveging, Law is the General consciousness of he people.
HISTORICAL SCHOOL
Historical School is a branch of Law, which studies law from the past history. It says that law is based on
the General Consciousness of people. The consciousness started from the very beginning of the
society. There was no person like sovereign for the creation of law.
The law in the ancient times was based mainly upon simple rules, regulation, custom,
usages conventions etc. These things were later on developed by the jurists and lawyers. These things
were later on converted into set form of law.
CAUSES OF COMMING OF THE HISTORICAL SCHOOL
The Historical school is just opposite to the Analytical school in 18th and 19th century, the concept
of individualism came into existence. Due to this concept the revolutions came like French revolution,
Russian revolution etc. At that time Soveging montasque, Barke, Hngo were the writers who said that law
is the general will of the people or law is based upon common people and the feelings of the common
people.
Law develops like the language and manners of the society. So law has a natural character.
Law has no universal application. It differs from society to society and state to state. In the same way the
languages differ from society to society and locality to locality.
Montasoque has said, Law is the creation of climate, local situations and accidents. According to Hugo
hag, Law develops like language and the manners of the society and it develops according to suitable
circumstances of the Society. The necessary thing is the acceptance and observance by society.
According to Burke, Law is the product of the General process. In this sense it is dynamic organ which
changes and develops according to the suitable circumstances of society.
SOVEGING :- Soveging is considered as the main expounder or supporter of the historical
school. He has given the Volkgeist theory. According to this theory, law is based upon the general will or
free will of common people. He says that law grows with the growth of nations increases with it and dies
with the dissolution of the nations. In this way law is national character. Consciousness of people. In other
words, according to this theory law is based will or free will of common people. He says that law grows
with the growth of nation. A law which is suitable to one society may not be suitable to other society. In
this way law has no universal application because it based upon the local conditions local situations, local
circumstances, local customs, elements etc. Al these things effect law and make it suitable to the society.
The main features of the Soveging theory is :-
1. Law has a national character.
2. Law is based upon the national conditions, situations, circumstances, custom etc.
3. Law is pre historic: means law is found and is not made, the jurists and the lawyers make it into
set form.
4. Law develops like language and manner of the society. In ancient society law was not in a natural
stage or no in a set form. Later on with the development of the society the requirements and the
necessities of the society increased. Due to this it was necessary to mould law in a set form.
IMPORTANCE OF CUSTOMS
According to Soveging customs are more important than legislation because customs come before
legislation. In other words the customs are the base of legislation.
CRITICISM OF SOVEGINGs THEORY
Savignys theory has been criticised on the following grounds:-
1. Inconsistency in the Theory :- Saveging asserted that the origin of law is in the popular
consciousness, and on the other hand, argued that some of the principles of Roman law were of universal
application. Thus, it is a clear cut inconsistency in his ideas.
2. Volksgeist not the Exclusive Sources of law :- There are many technical rules which never
existed in nor has any connection with popular consciousness.
3. Customs not Always Based on Popular Consciousness:- Many customs are adopted due to
imitation and not on the ground of their righteousness. Sometimes customs completely opposed to each
other exist in different parts of the same country which cannot be said to be reflecting the spirit of the
whole community.
4. Savigny Ignored Other Factors That Influence Law:- The law relating to trade unions is an
outcome of a long and violent struggle between conflicting interests within a society.
5. Many Things Unexplained :- Legal developments in various countries show some uniformity to
which he paid no heed. i.e.
6. What is national and what is universal.
7. Juristic Pessimism:- Soveging encouraged juristic pessimism. Legislation must accord with
popular consciousness. Such a view will not find favour in modern times. No legal system would like to
make compromise with abuses. People are accustomed to it.
CONCLUSION
From the facts mentioned above we have gone behind to see the history of the society to check that what
was the position of law in the ancient time. How and in what form law was prevailing in the society? To
find the solution of the questions the supporter of Historical school found that law is the general
consciousness of the common people or it is the free will of common people on which law developed and
converted into a set of form of law.

14 Define Precedents? Lay down the importance of the precedents as the source of law. In what sense
they are binding? Do the judges make law?
INRODUCTION:- Precedents literally means previous judicial decision. The decisions of the higher courts
are binding on the lower courts. The binding force of decision is called precedent. The precedents play an
important role in the development of law. It is the second important source of law. First source is customs
and the third source is legislation. Sometimes act may be insufficient for the case or there may be an
vacuum or any thing missing in the act. Under these circumstances the court can apply their own mind.
These independent decisions becomes precedents which are followed later on by the same & Lower
courts. This method of decision is also called as Judge made law. The English and American law is
mostly based upon the precedents. In India Art.141 of Indian Constitution says that the decision of the
higher courts shall be binding upon the lower courts.
DEFINATION OF PRECEDENTS:- Precedents are a decision of a court which is also called judicial
decision. According to the Oxford University, Precedents means the previous decision case given by a
court according to rules. Various writers have given the definition of precedents is conduct of court
adopted by the lower court in similar facts and in similar circumstances in a case. Particularly the
precedents means the Judge made law. When the court gives its own ideas for creating new rules.
England, America and China also follow the previous decisions as the source of law but the continent
countries like Germany, Japan does not accept the previous decisions as the source of law. The method
of taking precedents as source of law is called inductive method, while the method of continental
countries not following previous decisions of the court is called deductive method.
MERITS OF PRECEDENTS:- Precedents are a very important source of Law. They play an important
role in the development of law, so they have certain advantages as:
1. Precedents show true respect to the ancestors means by adopting the previous decision of the
higher court to decide the present case, it is a kind of respect to elders.
2. Precedents are suitable to the present situation means after some times the circumstances of the
society can change with the change of time so the precedents they are more suitable and fit for the
present time and circumstances.
3. Precedents are based on customs means the law in the form of act which based upon customs.
Court interprets the customs while interpreting any act.
4. Precedents are convenient and easy to follow because they are available in the form of written
reports.
5. Precedents bring certainty in law, once decision is given in a case there would be no need to
repeat all precedents in any other case if it resembles to the former case.
6. Precedents are the best guide for the Judges: They play an important role in the judiciary
because the precedents are the guide lines for the courts.
DEMERITS OF THE PROCEDENTS:- lthough the demerits are very few but these are as under :-
i) The decisions are given by the human beings while performing the duties as judge, his decision
may not be suitable to all persons who have different mind and thinking. This will be a bad effect on
Judiciary.
ii) Sometimes the decisions of the higher courts contradictory to each other. It becomes harder to
another judge to apply the same verdicts as a precedents of higher court
iii) Sometimes the higher courts give a wrong decision and over pass the important factors of the
case due to one reason or the others.
PRECEDENTS ARE BINDING:- The precedents is an important source of law. It is available in the form
of judicial decisions. Now the question arises that in what sense and when the precedents are binding o
follow. For the answer of this query different views have been given by the various writers and jurists. No
doubts the precedents is not binding like warrant issued by a court of law. It means precedent can be
over ruled if they are not right or appropriable to the case to be decided but warrant has to be followed by
all to whom it is applicable.
It is not necessary that in the case which is to be decided the circumstances and the facts must be the
same as in resembling case. If the facts and the circumstances of the cases are materially similar then
the precedents or previous judicial decision is applied in the later cases and are applied only in the form
of ratio decidendi of previous cases. There are two parts of it :-
i) Ratio-decidendi:- means reasons which leads the court to reach the decision. It is the main part of
the case in judgement and the ratio decidendi of the decision is binding in the form of precedent.
ii) Obits decidendi:-It is also a part of the decision which is irrelevant to the facts and circumstances
of the case. The judge takes into consideration the social conditions, morality, principal of natural justice
that is why the Judges play an important role in the development of legal system.
DIFFERENCE BETWEEN CUSTOM & PRECEDENTS
CUSTOMS PRECEDENTS
Custom is primary source of law.
Precedents are the secondary source of law.
Custom is given by people in general. Precedents are given by courts.
Custom is conduct adopted by people of society. Precedents is itself complete certain, reasonable given
by a competent court of the country.
Custom is based upon the reasoning of common people of the society.
Precedents are based upon the reasoning of a individual Judge or very few judges.
Customs have more value then precedents and cannot be ignored. It can be ignored if it gives un-
justice.

DO JUDGES MAKE LAW:-


There are two theories about this purpose one theory says that Judgs do not make laws and other theory
says that Judges in fact are the makers of Laws. This theory is also known as declaratory Theory.
According to this the judges are not makers of the laws which they are already n existence. The judges
while deciding the case only applies the existent and relevant customs for deciding the cases.
Judges are not the law makers:- The supporters of this theory (historical school) says that all the laws are
based upon customs. The judges only to explain these laws and customs. According to Coke hate and
Dr.Carter, that the law is created by the King or by the Parliament or by the Legislature bodies. Common
Laws is based upon custom. The public through the decision of courts come to know those customs. It
means that Judiciary is not the maker of law. A case: Rageshwar Parsad v/s state of West Bengal. It was
held that, The court does not create Law.
ORIGINAL LAW MAKING THEORY
This theory is opposite to the first theory. It says that the Judges are the real makers of the law. They not
only interpret or explain but also make the law. According to Salmond: who is the main supporters of this
theory says, That the decisions of the courts are a great contribution to the legal system. Dicay says
that, that legal system is the best part of the law of England which is judge made law.
CONCLUSION:- The conclusion or the correct view is that we cannot ignored any of the above theories
because both are correct and complements to each other and both should be taken. No doubt that a
Judge can only to explain or to interprets the existing laws but at the same time he also creates the new
ideas, thoughts and gives new touch ideas which play an important role in the development of law.
15 Discuss the main features of the Pure Theory of Law. How it resembles with Austins command
theory. Critically examine the view of Kelson given under pure theory of Law?
Introduction:- The Pure Theory of Law is given by Kelson. This theory is also known as Vienna School
because Kelson is the productor of Vienna University. This theory resembles with Austins command
theory because in Kelsons theory there must be sanction behind law. Austin gave it the name of
command theory and Kelson gave it the name of grandnorm theory. Kelson is affected by local
conditions, natural condition and international condition. After studying all these conditions he gave this
theory of Law, which is known as pure theory of law and grandnorm theory .
Concept of pure theory of Law:- At the time of Kelson there are Ist world was which destricted the
property of human beings at international level. So he gave power to the international law and avoiding
the destructions of the world. Secondly during that time many countries adopted written constitution. So
Kelson also get influenced from these written constitutions and gave his own theory which is based on
grandnorms.
Grandnorm
Grand means great and norm means Law, So it means a great law the superior authority from
which law comes out. He compared the grandnorm with written constitution. According to him written
constitution is the highest authority in the country which is known as grandnorms. In England the
Parliament is a grandnorm, in USA written constitution is grandnorms and in India too written Constitution
is grandnorm. State is not above the grandnorm. Sovereignty also liven in grandnorm. Accoding to Kelson
law is a motive nor science, it means science of norms. In laws only those rules are taken which are
related with legal aspects. Any others like moral rules, religious rules, ethical rules do not come under the
concepts of grandnorm. Here Kelson is equal to Austin. When he excludes morals relation or ethics from
the field of law.
System of Normative Rules:- System of normative rules was Hierarchy. In hierarchy system there is one
highest authority and all other are lower authorities. This highest authority was grandnorm which was in
the form of written constitution and other authorities are below the constitution. The source of power in a
state for all bodies is written constitution.
Internation Law:- Kelson says that norms have a force behind it. This force lies in the grandnorm. If this
legal norm is not obeyed then one person will be punished for it. He also says that at this time
international law is immature. It is in primitive stage. It is developing.
Nature of Grandnorm:- According to Kelson each country has the formation of grandnorm according to
local conditions. The duty of jurists is to interpret the grandnorm in their own language. They are not
concerned with the goodness or badness of the grandnorm. They are not concerned with the origin of the
grandnorm. In this way the grandnorm is the main source of all the laws in the country.
Elements of Pure Theory:- Kelson gave his view under this theory about State, sovereignty, public and
private law, public and private rights, international law private and juristic law.
Feature of Kelsons theory:-
1. Grandnorm as a source of law:- Grandnorm is the source of all laws. Grandnorm is in the form of
written constitution. Any such body, which contains rules, or any such legal system in a country.
2. No difference between law and state:- Kelson says that there is no difference between law and
State between because they get power from the same grandnorm. Law comes from the grandnorm and
the state also comes from the grandnorm.
3. Sovereign is not a separate body:- Austin says sovereign is a politically superior person which
keeps controls over the politically inferior persons. But Kelson says that the power of sovereign lies in the
people. So the Sovereign is not separate and superior from the people of the country.
4. No difference between public law and private law:- The public law is related with the state and the
private law is related with the individuals as Kelson says that there is no difference between public law
and private law. The law which creates a contract between individuals is called private law.
5. Supremacy of internationally laws:- The main prupose of Kelson was to decrease the tension at
world level because there was Ist world war which destroyed millions of persons and property. He also
said that the internaiton law is in primitive stage or immature stage. It means it is in developing stage.
One day will come when international law will get equal to that of municipal law. So this is also
enforceable.
Criticism of Kelsons theory:- In-spit of having good concept of pure theory given by Kelson some of the
criticism faced by him, which are as under:
a. Grandnorm is a vague concept:- The concept of grandnorm is not clear. It cannot be applied
where there is no written constitution. The base of grandnorm in the form of positive norms or the rules
based only on legal order is not clear. The rules, which are not linked with morals ethics. Customs and
religion are not the norms. But we can not ignore the role of these norms in the development of law.
b. Interantion Law is a weak law:- Kelson advocated the supremacy of international law. But even
upto now we see that is no force behind international law.
c. No difference between state and law:- this point is also criticised by various writers. Law as a
separate thing from the State. State is body is law in, which law is a rule that regulates the state.
d. Difference between public law and private law:- Kelson says that there is no different between
public law and private law. Which is also not right in the modern days.
e. Customs and Precedents ignored:- He also customs as a source of law while we see that
customs are the source of all laws.
Conclusion:- Although Kelson has been criticised from various angles yet he had contributed a lot in the
development of the society. Thus the concept of grandnorm gave power to the public at large as well as
at national level. His main purpose was to stop destruction of any world war. This can resemble to Austin
also Kelson is also limited with the law.

16 Discuss the Salient features of the Sociological School of Jurisprudence? OR Salient features of the
Sociological School of Jurisprudence?
Introduction:- The sociological school is one of he important branches of law. It comes after the Analytical
school and Historical school. Its seeds were found in the historical school. Duguit, Roscopound and
Camta are the supporters of this school. This school is related with society. According to this school law is
numerator of society. Law and society both are the two sides of the same coin, one cannot exist without
the other. If there is law there should be society and if there is society there should be law. Law is very
necessary for regulating the society. Many writers like Duguit, Roscopound and Inhering gave these view
in the sociological school.
The theory of Duguit under sociological school is a social solidarity. Scocial solidarity means the
greatness of society. Duguit said that there are mainly two types of needs of the society:-
1.Common Needs 2. Adverse Needs.
1. Common Needs :- Which are fulfilled by mutual assistance.
2. Adverse Needs.:- Which are fulfilled by the exchange of services. No one can live without the help of
other. Even a state cannot exist without the help of other state. One cannot produce all things required
for him. So he has to depend upon others. The dependency is called social solidarity. For this purpose
the division of labour is necessary. Division of labour will fulfill all requirement for the society. This
philosophy or views is called social solidarity.
ESSENTIAL ELEMENTS OF DUGUIT THEORY OF LAW
1.Mutual Inter dependence : In society all persons are depending upon each other. Individual cannot fulfill
his ambitions alone.
2. No difference between state & society: State and society are a group of persons. Main purpose of the
society is to save the people. This responsibility is also lies upon the state. So state does not have a
special status or above status from people. State should make law for the welfare of the people.
3. Sovereign and will of people: Sovereign is a politically superior person. Duguit says that sovereign is
not superior to people. The sovereign of a state lives in people or in the will of people.
DIFFERENCE BETWEEN PUBLIC & PRIVATE LAW
Duguit says that there is no difference between public law and private law because the aim of both the
law is to develop the social solidarity. Pubic law and private law are meant for people. Public right and
private right or people have only duties and not any right.
There is no difference between public right and private right. According to Duguit there is only one
right that is to serve the people. It means person have only duties not rights.
CRITICISM OF DUGUITS THEORY
1.The theory of social solidarity is vague:- This theory is not clear for a common person. One cannot gain
anything from this theory so this is vague theory.
2.Who will decide social solidarity :- Duguit has not given the authority that who will explain the solidarity
because Duguit did not recognize sovereignty. We can imagine that Judge will explain the standard of
social solidarity. But there are no guidelines for the Judgess
3.Public law and Private law are not same :- There must be an authority which passes the law. In Duguit
theory there is no place for such authority.
4. Public right and Private right are also not same :- The right of society is public right and the right of
common people is private right.
5. Custom ignored:- Custom is the base of any law but Duguit ignore these customs. In this way the
theory of Duguit is not suitably in modern times.

CONCLUSION
No doubt Duguit was a sociologist because he gave a lot of development to society. The social solidarity
itself contains the welfare of the people. Duguit said that law should be according to the social solidarity.
Here he discards natural principal but the theory of the social solidarity itself is based upon natural law,
which demands that the people should served properly according to their needs. In this way Duguit put
out the natural law principal from the door and accepted through the window.
However the contribution of Duguit is accepted by many writers and some of them also adopted this
theory.

17 Define Ownership. Discuss the various kinds of ownership. Distinguish between possession and
ownership.
INTRODUCTION: Ownership is linked with possession. Possession is the first stage of ownership. It
means for ownership possession is necessary. Possession and ownership both are two sides of the same
coin and one cannot exist without the other.
Ownership gives the full right over the thing. Ownership is ultimate and final right for disposing the
property. It means to transfer that property in any way. Ownership is a relation ship between the person
and the thing. For ownership there must be a thing and the owner of thing. The concept of ownership
was absent in the ancient society. There was also no concept of possession too. Slowly and slowly as
the society developed the concept of possession also developed. The idea of ownership came into
existence. So this way after the progress of the concept of ownership the person became the full owner
of his property.
DEFIN ITION :- Before to define the ownership we have to discuss the various kinds of law :-
Roman Law :- As evident from history that the Roman Law was the first law in the world. It is considered
the ancient law. All concepts of law begin from the period of Roman society. Under the Roman Law the
concept of ownership is defined in the form of dominion that means to have the right control of a
thing. The concept of ownership developed in the form of a right over the thing. Dominion is
distinguished from possession. Possession means to have possession over a thing but dominos means
to have a right over the thing.
HINDU LAW :- Hindu Law is also considered as the most ancient law in the world. In Hindu law the
concept of ownership also has been discussed. In Hindu Law ownership is said a , According to Hindu
Law ownership means a relationship between person and a thing. Person is called owner and a thing is
called property. Means a property which is in the control of a person is his property.
VIEWS OF MODERN & WESTERN JURISTS
The western jurists like Austin, Holland and Salmond defined the concept of ownership.
Austin :- According to him ownership is the relationship which exists in between the person and the thing.
This definition resembles with the definition under Hindu Law. Austin says that in ownership a person has
the following relations with the thing.
1.Indefinite Use :- It means to use that thing in any way whether to use it for agriculture or for industry,
residence but there is a restriction that one cannot use ones property in such a way which destructive in
the living of others.
2.Un-restricted power of dispose:- Means to transfer that thing or property according to his choice. He
can sale or to mortgage even to give on lease or gift to anybody. But under art.19(2) of the Constitution
reasonable restrictions can be imposed by the Govt., in the interest of public policies.
3.Un-limited duration of time :- means the right of transfer of his property will remain always in the name
of owner. After his death it will go to his heirs so there is no time limits.
4.Domination :- It means to have control over the thing. For this purpose both elements of possession
corpus and animus should be there. If the conditions are there between person and the thing and then
the person is owner of that thing.
According to Holland: He defined the ownership as a plenary control of a person over a thing. The
definition also contains the following conditions :-
1.Possession 2. Enjoyment 3. Disposal.
According to Salmond :- Salmond defines ownership as a relationship between person and the
right. Right means to have a thing under possession. Thing always represents physical objects. But right
always represents a thing which is not in physical existence like copy right and allowances are always
thing which are called property. And which are not in physical existence.
Salmond has included all those right which are property in the concept of ownership. In view of the above
it is learnt that Austin and Holland definitions are not complete. But salmond is completely perfect in his
definition.
KINDS OF OWNERSHIP
There are various kinds of ownership which are as under :-
1. Corporal and Incorporeal ownership: Corporeal and incorporeal ownership also called material and
immaterial ownership. Corporeal ownership is the ownership of a material object and incorporeal
ownership is the ownership of a right. Ownership of a house, a table or a machine is corporeal
ownership. Ownership of copyright a patent or a trade mark is incorporeal ownership.
2. Sole and co-ownership:- The general principal of ownership is that vested in one person only. But
some times it vested in many persons in other words two or more person have the right of ownership. If
only one person have right of ownership that known as sole ownership and where two or more persons
have the right of ownership then know as co-ownership.
3. Vested and contingent ownership:- Ownership is either vested or contingent it is vested ownership
when the title of the owner is already perfect. It is contingent ownership when the title of the ownership is
yet imperfect.
4. Absolute and Limited ownership:- means owner is one in whom are vested all the rights over a thing to
the exclusion of all or when a person has an absolute right over his property known as absolute
ownership.
When there are limitations on the user duration or disposal of rights of ownership the ownership is limited
ownership.
5. Legal and Equitable ownership:- Legal ownership is that which has its origin in the rules of common
law. Equitable ownership is that which proceeds from the rules of equity. Legal right may be enforced in
rem but equitable rights are enforced in personam.
CONCLUSION
The ownership is a relationship between person and the right. These rights include the right of
possession enjoyment and disposal of the property. If all conditions are there then it is called Ownership.

DIFFERENCE BETWEEN POSSESSION & OWNERSHIP


POSSESSION OWNERSHIP
1.Possession is a primary stage of ownership which is in fact. 1. Ownership is in right.
2.Possession does not give title in the property defacto exercise of a claims 2. While in ownership it
gives title in the property dejure recognisation.
3.Possession is a fact. 3. Ownership is a right and superior to possession.
4.Possession tends to become ownership. 4.Ownership tends to realize itself in to possession.

5.Possession dominion corpus and animus are necessary. 5.Ownership they are not necessary
because law gives full rights.
6.Transfer of possession is comparatively easier.
7. Possession is nine points of law. 6.Ownership most of the cases involves a technical process i.e.
conveyance deed etc.
7.Ownership always tries to realize itself in possession i.e. complete thing.

18 Define Custom and essentials of a valid custom. Discuss its importance as a source of law and also
compare with precedents.
INTRODUCTION: Custom is a conduct followed by persons in the society. Custom is considered as the
most ancient and most important source of law. Source means origin of a thing. It is also considered that
law basically comes out from customs. In the past customs were prevailing for the control over the
society.
Austin was the first person who discarded the value of the custom. But the historical school again
gave the importance to custom. The sociological school also gives importance to law with relation to
society.
In the modern times the precedents i.e. Judge made law and legislation have become over
powered to that of customs. As in a case of Maduri v/s Motu Ram Linga. It was held that even custom
power over the state.
VARIOUS LEGAL SYSTEMS RECOGNIZED CUSTOM AS A SOURCE OF LAW.
The followings are the systems which recognized custom as a source of law :
1.Romal Law :- Roman Law is known to be the oldest one in the world. This law is mainly based upon
customs of the society. Those customs which were reasonable continued them as law by the Roman
jurists.
2.Hindu Law :- Hindu law is also to be considered as the most ancient law. His sources are Vedas,
Sutras and Smiriies and these were mainly based on customs. All personal laws of Hindu are based
upon custom that is why Lord Warren Hastings and Lord Cornwallis did not attack on customs of Indians.
Manu said One should follow the given path of their ancestors. This was nothing but the reorganization of
customs.
3.Mohammedan:- Particularly ignored customs for the purpose of law. During th Muslim period in India
their customs were protected by State. The British rulers in India also protected customs and personal
laws which were based upon customs. The traditions which were not opposed by the prophet
Mohammedan were recognized as law. In this way we can say that customs in Mohammedan law also
played an important role.
4. English Law :- Which is known as common law and in the shape of un-written and based upon customs
and conventions. Customs which were reasonable and not against the public policies were recognized
as law under English Law.
According to Pollock, The common Law is customary law. Black stol common includes written law
and un-written law. The written law is based upon the general customs. In this way English law also
gave importance to the customs as a source of law.
CLASSFICATION OF CUSTOMS
Mainly the customs are of four types :-
1.National Customs :- Those customs which are related to the nation and are applicable on the countrys
people.
2. Local Customs :- Those customs which are related with a particular locality.
3. Family Customs :- Those customs which are related with a family and have application on a particular
family.
4. Conventional Customs :- These customs based upon conventions e.g. a bigger part of English Law
based on customs and conventions.
ESSENTIALS OF CUSTOMS
1. Antiquity :- It means oldness of the customs. The customs must be ancient. There is no limit of time for
the antiquity of custom. In India there is no fixation of such time limit.
2. Reasonable :- The customs must be reasonable. It should not be un-reasonable and against the public
feelings.
3. Followed :- Customs must be followed by the society. There should be no contradiction in observing
customs.
4. Continuity :- Customs must be continuing from the time it was recognized as law. There should not be
any break or interruption. If there is break for sometimes it does not mean that the right thing has been
lost.
5. Certainty :- Customs must be certain in its nature.
6. Consistency :- There should not any confliction for its reorganization as a law.
7. Peaceful enjoyment :- Custom must be enjoyed peacefully for a long time without an disturbances.
8. Immorality:- Customs should not be against the morality.
9. Public Policy:- It must not be against the public policies or against the will of people.
10. Not against the State of Law:- Customs should not over-ride the legislation . It should not be against
the law of the land.
WHEN DOES A CUSTOM BECOME LAW.
ANALYTICAL VIEW:- Austin and Gray are the supporters of analytical school. They say that a custom
becomes law when it is recognized by the sovereign in the sense of positive law only.
It means that if a custom has been accepted or adopted or recognized by the sovereign then it will
become a law otherwise there will be no value of the custom in judicial system of the society.
HISTORICAL SCHOOL:- Sovereign as the supporter of Historical school says that custom is a main
source or base of law He says that consciousness of the volkgiest is the main source of law.
Custom is superior to Judge made law or legislation. The legislation while making a law
recognizes the customs of the society. The courts also while giving the decisions recognized the customs
prevailing in the society.
CONCLUSION
Custom occupies an important place as a source of law even to these days because most of the material
contents of developed system of law have been drawn from ancient customs. Custom is one of most
fruitful sources of law. According to Analytical school a custom when recognized by State or sovereign
becomes law. According to Historical school when state or courts make law they give importance to the
customs. So both of the view are combining to each other and are correct for a custom as source of law.

19 Rights and duties are co-relative. Discuss. OR Distinguish between claims liberties powers and
immunities also explain the correlative of each.
Introduction:- Right and duties are the very important element of law. The term Right has various
meanings such as correct, opposite of left, opposite of wrong, fair, just and such like other expression etc.
But in legal sense a right is a legally permissible and protected action and interest of a man group or
state.
Definition
According to Austin :- Right is a standard of permitted action within a certain sphere. He further define
right is a party has a right when others are bounds to obligesed by law to do or not to do any act.
According to Salmond : It is an interest recognized and protected by the rule of justice / law.
According to Gray:- Right is not an interest itself but it is the means by which the enjoyment of an interest
in secure.
According to Prof. Allen:- The essence of right not a legal guarantee in itself but a legally guaranteed
power to realized an interest.
ELEMENTS OF RIGHTS
1. Subject:- The subject of a right is concerned with the person legal and artificial or a group who legally is
entitled to seek the privilege and benefit of against other. In other words the subject is that the person
whom the right is vest.
2. Content:- This is the subject matter of the right along-with the nature and limits of that right.
3. The person of Incidence :- It means that the person upon whom falls the corrective duty.
OBJECT:- The object of the right may be material or immaterial determinate or indeterminate.
CHARACTERSTICS OF RIGHTS
1. RIGHT is a general o specific type of claim, interest or such like expression of the people in a State.
2. The right is duly recognized and approved by the State through its agencies.
3. A legal right is expressed a deep correlation with a corresponding duty, liability or disability on the part
of those against whom such right is conferred.
4. A right may has its independent existence and type of assemblies with other rights.
5. Basic philosophy or the fundamental concept of right remains permanent but with the time being it is
subjected to incorporate the allied changed in it.
6. The realization and scope of a legal right depends upon the type of society and the nature of interest.
THEORIES OF RIGHTS:- There are two main theories of legal right:-
1. Will theory:- The will theory says that the purpose of law is to grant the individual i.e. self expression or
positive declaration. Therefore right emerges from the human will. The definition of right given by Austin
and Holland, that the will is the main elements of a right. Pollock says, that right in term of will.
2. The Interest Theory:- Interest is the basis of right. A great german jurists defines about the legal right
as, A legally protected Interest. According to him the basis of right is Interest and not will.
The definition of law is in term of purpose that law has always a purpose. In case of right the
purpose of law is to protect certain interest and not the wills or the assertions of individuals. These
interests are not created by the State but they exist in the life of the community itself.
TYPES OF RIGHTS
1. Primary and secondary Right: They are known by Antecedent and remedial rights names also.
2. Perfect and imperfect Right: Means which has a correlative positive duty.
3. Negative and Positive Right:-Positive means related to duty whereas negative means not related to
duty.
4. Right in Rem & Personam:
5. Right is repropria and Right is Re-aliena.
6. Vested and contingent right.
7. Propriatory and personal Right.
8. Equitable and legal right.
Duty
Introduction:- The term duty may be used in various form as an obligation, as responsibility and
accountability. There are some scolers who define Duty as following:-
Definitions of Duty:- According to Gray, Duty is the act of or forbearance which an organized society used
to impose on people through state in order to protect the legal right of other. According to Rose Duty is
the Pre-dicament of person whose act are liable to be control with the assistance of the State. As per
Hoffield The duty is the correlative of Right.
Classification of Duties:- Duty classified into two categories. There are as follows:-

Duties

Positive And Negative Duties Primary and Secondary Duties

1. Positive and Negative Duty:- A positive duty implies some act on the part of person on whom it is
imposed. Negative duty implies some forbearance on the part of the person on whom it is imposed.
2. Primary and Secondary duty:- A primary duty is that which exists perse and independent of other duty.
A secondary duty is that duty whose purpose to enforce some other duty.
Essentials of duty:- There are following essential of duty:-
a. It may be dependent and independent.
b. It consists an obligation on the part of someone and confirm a privilege upon other.
c. The concept of duty is affirmed and protected by the law of the land where it exist.
d. The concept of duties is a changing process which arises from time to time, place to place and
circumstances to circumstances.
e. Duty in most of the cases creates an absence of right against some person.
f. Duty may be fundamental, legal or moral in character.
Relation between Right and Duties:- The following objects describes the correlation between right and
duties:-
i. A right is indispensible without any duty.
ii. A duty and right has separate and independent existence.
iii. A right procreates duty and vice-versa.

OR Your choice

Even though right and duties are opposite points but there is a great relation between two relations. The
right and duties has a relation of Father and Child, Husband and Wife because there is no father without
child and no wife without husband. So right and duties cannot be separated form each other.
Right/Claim Liberty or privilege Power Immunity
Duty No claim Liability Disliability
(Jural opposites) (Jural correlative)
Conclusion:- Right and duties are correlative of elements of each other. There is no right without duty and
there is no duty without right. These are recognized by law for maintaining the society very well.
20 Define law as an instrument of social change. What special changes have been brought out by law?
INTRODUCTION:- Law as a command as it introduces subjective considerations whereas the legal
theory is objective. Notion of justice as an essential of law because many laws though not just may still
continue as law. Science as system of knowledge or a totality of cognitions systematically arranged
according to logical principles. The laws of natural science are capable of being accurately described
determined and discovered. A law is valid because it derives its legal authority form the legislative body
and the legislative body its own turn drives its authority from Constitution of India. The aim of law as of
any science is to reduce chaos and multiplicity to unity.
According to Kelson, law is normative science but law norms may be distinguished from science.
Definition of Law:- while emphasising Volksgeist as the essence of law, Savigny justified the adoption of
Roman Law in the texture of German Law which was more or less defused in it. Law has unconscious
organic growth, it found and not artificially made. Law is not universal in nature. But like a language it
varies with the people time and need of the community. With the growing complexity of law the popular
consciousness as represented by lawyers who are nothing but the mouth peace of the Consciousness.
Law as an instrument of Social Change:- The following are the elements which have been helping the law
to be an instrument who bring the social changes:-
1. A social Utilitarian:- The system develops aspects of Austinian positivism and combines them
with principles of Utilitarianism as established and developed.
2. Law is the result of Constant struggle:- According to Ihering the development of law like its origin
is neither spontaneous nor peace full. It is the result of constant struggle with a view to attain peace and
order. Law is the guarantee of the conditions of life of society.
3. Law is to serve for social purpose:- As a result of social changes comes through law that is social
purposes comes in conflict with the duty of the State is to protect and further social purposes to suppress
those individual purposes which clash with it. Therefore, law is coercion organised in a set form by the
State.
4. Law protects Social Interest:- Law is a such type of instrument which protects the social interest
of the people. According to Bentam it is the persuit the pleasure and avoidance of pain.
5. Law is to found in social facts:- AS per Ehrlich, That the law of community is to be found in social
facts and not in formal sources of law. He says at present as well as any other time the centre of gravity
of legal development lies not in legislation, nor in juristic science, nor in judicial decision but it lies in
society itself. It is a social changes.
6. Living law is the fact that govern social life:- The essential body of legal rules is always based
upon the social facts of law and the facts of law which underline all law are usage, domination,
possession and declaration of will .
7. Law according to the requirement of Society:- It means that law in a society should be made and
administered with the utmost regard to its necessity.
8. Law also to serve this and:- Law is the rule which men possess not by virtue of any higher
principle whatever, good, interest or happiness but by virtue and perforce of the facts because they live in
society and can live in society. This is because of to use the law as an instrument which brought the
Social Changes.
Conclusion:- The contribution of law in the social changes is a great and its approach is more scientific
and comprehensive. The study of law in social context and emphasizes its close relation with the life of
society.

CONTRACT LAW

Question No. 1: Who is competent to contract Discuss the law relating to minors agreement in India, with
help of decided cases. Also brief about English Law Indian law in this context.
OR
Minors agreements are void at-initio. In which case the above rule was established. Discuss in brief that
case and also bring out the exceptions to the above rule.
OR
What do you understand by capacity to contract What is effect of Minors agreement and when can it
enforced.
OR
A minors bind others but is never bound by others. Explain by giving illustrations.
OR
Discuss the nature and effects of Minors Agreement.
Answer INTRODUCTION:- All agreements are not contracts. Only those agreements are contract
which fulfil he conditions of section 10 and according to section 10 for a contract parties must be
competent, the consent must be free. Therefore the competency of the parties to a contract is most
essentials element of a contract.
According to section 11 of Indian contract Act 1872 which provided, That every person is
competent to contract who is of the age of majority according to law to which is subject and who is sound
mind and not disqualified from contracting by any law to which he is subject. The following persons are
competent to contract -

i) Who is major.
ii) Who is of sound mind.
It is evident that minors and unsound mind person cannot make a contract. A Major person means
who has attained the age of 18 years. The age of majority has been decided by Indian majority act
1875. In case of guardian appointed by the court, the age shall be 21 years.
An agreement made by a minor is void., from the above statement we find that the minor is
not competent to contract. Indian contract act is silent about whether it will be void or voidable up to
1903. But it is decided by the Court that these are void. Agreement by a minor is void-ab-initio, such
contract cannot be enforced by law. Further the minor cannot authorise any other person to do a
contract.
Case Mohiri Bibi vs Dharamdass Ghosh (1903) A minor Mr. Dharamdass Ghosh executed a mortgage
documents for Rs.20,000.00 in favour of a money lender Sh. Brahmo Dutt. The money lender actually
paid Rs.8,000.00 to the minor. It is important that before this transaction the guardian of the minor
informed the Attorney of Money lender that he (Dharamdass Ghosh) is minor. Later on a suit was
instituted by the minor Dharmadass Ghosh against the money lender Sh. Brahamo dutt with the intention
that the mortgage be set aside. This suit was opposed by Money lender by saying that the above
contract being voidable, he has the right to receive the amount of the loan under section 64 and 65 of
Contract Act i.e. minor is bound to return back the amount.
Privy council held that, the contract is void ab-initio which cannot be enforced. It was also
held that the minor could not be asked to repay the loan taken by him. It was further held that law of
estoppels cannot be applied against the minor Shri Dharmodas Ghosh being mis-stated falsely his age
because he was minor at the time of the agreement and the agreement was void. The law of estoppels
as stand in section 115 of Indian Evidence Act was not applicable to the present case as the plaintiff was
minor at the time of making agreement, this fact was also known to the agent of Brahmo Dutt
defendant. Under Specific Relief Act 1877 Section 38 and 41 applies where party had the knowledge of
minority age gets restitute degree.
A new concept of beneficial has come into existence now. It has been held in various
cases. A minor is bound for the beneficial contract. The beneficial contract are those contracts which are
for the benefit of minor. The first case was S.Subramanyam v/s Subha Roy-1948 - In this case transfer
of inherited property of
a minor affected by his guardian to pay off an in-herited debt was binding on him for his benefit. Here is a
list of beneficial contract
i) Contract of Insurance Such contracts are in the benefit of minors.
ii) Contract to purchase the immoveable property Such contract are valid.
iii) Contract of service - These are for the benefit for the monors
iv) Contract of apprentice ship Training period of any minor who is taking training from any person,
because of the training minor will case his livelihood. It is for his benefit and mono is liable to compensate
hat person.
v) Contract of Marriage When guardian made an agreement for the marriage of the minor then another
party cannot enforce it, but minor can enforce it. If agreement is made jointly by guardian and minor, it
can be enforced again on majority age.
vi) Contract of Necessities- Under section 68 of the Contract Act-1872, minor is also liable for
necessaries. Necessaries means the basic things of the life. These are mainly, ROTI KAPRA-AUR
MAKAAN. If any person supplied necessaries to minor then the minor is liable o compensate the supplier.
A case Chapple vs Cooper The court held that necessaries are not only food, shelter, clothes but also
education or religious and any such things which are necessary for life, comes under the definition of
necessaries. The following two conditions are necessary for liable
1. The supply must not be more than sufficient.
2. The supply must be according to the standard of minor.
Case PETRESS VS FLEMING
The supply of a watch to a minor whose study was considered as the necessity because to have a watch
for graduate person is his necessity.
RATIFICATION OF THE MINORS AGREEMENT
A minors agreement being void ab-initio, it is incapable of being validated a subsequent ratification after
the minor has attained the age of majority. Here is minor accepts the contract in some terms is entered
during minority then also he is not liable. If a minor takes 2000.00 in minority and Rs.3000- after getting
majority age and said major give back Rs.5000- then this is valid and with consideration. After getting
majority age if minor uses his option to be a partner, he will be bound for all the responsibilities of minority
period, which are against the firm.
CONTRACT BY MINOR GUARDIANS
1. If the agreement is on behalf of minor done by guardian.
2. With in his Power.
3. Guardian is capable to enter into contract.
4. The agreement will be in the interest of minor.
A case of Raj Rani vs Prem - Father agreed with the Director of Film, and according to
this agreement Director of Film will give a role to Indrani. It was held void because no consideration was
therein. It this agreement is with the daughter then it is void abs-intro. If it is with his father then it has no
value even to think over it.
DOCTRINE OF RESTITUTION
Restitution means if an agreement is declared void, benefit should be returned. Under section 64 & 65 of
contract Act, that section 68 is applies only on voidable agreements, Section 56 is applies on the
agreement which were valid at the time of formation but due to some circumstances(as under sec.56) it
becomes void. Under the equitable doctrine of restitution minor has to restore back the benefit so
received by him the exact things but it is applicable in case of goods and property not in the case of
money. Restitution stop where repayments begins.
A case of Leslie vs Sheill- (1914) - It was held by the court of Appeal that the money could not be
recovered. If there were allowed that would amounts to enforcing the agreement to repay loan, which is
void under Inflants Relief Act-1874.
Section 39(3) specific Relief Act 1877 If the court thinks he may pass an order of restitution in any case,
now a question arises whether he person did not know about the age of minor. If minor is also not know
his age. In this stage plaintiff does not get compensation. If respondent misrepresent his age on this
point there are different view of court.
Case KHARGIL VS LAKHAN SINGH -1928 LAHORE HIGH COURT.
The court ordered a minor to refund Rs.17500- which he had taken in advance for the sale of land. When
he refused to complete the contract. The court was of the opinion that still the Specific Relief Act should
apply whether the minor was the plaintiff or the defendant. The doctrine of restitution should apply
whether the minor had taken the goods or money.

Case Ajudhiya Parsad vs Chandan Lal 1937


Allahabad High Court refused to following, extended view of restitution and held that a minor who had
taken money by mortgaging his home was not bound to restore the money. Now section 33(2)(b) added
according to this section, when a plaintiff wants to dissolve the agreement and says that at the time of
agreement he is minor than he can get back all his profits.
DOCTRINE OF ESTOPPELS
According to rules contained in Sec.115 of Indian Evidence Act 1872, if you make a statement today,
which misleads another person, you are not allowed to deny the statement to-marrow when the question
of your liability arises. A question whether a minor who has made a false representation about his age is
stopped from pleading his minority, was raised, but it was not decided in this case of Mohiri Bibi. Privy
Council held that where the party knows about the age of minor this principle could not apply. The
question arises that whether minor can be stopped by false representation as to his age is now settled by
this case.
A Case Nawab Sadiq Ali Khan vs Bibi Jai Kishori- 1928
It was held by Privy Council that if a minor makes a contract by fraudulently expressing his age more than
actual then he cannot be stopped as per the rules of estoppels that he was minor at the time of contract.
INDIAN AND ANGLO LAW
It is difficult to differentiate between both the law in respect of contract by minors but generally the
difference in both the law is -
1. Contract by minor under Indian law is void ab-initio.
2. It is voidable under English Law, such contract can be declared void on the will of minor.
If the contract is for the benefit or fulfilment of necessity of minor. Then it shall be binding.

Q. No 2:- State the difference between void agreement and illegal agreement
OR
All illegal agreements are void but all void agreement are not illegal. Comments
Ans- INTRODUCTION Under section 2(g) of Indian Contract Act 1872, definition of void agreement has
been given and according to it , Agreement in not only enforceable by law said to be void. For instance,
an agreement by a minor has been held to be void. Section 24 to 30 of the Indian Contract Act 1872,
make a specific mention of agreement which are void. Generally the following agreements are not
enforceable by law.
i) Whose parties are not competent to do a contract i.e. they are not adult and are unsound mind.
ii) Whose parties do not have free consent i.e. they are under coercion, undue influence fraud &
misappropriation etc.
iii) Whose consideration and object has not been lawful
iv) Which are immoral or against public policies.
v) Which do not create valid (illegal) liabilities between the parties.
vi) Which have been declared as void by the court etc.
All above agreements are void because they cannot be enforced by law.
ILLEGAL- AGREEMENTS
Illegal agreements are such agreements whose consideration and object are not lawful i.e. they are
illegal. Such agreements are mentioned in section 23 of the Indian Contract Act 1872. The following
agreements are considered as illegal-
1. Which are prohibited by Law.
2. Which is of such a nature if followed would defeat the provisions of law.
3. Which is fraudulent.
4. Which is causing injury to body or property of any other person.
5. Which have been declared by the court as immoral or against public policies.
After the definition of void and illegal agreements we have considered the following statements
-
That all illegal agreements are void agreements but all void agreements need not necessarily be illegal.
It can be adjudged from the following -
i) Illegal agreements are void ab-initio which cannot be enforced by law at any time whereas void
agreement need not be void-ab-initio, such agreements could become un-enforceable by law later.
ILLUSTRATION An agreement takes place between the citizen of India and Pakistan which was
enforceable by law at the time agreement, but later on in the event of war between India & Pakistan the
agreement becomes un-enforceable whereas agreement to pay money by A to B for illegal intercourse is
void ab-initio which cannot be enforced any time. This shows the illegal agreements are always void
whereas void agreements are not always illegal.
ii) Parties of illegal agreements can be punished whereas the parties of void agreements cannot be
punished.
ILLUSTRATION - An agreement to encourage any woman for prostitution by paying her money is
punishable but an agreement by minor or without consideration is not punishable. This also proves the
fact that every illegal agreement is void but every void agreement is not illegal because illegal agreement
is of punishable nature whereas void agreement is not. Void agreement does not contain the element of
illegal agreement whereas illegal agreement contains the elements of void agreement.
iii) Void agreement cannot be enforced at any time and illegal agreement is also never enforceable by
law. Hence illegal agreement contains impliedly the element of illegal agreement.
iv) Illegal agreement are those which are mentioned in Sec. 23 of contract act whereas void agreements
included various other types of agreement, like agreement by minor or unsound mind persons, agreement
without consideration etc.
v) Void agreements include illegal agreements which are not enforceable by law, but illegal agreements
need not contain all types of void agreement. This shows that all illegal agreements are void but all void
agreements are not illegal.
DIFFERENCE BETWEEN VOID AGREEMENT & ILLEGAL AGREEMENTS.
VOID AGREEMENT ILLEGAL AGREEMENT

1. All agreements are not void-ab-initio but become void later due to circumstances
2 The reason of void agreement could be incompetency of parties, lack of consideration etc.
3 Parties of void agreements are not be punished.
4 Collateral agreement to void agreements can be enforced.
5 The area of void agreement is extremely void. It includes all illegal agreement. 1 Illegal agreements are
void ab-initio.
2 The reasons of illegal agreement shall be those which are mentioned in sec.23 of the Contract Act., like
prohibited by law. Immoral against public policies, fraudulent etc.
3 Parties of illegal agreement can be punished.
4 Collateral agreement to the illegal agreement can also not be enforced.
5 The area of illegal agreement is comparatively narrow. It does not include all types of void agreement.

Question No 3 : All contracts are agreements but all agreements are not contracts?
OR
Discuss the rule for the formation of a valid contract when a contract becomes complete?
Introduction : -
i) MULLA :- Every agreement or promise enforceable by law is a contract.
ii) SALMOND :-Contract is an agreement creating defining obligations between parties.
A contract is an agreement enforceable by law. An agreement is the prime stage of the contract. If
agreement is enforceable by law or if agreement is recognised by law then it will become a contract
otherwise not. It is basically based upon British Law because the Contract Act was passed by British
Indian Govt., in 1872.
To make contract an agreement it is essential that no contract is possible without an agreement, but
we cannot say that all agreements are contracts. Section 2(y) of contract Act says that, Contract is an
agreement enforceable by law. All agreement e.g. to see cinema is not contract, if offer is accepted then
it becomes promise. Promise is followed by consideration then it becomes agreement and if an
agreement is enforceable by law then it becomes CONTRACT, see below :-
i) Proposal + acceptance = PROMISE
ii) Promise + consideration = AGREEMENT
iii) Agreement+ Enforceability = CONTRACT
AGREEMENT :- Agreement 2(e) promise or set of promises forming the consideration with each other, is
an agreement.
PROMISE :- Promise is an important part of the agreement. A proposal when accepted becomes
promise.
PROPOSAL/OFFER :- According to section 2(a) when one person signifies to other his willingness to do
or to abstain from doing anything with a view of obtaining the assent of that offer to such act or
abstinence, he is said to make a proposal.
ACCEPTANCE:- According to section 29(b) of contract act when the person to whom the proposal is
made signifies his assent there to the proposal then it is said to be accepted. A proposal when accepted
becomes promise.
CONSIDERATION :- Section 2(d) of contract act defines consideration. Section 2 says that an
agreement made without consideration is void unless :-
a) Natural love and affection. Sec.25 of contract act, the parties to the agreement must be standing in a
near relationship to each other. The promise should be made by one party out of natural love and
affection for the other. The promise should be in writing and registered.
b) Compensation for past voluntary services sec. 25(2) in case Sindha v.Abrahim-1895 Bombay : The
promise to compensate though without consideration is binding because of this exception. The exception
also covers a situation where the promise is for doing something voluntarily
c) Promise to pay time barred debt: Sec.25(3): The promise must be to pay wholly or in part a time barred
debt i.e. a debt of which the creditor might have enforced payment but for the law for the limitation of suit.
The promise must be in writing and signed by the person to be charged therewith. Case Gobind Das v.
Sarju das-1908, Ganesh Prasad v.Mt. Rambati Bai-1942.
ENFORCEABLE BY LAW :- in Indian Contract Act 2(h) it says that contract is agreement enforceable by
law. If an agreement is enforceable by law then it is CONTRACT, otherwise merely an agreement.
To make an agreement a contract in Indian Contract Act section 10, the following conditions must be
fulfilled :-
1. Competent Parties :- Section 11 says, contract should be made with person who must be major and
sound mind not disqualified by law.
2. Free Consent :- Section 14, says that consent must be free, when it is not caused by coercion, undue
influence under section 16, fraud under section 17, misappropriation under section 18 and mistake under
section 20.
3. Lawful consideration & object :- According to section 23, when agreements consideration or object
are unlawful, they are void.
4. Not expressly declare as void:- The such agreements which are made without consideration or
expressly declared to be void as per section (25) are no contract, these are as under:-
i) Agreement in restrain of marriage section-26.
ii) Agreement in restrain of trade section-27.
iii) Agreement in restrain of legal proceedings section -28.
iv) Agreement which is ambitious and uncertain sec.29.
v) Agreement by way of wages section-30.
vi) Agreement to do an impossible act section-56.
5.FORMALTIES PERFORMED IF NEEDED BY LAW:- The person by whom the contract must be
performed time and place and performance opportunity of payment. Thus when these conditions are
fulfilled then an agreement is made contract because these are enforceable by law. But some
agreements are not made contract because they are not enforceable by law. These are :-
1. Social Agreement :- When agreements based only social relationship and parties, we cannot enforce
these agreements by law, for example:-
A case Jones v/s Paday
If A give invitation of dinner to B and B accept this but does not go to dinner then A suffers
damage after this. But A cannot file a sue against B because it is Social Agreement which is not
enforceable by law.
FAMILY LAW:- Family law are not made contract as in the case of :
Balfour v/s Balfour:- In this case the defendant who was employed in Govt.,job in Ceylon went to England
with his wife on love. For health reasons the wife was unable to return to Ceylon. The husband promised
to pay 30 ponds per month to his wife as maintenance for the period she had to live abart. The husband
failed to pay this amount. The wife filed a suit against her husband for this money. The court held that
this agreement is not enforceable by law.
Case : Jones v/s Padavllon :
Where a girl left service to join legal education on the promise of her mother to stand the expenses. It
was held to be a family matter and not a binding contract. Thus we can say that all the agreements are
not contracts but all the contracts are not agreements.
A Case LALMAN V/S GAURI DATT-1913 : The defendants nephew absconded from home. The Plaintiff
who was defendant servant was sent to search for the missing boy. After the plaintiff had left in search of
boy, the defendant issued handbill announcing a reward of Rs.501.00 to anyone who might find out he
boy. The Plaintiff who was ignorant of this reward, was successful in searching the boy. When he came to
know of the reward, which had been announced in his absence, he brought an action against he
defendant to claim this reward. It was held hat since the Plaintiff was ignorant of the offer of reward, his
act of bringing the lost boy did not amount to the acceptance of he offer, and , therefore, he was not
entitled to claim the reward. If a person has the knowledge of the offer, his acing in accordance with the
terms thereof amount to the acceptance of the same. In such a case, it is immaterial that at the time of
accepting the offer, the acceptor does not intend to claim the reward mentioned in the offer.
DIFFERENCE BETWEEN AGREEMENT AND CONTRACT
AGREEMENT CONTRACT
1. Three important points for Two important
points for contract
Agreement: i) acceptance are i) agreement ii) enforcement
ii) Offer iii) and consideration by law.
2. An agreement could be legal or 2. Agreement in contract to be law-
Illegal. Ful and enforceable by law.
3. Agreement may or may not be 3. Contract is enforceable by law.
Enforceable by law. 4. Area of contract is limited as
4. Area of agreement is very wide every agreement cant become
As it can be any type legal, moral contract.
Etc. Any agreement even if not 5. In contract the valid liability is
Enforceable by law remains an created between the parties.
Agreement.
5. The certain of valid liability is not 6. Contract requires the
Requires in all agreement like, moral competency of parties, free
Religious etc. Consent, sufficient consi-
6. Every agreement does not requires duration etc.
Competency of parties, free consent,
Sufficient consideration etc., because
Agreement could be by un-enforceable
Law.

Q. No 4 :- Discuss the meaning of consideration? When the consideration becomes unlawful? How does
the Public Policy Effect he consideration? OR
An Agreement without consideration is void. Discuss with Exceptions ? OR
Define consideration, Past Consideration, Contract without consideration and consideration by a person
unknown to contract with suitable examples. OR
Explain consideration. In what cases the consideration of an agreement are said to be unlawful under
contract Act.? Illustrate with suitable examples.
Answer : INTRODUCTION : The consideration has important place in contract. It is important part of
Contract. A valid contract requires a consideration. Agreement without consideration are void. The
study of consideration in respect of the subject matter is required.
Section 2 (d) of the Indian Contract Act- 1872 defines consideration. It says, When at the
desire of the promisor, the promise 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 promise.
In other words when a the desire of one person, another person does sense act or abstains
from doing, then it consideration for the first person.
ILLUSTATION :- A purposes B to buy his cycle for /rs.1000.00. B agrees to buy that cycle for
Rs.1000/-. Here Rs.1000/- is the consideration for cycle.
According to Pollock :- A party does or abstains from doing or promise to do or abstain from doing
something, is a price for which the promise is bought, the promise thus given for value is enforceable.
According to Auson :- Consideration is that which is to be done abstain from doing, to be bear or
promises to do or which the promises abstains from doing in respect of promise or bears it.
ELEMENS OF CONSIDERATION :-
I) Consideration to be at the desire of promisor.
II) Consideration can be given by the promise or any other person.
III) Consideration may be past, future or present.
IV) Consideration must be legally adequate and valuable.
V) Consideration must be valid.
A case : Mirahul Enterprises V/s Mrs. Vijaya Srivastav AIR 2003 :
Delhi High Court said that a valid agreement requires the consideration to be definite.
In a Case :-Durga Parsad v/s Baldev The Plaintiff constructed certain shops in a market at the instance
of the Collector of that place. Subsequently the defendants occupied one of the shops in the market.
Since the Plaintiff had spent money for the construction of market, the defendants in consideration
thereof, made a promise to pay the plaintiff commission on the articles sold through their (defendant)
agency in that market. The plaintiff failed to pay the promised commission. In an action by the plaintiff to
recover the commission, it was observed that the consideration for the promise to pay the commission
was the construction of the market by the plaintiff. Such construction had not been done at the desire of
the defendants, but on the order of the Collector. It was therefore held that since the consideration did not
moved at the desire of the defendants ( Promisors in this case), this did not constitute valid consideration
and therefore the defendants were not liable in respect of the promise made by them.
TYPES OF CONSIDERATION ;- There are three types of consideration which are as under :-
i) Past consideration.
ii) Present consideration.
iii) Future consideration.
Present consideration means such consideration which is paid to the promissory immediately. Example :
A offers to B to sell his vehicle for Rs.50,000/-, B pays to A Rs.50,000/- at that moment, and A gives
the possession of vehicle to B. This is present consideration.
Past consideration is the consideration for the service or promise performed in past. Example :- A at the
desire of B takes care of the family of B. After three years B promises o A that he shall pay him
Rs.10000/- for his services given. Here, the services provided by A in the past to B shall be called past
consideration.
Future consideration means such consideration which shall be paid in future. Example:- A promises to
sell his house for Rs.75,000/- to B on 5th.Feb 2003, and both parties decide that possession of house
shall be delivered on 1st.Dec.2003 and on that day he payment of Rs.755,000/- shall be made. This is
future consideration, because the contract had originated on 05.02.2003 but its consideration was to be
paid on 1st December, 2003.
WHEN THE CONSIDERATION IS ILLEGAL
A valid contract requires the consideration to be valid or legal contract with illegal consideration is not
enforceable. Sec.23 of Contract Act mentions those situations in which the consideration shall be
considered to be illegal. These situations are as under:-
i) When it is prohibited by law.
ii) When it is of such nature that if followed would defeat the provisions of law.
iii) When it is fraudulent.
iv) When it involves injury to the person or property of another.
v) The court regards it as immoral or opposed to public policy.
Consideration forbidden by Law:-Such agreements are void. An agreement or act forbidden by law is that
which is not permitted by law to be followed or which is against the law. A case: Ram Sewak v/s
Ramcharan : AIR 1982 Allahabad. : The partners of a partnership firm made an agreement for the
concealment of profit for the purpose of deceiving tax. It was held illegal consideration or an agreement
forbidden by law.
Consideration to defeat the provisions of Law:- An agreement with such consideration is also void, whose
purpose is to defeat the provisions of law. In other words, where an agreement is done with such
consideration that if applied would defeat the provisions of law, then such consideration and agreement
shall be considered void.
ILLUSTRATION : A and B agrees with the intention that they shall be able to take any dispute related to
a particular subject to the court, even though the limitation for it has been determined,. This agreement
defeats the provisions of Limitation Act, and is therefore void.
IN Nutan Kumar v/s Additional District Judge, Banda (AIR 1994 Allahabad): Allahabad High Court held
that such an agreement between landowner and tenant which is inconsistent to the provision of Rent
control Act shall be void. Such agreements cannot be enforced through court.
Fraudulent Consideration: Agreement with such consideration which are fraudulent, are void. For
example: A, B and C agrees for the partition among themselves of the profits obtained or to be obtained
by fraud. Agreement is void because its object and consideration is against law.
Consideration to cause injury to Body or property of any other person:- Such agreement is void whose
object and consideration are illegal owing to be causing injury to body or property of any other person. A
case : K.Abdul `Qader v/s The Plantation Corporation of Kerla. AIR 1983: Kerla High Court said that a
contract made with the object to cause injury to body or property of any other person, is void and
unenforceable.
Immoral and Opposed to Public Policy:- Agreement with consideration being immoral and opposed to
public policy are void and unenforceable. Several decisions of court in his respect have been
made. Several judicial decisions have considered following object and consideration to be immoral and
opposed to public policy :-
a) Agreement to lent house on rent for prostitution.
b) Agreement to lent vehicle to be used for prostitution.
c) Agreement to provide money to have cohabitation with the wife of any other person.
d) Consideration of earlier cohabitation.
e) Agreement to give consideration for future illegal cohabitation.
A case of Subhash Chandra v/s Narbada Bai (AIR- 1982 of MP) A man made agreement for
maintenance with a woman. It was the result of an earlier cohabitation with a woman with that
man. Court held it to be void and unenforceable. Agreement with consideration being opposed to public
policy are also void. The public policy does not have any universal definition, but several judicial
decisions have considered following things to be against public policy :-
I) Insurance conscience.
II) Obstruction in freedom.
III) Elements creating restrain to trade or natural or legal rights.
IV) Against good conduct etc.
The following agreements have been considered to be against public policy :
a) Agreement to cause injury to public service.
b) Transfer of decree for the purpose of avoiding the effect of decree to other creditors.
c) Agreement to pay money in return of marriage.
d) Agreement to bribe for adoption etc..
A case : SBI v/s Aditya Finance and Leasing co. 1999 Delhi) It was held that the land spotted or
embarked for residential purposes is used for commercial purposes by an agreement which shall be void
by being against public policy. Thus the agreement with such consideration that adversely effect over the
interest of common people or which are not proper in respect of public shall unenforceable by being void.
AGREEMENT WITHOUT CONSIDERATION ARE VOID
As we have seen above that Consideration is essential for a valid contract. Agreement without
consideration cannot be imagined. Section 25 of Indian Contract Act-1872 clearly provides that
Agreement without consideration is void.
ILLUSSTRRATION :- A promises B to pay him Rs.2000/- without any consideration. This is void
agreement.
Exceptions :- But the above rule have some exceptions also i.e. an agreement without consideration in
following situation is valid and enforceable :-
1. Agreement Under Natural Love and Affection:- Agreement without consideration due to Natural Love
and Affection are valid and enforceable provided that they are written and registered.
ILUSTRATION : A promise to pay his son B a sum of Rs. 5000.00 under the Natural Love and
Affection. A writes his promise toward B and gets it registered. This is contract. Natural love and affection
includes relation between father-son husband-wife, brothers etc. Such relations do not require
consideration for a valid agreement. A case : Manali Singhal V/s Ravi Singhal-1999-Delhi), It was said by
Delhi High Court that where any family agreement in relation to the amount of maintenance has been
made for love and affection, family peace, harmony and satisfaction there consideration shall not be
required. Such agreement shall be enforceable by Court.
2. Agreement to pay compensation for past service Where any person without the knowledge of promisor
or otherwise than his prayer, does any service or has done service and the promisor promise to
compensate him, there consideration shall not be required, with the following thing which are necessary :-
i) An act has been voluntarily done already for the promisor
ii) At the time of commission of that act, promisor was competent to contract.
ILLUSTRATION A at the desire of B does service for the relatives of B. Later B agrees to pay
Rs.1000/- to A for the service. This agreement been result of earlier service is valid and
enforceable. Such consideration is also called past consideration.
3.Agreement for payment of Time Barred Debt. Such an agreement for payment of a debt barred by time
under limitation act, is considered to be lawful because a time barred debt is also a good consideration as
the debt remains ever after the completion of time of recovery. A case: Tulsiram v/s Samey Singh AIR-
1981 Delhi Delhi High Court held that an agreement for the payment of a time barred debt can be made
under Se.25(3) but it requires that the agreement shall mention that consent has been given for the
payment of time barred debt.
UNIT III
Question No. 5. Discuss contingent contract. Elaborate with suitable illustrations. How are such contract
is different from Agreements?
Answer :- INTRODUCTION : Contingent contract is special types of contract. Generally in most
contracts rights of parties are enforced immediately after the execution of contract, but sometimes there
are contracts whose enforcement depends upon happening or non-happening of an event.
DEFINITION :-
Section 31 of Indian Contract Act 1872 defines that Contingent Contract according to it : A contingent
contract is a contract to do or not to do something, if some event, collateral to such contract does or does
not happen.
ILLUSTRATION :-
A contracts with B that if the house of B destroyed by fire then he shall pay Rs.10,000/- to B. It is
contingent contract because the enforcement of contract depends on the happening or non happening of
an event.
Thus the contingent contract depends upon the happening of a uncertain event. If the event is of
certain nature, then it shall not be contingent contract.
ELEMENTS OF CONTINGENT CONTRACT
These are as under:-
1. The contingent contract depends upon the happening or non-happening of an event.
2. Such event shall be of uncertain nature i.e. it may or may not be happen.
3. Such event is not the part of mutual promises of parties.
4. Happening or non happening of the event does not depend on the will of the parties.
5. The future uncertain even is collateral to the main contract.
In case : Ranchoddas V/s Nathmal Hirachand and company 1951 (Bombay)
In this case the court decided and did not accepted the contention and said that reaching of cloth to India
was a method of delivery. This cannot be said contingent contract.
NATURE OF CONTINGENT CONTRACT:-
Section 32 to 36 of Act mention that various forms of contingent contract like:-
i) According to Section 32 . Contingent contract to do or not to do be anything if an uncertain event
happens cannot be enforced by law unless and until that event has happened. If the event becomes
impossible such contract becomes void.
ILLUSTRATION :- A contract to pay B a sum of money when B marries C. C dies without being married
to B. The contract becomes void.
ii) Section 33 says : contingent contract to do or not to do anything, if an Uncertain future even does not
happens can be enforced by law when the happening of that event becomes impossible.
ILLUSTRATION :- A agrees to pay to B a sum money if a certain ship does not return. The ship is sunk.
The contract can be enforced when the ship sinks.
iii) Section 34 says : that if future event on which a contract is contingent is the way in which a person will
act at an unspecified time, the event shall be considered to become impossible when such person does
anything which renders it impossible that he should so act within any definite time, or otherwise than
under further contingencies.
ILLUSTRATION :- A agrees to pay B a sum of money if B marries C. C marries D. The marriage of B to
C must now be considered impossible, though it is possible that D may die, and that C may afterwards
marry B .
iv) Section 35 says that :- contingent contacts to do or not to do anything if a special uncertain event
happens within as fixed time become void if, the expiration of the time fixed, such event has snot
happened, or if, before the time fixed, such becomes impossible.
ILLUSTRATION :- A promises to B to pay a sum of money if a certain ship returns within a year. The
contract may be enforced if the ship returns within a year, and becomes void if the ship is burnt within the
year.
v) Section 36 says that : contingent contract to do or not to do anything if an impossible event happens,
are void, whether the impossibility of the event is known or not to the parties to the agreements at the
time when it is made.
ILLUSTRATION: - A agrees to B, a sum or Rs.1000.00, if two straight lines should on close a space. The
agreement is void.
Contingency dependent on the behaviour of the parties. It is important that if the performance of the
promise depends on the mere will and pleasure of the promisor, it is no promise at all but promise to pay
what a third party decide is valid promise.
DIFFERENCE BETWEEN CONTINGENT CONTRACT & WAGER CONTRACT
Contingent Contract Wager contract
1. All contingent contract are All wager contract have the element of
Not wager. Contingent contract.
2. The interest of the parties The interest of the parties is vested upon
Is vested on the happening wining or losing sum of money.
Or non-happening of event.
3. The future event is collateral The future event is the base of decision.
To the contract.
4. Only one party shall give Parties give reciprocal promises.
Promise.
5. Win or loss of the parties is One party has to win and other has to
Not important. Lose.
6. Contingent contract are Wager contract are void with few
Valid. Exceptions.

Question No.6 : Define Fruad? Distinguish between Fraud and Misrepresentation. Whether silence
amounts to fraud?
OR
2. What are the factors which vitiate consent and make the
Agreement Void or voidable?
OR
3. What is consent? When is consent said to be free under Indian Contract Act?
OR
Distinguish between coercion and undue influence.

Answer : INTRODUCTION :-
An agreement becomes contract if it fulfils the conditions of /section 10. According to sec. 10 for an
agreement becomes contract with law full object and consideration. It means free consent is not free
then the contract is invalid. But it is voidable not void. Voidable means a contract which can be declared
void by the court at the option of other party.
under sec.2(1). Section 198, 10(a) also deines the term voidable.
Section 13 : Consent : According to Indian Contract Act 1872:- Two or more persons are said to
consent when they agree upon something in the same sense.
In the above definition it shows that (i) At least two persons are must (ii) for the same thing and same
sense.
ILLUSTRATION : At least two persons are must:- A agrees to sell his house to B for Rs.50,000/- B
accepts this proposal.
For same thing and same sense:- A have two cars; one Maruti and the other is Fiat. He agree to sell to
B. A might be thinking to sell Maruti car while B might be thinking to purchase fiat car. In this example A
& B do not agree upon the same thing in the same sense, hence there is snot contract in this case.
A Free Consent :- under sec.14 Consent: is said to be free when it not caused by : i) Coercion Sec. 5.15
(ii) Undue influence sec..16 (iii) Fraud sec..17 (iv) Misrepresentation .18 (v) Mistake 5.20.
In other words consent is free if it is not affected by coercion, undue influence, fraud and
misrepresentation. In case of consent taken by mistake the consent shall be void.
1. COERCION ( 5.15) :
Coercion means by force or compulsion. Coercion is a method of doing consent. This method is against
the law. When any person by doing an illegal act gets the consent of any other person on an agreement
it is called coercion. It means:
Explanation : It is immaterial whether the IPC-1860 is or is not in force in the place where the coercion is
employed.
(a) Threading to commit any act forbidden by IPC: If consent obtained by threat of committing act
forbidden by SC it called is coercion. Example : A kidnapped a son of B, A says you give me your scooter
in Rs.50/- then I will give you your child. B agreed, it is a coercion. Case : Masjidi v/s Ashiya 1880: It was
held that it cannot be simple upon these facts that the consent of such person was caused by coercion.
Case:- Raganayaswami V/s Alyar Sette A Madrasi man died leaving behind a widow. The relative of the
dead threaded the widow to adopt a boy otherwise they will not allow her to remove the dead body of her
husband. The widow adopted the boy and subsequently applied to cancel the adoption. The court held
the adoption is not valid.

Muthiah Chettiar V/s Karupan Chettiar


A was an agent of B. A at the end of his services denied to give account to other agent. He said to B to
release him from liabilities otherwise he shall not give the account book. It held by coercion.
(b) Threat to commit suicide: It comes under sec.15.
Case: Ammiraja V/s Seshamma
A person held out a threat to commit suicide to his son and wife, if they refused to execute a release deed
in his favour. They executed the deed in his favour. It was held by the court that this coercion. According
to old filled J threat to commit suicide no body can be punishable under IPC, and suicide itself not a crime
under IPC, because after suicide no body can be punished. Only attempt to commit suicide is punishable.
(c) Un lawful detaining of any property : According to sec.15 coercion could also be caused by unlawful
detaining or threatening to detain any property to the prejudice of any person whatsoever with the
intention of causing any person to enter into an agreement. Property may be moveable or immovable. If
one person detains unlawfully, it is coercion.
(d) To Prejudice of a person : Coercion may be against a party as well as against any person.
(e) Legal Threatening not coercion:- A commits accident with B. B says you give me Rs.500 otherwise I
shall sue against you. It is not coercion.
(f) Place of coercion: coercion may be committed at any place. It may also be committed even outside
India.
(g) Burden of proof on Plaintiff:
(h) Remedies: Voidable or restitution.8
Andhra Sugar Ltd. v/s State of Andhra Pradesh 1968 : It was held that the agreement cannot be said to
be by lack of free consent.
2. UNDUE INFLUENCE : SEC.( 16)
Undue influence means unreasonable influence or improper or not right influence. When consent is taken
by way of unreasonable influence or improper way then it is not free. The consent can be declared void
on this ground. Section 16 says that when any person has such position over the other person as to
dominate his will, the person who dominates the will of the other must have superiority over the other.
This is done under the following conditions.
1. Relationship superior or inferior may be real or apparent relationship as
(a) Money lender or borrower.
(b) Income Tax Officer and shopkeeper.
(c) Income Tax Officer and assessee.
(d) Police and thief.
Case :- J.R.Bhatt v/s State of U.P. Pt. Was employed in the court of UP. He wants a leave. Registrar said
leave can be granted on the condition if you will not come in service after the end of leave. He wrote it. It
was held by servant under undue reference influence.
(B) Fiduciary Relationship :- 1. Advocate & Client. 2. Master & Servant. 3. Guru and chela 4. Father
and children 5. Teacher & student. 6.Doctor & Patient. 7. Creditor and Debtor. 8. Trustier and
benefishes. Case : Manu Singh v/s Umadat Pandey : An old Hindu woman gifted the whole property to
her religious guru to get peace in heaven. It held undue influence .
Parda-Nashin women : contract with parda-nashin women is presumed to have been induced by undue
influence. She can avoid the contract unless he other party can show that it was her intelligent and
voluntary act, A case : Ismiel v/s Amir Bibi 1902 : It was held that the women does not become parda-
nashin women.
Mental sickness:-If one party is not in position to think his interest due to mental sickness. Case : Rani
Annpurna v/s Swami Nath. A widow who did not have any mental fitness went to creditor, she got
Rs.1500/- or 100% interest. It was held voidable because she was not in a position to give free consent.
The Party attempted to influence the will of other party. A state of mental fear is not undue influence. If a
party is in a position to influence others will it is not undue influence whether other party gets damaged.
2. Real Damage :- If no damage is done to the Pt. Then it will not be undue influence. Remedies : 1.
Voidable u/s 19.2. Restitution u/s 64 3.damages u/s 73. The court under section 19 can declare the
whole agreement as void or the court may be declared it void on reasonable condition.
Burden of Proof. : Pt. Will have to prove that the def. Was in a position to dominate the will of the pt. Thus
if such relationship is proved by the pt. The court will presume the undue influence. Now burden to
disprove this presumption comes on defendant, that there was no undue influence. He should prove that
he did not try to dominate other will.
He paid sufficient consideration to aggrieved.
That the plaintiff had opportunity to take free advice.
Effect of Undue Influence:- Section 19A says when consent to an agreement is caused by undue
influence, the agreement is a contract, voidable at the option of the party whose consent was so caused.
FRAUD UNDER SECTION (17):-
Section 17 defines that Fraud includes any of the following act committed by a party to a contract or
with his connivance or by his agent with intent to deceive another party there or his agent or to include
him, to enter into the contract( whenever a person obtains any material advantage from another by unfair
and wrongful means. It is said that he has committed fraud. Fraud is the wilful representation made by a
party to contract with the intent to deceive the other party or to induce such party to enter into a contract.
ESSENTIALS OF FRAUD :- (1) To give a suggestion that a fact is true, while it not true: (false
suggestion) such suggestion, which is not true.
Case : Mithu Lal v/s LIC of India :- In this case the court held that Devlata committed fraud.
i) Active concealment of a fact which is in the knowledge of the person: Every body has the duty to
disclose the defects in the material or the property while entering to the contract, if it is not done then the
agreement is based on fraud.
Example :- A agrees to transfer his land to B but the land is already mortgaged to C, A does not
disclose this fact. It is a fraud.
ii) To do such promise without intention of perform(false promise )
iii) Any other act fitted to deceive.
iv) Any act which is declared by law as fraudulent : such as in slavery act for companies it has been
specified that certain type of transfer of property is fraud.
v) Fraud committed by partner or agent of the firm: such as River silver mining v/s Smith AIR 1869: The
court held that this act was done by the Agent of company u/s liabe.
vi) There must be a false representation i.e. A shopkeeper tells B that these goods are fresh. It is A option
to reject it. It will not be fraud.
vii) Representation must have been made by the Party or by his agent: The representation must have
been made knowing that it is false without knowing its truth. In both cases it will be fraud.
viii) The representative must have been an intention to deceive.
ix) Mere silence is no fraud: under sec.17: A contracting party is not obliged to disclose each and
everything to the other party. Merely because a person does not disclose the defects in the goods sold by
him, there is no fraud. Shri Krishan v/s Kurukshetra University- 1976 : It was held that there was no fraud
by the candidate and the University has no power to withdraw the candidature of the candidate on that
account.
x) There are two exceptional cases where mere silence may amount to fraud :-
1. Duty to speak : when the circumstances of the case are such that, regard being had to them, it is the
duty of the person keeping silence to speak. Keeping silence in such case amounts to fraud.
Case : Srinivasa Pillai v/s LIC of India, AIR-1977 : It was held that the claim is not maintainable against
the insured corporation.
2. Duty to disclose changes :- If a statement is true when made, but subsequently becomes false by the
change of circumstances, there is duty to disclose the change before the other party acts upon it.
xi) Ratification : When even after the knowledge committing fraud party ratifies agreement now he
cannot repudiate. Damage, Restitution.
Prof of Fraud
Fraud is essentially a question of fact and has to be proved by the person who alleges that the fraud was
done on him.

MISREPRESENTATION (UNDER SEC. 18)


When a false statement is made with the knowledge that it is false and also with the intention to deceive
the other party and make him enter into a contract on that basis, it is known as Fraud,
But when the person making a false statement believe the statement to be true and does not
intend to mislead the other party to the contract, it is known as Misrepresentation it is somewhat
different from fraud. example : A while selling his watch tells B that his watch is made in Switzerland, A
does not know that the watch is not made in Switzerland. It is fraud because the watch is made in India. A
is guilty of misrepresentation.
It includes :- 1) The positive assertion, in a manner not warranted by the information of the
person making it of that which is not true, though he believes it to be true. 2. Any breach of duty which
without an intention to deceive gains an advantages to the person committing it.
ESSENTIALS
1. The positive assertion of material fact: When one party believes that his statement is true but it is not
true, it is called misrepresentation. Case: The Ocean steam Navigation comp. v/s Sunderdas Dharmsay:
A sold ship telling it is of 28 tons but it was of less tons. A did not know about it. It held
misrepresentation.
2. Any Breach of duty : When on Party without intention of committing fraud breaches duty and if he also
takes benefit from the agreement it will be misrepresentation. Case : Bamarsi Dass v/s New India
Assurance : Actually one liability of party released in that deed held misrepresentation. There was the
duty of the party to disclose the fact of deed. B could not read it but he did not. It means he trusted on A
and it is his false statement, which held then it is Misrepresentation.
3. Innocent Misrepresentation: When false statement is made innocently then it is Misrepresentation.
Smith v/s Land & House Property Corp.: A sold a hotel and said that all rent holders are gentleman.
Actually they it all were defaulters. It held misrepresentation. Case : Derry v/s Peek(1889) it was held that
the management of the company was guilty of misrepresentation, and not for fraud. Another Case : Noor-
ud-din v/s Umerao Bibi 1998: A sale deed was challenged on this ground that it was executed under fraud
and misrepresentation seller was a blind person. He was also not paid sufficient consideration. The
possession of property was also transferred to the buyer, court declared such sale deed to be set-aside.
DIFFERENCE BETWEEN FRAUD & MISREPRESENTATION
FRAUD MISREPRESENTATION
1. Fraud contains the intention It does not contain any such intention.
To deceive.
2. The facts are altered with the No such thing in misrepresentation. Any
Intention to deceive the other is presented as such presented as such
Person. Whereas it does not came out to be true
3. The guilty person has the The guilty person has no knowledge of
Knowledge of truth. Truth.
4. Fraud is a type of tort and It does not come under tort.
So punishable.
5. Contract by fraud can be Contract by misrepresentation can only
Rescinded to demand be rescinded not demand compensation
Compensation.
6. The guilty person can not Such defence could be availed.
Take the defence that the
Victim person as plaintiff
Could have find out the
Truth.
MISTAKE (Section: 20-22)
The fifth element defecting the consent is MISTAKE, contract by mistake are either void or voidable. It is
not a free consent. One or both of the parties may be working under same.
Mistake is of three kinds :-
1. Mistake in the mind of the parties is such that there is no genuine agreement at all. There is no
meeting of minds or consensus ad idem.
2. There may be mistake as to a matter of fact relating to that agreement.
3. The mistake essential to the agreement as to the subject matter.

TYPES OF MISTAKE :-
Mistake when there is no consensus ad idem: According to sec.13: two or more persons are said to
consent when they agree upon the same thing in same sense. If there is no meeting of minds or
consensus ad idem, there arises no contract which could be enforced.
Section 20 requires that:- Mistake of both the parties : The agreement is void if there is mistake on the
part of both the parties. A case Ayekam Angahal Singh v/s Union Bank Of India, AIR- 1970: It was held
that since the mistake was unilateral, the contract was not affected thereby and the same could not be
avoided.
According to Sec.21 of the Contract Act which lays that mistake of law of country is not excusable i.e. any
contract is done under a mistake of law being followed in India then such contract shall not be voidable,
but if contract is under a mistake of foreign law that i shall be void, i.e. Mistake of Foreign Law and
Mistake as to individual rights. Case : Cooper v/s Phibbs-1867: The court held that the mistake related to
general ownership shall the same effect what the mistake of fact would have. Mistake of fact is not
excusable.
ILLUSTRATION :- A agrees to buy horse from B at the time of agreement, the horse had already died
but both the parties had no knowledge of it such, agreement is void.
The following points are important in respect of Mistake of Fact :-
1. Mistake must be mutual. Case: Courturier v/s Hastie: 1856: It was held that the agreement was void
because of the mutual mistake as to existence of the subject matter.
2. Mistake must relate o any substantive fact, like mistake as to identity of the parties, identity of subject
matter identity of nature of transaction etc.
3. Mistake must relate to present or existing fact.
Case : Raffles v/s Wichellehaus 1864 : It was held that owing to mistake as to the identity of subject
matter of contract, such contract was void.
4. Mistake as to Promise:- If a mistake because of which the promise does not reflect the real intention
which was there in the proposed agreement, such an agreement would be void. Case :Hartog v/s Colins&
Shields: 1939 It was held that there had arisen no contract in this case because the buyer could have
noticed the mistake.

Q.No. 7:- Explain the law relating to agreement in restraint of trade with reference to Indian Law along-
with exceptions.
Answer :-INTRODUCTION : Section 25 to 30 of the Indian Contract Act-1872 mentions that those
agreement which are void. Void agreement are defined in sec. 2(g) of the act. According to it :- An
agreement not enforceable by law is said to be void. Thus sec.25 to 30 of the act mentions following
agreements to be void :-
AGREEMENT IN RESTRAINT OF TRADE
Section 27 of the act mentions that all such agreements shall be void which creates restraint or partial
restraint in any type of occupation, trade or business of a person. In simple language, agreements
creating restraint in lawful trade, occupation or business are void.
Indian constitution provides every person the freedom to trade, occupation or business. This freedom
cannot be interfered except in certain situation. Freedom of trade, occupation or business is in
accordance to public policy. This is the reason that this provision has been mentioned in sec.27 of the
act. But it is important that a reasonable restraint on trade, occupation or business shall not make an
agreement void. The requirement is that restraint shall be reasonable.
Case : Northernfelt v/s M.N.Felt Guns and Ammunition Co. Ltd. 1894: It was held that before declaring
agreement in restraint of trade to be void, the reasonability of restraint shall be examined and the
examination shall consider mainly that whether it is reasonable or not for parties or public interest.
Illustration : If two neighbouring land owner agrees that they shall not organise market for cattle on their
lands on the same day then such agreement shall not be void because it is in the interest of both.
Case : Ms.S.Dey Forments Industrial Ltd v/s Ravindera Nath S.Kamath 1999: It was held that where any
person is appointed in a company as an advisory and a condition is laid that he shall not act anywhere
during his service, there such an agreement shall not be void.
The above rules does have few exceptions which are under :-
1. Sale of Goodwill : Where the goodwill of any trade, occupation or business is sold, there the buyer shall
have an agreement with the seller that the seller shall not do any such business within the local limits for
a specific time which shall be done by the buyer with that goodwill. Four things are necessary for the
exception:
i) Trade is similar.
ii) Within specified local limits.
iii) Buyer is doing such business.
iv) The restraint is reasonable in the eye of court.
Case : Gujrat Bottling Co. Ltd. v/s Coca Cola Co. 1995: It was held that provisions related o agreement in
restraint of trade shall not apply in such matters in which are prohibited only for the time of existence of
contract. If they are applied even after the termination of contract, then i shall be void.
2. Partnership Agreements : Where there is an agreement between partners at the time of formation of
firm that any partners shall not carry a similar or otherwise any trade during the existence of partnership,
then such an agreement is not considered to be creating restraint.
3. Dissolution of Partnership :- If any agreement is made between the partners at the time dissolution of
partnership or a partner shall not carry a business similar to that of firm for a specific time, then such
agreement shall not be void provided that it is reasonable.

Question No.8 : What do you understand by Quasi-contract? State its essential features. OR
Quasi-Contract are in law but not in fact. Explain. OR
Quasi- contract is not the product of an agreement entered into parties but a creation of law on the basis
of equitable principles. Discuss the above statement and state the quasi contract relations recognised by
the India in Contract Act.? OR
What do you understand by Quasi-contracts? Explain some relations which are resembling to those
created by contracts as incorporated under the Indian Contract Act 1872.
Answer :- INTRODUCTION: For a valid contract there must be offer, acceptance and consideration with
some other requirements. But sometime the position comes when there is neither offer not acceptance
still there is contract. Such position is put under the category of Quasi- Contract or relation resembling
to those contract.
The term Quasi Contract generally means half or semi. It means Quasi contract is half or semi
contract. But this meaning does not fulfil our aim. It is a confusing term. However we can say that quasi
contract means the contract, which is equal to that of a valid contract. Chapter 5 of the Indian Contract
Act deals with such situations under the heading of certain relations resembling to those created by
contract. The chapter avoids the word quasi-contract.
Generally the contracts or agreements are the result of acts of parties. Parties agree to do or not to do
something but several times there is no agreement between the parties, but still the liabilities arise
between the parties such liabilities are called by, Quasi-Contract.
Definition : Indian Contract act does not define the Quasi-contracts. It only mentions that, certain
relations resembling those created by contract. However the various jurists have defined the Quasi-
contract as under:-:According to Whartons Law Lexicon: An act which has not strict form of a contract
but has the effect of it, is an implied Contract.
According to Desai : Quasi contract or implied contracts are exceptional kind of contracts by which one
party is bound to pay money in consideration of something done or suffered by the other party. They are
not founded on actual promises but arise when one party so conducted himself that he must be deemed
as if had made promise although he has not,
According to Pollock:- Quasi contracts are contracts in law but not in fact. In other words it can be said
that Quasi contracts is not a product of an agreement entered into parties but a creation of law on the
basis of equitable principles.
Basic of Quasi-Contract : Lord Mansfied is considered as the father of this contract. According to him,
Natural justice demands that one should not get unjust profit at the cost of another unjust loss. This order
has been laid down in the case of :- MOSES v/s MACFERLAN : Such action lies for money paid by
mistake or upon a consideration which happens to fail or for money got through imposition or extortion or
oppression or for an undue knowledge taken of the pts situation. Country to the law made for protection
of persons under those circumstances of the case. It is obliged by lies of natural justice and equity o
refund the money.
Under section 68 to 72 It has been recognised by Indian Contract act under the heading of , Certain
relations resembling to those contracts.

CHARACTER/SKETCHES OF QUASI-CONTRACTS
1. These agreement are never made by parties but imposed by law.
2. One party is bound to pay money to other party.
3. Such contract gives right to one party. Again the other party in not against world.
4. Only money can be obtained not the liquidated damages.
KINDS/ESSENTIAL OF QUASI-CONRACT
1. Necessaries supplied to a person of contracting: Sec. 68 says that if a person who is incapable to enter
into a contract is supplied necessaries, then he is bound to compensate the suppler. Incapable means,
who are not capable under sec. 11 and 12, Minor is insane or disqualify by law. If basic necessities are
supplied to this, it will be deemed quasi contract and its price can be recovered through medical aid,
clothes, food, marriage of minors sister etc., that is depending upon him. Minors marriage is not a basic
necessity. The ingredients of sec.6 are as under :
i) Necessaries supplied to a person not competent to make contracts.
ii) These goods must be for the basic needs.
iii) The goods must be according to the status of minor.
iv) The supplier can recover the price against the property of minor. It is not personal liability.
Case : Chapple v/s Cooper: 1844: It was held the things for necessities shall be considered those without
which it is not possible to live. The food, clothing, shelter, medicine etc., are the necessaries to minor or
lunatic. But it must not be more than sufficient.
2. PAYMENT BY AN INTERESTED PERSON : Section 69 of act is provides that a person who is
interested in the payment of money which another is bound by law to pay, and who therefore pays it, is
entitled to be reimbursed by other.
ILLUSTRATION : B holds land in Bengal, on a lease granted by A, who is a zamidar. The revenue
payable by A to the government being in Wlaw, the consequences of such sale will be the annulment
of Bs lease. B prevent the sale and consequent annulments of his own lease, pays to the government
the sum due from A. A is bound to make goods to B the amount so paid.
i) Person is legally bound to pay money.
ii) The person paying has the interest in such paymen.
iii) Payment is t o be made to another person.
Case : Govind Ram Gordhan dass Sekajri v/s State of Himachal : Where Maharaja, having sold mills
without paying the overdue municipal taxes was sued by the buyer, who had to pay to save the property
from being old. The Privy Council held that he was bound by law to pay without the meaning of the sec.
Where a person is only morally bound and is not legally compellable to pay he will not bound to pay.
3. LIABILITY TO PAY FOR NON-GRATUITOUS ACT: -
When any person lawfully does any act for another person not gratuitously and the other person has
enjoyed the benefit of that act then he is bound to compensate him.
ILLUSTRATION:- A is a trade man leaves goods at Bs house by mistake. B treats the goods as him
own. He is bound to pay A for them. A Case : Subramanyam v/s Thaippa 1961: A contractor did more
build more that what was required by the contract and did not intended act gratuitously. Court held that
the contractor was entitled to compensation for extra work.
Essential conditions of section 70:-
i) One person legally works for other
ii) The act is done voluntarily.
iii) He gets some benefit for this work.
iv) To whom it is done takes benefit of that act.
v) Act has been done not gratuitously.
A case : Kanhiya Lal v/s Inder chand: The court held that section 68 does not apply because she was a
minor at sec.70 also does not apply because she did not get any benefit. Because it was not a quasi-
contract as his friend having no interest in this payment.
4. Responsibility of Finder of Goods:- Section 71 of the Act provides that a person who finds belonging to
another there will be a quasi contract . If bailment between two looses all the rights and duties of bailer
and balee will be presumed under section 165 & 169( rights and Duties of bailee).
5. MISTAKE OF COERCION:- Section 72 of the act says that, when anything is delivered by way of
mistake then it is the duty of the person to return that things to the concern person or to compensate him.
A case :- Sales Tax Officer Banaras v/s Kanhayya Lal : In this case it was held that the transactions is to
be ultra-wires. The firm was allowed to recover back the tax which he had paid.
Similarly if any person takes any thing from another person by coercion i.e. by way of force under this
petition also the person is bound to return the goods to the concerned person under quasi-contract
obligation.
For example :- A at the point of pistol takes some gold rings from B. Here A is bound to return the gold
rings to B under quasi contract obligation. The word coercion is same as defined in sec.15 and the word
mistake is same as defined under sec.20. There are the provisions with regard to quasi-contract.
CONCLUSION
Thus, in all above matters there is no agreement between the parties but the conduct and actions of
parties show that an agreement has originated between them and get binding in similar way as like a
contract. This is called Quasi-Contract.

UNIT-III
Question No.9:- Explain the term Anticipatory Breach of Contract and discuss the consequences of such
a breach.
OR
Discuss the consequences of breach of contract with relevant case.
OR
Who must perform the Contract? Who can demand for the performance of Contract?
Answer: INTRODUCTION ; Contracts are important when they are performed. There are two main
questions in this respect :-
i) Who shall perform the contract,
ii) Who can enforce the performance of the contract.
i) Who shall Perform a Contract :- Section 40 of the Act mentions that generally the contract shall be
performed by the promisor itself if the parties has such intentions. Otherwise the promisor can employ any
other person for the performance of contract.

Generally contract based on personal qualifications shall be performed by the promisor himself. For
example, A promise to paint a picture for B. The performance of contract requires it to be done by the
promisor himself because painting in personal skill of A. Whereas the contract of sale of property can be
performed by promisor himself or by some other person.
Promisor can perform a contract by himself in the following conditions :
a. Where the intention of parties was that the contract shall be performed by the promisor only.
b. Where the performance depends upon personal skill of promisor. Such contracts get terminated on
death.
c. By Agent :- If the performance of contract does not depend upon personal skill, then such contract can
be performed by the agent of promisor. Generally such contracts are contracts for the sale of property.
d. By Legal Representative : Where the promisor dies before the performance of contract and the
performance does not depend upon personal skill of promisor, there such contracts shall be performed by
the legal representatives of deceased promisor, but only up to that limit to which the legal Representative
had the interest in the property of deceased.
e. By Third Person:- Where promises accepts the performance from a third person, there such promise
can be performed by that third person. In such mattes, promise cannot enforce performance from
promisor under section 41 of the Indian Contract Act.
PERFORMANCE OF JOINT PROMISES
There are provisions in the Indian Contract Act in this respect:-
i) Under section 42 of the act when two or more persons have made a joint promise, all such persons
must jointly fulfil the promise.
ii) When any one of joint promisor dies, his legal representatives shall perform the promise.
iii) Under section 43 of the act when two or more persons make a joint promise, the promise may compel
any of such joint promisors to perform the whole promise.
iv) Section 44 of the act says that where two or more persons have made a joint promise, a release of
one of such joint promisor, by the promisee does not discharge the other promisor of joint promisors
neither does it free the joint promisor so released from responsibility to the other joint promisor or joint
promisors.
WHO CAN DEMAND FOR THE PERFORMANCE OF CONTRACT.
The following persons can demand for the performance of the contract :-
a) The first right for the performance of contract is with the promisee. He can demand for the performance
of contract.
b) If the contract is not of personal nature then on the death of promisee his legal representative or
representatives can demand the performance.
c) Where there is joint promise, there all the joint promisors can jointly demand.
d) Where any one of the joint promisee dies, then the legal representative of such deceased shall
demand for the performance.
e) Where are promisee dies, then their legal representatives can demand the performance.
ANTICIPATORY BREACH OF CONTRACT:
Section 39 of the Act provides for the Anticipator Breach of Contract which means :-
That before the performance of the contract, any party to contract refuse to perform the promise or
contract or makes itself disable for performance is breach of contract.
ILLUSTRATION :- A singer enters into a contract with B the manager of theatre to sing at his theatre for
two nights in every week during the next two months and B agrees to pay her Rs.1000/- for each nights
performance. On the sixth night A wilfully absents herself from the theatre. B is at liberty to put an end to
the contract. In such cases promisee can cancel the contract.
The base of section 39 is when a party to a contract has refused to perform or disable himself from
performing his promise in its entirety, the promisee may put an end to the contract, unless he has
signified by words or contract his acquiescence in its continuance.
REMEDIES :
The following remedies are available against the anticipatory breach of contract :-
1. The promisee can file a suit for the breach of contract considering it to be actual breach.
2. The promisee shall wait till the actual date of performance and then file the suit.
3. Specific performance and Injuction : sometimes a party to the contract instead of recovering damages
for the breach of contract may have protection to the alternative remedy of specific performance of the
contract.
4. Damages : Remedy by way of damages is the most common remedy available to the injured party.
This entitles the injured party to recover compensation for the party who causes the breach. Sec.73 to 75
incorporate the provisions in this regard. A case : Hadley V/s Baxendale-1854: It was held that the
special circumstances were not communicated by the plaintiffs to the defendants. The plaintiffs were
therefore not entitled to recover the loss.
Victoria Loundry Ltd. v/s Newman Industries Ltd. 1949.
It was held that the defendant had the knowledge of the fact. The case was referred to official Referee to
determine the damages payable in this case.
5. Quantum Meruit:- When the injured party has performed a part of his obligation under the contract
before the breach of contract has occurred, he is entitled to recover the value of what he has done under
this remedy.
6. Measure of Damages :- That after certain result of the breach of contract in nearest time is to be
compensated. Damages are therefore, to fix amount of that basis if a party takes security deposit from the
other for the due performance of the contract.
A case : State of Kerla V/s K.Bhaskaran 1985.
It was held that generally 10% profit is taken as an element in the estimation of the contract and the
contractor was entitled to claim compensation on that basis.