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Business Law
Business:- All those activities which are aimed at transfer of goods & services from the
production centre to consumption centre carried out by an entrepreneur by optimally utilizing
resources at his command i.e. money, man, material & machine with a view to maximize profit.
Law:- Rules & Regulations which has a force of authority, passed by legislative bodies.
LAWS
Contract Act
Agreement:- It is every promise or a set of promises forming consideration for each other. It is
a result of intention to create legally binding relationship.
Proposal:- When a person signifies to another his willingness to do or not to do something with
a view to obtain assent of that other person, the person is said to have made a proposal.
Acceptance:- When a person to whom offer is made signifies his assent there to he is said to
have accepted the offer/proposal.
Rules as to communication of offer & acceptance :-( better in PPSG Pg. no.27)
1. Offer:- Communication of offer is complete when it comes to the knowledge of the
person to whom it is made.
2. Acceptance:- Communication of acceptance is complete
o To against offeror – when communication of acceptance is put into transmission
so as to be beyond the control of acceptor
o As against acceptor – when it comes to the knowledge of offeror.
- a person has attained the age of majority incase where guardians have been appointed
under guardianship law.
Sound Mind:-
Every person is of sound mind (for the purpose of entering into contract) if at the time of
making contract he understands
• Terms & conditions of the contract
• Impact of terms & conditions on his personal interest
If he can understand this then he is said of sound mind.
Idiot Person:- Person whose mental capacity is permanently affected. Such person can never
enter a contract.
Schizophrenia Epetopsey:- Mental capacity is temporarily under an attack of a disease. Such a
person can contract during the period of normalcy
Lawful Consideration:-
Basis
Price
Something in return – Quid Pro Quo
Definition of Consideration:- When at the desire of promisor, promise or other person has
done or abstained, does or abstained, promises to do or abstained from doing something. Such
an act or abstinence is called consideration & contract without consideration is void.
Features of Coercion:-
1. Use of physical force
2. Violent in nature
3. Even a threat is enough
4. Offense may be committed or threatened is punishable under Indian Penal Code
5. Threat to commit suicide is punishable & it can result in coercion. E.g. Amiraju v/s
Shesamma
Consequences of Coercion:-
1. Consent is not free
2. Contract is voidable
• Person who gave consent under coercion can avoid or cancel the contract
Consequences of Coercion:-
1. Consent is not free
2. Contract is voidable
Misrepresentation:-
1. False statement by a person who believes it to be true
2. Breach of duty without intention to deceive, giving unfair advantage
3. Causing however innocently, party to make a mistake regarding subject matter of
contract e.g. Rex v/s Kylsant
Effects of Misrepresentation:-
1. Consent is not free
2. Contract is voidable
3. Person who gave consent can cancel the right of cancellation / rescission
• Person must have depended
• Cancellation must be within a reasonable time
• Person should not have affound the contract or taken benefit of the contract
Fraud:- Means & includes any of the following with intention to deceive
1. False statement by a person who does not believe it to be true
2. Active concealment of facts
3. Promise without intention to perform
4. Anything fitted to deceive
5. Anything which law may declare to be fraudulent
Misrepresentation Fraud
Intention No intention to cheat There is intention to cheat
Knowledge of false statement Person making false statement Person making false statement
does not know statement is does know statement is false
false
Claim for damages No claim for damages available Claim for damages available
Mistake:- Error or erroneous state of affair. When a party intending to do one thing, by error,
does something else.
LAWS
Discharge of Contract:- Contractual relationship comes to an end & nothing remains the same
1. By Performance
• Actual
• Attempted
2. By Agreement
• Novation – New agreement is substituted in place of old
• Alteration – Existing agreement is modified
• Rescission – Right to cancel agreement
• Remission – Accepting less than in agreement in final settlement
• Merger – Right to receive & right to pay both come in the same hands
• Waiver – Withdrawal of contractual terms
3. By Operation of Law
• Death
• Insolvency
• Merger
4. By Impossibility of Performance
• At the Time of Contract – Void
• Subsequent
i. Permitted as excuse
Distribution of subject matter
Outbreak of war
Change of law
Change of state of affairs
ii. Not Excused – Difficult to perform
5. Breach of Contract
• Actual Breach of Contract
• Anticipatory Breach of Contract
Actual (On due date of Anticipatory (Before the actual due date intention not to perform is
performance) communicated)
The other party can The other party can wait till actual due date
treat this
communication as
breach of contract on
the date of receipt of
communication
We can perform on due If we fail it will be
date (alternative breach of contract on
arrangement) actual due date
Consequences of Breach of Contract:-
Companies Act
Company:-
• Association of person
• Registered under the companies act 1956
• By contributing to capital which is
• divided into shares
• which are transferable
• & with limited liability
• having perpetual existence
• common seal
• & being an independent / artificial juridical person
• can own, posses, dispose of property
• can sue & be sued
All 7 points together is termed as Corporate Entity / Veil which acts as a curtain
Q. What do you understand by corporate veil & under what circumstances the corporate
veil can be pierced?
Types Of Companies:-
Types of Companies
On the basis of Statute(act)
Companies formed under
special charter – East India
Company
Co-formed under special
statute act – RBI
Co-Registered under Liability Company with limited Liability
companies act – Reliance Ltd. Company with unlimited liability
– Kotak Mahindra Capital
Company
Capital Contribution With Share Capital
May not have share capital –
Liability limited by
guarantee(Indian Institute of
Bankers)
Number of Members Public Ltd Marketability
Company – of shares
Min 7 & Max Unlisted Listed
∞ (no upper (Closely
limit) Held)
Private Ltd Company – Min 2
& Max 50 (Excluding
present/past employees who are
shareholders)
Basis of Control Holding Company
- which controls
appointment of majority
of directors in other
company
- which holds majority of
shares of other companies
- Subsidiary of Subsidiary
is subsidiary of holdings
Subsidiary Company
Basis of Government - Audited by
involvement – Government CAG(Comptroller &
Company Auditor General of India)
- Annual report is placed
before the parliament
- 51% of capital is held by
government(Central,
State, Other Govt. Co. –
PSU’s if registered under
companies act)
Geographic Parameter Foreign Companies (All MNC’s)
(Place of Incorporation)
Incorporation of a Company
Promoter:- One who promotes the company. One who conceives the idea of setting up business
in the form of a company.
Name:-
• Application for availability of name
• Form No. I A
• Payment fee of Rs. 500/-
• Suggest the name by which he would like his company to be incorporated with 3 other
alternative names
Certificate of Incorporation
• Issued by Registrar of Companies (ROC)
• on satisfying that requirements of company law have been complied with
• Conclusive evidence as regards
i. Registration of Company
ii. Compliance to Company Law
• Birth certificate of Company – Corporate features become operative from this date
• If the company is Private LTD Company then it can commence its business
immediately on incorporation
• If company is Public LTD Company then it has to obtain additional certificate –
Certificate of Commencement of Business
Contents of MOA
Q. Discuss significance of object clause in MOA & Doctrine of ultra vires vis-à-vis the
object clause
Contents of AOA
1. Procedure relating to
• Share Capital
• Issue of share certificate
• Issue of duplicate share certificate
• Transfer Shares
• Transmission
• Forfeiture of shares
2. Matters relating to
• Meetings of the members
• Types of meetings
• Procedure at meetings
Issue of notice
Quorum requirement
Proxy
Voting
Resolution
3. Provisions relating to Directors
• Meeting of Directors
• Powers of Directors
• Powers of Chairman / Managing Director
• Borrowing Powers of the company
• Accounts & Audit
• Seal
4. Significance of AOA
• Bye Laws / Rules governing internal company law requirement
• Doctrine of Indoor Management
GDR – Global Depository Receipt – Shares not issued, only certificate issued in other than
dollar, listed on foreign exchanges
ADR – American Depository Receipt
FCCB – Foreign Currency Convertible Bonds
ECB – External Commercial Borrowing
Draft Prospectus
Primary Responsibility – Merchant Banker companies Secretarial / Finance Department to
provide necessary output
• Contents of Prospectus – Companies Act (Section 62)
• It should also follow disclosure norm of SEBI – for investors to take informed decisions
• Also keep in mind listing guidelines of the stock exchanges where the shares are
prepared to be traded in 2 parts
Part 1 (General Information)
• Name
• Registered office
• Main objectives of the company
• Authority for the issue
• Terms of issue (no. of shares, Price – Fixed price or Market price to be discovered
through book building process). Payment to be made on application or allotment.
Issue Program – Issue Opens on, Issue Closes on, Earliest Closing
• Lead Managers or Co-Managers
• Bankers to the issue
• Brokers to the issue
• Registrars for the issue
• Underwriters for the issue (optional)
All these agencies have to give their written consent to be enclosed & filed with
prospectus when it is filed with ROC
Part 2
• Background of the Company & the management
• Board of Directors – Names, Addresses, educational qualification & experience as
well as details of other directorship
• Other group companies under the same management
• Objectives of the issue
• Details of the project – cost of project, means of finance, availability of raw material
• Utilities
• Marketing / Selling Arrangements
• Schedule of implementation
• Outstanding litigation
• Stock exchange data
• Risk factors affecting the business
• Management perception in respect of risk factors
• Audited financial performance for last 5 years
Authorized Capital:- Maximum amount the company is authorized to raise as per capital
clause of MOA
Issued Capital:- Number & amount of share capital issued to the public
Subscribed Capital (90%) & Paid Up Share Capital:- Shares subscribed by the investors
(which may not be less than 98% of issue amount)
Paid Up = Subscribed Capital less calls in arrears
Shares
Equity (3) Preference (1)
Those shares which are not preference shares Which can enjoy preferential rights
(risk capital) • Dividend
• No assurance as to return of investment • Redemption
• No certainty as to return on investment
Equity
Voting Rights Without Voting Rights (not more than 25% of
paid up share capital)
Equity shares with differential voting rights
Preferential Rights:-
Shares issued at Premium Shares issued at Shares issued at Buy Back Shares
Discount Par
- shares issued at value - Rs. 10 shares issued Shares issued at Market price is related
higher than the face at Rs .9 per share face value price multiples of EPS
value - company when (Earnings / No. of
- share premium can be issues shares at a shares)
utilized for price less than the - company can buy
• writing off face value back 25% of its
preliminary • Not more than paid up capital
expenses 10% unless - buy back from
• Bonus issue of approved by • accumulated
shares central govt. profits
• Expansion • Approved by • reserves
- Rs. 10 share issued at Rs. members by • proceeds of
120 (Share Capital – special previous issues
Rs.10 & Share Premium resolution of shares
Rs. 110) • Shares - there must be
forfeited are provision in AOA
issued at - buy back can be by
discount • purchase of odd
lots
• open market
purchases
• reverse book
building
• shares tendered
under buy back
must be
cancelled within
7 days
Meetings of Members:-
Agenda
Resolutions
Ordinary Special Resolution requiring special
notice
- Simple majority - Requires 3/4th majority - Removal of a Director
- Ordinary business of rule is - Amendment in MOA - Removal of an Auditor
passed by simple majority - Amendment in AOA
- Appointment of MD
- Remuneration of MD
- Appointment of sole selling
agent
- Can be done by postal
ballot for listed companies
Appoint Auditors to check
Power to manage the & control performance of
company given to Board company which is
of Directors – who are managed by directors
responsible for day to day
management
Report to members
Members – Contribute to
the capital of the company
& control the company by
executing voting rights at
meeting
Director – Director means a person who holds position of a Director by whatever name called
1. Agent of the Company – Director functions as an agent of the company acting on behalf
of the company
2. Trustees
a. of the members for the property owned by the company
b. must observe at most good faith (trust & confidence)
c. act in the benefit of the company & not for personal profit
3. Managing Organ – Through which the company operates / functions
4. Professional Employees – Director has to be an individual & not an incorporated body
Appointment of Directors No. of Directors – minimum in case of Public ltd company – 3 &
Pvt. Ltd Company – 2. Maximum no. as may be permissible in AOA
1. First Directors – Names in AOA. In case articles are silent all the subscribers to MOA /
AOA shall be deemed to be the first director. These directors shall held office till AGM
2. Subsequent Directors – by the members at AGM. 1/3 rd of the directors can be non
repairable & 2/3rd of the directors will be liable to retirement. Of this 2/3rd ,1/3rd will
retire every year. Retiring directors can offer themselves for re-appointment.
Reappointment by members at AGM
3. Directors appointed by Board of Directors
a. Appointment of additional director
i. BOD can appoint additional director (not exceeding the max. no.
provision in AOA) to take benefit of expertise as well as experience of
any individual
ii. Such director will hold position till next AGM. At next AGM he may be
re-appointed
b. To fill up casual vacancies
i. On account if vacancy arises, BOD can appoint a director to fill up the
vacancies
ii. Death, resignation or Disqualification
iii. Such director to hold office till next AGM
c. Alternate directors - When the director leaves the state in which registered office
of a company is located
i. For a period more than 3 months
ii. Board may appoint alternate director to attend the Board meeting in
absence of original director
iii. The alternate director attends Board meetings in absence of original
director
4. Appointment of directors by outsiders – There can be an agreement by the company
with
a. Its lenders or
b. Creditors
Whereby its nominee of lenders / creditors may be appointed in the Board
c. Such directors are not liable to retirement
5. Power of Government / NCLT (National Company Law Tribunal) to appoint director on
the Board of the Company
a. Where there are complaints about mismanagement of the company &
b. Investigation have been carried out
c. Or complaints before NCLT about the affair of the company being conducted
against the interest of the members. NCLT / Government can appoint Director
on the Board of the Company
d. These directors are not liable to retirement
Removal of a Director
1. Removal by the member at AGM
a. By not reappointing retired Director
b. By appointing someone else in place of retiring director
c. By passing a resolution removing a director
2. Removal of Director by NCLT
Powers of a Director
1. General Power – General Powers to be exercised keeping in view
a. Provisions of companies act
b. AOA
c. Contract with the company
i. Directors have general power to do all those things which a company is
empowered to do
2. Powers which can be exercised at Board Meeting – there has to be board meetings (min.
4 meetings in a year, 1 every quarter)
a. Power to make calls on shares
b. Power to issue debentures
c. Power to borrow
d. Power to make investment
e. Power to make political donations – total Rs. 50000/- or 5% of net profit
whichever is higher
3. Powers which can be exercised with consent of members
a. To sell any undertaking (division) of the company
b. To borrow in excess of paid up capital & reserves
c. To amalgamate / merge other company / with other company
d. To appoint sole selling agent
e. To amend MOA / AOA
f. To fix remuneration of MD
Audit under the companies act is statutory audit. Every company under the companies act is
required to have its accounts audited by the auditor
Auditor
• CA – member of ICAI having certificate of practice &
• He is not in the full time employment
• Not indebted to the company for amount exceeding Rs. 1000/-
• Should not be related to Directors
Powers of Auditor
1. Power to have access to all documents – agreements / contracts / minutes
2. Power to visit / verify / check – properties / assets of the company at all locations (plant,
branch. HR)
3. Power to obtain information / explanation from the employees of the company
4. To report to the members
a. Whether the company has maintained the required books of a/c or registers
b. Whether the company has been complying with accounting standards
c. In case of variation point out the impact on P&L of the company
Certify That
1. P&L a/c gives true & fair view of profit & loss for the year
2. Balance sheet gives true & fair view of financial position of the company as on a
particular date
a. Auditors to qualify the report where there are irregularities
b. Directors to reply to qualifying remarks of auditors
NEGOTIABLE INSTRUMENTS ACT 1881
Transferable documents which are used for transfer of movable property. Negotiable instrument
means Promissory Note, bill of exchange & Cheque
Q. Define promissory note & differentiate it from bill of exchange & a cheque
Promissory Note
• Instrument in writing
• Not being a bank note or currency note
• Signed by the maker
• Containing an unconditional undertaking
• Ta pay certain sum of money only
• To a certain person on his order
25/11/2005
On demand I promise to pay Rupesh Pandey sum of Rs. 50000/- for
value received
To Rupesh Pandey Signed by maker / promissor
Bill of exchange
• Instrument in writing
• Signed by the maker
• Containing an unconditional order
• Directing a certain
• To pay a certain sum of money only
• To certain person or his order
25/11/2005
On demand pay Rupesh Pandey sum of Rs. 50000/- for value received
Cheque
Bill of exchange drawn on a specified banker
Q. What do you mean by crossing of cheques? Discuss various types of crossings & their
significance?
Meaning – When a cheque bears across in face two parallel transverse lines with or without the
word
• And company
• & company
• not negotiable
Cheque is said to be crossed
Significance – crossing is an instruction to the bank not to pay cash across the counter
Types of Crossing
General Crossing Special Crossing Restrictive Crossing
When the cheque bears across When the cheque bears across
its face two parallel lines with its face two parallel lines with
the name of a particular banker the words “a/c payee only” or
then the cheque is said to have “payees a/c only” cheque is said
been specially crossed to that to be restrictively crossed
bank Significance – Cheque cannot
Significance – Banker to whom be deposited in any other a/c of
the cheque is specially crossed payee
Is the only authorized banker to
collect the payment
Significance of cheques crossed with the words not negotiable – words not negotiable do not
prohibit the transferability of the amount of a cheque but it is a warning that the title of the
person receiving the cheque will not get better than that of the person from whom he gets it
Types of Endorsements
1. Endorsement in Blank – where payee or endorser merely signs the instruments at the
back for the purpose of transfer amount of Negotiable Instrument. Effect – order
instrument becomes bearer instrument & amount can be paid by mere delivery
2. Endorsement in Full – when payee or endorser gives full instructions as to whom the
amount of Negotiable Instrument is to be transferred. Effect - The person in whose
favor endorsement is made is entitled to collect the amount of Negotiable Instrument or
further endorse
3. Restrictive Endorsement – when payee or endorser restricts further endorsements are
restricted. Effect – Endorsee will have collect the amount by depositing the Negotiable
Instrument in his a/c
4. Conditional Endorsement – when payee or endorser attaches conditions to transfer of
amount of Negotiable Instrument. Effect – Endorsee will have to comply with terms of
endorsement
5. Partial Endorsement – when payee or endorser transfers part of the amount of
Negotiable Instrument. Partial Endorsement is invalid. Exception – Incase where Bill of
Exchange contains a note that part amount is already paid Negotiable Instrument will
stand reduced to that amount
6. Facultative Endorsement – when payee or endorser forgoes his right or increases his
responsibility. Effect – Endorser continues to be held responsible even if notice of
dishonor was not served on him
Bill of Exchange drawn by Ramesh Sinha
Drawee – Amit
Payee – Angad
1st Endorsee – Abbas
2nd Endorsee – Shardul
3rd Endorsee - Asif
7. Endorsement Sans-resource – when payee or endorser makes further endorsement
without having any reference to himself. Effect – The endorser is not available for any
reference / remedy
8. Endorsement sans frais – when payee or endorser transfers without his availability to
contribute towards expenses. Effect – Endorsee cannot depend on contribution on
endorser
Q. Define Holder in due course & discuss privileges of holder in due course
A B C D E F
Drawer Drawee Payee Endorsee1 Endorsee2 Endorsee3
Holder – A person in possession of Negotiable Instrument in his own name. entitles to receive
the amount
A cheque is ordinarily paid by the drawee bank if it is in perfect order. But sometimes a cheque
is not paid. When a cheque is paid by the drawee bank, it is said to be honored. When it is not
paid it is said to be dishonored. In the following cases the bank may dishonor a cheque:
• When the customer has died and the bank has notice of his death.
• Where the customer has become insolvent or an order of adjudication has been passed
against him.
• When the bank has received an order from the court prohibiting payment out of the
funds belonging to the customer.
• When a customer becomes a lunatic and the banker has got notice of his insanity.
• Where the drawer countermands payment.
• When the customer has not got sufficient funds with the bank and there is no overdraft
arrangement.
• Where there are material alterations or signatures of the drawer or endorses are
irregular.
• When the drawer has closed his account prior to the presentation of cheque.
• When a cheque is mutilated.
1. Insurable interest. This is the financial or monetary interest that the owner or possessor of
property has in the subject-matter of insurance. The mere fact that it might be detrimental to
him should a loss occurred because of his financial stake in that assets gives him the ability to
insure the property. Castellin Vs Preston 1886.
2. Umberima fadei. It means utmost good faith, this principle stated that the parties to insurance
contract must disclose accurately and fully all the facts material to the risk being proposed. That
is to say that the insured must make known to the insurer all facts regarding the risk to be
insured (Looker Vs Law Union and Rock 1928). Likewise, the underwriter must highlight and
explain the terms, conditions and exceptions of the insurance policy. And the policy must be
void of 'small prints'.
3. Indemnity. It stated that following a loss, the insurer should ensure that they placed the
insured in the exact financial position he enjoyed prior to the loss (Leppard Vs Excess 1930).
4. Contribution. In a situation where two or more insurers is covering a particular risk, if a loss
occurred, the insurers must contribute towards the settlement of the claim in accordance with
their rateable proportion.
5. Subrogation. It has often been said that contribution and subrogation are corollary of
indemnity, which means that these two principles operates so that indemnity does not fail.
Subrogation operates mainly on motor insurance. When an accident occurred involving two or
more vehicles, there must be tortfeasor(s) who is responsible for accident. On this basis, the
insurer covering the policyholder who was not at fault can recover their outlay from the
underwriter of the policyholder who is responsible for the incidence.
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INSURANCE
Human life is exposed to many risks, which may result in heavy financial losses. Insurance is
one of the devices by which risks may be reduced or eliminated in exchange for premium. In
words of Chief Justice Tindal, “Insurance is a contract in which a sum of money is paid by the
assured in consideration of the insurer's incurring the risk of paying larger sum upon a given
contingency”. In its legal aspects it is a contract whereby one person agrees to indemnify
another against a loss which may happen or to pay a sum of money to him on the occurring of a
particular event. All contracts of insurance (except marine insurance) may be verbal or in
writing, but practically contracts of assurance are included in a document.
The following are the basic essentials 'or requirements of insurance irrespective of the type of
insurance concerned.
All types of contracts of insurance depend upon the contracts of utmost good faith. Both parties
(insurer and the insured) in the contract must disclose all material facts for the benefit of each
other. False information or non-disclosure of any important fact makes the contract avoidable.
So the conditions to show utmost good faith is very strict on the part of the insured.
2. Insurable Interest
The insured must possess an insurable interest in the object insured. It may be defined as a
financial interest in the subject matter of contract. The presence of insurable interest is a legal
requirement. So an insurance contract without the existence of insurable interest is not legally
valid and cannot be claimed in a Court. The object of this principle is to prevent insurance from
becoming a gambling contract.
3. Principle of indemnity
All types of contracts except life and personal accident insurance are contract of indemnity.
According to them, the insurer undertakes to indemnify the insured against a loss of the subject
matter of insurance due to insured cause. In life assurance the question of loss and, therefore, of
its indemnification does not rise. Because the loss of life cannot be estimated in term of money.
The principles of indemnity is based on the idea that the assured in the case of loss only shall be
compensated against the actual total loss. But if no event happens, the insured has not to receive
any amount, so in this case the premiums paid by him becomes the profit of the Insurer.
4. Doctrine of subrogation
This principle applies to the contract of indemnity only i.e. marine and fire. It lays down a
principle which is quite equitable. According to this doctrine, where a loss occurs and the
insurer pays as for a total loss, he is entitled to all the rights and remedies which the insured has
against a third party in respect of loss so paid for. It prevents the insured being indemnified
from two sources in respect of the same loss. Suppose ‘A’ has damaged ‘B’ is motor car
negligently. If he pays ‘B’ is loss in full. B cannot collect the same from the insurance
company. On the other hand if B applied to his insurance company for indemnity under his
policy, he will not be permitted to collect the damages from A. In the latter case the insurance
company will be entitled to collect that amount.
5. Doctrine of proximate cause
This principle is found very useful when the loss occurred due to series of events. It means that
in deciding whether the loss has arisen through any of the risks insured against, the proximate
or the nearest cause should be considered. To take an illustration in one case where a policy
holder sustains an accident while hunting. He was unable to walk after the accident and as a
result of lying on wet ground before being picked up, he suffered pneumonia. There was an
unbroken change of cause between the accident and the death, and the proximate cause of the
death, therefore, was the accident and not the pneumonia.
6. Cancellation
Both parties have right to cancel the policy before its expiry date. The period of .the policy
comes to an end on the cancellation of policy. So the protection provided by the insurer to the
insured stops from the date of such cancellation. The premium received by the insurance
company is also returnable to the insured.
7. Attachment of risk
Without the attachment of definite risk to the policy, the contract of insurance cannot be in
force. So in this case the consideration fails and the premium received by the insurance
company must be returned.
8. Mitigation of loss
When the event insured against takes place, the policy holder must do every thing to minimize
the loss and to save what is left. This principle makes the insured more careful in respect of this
insured property.
9. Arbitration
Most fire and accident insurance policies contain an arbitration clause which provides for
referring' to differences to an arbitration. The arbitrator is to be appointed in writing by the
parties in difference. The object of this clause is to reduce litigation.