B Law Theme 1

The word Statute generally is defined as the written will of the legislature
solemnly expressed according to the forms necessary to constitute it the
law of the State.Normally, the term denotes personification of
authoritative blueprint and words used in the same constitute part of law.
These blueprints are chief source of law which is known as legislation. The
other sources are precedents and customs. Each of these sources finds its
expression in a language or words used by authorities.
The literal rule of interpretation really means that there should be no
interpretation. In other words, we should read the statute as it is, without
distorting or twisting its language. This rule is the most widely used Rule of
Interpretation for the statutes to ascertain the legislative intention behind
the framing of the enactment. All that the Court has to see at the very
outset is what does the provision say. If the provision is unambiguous and
if from the provision the legislative intent is clear, the Court need not call
into aid the other rules of construction of statutes. The other rules of
construction are called into aid only when the legislative intent is not clear.
Statutory is basically to figure the legislative intent of the law.
Constitutional interpretation requires judicial creativity and activism since
constitution cannot be interpreted in a mechanistic manner.
These kinds of interpretation are only in common law.
Facts in issue.The expression facts in issue means and includes
any fact from which, either by itself or in connection with other facts, the
existence, non-existence, nature, or extent of any right, liability, or
disability, asserted or denied in any suit or proceeding, necessarily follows.
Explanation.Whenever, under the provisions of the law for the time
being in force relating to Civil Procedure, 3any Court records an issue of
fact, the fact to be asserted or denied in the answer to such issue, is a fact
in issue.
Civil law can, like criminal law, be divided into substantive law and
procedural law.
Right to rehabilitation ( under land acquisition right ) is a statutory right.
Compensatory damages
Quantum (measure) of damages
Breach of contract duty - (ex contractu)[edit]
On a breach of contract by a defendant, a court generally awards the sum
that would restore the injured party to the economic position they
expected from performance of the promise or promises (known as an
"expectation measure" or "benefit-of-the-bargain" measure of damages).
When it is either not possible or not desirable to award the victim in that
way, a court may award money damages designed to restore the injured
party to the economic position s/he occupied at the time the contract was
entered (known as the "reliance measure"), or designed to prevent the
breaching party from being unjustly enriched ("restitution") (see below).

Parties may contract for liquidated damages to be paid upon a breach of

the contract by one of the parties. Under common law, a liquidated
damages clause will not be enforced if the purpose of the term is solely to
punish a breach (in this case it is termed penal damages). The clause will
be enforceable if it involves a genuine attempt to quantify a loss in
advance and is a good faith estimate of economic loss. Courts have ruled
as excessive and invalidated damages which the parties contracted as
liquidated, but which the court nonetheless found to be penal.
Breach of tort duty - (ex delicto)[edit]
Damages in tort are generally awarded to place the claimant in the
position that would have been taken had the tort not taken place.
Damages in tort are quantified under two headings: general damages and
special damages.
In personal injury claims, damages for compensation are quantified by
reference to the severity of the injuries sustained (see below general
damages for more details). In non-personal injury claims, for instance, a
claim for professional negligence against solicitors, the measure of
damages will be assessed by the loss suffered by the client due to the
negligent act or omission by the solicitor giving rise to the loss. The loss
must be reasonably foreseeable and not too remote.[2] Financial losses
are usually simple to quantify but in complex cases which involve loss of
pension entitlements and future loss projections, the instructing solicitor
will usually employ a specialist expert actuary or accountant to assist with
the quantification of the loss.
General damages[edit]
General damages, sometimes styled hedonic damages, compensate the
claimant for the non-monetary aspects of the specific harm suffered. This
is usually termed 'pain, suffering and loss of amenity'. Examples of this
include physical or emotional pain and suffering, loss of companionship,
loss of consortium, disfigurement, loss of reputation, loss or impairment of
mental or physical capacity, loss of enjoyment of life, etc.[3] This is not
easily quantifiable, and depends on the individual circumstances of the
claimant. Judges in the United Kingdom base the award on damages
awarded in similar previous cases.
General damages are generally awarded only in claims brought by
individuals, when they have suffered personal harm. Examples would be
personal injury (following the tort of negligence by the defendant), or the
tort of defamation.
Speculative damages
Speculative damages are damages that have not yet occurred, but the
plaintiff expects them to. Typically, these damages cannot be recovered
unless the plaintiff can prove that they are reasonably likely to occur.[4]
Statutory damages are an amount stipulated within the statute rather
than calculated based on the degree of harm to the plaintiff. Lawmakers
will provide for statutory damages for acts in which it is difficult to
determine the value of the harm to the victim. Mere violation of the law
can entitle the victim to a statutory award, even if no actual injury

occurred. These are similar to, but different from, nominal damages (see
below), in which no written sum is specified.
Nominal damages are very small damages awarded to show that the loss
or harm suffered was technical rather than actual.
Generally, punitive damages, which are also termed exemplary
damages in the United Kingdom, are not awarded in order to compensate
the plaintiff, but in order to reform or deter the defendant and similar
persons from pursuing a course of action such as that which damaged the
plaintiff.
Liquidated damages (also referred to as liquidated and ascertained
damages) are damages whose amount the parties designate during the
formation of a contract[1] for the injured party to collect as compensation
upon a specific breach (e.g., late performance).[1]
When damages are not predetermined/assessed in advance, then the
amount recoverable is said to be 'at large' (to be agreed or determined by
a court or tribunal in the event of breach).
At common law, a liquidated damages clause will not be enforced if its
purpose is to punish the wrongdoer/party in breach rather than to
compensate the injured party (in which case it is referred to as a penal or
penalty clause).[2] One reason for this is that the enforcement of the term
would, in effect, require an equitable order of specific performance.
However, courts sitting in equity will seek to achieve a fair result and will
not enforce a term that will lead to the unjust enrichment of the enforcing
party.[3]
In order for a liquidated damages clause to be upheld, two conditions must
be met.
1.
2.

First, the amount of the damages identified must roughly approximate the
damages likely to fall upon the party seeking the benefit of the term
Second, the damages must be sufficiently uncertain at the time the
contract is made that such a clause will likely save both parties the future
difficulty of estimating damages.
Damages that are sufficiently uncertain may be referred to as
unliquidated damages, and may be so categorized because they are
not mathematically calculable or are subject to a contingency which
makes the amount of damages uncertain.
Forum shopping person can choose to go to a particular court in the US,
but in India courts are defined.
PIL directly go to High Court. FR goes to SC. Election petition goes to HC.
HC gives u a cert to appeal only then u can go to SC.
Right to freedom
Freedom of speech and expression, which enable an individual to
participate in public activities. The phrase, "freedom of press" has not
been used in Article 19, but freedom of expression includes freedom of
press. Reasonable restrictions can be imposed in the interest of public
order, security of State, decency or morality.
Right to education[edit]

Article 21A On 1 April 2010, India joined a group of few countries in the
world, with a historic law making education a fundamental right of every
child coming into force.[49] Making elementary education an entitlement
for children in the 614 age group, the Right of Children to Free and
Compulsory Education Act will directly benefit children who do not go to
school at present.
Prime Minister Manmohan Singh announced the operationalisation of the
Act. Children, who had either dropped out of schools or never been to any
educational institution, will get elementary education as it will be binding
on the part of the local and State governments to ensure that all children
in the 614 age group get schooling. As per the Act, private educational
institutions should reserve 25 per cent seats for children from the weaker
sections of society. The Centre and the States have agreed to share the
financial burden in the ratio of 55:45, while the Finance Commission has
given Rs.250 billion to the States for implementing the Act. The Centre has
approved an outlay of Rs.150 billion for 20102011.
Alternative dispute resolution (ADR) (also known as external
dispute resolution in some countries, such as Australia[1]) includes
dispute resolution processes and techniques that act as a means for
disagreeing parties to come to an agreement short of litigation.
ADR is generally classified into at least four types: negotiation, mediation,
collaborative law, and arbitration. (Sometimes a fifth type, conciliation, is
included as well, but for present purposes it can be regarded as a form of
mediation. See conciliation for further details.) ADR can be used alongside
existing legal systems such as sharia courts within common law
jurisdictions such as the UK.
The salient features of each type are as follows:
3.

4.

5.

6.

In negotiation, participation is voluntary and there is no third party who

facilitates the resolution process or imposes a resolution. (NB a third
party like a chaplain or organizational ombudsperson or social worker or a
skilled friend may be coaching one or both of the parties behind the scene,
a process called "Helping People Help Themselves" see Helping People
Help Themselves, in Negotiation Journal July 1990, pp. 239248, which
includes a section on helping someone draft a letter to someone who is
perceived to have wronged them.)
In mediation, there is a third party, a mediator, who facilitates the
resolution process (and may even suggest a resolution, typically known as
a "mediator's proposal"), but does not impose a resolution on the parties.
In some countries (for example, the United Kingdom), ADR is synonymous
with what is generally referred to as mediation in other countries.
In collaborative law or collaborative divorce, each party has an attorney
who facilitates the resolution process within specifically contracted terms.
The parties reach agreement with support of the attorneys (who are
trained in the process) and mutually-agreed experts. No one imposes a
resolution on the parties. However, the process is a formalized process
that is part of the litigation and court system. Rather than being an
Alternative Resolution methodology it is a litigation variant that happens
to rely on ADR like attitudes and processes.
In arbitration, participation is typically voluntary, and there is a third party
who, as a private judge, imposes a resolution. Arbitrations often occur

because parties to contracts agree that any future dispute concerning the
agreement will be resolved by arbitration. This is known as a 'Scott Avery
Clause'.[5] In recent years, the enforceability of arbitration clauses,
particularly in the context of consumer agreements (e.g., credit card
agreements), has drawn scrutiny from courts.[6] Although parties may
appeal arbitration outcomes to courts, such appeals face an exacting
standard of review.[7]
A appoints T1 and B appoints T2, T1 and T2 go to a person who has some
legal brain.
Union List
Main article: Union List
Union list consists of 100 items (previously 97 items) on which the
parliament has exclusive power to legislate with including: defence, armed
forces, arms and ammunition, atomic energy, foreign affairs, war and
peace, citizenship, extradition, railways, shipping and navigation, airways,
posts and telegraphs, telephones, wireless and broadcasting, currency,
foreign trade, inter-state trade and commerce, banking, insurance, control
of industries, regulation and development of mines, mineral and oil
resources, elections, audit of Government accounts, constitution and
organisation of the Supreme Court, High Courts and union public service
commission, income tax, custom duties and export duties, duties of
excise, corporation tax, taxes on capital value of assets, estate duty,
terminal taxes.[3]
State List[edit]
Main article: State List
State list consists of 61 items (previously 66 items). Uniformity is desirable
but not essential on items in this list: maintaining law and order, police
forces, healthcare, transport, land policies, electricity in state, village
administration, etc.The state legislature has exclusive power to make laws
on these subjects. But in certain circumstances,the parliament can also
make laws on subjects mentioned in the State list.Then the parliament has
to pass a resolution with 2/3rd majority that it is expedient to legislate on
this state list in the national interest.
Though states have exclusive powers to legislate with regards to items on
the State list, articles 249, 250, 252, and 253 state situations in which the
federal government can legislate on these items.[3]
Concurrent List[edit]
Main article: Concurrent List
Concurrent list consists of 52 items (previously 47 items). Uniformity is
desirable but not essential on items in this list: Marriage and divorce,
transfer of property other than agricultural land, education, contracts,
bankruptcy and insolvency, trustees and trusts, civil procedure, contempt
of court, adulteration of foodstuffs, drugs and poisons, economic and
social planning, trade unions, labour welfare, electricity, newspapers,
books and printing press, stamp duties.[3]
One of the most important aspects of Indian Constitution is the Federal
nature of the Constitution. Constitutions are divided between federal and

unitary. United States is a classical example of a Federal Constitution.

In a unitary Constitution, all powers are vested in the Central Government
to which the authorities in the units are subordinate and function as\the
agents of the Government at the Centre and exercise authority by
delegation from the Centre.
In case of a federal polity, under normal circumstances the Constitution is
rigid, written and powers are divided between the Federal Government
and that of the Provincial Governments.
In case of Indian Constitution, it has been variously described as quasifederal, federal with a strong unitary, federal in structure but unitary in
spirit, federal in normal times but with possibilities of being converted into
a purely unitary one during the Emergency. It is extremely difficult to put
our Constitution in any strict mould of a federal or unitary type. It cannot
be considered as Unitary because
1. It provides for distribution of executive and legislative powers between
the Union and the States and
2. Provisions affecting the powers of the States or Union-State the centre
cannot amend relations without ratification by the States.
It cannot be considered strictly federal because the residuary powers vest
in the Union. As Dr.Ambedkar's rightly pointed out, rigidity and legalism
were the two serious weaknesses of federalism, the Indian constitutions is
unique in that it created a dual polity with a single Indian citizenship which
could be both unitary and federal according to requirements of time and
circumstances.

The Constitution provides that, except in a few cases, union law trumps
state law. If any provision of a law made by the Legislature of a State is
repugnant to any provision of a law made by Parliament which Parliament
is competent to enact, or to any provision of an existing law with respect
to one of the matters enumerated in the Concurrent List, then, the law
made by Parliament, whether passed before or after the law made by the
Legislature of such State, or, as the case may be, the existing law, shall
prevail and the law made by the Legislature of the State shall, to the
extent of the repugnancy, be void. There is an exception to this in cases
"where a law made by the Legislature of a State with respect to one of the
matters enumerated in the Concurrent List contains any provision
repugnant to the provisions of an earlier law made by Parliament or an
existing law with respect to that matter, then, the law so made by the
Legislature of such State shall, if it has been reserved for the consideration
of the President and has received his assent, prevail in that State. Provided
that nothing in this clause shall prevent Parliament from enacting at any
time any law with respect to the same matter including a law adding to,
amending, varying or repealing the law so made by the Legislature of the
State."[4]

A tort, in common law jurisdictions, is a civil wrong[1] which unfairly

causes someone else to suffer loss or harm resulting in legal liability for
the person who commits the tortious act, called a tortfeasor. Although
crimes may be torts, the cause of legal action is not necessarily a crime,
as the harm may be due to negligence which does not amount to criminal
negligence. The victim of the harm can recover their loss as damages in a
lawsuit. In order to prevail, the plaintiff in the lawsuit must show that the
actions or lack of action was the legally recognizable cause of the harm.
The equivalent of tort in civil laTort law is different from criminal law in
that: (1) torts may result from negligent but not intentional or criminal
actions and (2) tort lawsuits have a lower burden of proof such as
preponderance of evidence rather than beyond a reasonable doubt.
Sometimes a plaintiff may prevail in a tort case even if the person who
caused the harm was acquitted in an earlier criminal trial. Main article:
Vicarious liability
In certain cases, a person might be liable for their employee or child under
the law of agency through the doctrine of respondeat superior. For
example, if a shop employee spilled cleaning liquid on the supermarket
floor and a victim fell and suffered injuries, the plaintiff might be able to
sue either the employee or the employer. There is considerable academic
debate about whether vicarious liability is justified on no better basis than
the search for a solvent defendant, or whether it is well founded on the
theory of efficient risk allocation.
w jurisdictions
To be convicted of an ordinary crime, in certain jurisdictions, a person
must not only have committed a criminal action, but also have had a
deliberate intention or guilty mind (mens rea). In a crime of strict liability
(criminal) or absolute liability, a person could be guilty even if there was
no intention to commit a crime. The difference between strict and
absolute liability is whether the defence of a mistake of fact is available: in
a crime of absolute liability, a mistake of fact is not a defence.
A mistake of fact may sometimes mean that, while a person has
committed the physical element of an offence, because they were
labouring under a mistake of fact, they never formed the required mens
rea, and so will escape liability for offences that require mens rea. This is
unlike a mistake of law, which is not usually a defense.
Mens rea is Latin for "guilty mind".[1] In criminal law, it is viewed as one
of the necessary elements of some crimes. The standard common law test
of criminalliability is usually expressed in the Latin phrase, actus non facit
reum nisi mens sit rea, which means "the act is not culpable unless the
mind is guilty". Thus, injurisdictions with due process, there must be
an actus reus, or "guilty act," accompanied by some level of mens rea to
constitute the crime with which the defendant is charged (see the
technical requirement of concurrence). As a general rule, criminal liability
does not attach to a person who merely acted with the absence of mental
fault. The exception is strict liability crimes.
Statutory right
Natural and legal rights are two types of rights: legal rights are those
bestowed onto a person by a given legal system, while natural rights are

those not contingent upon the laws, customs, or beliefs of any particular
culture or government, and therefore universal and inalienable.
A standard form contract (sometimes referred to as an adhesion or
boilerplate contract) is a contract between two parties, where the terms
and conditions of the contract are set by one of the parties, and the other
party has little or no ability to negotiate more favorable terms and is thus
placed in a "take it or leave it" position.
Examples of standard form contracts are insurance policies (where the
insurer decides what it will and will not insure, and the language of the
contract) and contracts with government agencies (where certain clauses
must be included by law or regulation).
While these types of contracts are not illegal per se, there exists a very
real possibility for unconscionability. In addition, in the event of an
ambiguity, such ambiguity will be resolved contra proferentem against the
party drafting the contract language.
1. Offer(i.e. Proposal) [section 2(a)]:-When one person signifies to
another his willingness to do or to abstain from doing anything, with a
view to obtaining the assent of that other person either to such act or
abstinence, he is said to make a proposal.
2. Acceptance 2(b):- When the person to whom the proposal is made,
signifies his assent there to, the proposal is said to be accepted.
3. Promise 2(b) :- A Proposal when accepted becomes a promise. In
simple words, when an offer is accepted it becomes promise.
4. Promisor and promisee 2(c) :- When the proposal is accepted, the
person making the proposal is called as promisor and the person
accepting the proposal is called as promisee.
5. Consideration 2(d):- When at the desire of the promisor, the promisee
or any other person has done or abstained from doing something or does
or abstains from doing something or promises to do or abstain from doing
something, such act or abstinence or promise is called a consideration for
the promise. 6. Price paid by the one party for the promise of the other
Technical word meaning QUID-PRO-QUO i.e. something in return.
7. Agreement 2(e) :- Every promise and set of promises forming the
consideration for each other. In short, agreement = offer + acceptance.
8. Contract 2(h) :- An agreement enforceable by Law is a contract.
9. Void agreement 2(g):- An agreement not enforceable by law is void.
10. Voidable contract 2(i):- An agreement is a voidable contract if it is
enforceable by Law at the option of one or more of the parties there to
(i.e. the aggrieved party), and it is not enforceable by Law at the option of
the other or others.

11. Void contract :- A contract which ceases to be enforceable by Law

becomes void when it ceases to be enforceable.
Essential Elements of a Valid Contract[edit]
According to Section 10, "All agreements are contracts, if they are made
by the free consent of the parties, capacity of parties to contract, for a
lawful consideration with a lawful object, and not hereby expressly to be
void."
1. Proper offer and proper acceptance There must be an agreement
based on a lawful offer made by person to another and lawful acceptance
of that offer by the letter. Sections 3 to 9 of the Contract Act, 1872 lay
down the rules for making valid acceptance.
2. Lawful consideration An agreement to form a valid contract should
be supported by consideration. Consideration means something in
return (quid pro quo). It can be cash, kind, an act or abstinence. It can
be past, present or future. However, consideration should be real and
lawful and not fictional.
3. Capacity of parties to Contract In order to make a valid contract the
parties to it must be competent to be contracted. According to section 11
of the Contract Act, a person is considered to be competent to contract if
he satisfies the following criterion:

The person has reached the age of majority.

The person is of sound mind.

The person is not disqualified from contracting by any law.

4. Free Consent To constitute a valid contract there must be free and

genuine consent of the parties to the contract. It should not be obtained
by misrepresentation, fraud, coercion, undue influence or mistake.
5. Lawful Object and Agreement The object of the agreement must not
be illegal or unlawful.
6. Agreement not declared void or illegal Agreements which have
been expressly declared void or illegal by law are not enforceable at law;
hence they do not constitute a valid contract.
7. Intention To Create Legal Relationships When the two parties enter
into an agreement, there must be intention to create a legal relationship
between them. If there is no such intention on the part of the parties.
There is no contract between them. Agreements of a social or domestic
nature do not contemplate legal relationship;as such they are not
contracts.
8. Certainty, Possibility Of Performance

9. Legal Formalities
10. By surety
On the basis of validity:
1. Valid contract: An agreement which has all the essential elements of a
contract is called a valid contract. A valid contract can be enforced by law.
2. Void contract[Section 2(g)]: A void contract is a contract which ceases
to be enforceable by law. A contract when originally entered into may be
valid and binding on the parties. It may subsequently become void.
There are many judgments which have stated that where any crime has
been converted into a "Source of Profit" or if any act to be done under any
contract is opposed to "Public Policy" under any contractthan that
contract itself cannot be enforced under the law3. Voidable contract[Section 2(i)]: An agreement which is enforceable by
law at the option of one or more of the parties thereto, but not at the
option of other or others, is a voidable contract. If the essential element of
free consent is missing in a contract, the law confers right on the
aggrieved party either to reject the contract or to accept it. However, the
contract continues to be good and enforceable unless it is repudiated by
the aggrieved party.
4. Illegal contract: A contract is illegal if it is forbidden by law; or is of such
nature that, if permitted, would defeat the provisions of any law or is
fraudulent; or involves or implies injury to a person or property of another,
or court regards it as immoral or opposed to public policy. These
agreements are punishable by law. These are void-ab-initio.
All illegal agreements are void agreements but all void agreements are
not illegal.
5. Unenforceable contract: Where a contract is good in substance but
because of some technical defect cannot be enforced by law is called
unenforceable contract. These contracts are neither void nor voidable.
On the basis of formation:
1. Express contract: Where the terms of the contract are expressly agreed
upon in words (written or spoken) at the time of formation, the contract is
said to be express contract.
2. Implied contract: An implied contract is one which is inferred from the
acts or conduct of the parties or from the circumstances of the cases.
Where a proposal or acceptance is made otherwise than in words, promise
is said to be implied.
3. Quasi contract: A quasi contract is created by law. Thus, quasi contracts
are strictly not contracts as there is no intention of parties to enter into a
contract. It is legal obligation which is imposed on a party who is required
to perform it. A quasi contract is based on the principle that a person shall
not be allowed to enrich himself at the expense of another. examples

claim for necessaries supplied to person incapable of contracting or

on his account

Reimbursement of person paying money due to another, in

payment of which he is interested

obligation of person enjoying benefit of non gratuitous act

Responsibility of finder of goods

Liability of person to whom money is paid or thing delivered

On the basis of performance:

1. Executed contract: An executed contract is one in which both the
parties have performed their respective obligation.
2. Executory contract: An executory contract is one where one or both the
parties to the contract have still to perform their obligations in future.
Thus, a contract which is partially performed or wholly unperformed is
termed as executory contract.
3. Unilateral contract: A unilateral contract is one in which only one party
has to perform his obligation at the time of the formation of the contract,
the other party having fulfilled his obligation at the time of the contract or
before the contract comes into existence.
4. Bilateral contract: A bilateral contract is one in which the obligation on
both the parties to the contract is outstanding at the time of the formation
of the contract. Bilateral contracts are also known as contracts with
executory consideration.
Force majeure fire is there in this. Natural disasters or events like riots
need to be explicitly mentioned
Unliqudated when it is not broken down into components like penalty,
compensation. When its not clearly defined
Indemnity third party claim. A supplies machine to B and B supplies
service to C. Machine fails. Then C can screw B and B can further screw A.
Unlimited Liability- a major disadvantage. Any partner can bind the firm
and thus the firm faces all the liabilities the firm is bound to. If the
companys property is not enough, then personal property of the partners
will be attached to pay the debts of the firm.

Common law is defined as law that has been developed on the basis of
preceding rulings by judges. Statutory laws are written laws passed by
legislature and government of a country and those which have been
accepted by the society.
CONTRACTS
28. Agreements in restraint of legal proceedings, void
11

[Every agreement,-

(a) by which any party thereto is restricted absolutely from enforcing his
rights under or in respect of any contract, by the usual legal proceedings
in the ordinary tribunals, or which limits the time within which he may thus
enforce his rights; or
(b) which extinguishes the rights of any party thereto, or discharges any
party thereto from any liability, under or in respect of any contract on the
expiry of a specified period so as to restrict any party from enforcing his
rights, is void to that extent.]
Exception 1 : Saving of contract to refer to arbitration dispute that may
arise: This section shall not render illegal contract, by which two or more
persons agree that any dispute which may arise between them in respect
of any subject or class of subject shall be referred to arbitration, and that
only the amount awarded in such arbitration shall be recoverable in
respect of the dispute so referred .12[* * *
Exception,2 : Saving of contract to refer questions that have already
arisen : Nor shall this section render illegal any contract in writing, by
which two or more persons agree to refer to arbitration any question
between them which has already arisen, or affect any provision of any law
in force for the time being as to references to arbitration.
Uncertain Agreements
Agreements, the meaning of which is not certain, or capable of being
made certain, are void" (Sec. 29). Through Section 29 the law aims to
ensure that the parties to a contract should be aware of the precise nature
and scope of their natural rights and obligations under the contract. Thus,
if the words used by the parties are vague or indefinite, the law cannot
enforce the agreement.
Illustrations:
(a) A agrees to sell to B " a hundred tons of oil". There is nothing whatever
to show what kind of oil was intended. The agreement is void for
uncertainty.
(b) A, who is a dealer in coconut oil only, agrees to sell to B "one hundred
tons of oil." The nature of A's trade affords an indication of the meaning of
the words, and A has entered into a contract for the sale of one hundred
tons of coconut oil.
(c) A agrees to sell to B "one thousand mounds of rice at a price to be
fixed by C." As the price is capable of being made certain, there is no
uncertainty here to make the agreement void.
(d) A agrees to sell to B "his white horse for rupees five hundred or rupees
one thousand." There is nothing to show which of the two prices was to be
given. The agreement is void.
Further, and agreement "to enter into an agreement in future" is void for
uncertainty unless all the terms of the proposed agreement are agreed

expressly or implicitly. Thus, an agreement to engage a servant sometime

next year, at a salary to be mutually agreed upon is a void agreement
Agreements by way of wager
Agreements by way of wager are void; and no suit shall be brought for
recovering anything alleged to be won on any wager, or entrusted to a
person to abide the result of any game or other uncertain event on which
any wager is made.
Exception in favor of certain prizes for horse-racing : This section shall not
be deemed to render unlawful a subscription or contribution, or agreement
to subscribe or contribute, made or entered into for or toward any plate,
prize or sum of money, of the value or amount of five hundred rupees or
upwards, to be rewarded to the winner or winners of any horse-race.
Discharge by performance

The general rule of contract law is that contracts must be performed

strictly in accordance with their terms - but this can have quite
harsh effects in practice. See, for example, Cutter v Powell [1756] 6
Term R 320.

The harsh effects of the general rule are alleviated to some extent
by the following principles:
o

Substantial performance: Where the contract has been

performed substantially in accordance with its terms, then
the innocent party cannot reject the contract and refuse to
pay - it can only withhold some of the money or claim
damages for the failure to comply precisely with the terms of
the contract. See Hoenig v Isaacs [1952] 2 All ER 176.

Divisible contracts: An 'entire contract' is one where payment

only becomes due when the person has completed all his
obligations. If a person is paid in instalments, however, then
the contract is said to be 'divisible' and payment falls due on
those dates - so failure to perform the whole of a person's
obligations does not lead to non-payment of the whole
amount.

Acceptance of part performance: If one party voluntarily

accepts performance of only part of the contract as full
performance, then the other party is discharged from further
performance. The innocent party must have a genuine choice
as to whether or not to accept the part performance.
SeeSumpter v Hedges [1898] 1 QB 673

Discharge by agreement
A bilateral discharge is where both parties agree that they are each
discharged from their obligations. The consideration to support the
agreement is in the form of the mutual promises to release the other party

from performance. This is sometimes referred to as 'accord and

satisfaction'.
A unilateral discharge is where one party has performed his obligations
and the other party has not, but the first party nevertheless agrees to
discharge the other. Such agreements are only enforceable if there is
consideration for the first party's promise to release the other from
performance.
Most professionally drafted agreements also contain termination clauses
which set out the circumstances in which the contract can be brought to
an end. This is generally classified as a form of discharge of contract 'by
agreement'.
Discharge by frustration

Where a contract is frustrated, then both parties are discharged

from further performance of the contract. A contract may be
frustrated where:
o

the law has changed, so that it is now illegal to carry out the
contract

it has become completely impossible to carry out the contract

the situation has changed so much that performance of the

contract would now amount to something radically
different from what the parties originally agreed (even though
in theory, it would still be possible to carry out the contract)

In all 3 cases, the reason for the frustration of the contract must be
something outside the parties' control which happened after the
contract was made.

Under the Law Reform (Frustrated Contracts) Act 1943:

o

Money already paid under a frustrated contract is recoverable

but the court can allow some of that money to be kept by the
other party if he has incurred expenses performing the
contract.

If one party has provided a valuable benefit to the other but

the contract has since been frustrated, the court can order
the other party to make an appropriate payment in return.
The sum must not exceed the value of the benefit to the
other party.

Discharge by breach

One party will be in breach of contract if they fail to comply with its
terms. Breach does not automatically lead to the discharge of the
contract. The consequences of breach depend on two factors:
o

the nature of the breach; and

what the innocent party decides to do in reaction to the

breach

Where one party is in breach of a contract, the innocent party has

several courses of action which may be open to him (depending on
the nature of the breach). He may be able to:
o

Terminate the contract (only possible if there is a breach of

condition) - this will lead to the parties obligations being
discharged, although the innocent party will also be able to
claim damages

Claim damages e.g. financial compensation for loss suffered

Seek an equitable remedy (see below - only possible in

limited circumstances where damages are not an adequate
remedy)

Where there is a breach of condition (sometimes also called a

'repudiatory breach') and the innocent party chooses to terminate
(or 'repudiate') the contract, both parties are discharged from all
future obligations. But note the following:
o

The innocent party is not obliged to terminate - he can

choose to affirm the contract.

If the innocent party chooses to repudiate the contract, he

must make it clear to the other party that this is what he is
doing (although this can be done by conduct rather than
words - see Vitol v Norelf [1996] 3 All ER 193); and

Repudiation or termination in response to a breach of

condition is not the same as rescission (see below under
'Equitable Remedies')

An anticipatory breach is where one party indicates (without any

justification) that they do not intend to proceed with the
contract before it has been carried out.

The innocent party can only affirm the contract following an

anticipatory breach if it has a 'legitimate interest' in performing the
contract:

Damages

A claim for damages for breach of contract involves applying to

court for an order telling the party in breach to pay financial
compensation to the innocent party.

Damages in contract law are designed to put the innocent party in

the position he would have been in if the breach had not occurred.
This is known as 'loss of expectation.' It can include loss of
expected profits.

Remoteness of damage: The courts will only award damages for loss
which the party in breach either knew about or could reasonably
have foreseen:

Mitigation: The innocent party must also mitigate his loss, i.e. he
must take all reasonable steps to ensure that he keeps his loss to a
minimum:

Causation: The loss must actually have been caused by the breach.
If it is the fault of the injured party or other factors are to blame,
then damages cannot be claimed:

Quantum: The damage must be quantifiable in financial terms - in

business contracts, for example, a court will not normally award
damages for emotional distress, because such damage is
impossible to assess in financial terms. However, damages may be
awarded for breach of a contract where one of the main aims was to
provide pleasure, relaxation of peace of mind:

The parties may limit their liability in damages by agreement,

subject to the Unfair Contract Terms Act 1977. They may also
provide that a specified amount is payable if one party breaches the
contract (a 'liquidated damages clause'). Such provisions are only
enforceable if they are a genuine pre-estimate of the injured party's
loss:

Equitable remedies

In the majority of cases, damages, i.e. financial compensation will

be the main remedy for breach of contract. However, in cases
where damages are not an adequate remedy, it is possible to ask
the court to exercise its discretion to order the following:
o

rescission of the contract, i.e. a court order setting the

contract aside, designed to put the parties in the position
they would be in if the contract had never been made

specific performance, i.e. a court order forcing the other party

to do something, such as transfer of the ownership of a house

an injunction, i.e. a court order which tells the other party not
to do something, such as not taking any steps to sell the
house to someone else

Note that rescission is different from repudiation or termination in

response to a breach of condition:
o

If a contract is rescinded, it is treated as if it never happened

and the parties are therefore discharged from all their
obligations under it (but the innocent party can normally sue
for damages).

If a contract is repudiated, it is valid up to the point of

repudiation or termination and the parties are discharged
from all future obligations (but the innocent party can
normally sue for damages).

Damages are not an adequate remedy where, for example, the

subject matter of the contract is unique or an award of damages is
unlikely to address the harm caused to the injured party by the
breach.

A person seeking an equitable remedy must have 'clean hands" - for

example, he or she must not in have contributed to the position
they find themselves in or have acted in a dishonest matter:
o

Webster v Cecil [1861] Beav 62

The court must also be satisfied that the order will not cause
excessive hardship or be excessively difficult to supervise or
enforce:
o

Patel v Ali [1984] Ch 23

Limitation of actions

Under the Limitation Act 1980, one party cannot sue another party
in contract if more than 6 years have gone by since the date of the
breach.

VOID AND VOIDABLE CONTRACTS

A contract that is "void" cannot be enforced by either party., The law treats
a void contract as if it had never been formed. A contract will be
considered void, for example, when it requires one party to perform an act
that is impossible or illegal.
A "voidable" contract, on the other hand, is a valid contract and can be
enforced. Usually only one party is bound to the contract terms in a
voidable contract. The unbound party is allowed to cancel the contract,
which makes the contract void.
The main difference between the two is that a void contract cannot be
performed under the law, while a voidable contract can still be performed,

although the unbound party to the contract can choose to void it before
the other party performs.
What Are Some Examples of Void and Voidable Contracts?
Void contracts are unenforceable by law. Even if one party breaches the
agreement, you cannot recover anything because essentially there was no
valid contract. Some examples of void contracts include:

Contracts involving an illegal subject matter such as gambling,

prostitution, or committing a crime.

Contracts entered into by someone not mentally competent (mental

illness or minors).

Contracts that require performing something impossible or depends

on an impossible event happening.

Contracts that are against public policy because they are too unfair.
Contracts that restrain certain activities (right to choose who to
marry, restraining legal proceedings, the right to work for a living, etc.).
Voidable contracts are valid agreements, but one or both of the parties to
the contract can void the contract at any time. As a result, you may not be
able to enforce a voidable contract:

Contracts entered into when one party was a minor. (The law often
treats minors as though they do not have the capacity to enter a contract.
As a result, a minor can walk away from a contract at any time.)
Contracts where one party was forced or tricked into entering it.
Contracts entered when one party was incapacitated (drunk, insane,
delusional).

Theme 3 Labour Laws

labour law covers:
Industrial relations certification of unions, labour-management
relations, collective ;bargaining and unfair labour practices; Workplace
health and safety; Employment standards, including general holidays,
annual leave, working hours, unfair dismissals, minimum wage, layoff
procedures and severance pay.
There are two broad categories of labour law. First, collective labour law
relates to the tripartite relationship between employee, employer and

union. Second, individual labour law concerns employees' rights at work

and through the contract for work.
The legislations can be categorized as follows:
1) Labour laws enacted by the Central Government, where the Central
Government has the sole responsibility for enforcement.
2) Labour laws enacted by Central Government and enforced both by
Central and State Governments.
3) Labour laws enacted by Central Government and enforced by the State
Governments.
4) Labour laws enacted and enforced by the various State Governments
which apply to respective States.
(a) Labour laws enacted by the Central Government, where the Central
Government has the sole responsibility for enforcement
1. The Employees State Insurance Act, 1948
2. The Employees Provident Fund and Miscellaneous Provisions Act,1952
(b) Labour laws enacted by Central Government and enforced both by
Central and State Governments
13. The Child Labour (Prohibition and Regulation) Act, 1986.
15. The Contract Labour (Regulation and Abolition) Act, 1970.
16. The Equal Remuneration Act, 1976.
17. The Industrial Disputes Act, 1947. 12
18. The Industrial Employment (Standing Orders) Act, 1946.
20. The Labour Laws (Exemption from Furnishing Returns and Maintaining
Registers by Certain Establishments) Act, 1988
21. The Maternity Benefit Act, 1961
22. The Minimum Wages Act, 1948
25. The Payment of Wages Act, 1936
29. Unorganized Workers Social Security Act, 2008
36. Private Security Agencies (Regulation) Act, 2005
(c) Labour laws enacted by Central Government and enforced by the State
Governments
37. The Employers Liability Act, 1938
38. The Factories Act, 1948
44. The Trade Unions Act, 1926
Miscellaneous Provisions Act, 1955
47. The
48. The
1959
49. The
50. The

Workmens Compensation Act, 1923

Employment Exchange (Compulsory Notification of Vacancies) Act,
Children (Pledging of Labour) Act 1938
Bonded Labour System (Abolition) Act, 1976

Employee State Insurance Act

The act also applies to shops and establishments. Generally, shops and
establishments employing more than 20 employees are covered by the
Act. Shop according to the Delhi
Shops and Establishment Act, 1954 means any premises where goods are
sold either by 39 retail or wholesale or where services are rendered to
customers, and includes an office, a store-room, godown, warehouse or
workhouse or work place, whether in the same premises or otherwise,
used in or in connection with such trade or business but does not include a
factory or a commercial establishment. Establishment means a shop, a
commercial
establishment, residential hotel, restaurant, eating-house, theatre or other
places of public amusement or entertainment to which this Act applies and
includes such other establishment as Government may, by notification in
the Official Gazette, declare to be an establishment for the purpose of this
Act. According to the Delhi Shops and Establishment Act, 1954,
Commercial Establishment means any premises wherein any trade,
business or profession or any work in connection with, or incidental or
ancillary thereto is carried on and includes a society registered under the
Societies Registration Act, 1860,
Offer and Acceptance
In order for a contract to be formed, the parties must reach mutual assent.
This is typically reached through offer and an acceptance which does not
vary the offer's terms, which is known as the "mirror image rule". If a
purported acceptance does vary the terms of an offer, it is not an
acceptance but a counteroffer and, therefore, simultaneously a rejection of
the original offer.
Contracts may be bilateral or unilateral. A bilateral contract is an
agreement in which each of the parties to the contract makes a promise or
set of promises to each other. For example, in a contract for the sale of a
home, the buyer promises to pay the seller $200,000 in exchange for the
seller's promise to deliver title to the property. These common contracts
take place in the daily flow of commerce transactions, and in cases with
sophisticated
or
expensive
promises
may
involve
extensive negotiation and
various condition
precedent requirements,
which are requirements that must be met for the contract to be fulfilled.
Less common are unilateral contracts in which one party makes a
promise, but the other side does not promise anything. In these cases,
those accepting the offer are not required to communicate their
acceptance to the offeror. In a reward contract, for example, a person who
has lost a dog could promise a reward if the dog is found, through
publication or orally. The payment could be additionally conditioned on the
dog being returned alive. Those who learn of the reward are not required
to search for the dog, but if someone finds the dog and delivers it, the
promisor is required to pay. In the similar case of advertisements of deals
or bargains, a general rule is that these are not contractual offers but
merely an "invitation to treat" (or bargain), but the applicability of this
rule is disputed and contains various exceptions.
In certain circumstances, an implied contract may be created. A contract
is implied in fact if the circumstances imply that parties have reached an
agreement even though they have not done so expressly. For example,
a patient may implicitly enter a contract by visiting a doctor and being
examined; if the patient refuses to pay after being examined, the patient
has breached a contract implied in fact. A contract which is implied in

law is also called a quasi-contract, because it is not in fact a contract;

rather, it is a means for the courts to remedy situations in which one party
would be unjustly enriched were he or she not required to compensate the
other.
Alternate Dispute Resolution Mechanism
1. Arbitration: In arbitration, a neutral person called an "arbitrator"
hears arguments and evidence from each side and then decides the
outcome of the dispute. Arbitration is less formal than a trial, and
the rules of evidence are often relaxed. Arbitration may be either
"binding" or "nonbinding."Binding arbitration means that the parties
waive their right to a trial and agree to accept the arbitrator's
decision as final. Generally, there is no right to appeal an
arbitrator's decision. Nonbinding arbitration means that the parties
are free to request a trial if they do not accept the arbitrator's
decision.
2. Mediation: In mediation, an impartial person called a "mediator"
helps the parties try to reach a mutually acceptable resolution of
the dispute. The mediator does not decide the dispute but helps the
parties communicate so they can try to settle the dispute
themselves. Mediation leaves control of the outcome with the
parties.
3. Conciliation: Conciliation is an alternative dispute resolution (ADR)
process whereby the parties to a dispute use a conciliator, who
meets with the parties separately in an attempt to resolve their
differences. They do this by lowering tensions, improving
communications, interpreting issues, providing technical assistance,
exploring potential solutions and bringing about a negotiated
settlement.
4. Negotiation: Negotiation is a dialogue between two or more
people or parties, intended to reach an understanding, resolve point
of difference, or gain advantage in outcome of dialogue, to produce
an agreement upon courses of action, to bargain for individual or
collective advantage, to craft outcomes to satisfy various interests
of two people/parties involved in negotiation process. Negotiation is
a process where each party involved in negotiating tries to gain an
advantage for themselves by the end of the process. Negotiation is
intended to aim at compromise.
PPP Contracts
What is a PPP Contract?
A Public Private Partnership (PPP) is an arrangement between the public
and private sectors (consistent with a broad range of possible partnership
structures) with clear agreement on shared objectives for the delivery of
public infrastructure and/or public services by the private sector that
traditionally would have been supplied by conventional public sector
procurement. Under Public Private Partnership arrangements, private
sector contractors become long term providers of services rather than
simply upfront asset builders, combining the responsibilities of designing,
building, operating, maintaining and possibly financing assets in order to
deliver the services needed by the public sector. As a result, central and
local government agencies become increasingly involved as regulators
and focus resources on service planning, performance monitoring and

contract enforcement rather than on the direct management and delivery

of services. In the case of DBO, not only does the contractor design and
build the plant, he also contracts to operate it for a set period.
Forms of PPP
In general, four types of PPP arrangements are envisaged for the main
investment programme for water services;
Design & Build (DB)
In a Design and Build contract, the private sector is asked to undertake the
design and construction as part of an integrated contract. While this type
of contract may provide advantages over traditional procurement, it may
not maximise Value For Money potential as operational risks remain with
the Local Authority. It falls outside of the core PPP programme as
development under the NDP, though it does have some important
characteristics in common with the other types of PPP arrangements.
Design, Build and Operate (DBO)
DBO combines, in a single contract, the requirement to design and
construct the asset and deliver the
service associated with the
infrastructure. This is an important shift of focus towards service provision.
While these types of contracts, are financed from public funds, the
responsibility for the construction of the facility and its operation for a
defined period of time rests with the private sector. As with other types of
PPP arrangements (see below) the asset remains in the ownership of the
Local Authority and responsibility for management returns to the Local
Authority at the end of the contract period, at which time a further service
contract may be procured.
Design, Build, Operate and Finance (DBOF)
This is a contractual relationship between a Local Authority and a private
sector contractor for the design, construction, operation and financing of a
public facility. The private sector contractor recovers its investment solely
out of payments from the public sector over the operational period.
Operational Contracts (O&M)
Operational contracts are contracts of not less than five years and up to
20 years plus which allow for operation, maintenance and possibly capital
replacement of existing plants during the period of the contract.

Corporate Law and Governance

Fiduciary responsibility:
The term fiduciary refers to a relationship in which one person has a
responsibility of care for the assets or rights of another person. A fiduciary
is an individual who has this responsibility. The term "fiduciary" is derived
from the Latin term for "faith" or "trust."
A fiduciary relationship exists with individuals who handle money or
property for others. For example, your employees or contract employees
may be fiduciaries, if they handle money or property. Trusted advisers like
your accountant or your attorney or your insurance agent may also be
fiduciaries.
The fiduciary responsibilities of a corporation's board members includes:
Avoiding conflicts of interest

Acting in the interest of the company rather than the member's

personal interest
Providing oversight to assure that all company business is
transacted legally
Making decisions to protect the assets of the corporation.

New Companies Act

The new Companies Act (hereinafter referred as CA2013) is replacing old
Companies Act, 1956 (hereinafter referred as CA1956). The CA2013 makes
comprehensive provisions to govern all listed and unlisted companies in
the country. The CA2013 is partially made effective w.e.f. 12 th September,
2013, by way of implementing 98 Sections and repealing the relevant
sections corresponded with CA1956. Some of the Salient features of the
CA2013 are as under:
1. Democracy of Shareholders: The CA2013 has introduced new
concept of class action suits with a view of making shareholders and
other stakeholders, more informed and knowledgeable about their
rights.
2. Supremacy of Shareholders: The CA2013 focused and provide
major aspect on approvals from shareholders on various significant
transactions. The Government has rightly reduced the need for the
companies to seek approvals to managerial remuneration and the
shareholders have been vested with the power to sanction the limit.
3. Strengthening
Women
Contributions
through
Board
Room:The CA2013 stipulates appointment of at least one woman
Director on the Board of the prescribed class of Companies so as to
widen the talent pool enabling big Corporates to benefit from
diversified backgrounds with different viewpoints.
4. Corporate Social Responsibility: The CA2013 stipulates certain
class of Companies to spend a certain amount of money every year
on
activities/initiatives
reflecting
Corporate
Social
Responsibility. There may be difficulties in implementing in the
initial years but this measure would help in improving the Underprivileged & backward sections of Society and the Corporate would
in fact gain in terms of their reputation and image in the Society.
5. National Company Law Tribunal: The CA2013 introduced
National Company Law Tribunal and the National Company Law
Appellate Tribunal to replace the Company Law Board and Board for
Industrial and Financial Reconstruction. They would relieve the
Courts of their burden while simultaneously providing specialized
justice.
6. Fast Track Mergers: The CA2013 proposes a fast track and
simplified procedure for mergers and amalgamations of certain
class of companies such as holding and subsidiary, and small
companies after obtaining approval of the Indian government.
7. Cross Border Mergers:The CA2013 permits cross border mergers,
both ways; a foreign company merging with an India Company and
vice versa but with prior permission of RBI.
8. Prohibition on forward dealings and insider trading: The
CA2013 prohibits directors and key managerial personnel from
purchasing call and put options of shares of the company, its
holding company and its subsidiary and associate companies as if
such person is reasonably expected to have access to price-

sensitive information (being information which, if published, is likely

to affect the price of the company's securities). Earlier these
provisions were contained in regulations framed by SEBI, as the
capital market regulator. Now, it has also been informed that SEBI is
expected to discuss changes in certain norms for listed firms so as
to make them in line with the rules in the new Act.
9. Increase in number of Shareholders: The CA 2013 increased the
number of maximum shareholders in a private company from 50 to
200.
10.Limit on Maximum Partners: The maximum number of
persons/partners in any association/partnership may be upto such
number as may be prescribed but not exceeding one hundred. This
restriction will not apply to an association or partnership,
constituted by professionals like lawyer, chartered accountants,
company secretaries, etc. who are governed by their special laws.
Under the CA1956, there was a limit of maximum 20
persons/partners and there was no exemption granted to the
professionals.
11.One Person Company: The CA2013 provides new form of private
company, i.e., one person company is introduced that may have
only one director and one shareholder. The CA1956 requires
minimum two shareholders and two directors in case of a private
company.
12.Entrenchment in Articles of Association: The CA2013 provides
for entrenchment of articles of association have been introduced.
13.Electronic Mode: The CA2013 proposed E-Governance for various
company processes like maintenance and inspection of documents
in electronic form, option of keeping of books of accounts in
electronic form, financial statements to be placed on company's
website, etc.
14.Restriction on Composition: Every company shall have at least
one director who has stayed in India for a total period of not less
than 182 (one hundred and eighty two) days in the previous
calendar year.
15.Independent Directors: The CA2013 provides that all listed
companies should have at least one-third of the Board as
independent directors. Such other class or classes of public
companies as may be prescribed by the Central Government shall
also be required to appoint independent directors. No independent
director shall hold office for more than two consecutive terms of five
years.
16.Serving Notice of Board Meeting: The CA2013 requires at least
seven days' notice to call a board meeting. The notice may be sent
by electronic means to every director at his address registered with
the company. The CA1956 did not prescribe any notice period to call
the board meeting of a company.
17.Duties of Director defined: Under the CA1956, a director had
fiduciary duties towards a company. However, the CA2013 has NOW
defined the duties of a director.
18.Liability on Directors and Officers: The CA2013 does not restrict
an Indian company from indemnifying its directors and officers like
the CA1956.
19.Rotation of Auditors: The CA2013 provides for rotation of auditors
and audit firms in case of publicly traded companies.

20.Auditors performing Non-Audit Services: The CA2013 prohibits

Auditors from performing non-audit services to the company where
they are auditor to ensure independence and accountability of
auditor.
21.Financial Year: Every company's financial year will be the period
ending on 31 March every year.
22.Rehabilitation
and
Liquidation
Process:
The
entire
rehabilitation and liquidation process of the companies in financial
crisis has been made time bound under CA2013.
Cybersquatting
Cybersquatting (also known as domain squatting), according to the United
States federal law known as the Anticybersquatting Consumer Protection
Act, is registering, trafficking in, or using a domain name with bad
faith intent to profit from the goodwill of a trademark belonging to
someone else. The cybersquatter then offers to sell the domain to the
person or company who owns a trademark contained within the name at
an inflated price.
The term is derived from "squatting", which is the act of occupying an
abandoned or unoccupied space or building that the squatter does not
own, rent, or otherwise have permission to use. Cybersquatting, however,
is a bit different in that the domain names that are being "squatted" are
(sometimes but not always) being paid for through the registration process
by the cybersquatters. Cybersquatters usually ask for prices far greater
than that at which they purchased it. Some cybersquatters put up
derogatory remarks about the person or company the domain is meant to
represent in an effort to encourage the subject to buy the domain from
them.[citation
needed] Others
post
paid
links
via Google, Yahoo!, Ask.com and other paid advertising networks to the
actual site that the user likely wanted, thus monetizing their squatting.
Social Media
With the rising of social media websites such as Facebook and Twitter, a
new form of cybersquatting involves registering trademark-protected
brands or names of public figures on popular social media websites.
On June 5, 2009, Tony La Russa, the manager of the St. Louis Cardinals,
filed a complaint against Twitter, accusing Twitter of cybersquatting. The
dispute centered on a Twitter profile that used La Russa's name, had a
picture of La Russa, and had a headline that said "Hey there! Tony La
Russa is now using Twitter." The profile encouraged users to "join today to
start receiving Tony La Russa's updates." According to La Russa, the status
updates were vulgar and derogatory. La Russa argued that the author of
the profile intended, in bad faith, to divert Internet traffic away from La
Russa's website and make a profit from the injury to La Russa's mark. On
June 26, 2009, La Russa filed a notice of voluntary dismissal after the
parties settled the case.
Pros of Arbitration

Promoted as a way to resolve disputes efficiently, proponents of

arbitration commonly point to a number of advantages it offers over
litigation, court hearings, and trials.
Avoids hostility. Because the parties in an arbitration are usually
encouraged to participate fully and sometimes even to help structure the
resolution, they are often more likely to work together peaceably rather
than escalate their angst and hostility toward one another, as is often the
case in litigation.
Usually cheaper than litigation. Arbitration is becoming more costly as
more entrenched and more experienced lawyers take up the cause. It is
not unusual, for example, for a well-known arbitrator to charge $3,000 to
$4,000 per day for his or her services. And most parties in arbitrations will
also hire lawyers to help them through the process, adding to their costs.
Still, resolving a case through arbitration is usually far less costly than
proceeding through litigation because the process is quicker and generally
less complicated than a court proceeding.
Faster than litigation. According to a recent study by the Federal
Mediation and Conciliation Services, the average time from filing to
decision was about 475 days in an arbitrated case, while a similar case
took from 18 months to three years to wend its way through the courts.
Flexible. Unlike trials, which must be worked into overcrowded court
calendars, arbitration hearings can usually be scheduled around the needs
and availabilities of those involved, including weekends and evenings.
Simplified rules of evidence and procedure. The often convoluted
rules of evidence and procedure do not apply in arbitration proceedings -making them less stilted and more easily adapted to the needs of those
involved. Importantly, arbitration dispenses with the procedure called
discovery that involves taking and answering interrogatories, depositions,
and requests to produce documents -- often derided as a delaying and
game-playing tactic of litigation. In arbitrations, most matters, such as
who will be called as a witness and what documents must be produced,
are handled with a simple phone call.
Private. Arbitration proceedings are generally held in private. And parties
sometimes agree to keep the proceedings and terms of the final resolution
confidential. Both of these safeguards can be a boon if the subject matter
of the dispute might cause some embarrassment or reveal private
information, such as a company's client list.
Cons of Arbitration
Being aware of the possible drawbacks of arbitration will help you make an
informed decision about whether to enter or remain in a consumer
transaction that mandates it -- or whether to choose it as a resolution
technique if a dispute arises.
Limited recourse. A final decision is hard to shake. If the arbitrator's
award is unfair or illogical, a consumer may well be stuck with it and
barred forever from airing the underlying claim in court.
Uneven playing field. Some are concerned that the "take-it-or-leave-it"
nature of many arbitration clauses work in favor of a large employer or
manufacturer when challenged by an employee or consumer who has
shallower pockets and less power.
Most retailers -- car dealers are repeat offenders here -- do not mention
the arbitration clause before requiring the customer to sign the purchase
agreement. Or they will wait until you are ready to drive the car off the lot,
then casually mention that they won't sell unless you sign.

Questionable objectivity. Another concern is that the process of

choosing an arbitrator is not an objective one, particularly when the
decision-maker is picked by an agency from a pool list, where those who
become favorites may get assigned cases more often.
Adding possible complication: Many of the national arbitration groups
actively market their services to companies that issue credit cards or sell
goods to consumers, casting additional questions on the alleged neutral's
objectivity. And an arbitrator chosen by a party within an industry may be
less objective, more likely to be biased in favor of the appointing group.
Lack of transparency. As mentioned, the fact that arbitration hearings
are generally held in private rather than in an open courtroom, and
decisions are usually not publicly accessible, is considered a benefit by
some people in some situations. Others, however, lament that this lack of
transparency makes the process more likely to be tainted or biased, which
is especially troublesome because arbitration decisions are so infrequently
reviewed by the courts.
Rising costs. While most still claim that arbitration is less costly than
litigation, its costs are increasing. According to a recent survey by Public
Citizen, a consumer watchdog group, the cost of initiating an arbitration is
significantly higher than the cost of filing a lawsuit: $6,650 to $11,625 to
initiate a claim to arbitrate a consumer claim worth $80,000 versus $221
to file that action in a particular county court. Add to that the arbitrator's
fees -- multiplied by three if a panel is involved -- in addition to
administrative costs, and the process appears to be less of a bargain.
Smart Steps for Consumers
Given the possible perils and unevenness for those who unwittingly enter
arbitration contracts, the wise consumer can take a number of steps to
become better informed and, possibly, ward off a bad experience.
Know the terms of your agreements. Read or reread all agreements
you've entered with a retailer, credit card company, or health care
provider that may contain arbitration provisions. If the writing obligates
you to binding arbitration, and that is not your wish, shop around for
another provider.
Heed all agreement changes. If a company switches the terms of its
contract to include mandatory arbitration, it must notify you in writing
first. Some of these notices may come buried in the envelope itemizing
your bill. Resist the temptation to recycle them on sight -- and read the
fine print.
Speak your mind. If you find an arbitration clause objectionable, be sure
to make your feelings known to company management. It is sometimes
possible to negotiate the provisions away if the company wants your
business badly enough. And even large behemoths have been known to
change their mandatory arbitration policies if they cause enough distress
among their customers.
FUNDAMENTAL RIGHTS IN INDIA
Violation of these rights result in punishments as prescribed in the Indian
Penal Code, subject to discretion of the judiciary. The Fundamental Rights
are defined as basic human freedoms which every Indian citizen has the
right to enjoy for a proper and harmonious development of personality.
These rights universally apply to all citizens, irrespective of race, place of
birth, religion, caste, creed, colour or gender. They are enforceable by
the courts, subject to certain restrictions.
The six fundamental rights recognised by the constitution are:

1) Right to equality, including equality before law, prohibition of

discrimination on grounds of religion, race, caste, sex or place of birth, and
equality of opportunity in matters of employment, abolition of
untouchability and abolition of titles.
2) Right to freedom which includes speech and expression, assembly,
association or union or cooperatives, movement, residence, and right to
practice any profession or occupation (some of these rights are subject to
security of the State, friendly relations with foreign countries, public order,
decency or morality), right to life and liberty, right to education,
protection in respect to conviction in offences and protection against
arrest and detention in certain cases.
3) Right against exploitation, prohibiting all forms of forced labour,
child labour and traffic in human beings;
4) Right to freedom of religion, including freedom of conscience and
free profession, practice, and propagation of religion, freedom to manage
religious affairs, freedom from certain taxes and freedom from religious
instructions in certain educational institutes.
5) Cultural and Educational rights preserving Right of any section of
citizens to conserve their culture, language or script, and right of
minorities to establish and administer educational institutions of their
choice.
6) Right to constitutional remedies for the protection of civil
rights by means of writs such as habeas corpus (right to be bought
to the court).
Right to property was originally a fundamental right, but is now a legal
right.
Right to property
The Constitution originally provided for the right to property under Articles
19 and 31. Article 19 guaranteed to all citizens the right to acquire, hold
and dispose of property. Article 31 provided that "no person shall be
deprived of his property save by authority of law." It also provided that
compensation would be paid to a person whose property has been taken
for public purposes.
The provisions relating to the right to property were changed a number of
times. The Forty-Fourth Amendment of 1978 deleted the right to property
from the list of fundamental rights. A new provision, Article 300-A, was
added to the constitution which provided that "no person shall be
deprived of his property save by authority of law". Thus if a
legislature makes a law depriving a person of his property, there would be
no obligation on the part of the State to pay anything as compensation.
The aggrieved person shall have no right to move the court under Article
32. Thus, the right to property is no longer a fundamental right, though it
is still a constitutional right (legal right). If the government appears to
have acted unfairly, the action can be challenged in a court of law by
citizens.
Constitutional Rights
A constitutional right is a legal right of its citizens (and possibly others
within its jurisdiction) protected by a sovereignty's constitution. Indias
constitution includes a written bill of rights.
CIVIL AND CRIMINAL REMEDIES

A civil remedy refers to the remedy that a party has to pay to the victim of
a wrong he commits. A civil remedy is generally separate form a criminal
remedy, although in certain situations the civil and criminal remedy may
be related. Civil remedies require the cooperation of the victim and are
voluntary.
When a person commits a wrong against someone else, this wrong can
give rise to both criminal and civil liability. For example, if an individual
steals something, he has broken a criminal law and is subject to criminal
prosecution. The person he stole something from is also entitled to bring a
civil lawsuit in order to recover for the loss of the item that was stolen.
Civil remedies are most often monetary. They may include actual
damages, such as lost wages or lost valuables, as well as pain and
suffering.
There are several important differences between civil remedies and
criminal remedies. In common law systems, civil remedies and criminal
remedies must be pursued in different courts. The rules between the
relationship between civil and criminal remedies differ in some situations,
however; for example, in homicide cases in some areas, the civil remedy is
merged with the criminal remedy.
In a criminal action, a government official must bring the lawsuit
and seek the remedy. The victim need not press charges, nor even
cooperate, in order for a prosecutor to bring a criminal action against an
individual when the law is violated. The prosecutor pursues criminal
remedies including fines and jail time in order to maintain public
order.
The purpose of civil remedies is different. Only a victim who has been
wronged can bring a civil suit seeking civil remedies. This means an
accident victim or a person who is a victim can bring a civil remedy to
recover against the person who caused his injury. In the United States, this
is done under tort law.
BURDEN of PROOF
Although, the same act may spawn both a civil and a criminal case, the
two legal cases are always kept separate. They will never be tried
together. In part, this is because a different standard or burden of proof
is required in criminal case. The standard of evidence used to judge the
criminal case is higher than the standard applied in civil cases.
Burden of Proof in Civil and Criminal Law
Civil and criminal law may be further distinguished in terms of burdens of
proof. In a civil lawsuit, the plaintiff's case must be proved by a
preponderance of evidence, meaning that the plaintiff must convince
the judge or jury that his or her version of the facts is more likely than not
and that he or she is entitled to judgment. This degree of proof is
sometimes called presenting a prima facie case, or "crossing the 51
percent line", because the plaintiff must outprove the defendant by more
than half the evidence.
By contrast, in a criminal lawsuit the prosecutor must prove the case
beyond a reasonable doubt. This means that judge or jury must believe
the defendant's guilt without significant reservations. This burden of proof
is much more difficult than either of the proof levels required in civil cases.
This heavier burden on the government exists to protect defendants from
overzealous prosecutors who might succeed in convicting innocent
individuals with less evidence if the proof requirements were easier to
satisfy.

TORT
A tort, in common law jurisdictions, is a civil wrong. Tort law deals with
situations where a person's behaviour has unfairly caused someone else to
suffer loss or harm. A tort is not necessarily an illegal act but causes harm.
The law allows anyone who is harmed to recover their loss. Tort law is
different from criminal law, which deals with situations where a person's
actions cause harm to society in general. A claim in tort may be
brought by anyone who has suffered loss after suing a civil law
suit. Criminal cases tend to be brought by the state, although
private prosecutions are POSSIBLE.
(A private prosecution is a criminal proceeding initiated by an individual or
private organisation (such as a prosecution association) instead of by a
public prosecutor who represents the state. Private prosecutions are
allowed under common law, but have become rare in modern times as
most prosecutions are now handled by professional public prosecutors
instead of private individuals.)
Tort law is also differentiated from equity, in which a petitioner complains
of a violation of some right. One who commits a tortious act is called a
tortfeasor. The equivalent of tort in civil law jurisdictions is Delict. Tort
may be defined as a personal injury; or as "a civil action other than a
breach of contract."
A person who suffers a tortious injury is entitled to receive compensation
for "damages", usually monetary, from the person or people responsible
or liable for those injuries. Tort law defines what a legal injury is and,
therefore, whether a person may be held liable for an injury they have
caused. Legal injuries are not limited to physical injuries. They may also
include emotional, economic, or reputational injuries as well as violations
of privacy, property, or constitutional rights. Tort cases therefore comprise
such varied topics as auto accidents, false imprisonment, defamation,
product liability (for defective consumer products), copyright infringement,
and environmental pollution (toxic torts), among many others.
In much of the common law world, the most prominent tort liability is
negligence. If the injured party can prove that the person believed to have
caused the injury acted negligently that is, without taking reasonable
care to avoid injuring others tort law will allow compensation.
However, tort law also recognizes intentional torts, where a person has
intentionally acted in a way that harms another, and "strict liability" or
quasi-tort, which allows recovery under certain circumstances without the
need to demonstrate negligence.
TORT - Res ipsa loquitur is a legal Latin phrase which translates to the
thing speaks for itself. The doctrine indicates that there is no need to
provide any further detail the facts of the case are sufficient to find
liability. Generally, because the facts are so obvious, a party does not need
to provide further explanation. The phrase is most often applied to civil
tort claims in which liability is clearly established merely based on a
review of the facts. Although modern formulations differ by jurisdiction,
the common law originally stated that the accident must satisfy the
following conditions:
1
A "duty" exists for a person to act "reasonably"; and
2
A "breach" of this duty occurs because a person [or
agency, etc.] acted outside this duty, or "unreasonably"; and
3
There was "causation in fact" - the result would not
have occurred "but for" the "breach" of this duty;

4
There was actual legally recognizable harm suffered by
the plaintiff who did nothing wrong (i.e., no contributory
negligence).
Upon a proof of res ipsa loquitur, the plaintiff need only establish the
remaining two elements of negligencenamely, that the plaintiff suffered
harm, of which the incident result was the legal cause.
TORT - Restitutio in integrum is a Latin maxim which means
restoration to original condition. It is one of the primary guiding principles
behind the awarding of damages in common law negligence claims. The
general rule, as the principle implies, is that the amount of compensation
awarded should put the successful plaintiff in the position he or she would
have been had the tortious action not been committed. Thus the plaintiff
should clearly be awarded damages for direct expenses such as medical
bills and property repairs and the loss of future earnings attributable to
the injury (which often involves difficult speculation about the future
career and promotion prospects).
Although monetary compensation cannot be directly equated with physical
deprivation it is generally accepted that compensation should also be
awarded for loss of amenities, reflecting the decrease in expected
standard of living due to any injury suffered and pain and suffering.
Damages awards in these categories are justified by the restitutio principle
as monetary compensation provides the most practicable way of
redressing the deprivation caused by physical injury.
TORT - Remoteness of Damage
No defendant is responsible ad infinitum (forever) for all the consequences
of his wrongful conduct, however remote in time and however indirect the
process of causation, for otherwise human activity would be unreasonably
hampered. The law must draw a line somewhere; some consequences
must be abstracted as relevant, not on the grounds of logic but simply for
practical reasons. Two tests to ascertain remoteness of damage.
1. Test of directness a man is only responsible for the direct
consequences of his act.
2. Test of Reasonable foresight if ordinary reasonable man could
foresee.
PUBLIC INTEREST LITIGATION IN INDIA
A Public Interest Litigation (PIL) can be filed in any High Court or directly in
the Supreme Court. It is not necessary that the petitioner has suffered
some injury of his own or has had personal grievance to litigate. PIL is a
right given to the socially conscious member or a public spirited NGO to
espouse a public cause by seeking judicial for redressal of public injury.
Such injury may arise from breach of public duty or due to a violation of
some provision of the Constitution. According to the guidelines of the
Supreme Court any member of public having sufficient interest may
maintain an action or petition by way of PIL provided: There is a personal injury or injury to a disadvantaged section of
the population, for whom access to legal justice system is difficult,
The person bringing the action has sufficient interest to maintain
an action of public injury,
The injury must have arisen because of breach of public duty or
violation of the Constitution or of the law,
It must seek enforcement of such public duty and observance of the
constitutional law or legal provisions.

 This is a powerful safeguard and has provided immense social

benefits
INTERPRETATION PRINCIPLES
Statutory interpretation is the process by which courts interpret and
apply legislation.
Constitutional interpretation - As is the case with any other statute,
the court tries to find out the intention of the framers of the constitution
from the words used by them
Evidentiary based on evidence, case facts
PRIVATE LAW
Private law is that part of a civil law legal system which is part of the jus
commune that involves relationships between individuals, such as the law
of contracts or torts and the law of obligations (as it is called in civil legal
systems). It is to be distinguished from public law, which deals with
relationships between both natural and artificial persons (i.e.,
organizations) and the state, including regulatory statutes, penal law and
other law that affects the public order.
Sequence of events in conflict of law/forum cases
1
Jurisdiction. The court selected by the plaintiff must
decide both whether it has the jurisdiction to hear the case and,
if it has, whether another forum is more suitable (the forum non
conveniens issue relates to the problem of forum shopping) for
the disposition of the case. Naturally, a plaintiff with appropriate
knowledge and finance will always commence proceedings in the
court most likely to give a favourable outcome. This is called
forum shopping and whether a court will accept such cases is
always determined by the local law.
2
Recognition of foreign judgments. Even where a
conflict of laws exists, the court will recognize the validity of a
foreign judgment in most cases. Under U.S. law, this authority is
part of the Full Faith and Credit Clause of the U.S. Constitution.
Under International law, this authority is part of the doctrine of
comity. The court will invoke comity by its discretion and will
usually look to two factors before using its discretionary powers:
did the foreign court have jurisdiction, and were fair procedures
used in adjudicating the case?
3
Characterization. The court then allocates each
aspect of the case as pleaded to its appropriate legal
classification. Each such classification has its own choice of law
rules but distinguishing between procedural and substantive
rules requires care. The court may have adopted a rule of law
which prevents it from applying any procedural law other than its
own. This can include the court's own choice of law rules. A
danger exists if the choice of law requires that a case be heard
elsewhere due to the forum's lack of expertise in deciding an
issue of foreign law.
4
The court then applies the relevant choice of law
rules.

Forum non conveniens - A country, state, or other jurisdiction enacts

laws which are interpreted and applied through a system of courts. The
laws applied by a particular system of courts or legal system are termed
the lex fori, or law of the forum. As a matter of civil procedure, courts must
decide whether and in what circumstances they will accept jurisdiction
over parties and subject matter when a lawsuit begins. This decision will
be routine, or not raised at all, if the relevant elements of the case are
within the territorial jurisdiction of the court. If one or more of the parties
resides outside the territorial jurisdiction or there are other factors which
might make another forum more appropriate, the question of jurisdiction
must be settled.
Supreme Court of India
The Supreme Court of India comprises the Chief Justice and 25 other
Judges appointed by the President of India, as the sanctioned full strength.
The Supreme Court of India is the highest court of the land. The Supreme
Court is the federal court, guardian of the Constitution and the highest
court of appeal.
Primarily, it is an appellate court which takes up appeals against
judgments of the High Courts of the states and territories. However, it also
takes writ petitions in cases of serious human rights violations or any
petition filed under Article 32 which is the right to constitutional remedies
or if a case involves a serious issue that needs immediate resolution.
High Courts of India
There are 21 High Courts at the State level.
They are bound by the judgments and orders of the Supreme Court of
India by precedence. These courts have jurisdiction over a state, a union
territory or a group of states and union territories. Below the High Courts
are a hierarchy of subordinate courts such as the civil courts, family
courts, criminal courts and various other district courts.
The High Courts are the principal civil courts of original jurisdiction in the
state along with District Courts which are subordinate to the High courts.
However, High courts exercise their original civil and criminal jurisdiction
only if the courts subordinate to the high court in the state are not
competent (not authorised by law) to try such matters for lack of
pecuniary, territorial jurisdiction. High courts may also enjoy original
jurisdiction in certain matters if so designated specifically in a state or
Federal law. e.g.: Company law cases are instituted only in a high court.
However, primarily the work of most High Courts consists of Appeals from
lower courts and writ petitions in terms of Article 226 of the Constitution of
India.
District Courts of India
The district court is presided over by one District Judge appointed by the
state Government. In addition to the district judge there may be number
of Additional District Judges and Assistant District Judges depending on the
workload. The Additional District Judge and the court presided have
equivalent jurisdiction as the District Judge and his district court. The
district court has appellate jurisdiction over all subordinate courts situated
in the district on both civil and criminal matters. Subordinate courts, on
the civil side (in ascending order) are, Junior Civil Judge Court, Principal
Junior Civil Judge Court, Senior Civil Judge Court (also called sub-court).
Subordinate courts, on the criminal side (in ascending order) are, Second

Class Judicial Magistrate Court, First Class Judicial Magistrate Court and
Chief Judicial Magistrate Court.
Sanctity of Arbitral Awards in India
Under the Arbitration & Conciliation Act 1996, the arbitral award was given
a high measure of sanctity and could be challenged U/S 34 of the Act on
very limited grounds. These grounds were basically procedural, such as
incapacity of parties, invalidity of the arbitration agreement, and lack of
proper notice of appointment of arbitrators or arbitral proceedings, lack of
jurisdiction, non-contractual composition of arbitral tribunal or arbitral
procedure, and non-arbitrability of the subject matters of dispute. An
award could also be set aside on the grounds of fraud or corruption or for
violation of Section 75 and Section 81, which related to confidentiality and
non-disclosure of evidence in earlier conciliation proceedings.
An award could also be set aside if it was in conflict with the public policy
of India, which was the only ground under which an award could be
challenged on merits. Thus the scope of judicial scrutiny of an award U/S.
34 was very limited.
Contracts of Service

Employer employee relationship

Usually a continuous relationship

A duty of care is owed to employees, as the employer

The employer is generally liable for the vicarious acts of

employees

Protective legislation applies to the contract

Contract for Service

Employer-independent contractor relationship exists

A relationship organised around the completion of a once-off

piece of work

A duty of care, arising from occupiers liability

The employer is generally not liable for the vicarious acts of

independent contractors
Employer Liability: An Overview
1. An employer is ALWAYS DIRECTLY LIABLE for its own negligence in
hiring, training, or supervising employees.
2. An employer is ALWAYS VICARIOUSLY LIABLE for the wrongful acts of an
employee within the scope of his or her employment.
3. An employer MAY BE VICARIOUSLY LIABLE for the wrongful acts of an
employee outside the scope of his or her employment.
4. A party hiring an independent contractor is generally NOT VICARIOUSLY
LIABLE for the wrongful acts of the independent contractor.
5. An employer is ALWAYS VICARIOUSLY LIABLE for wrongs committed by
an agent in the scope of the agents actual, apparent, or usual authority.
6. An employer MAY BE VICARIOUSLY LIABLE for an employees breach of
fiduciary duty owed to a previous employer, even if the new employer was
unaware of the breach.
VOIDABLE (CONTRACTS)
In law, a transaction or action which is voidable is valid, but may be
annulled by one of the parties to the transaction. Voidable is usually

used in distinction to void ab initio (or void from the outset) and
unenforceable.
(Referred to as voiding / avoiding the contract)
That which may be avoided, or declared void; not absolutely void, or void
in itself. It imports a valid act which may be avoided rather than an invalid
act which may be ratified.
Generally speaking, one party will have the right to elect whether to annul
the transaction or to affirm it. The avoiding of a voidable transaction
amounts to the cancelling it, or exercising a power of rescission, and as
such is subject to the general law in that regard.
The right to rescind can be lost. In common law there are generally said to
be four "bars" to rescission, any one of which will cause the agreement to
no longer be considered voidable.
1. delay
2. affirmation (or ratification)
3. restitutio in integrum being impossible (restoration to original
condition)
4. third party rights
Although the law varies from country to country, most disputes relating to
whether a transaction is void or voidable turn on the ability to transfer title
to goods. In many jurisdictions, if a transaction is valid, but voidable, title
to good still passes under the transaction, and the recipient may sell them
with good title. If the transaction is void, no title passes, and the original
seller can reclaim the goods.
DISCHARGE OF CONTRACT
1. Discharge by Performance:
This is most pleasant end of a contract when a contract is duly performed
by both the parties and nothing more remains to be done. But if only one
party performs his promise, he aloes is discharged and the guilty party
may be taken to the task for breach of contract. The performance may be,
either actual or attempted i.e. tender.
2. Breach of Contract:
Breach of contract means refusal of performance by a party. Where a party
to a contract has refused to perform, or disabled himself from performing
his promise in its entirety, the other party or aggrieved party may put an
end to the contract unless he has waived his right expressly or impliedly.
Breach of contract may be of two kinds: Anticipatory breach and
Actual Breach.
3. Impossibility of Performance:
A contract must be capable of being performed. Section 56 provides
"agreement to do an act impossible in itself is void". This rule is based on
two principles:
1. Lex non cogit ad impossibilia i.e. Law does not recognize the
impossible.
2. Impossibilia nulla obligation east i.e. an impossible act does not create
any obligation.
Impossibility discharges the parties to a contract. Even if the act becomes
impossible after formation of contract, the contract is rendered void.
4. Discharge by agreement
The general rule is that what has been created by agreement may be
extinguished by agreement.
An agreement by the parties to an existing contract to extinguish the
rights and obligations that have been created is itself a binding contract,

provided that it is made under seal or supported by consideration. Where

the agreement for discharge is not under seal, the legal position varies
according to whether the discharge is bilateral or unilateral.
ASSESSMENT OF DAMAGES UNDER BREACH OF CONTRACT
In contract disputes between transnational contracting parties, damages
are often awarded to compensate a claimant for loss, injury or detriment
resulting from a respondent's failure to perform the agreement. In fact,
damages may be the principal means of substituting for performance or
they may complement other remedies, such as recission (unmaking of
contract) or specific performance. Damages for breach of contract
typically serve to protect one of three interests of a claimant: (1)
performance interest (also known as expectation interest); (2)
reliance interest; or (3) restitution interest. The primary goal of
damages in most jurisdictions is to fulfil a claimant's performance interest
by giving the claimant the substitute remedy of the benefit of the bargain
monetarily. This typically includes compensation for actual loss incurred as
a result of the breach and for net gains, including lost profits that the
claimant was precluded from because of the respondent's actions. All legal
systems place limitations on damage awards. The most common
limitations are causation, foreseeability, certainty, fault, and avoidability.
In order to obtain damages, there must be a causal connection between
the respondent's breach and the claimant's loss. In addition, the claimant
must show that the loss was foreseeable or not too remote. Further, the
claimant is required to show with reasonable certainty the amount of the
damage. Many civil law countries also require, as a prerequisite to an
award of damages for breach of contract, that the respondent be at fault
in breaching the agreement. Damages may also be limited by the doctrine
of avoidability, which provides that damages which could have been
avoided without undue risk, burden, or humiliation are not recoverable.
PUBLICPRIVATE PARTNERSHIP
Publicprivate partnership (PPP) describes a government service or
private business venture which is funded and operated through a
partnership of government and one or more private sector companies.
These schemes are sometimes referred to as PPP, P3 or P 3.
PPP involves a contract between a public sector authority and a private
party, in which the private party provides a public service or project and
assumes substantial financial, technical and operational risk in the project.
In some types of PPP, the cost of using the service is borne exclusively by
the users of the service and not by the taxpayer. In other types (notably
the private finance initiative), capital investment is made by the private
sector on the basis of a contract with government to provide agreed
services and the cost of providing the service is borne wholly or in part by
the government. Government contributions to a PPP may also be in kind
(notably the transfer of existing assets). In projects that are aimed at
creating public goods like in the infrastructure sector, the government may
provide a capital subsidy in the form of a one-time grant, so as to make it
more attractive to the private investors. In some other cases, the
government may support the project by providing revenue subsidies,
including tax breaks or by removing guaranteed annual revenues for a
fixed time period.
FORMATION

Typically, a public sector consortium forms a special company

called a "special purpose vehicle" (SPV) to develop, build, maintain
and operate the asset for the contracted period. In cases where the
government has invested in the project, it is typically (but not always)
allotted an equity share in the SPV. The consortium is usually made up of a
building contractor, a maintenance company and bank lender(s). It is the
SPV that signs the contract with the government and with subcontractors
to build the facility and then maintain it. In the infrastructure sector,
complex arrangements and contracts that guarantee and secure the cash
flows make PPP projects prime candidates for project financing. A typical
PPP example would be a hospital building financed and constructed by a
private developer and then leased to the hospital authority. The private
developer then acts as landlord, providing housekeeping and other nonmedical services while the hospital itself provides medical services.
DIRECTORS OF A COMPANY
Meaning of Director as per the Companies Act, 1956
A company is a legal entity and does not have any physical existence. It
can act only through natural persons to run its affairs. The person, acting
on its behalf, is called Director. A Director is any person, occupying the
position of Director, by whatever name called. They are professional men,
hired by the company to direct its affairs. But, they are not the servants of
the company. They are rather the officers of the company. (Not necessarily
employees)
The definition of Director given in this clause is an inclusive definition. It
includes any person who occupies the position of a director is known as
Director whether or not designated as Director. It is not the name by which
a person is called but the position he occupies and the functions and
duties which he discharges that determine whether in fact he is a Director
or not. So long as a person is duly, appointed by the company to control
the company's business and, authorized by the Articles to contract in the
company's name and, on its behalf, he functions as a Director.
The Articles of a company may, therefore, designate its Directors as
governors, members of the governing council or, the board of
management, or give them any other title, but so far as the law is
concerned, they are simple Directors.
Duties of a Director
There is no exhaustive list defining the duties of the Board of Directors
towards the company and shareholders. But based on the analysis of the
provisions of the Companies Act, 1956 with regards to a director, some
general duties of a Director are mentioned herein: (statutory duties)
To file return of allotments, not to issue irredeemable preference shares or
shares, redeemable after 20 years, To disclose interest.
A company is not debarred from entering into a contract in which
a Director is interested. It only requires that such interest be
disclosed. An interested Director should not take part in the
discussion on the matter of his interest. His presence shall not be
counted for the purpose of quorum for that item. He shall not vote on that
matter. If he does vote, his vote shall be void. Non-disclosure of interest
makes the contract avoidable and not void. However, the concerned
Director may be subjected to fine, up to Rs. 5,000.
Duty to attend Board meetings - A number of powers of the company are
exercised by the Board of Directors in their meetings, held from time to

time. Although, a Director may not be able to attend all the meetings, but,
if he fails to attend three consecutive meetings or, all meetings for a
period of three months, whichever is longer, without permission of the
Board, his office shall, automatically, fall vacant.
A Director's duties also include the following:
To convene Statutory, Annual General Meeting (AGM) and also
Extraordinary General Meetings;
To prepare and place at the AGM, along with the balance sheet and,
profit and loss account, a report on the company's affairs, including the
report of the Board of Directors;
To authenticate and approve annual financial statement;
To appoint first auditor of the company;
To appoint cost auditor of the company;
To make a declaration of solvency in the case of a Members' voluntary
winding up;
In case of a Non- executive Director: A director is not bound to give
continuous attention to the affairs of his company. His duties are of an
intermittent nature to be performed at periodical board meetings, and at
meetings of any committee of the board upon which he happens to be
placed. He is not, however, bound to attend all such meetings, though he
ought to attend whenever, in the circumstances, he is reasonably able to
do so. However an Executive Director needs to give constant attention and
take active interest in the affairs of the Company.
In respect of all duties that, having regard to the exigencies of business,
and the articles of association, may properly be left to some other official,
a director, is in the absence if grounds for suspicion justified in trusting
that officer to perform such duties honestly. A director must of necessity
trust the officials of the company to perform properly and honestly the
duties allocated to those officials.
When presenting their annual reports and balance sheet to their
shareholders and when recommending the declaration of a dividend,
directors ought not to be satisfied as to the value of their company's
assets merely by the assurances neither of their chairman, nor with the
experience or the belief of the auditor howsoever competent and trust
worthy he is. All in all, there is no difference between legal and equitable
duties of directors. If the directors act within their power with such care as
is reasonably to be expected from them, having regard to their knowledge
and experience, and if they act honestly for the benefit of the company.
They discharge both their legal as well as equitable duty to the company.
The directors are not liable for all mistakes they make, although if they
had taken more care they might have avoided them.
WHAT ARE THE LIABILITIES OF THE DIRECTORS OF A COMPANY
TOWARDS THE COMPANY?
The liability of a Director to the company may arise from:
Breach of fiduciary duty: Where a Director acts dishonestly to the
interest of the company, he will be held liable for breach of fiduciary duty.
Most of the powers of Directors are powers in trust and, therefore, should
be exercised in the interest of the company and, not in the interest of the
Directors or, any section of members. Thus, in a case where the Directors,
in order to forestall a take-over bid, transferred the unissued shares of the

company to trustees, to be held for the benefit of the employees, and an

interest-free loan from the company was advanced to the trustees to
enable them to pay for the shares, it was held to be a wrongful exercise of
the fiduciary powers of the Directors.
Ultra vires acts: Directors are supposed to act within the parameters of
the provisions of the Companies Act, Memorandum and Articles of
Association, since these lay down the limits to the activities of the
company and, consequently, to the powers of the Board of Directors.
Further, the powers of the Directors may be limited in terms of specific
restrictions, contained in the Articles of Association. The Directors shall be
held, personally, liable for acts beyond the aforesaid limits, being ultra
vires the company or the Directors. Thus, where the Directors pay
dividends or interest out of capital, they will be liable to indemnify the
company for any loss or damage, suffered due to such act.
Negligence: As long as the Directors act within their powers with
reasonable skill and care, as expected of them as prudent businessmen,
they discharge their duties to the company. But, where they fail to exercise
reasonable care, skill and diligence, they shall be deemed to have acted,
negligently, in discharge of their duties and, consequently, shall be liable
for any loss or damage, resulting there from. However, error of judgment
will not be deemed as negligence. The Directors cannot be absolved of
their liability for negligence by any provisions in the Articles of Association.
Mala fide acts: Directors are the trustees for the money and property of
the company, handled by them, as well as for exercise of the powers,
vested in them. If they dishonestly or in a mala fide manner, exercise their
powers and perform their duties, they will be liable for breach of trust and,
may be required to make good the loss or damage, suffered by the
company by reason of such mala fide acts. They are also accountable to
the company for any secret profits they might have made in course of
their performance of duties on behalf of the company. Directors can also
be held liable for their acts of 'misfeasance', i.e., misconduct or wilful
misuse of powers. However, misconduct, which is not wilful, shall not
amount to 'misfeasance'.
Where a Director misapplies or misappropriates the money or properties of
the company or, has been guilty of breach of trust or misfeasance, the
Court may order him to repay the money or, restore the property or, to
pay compensation.
CAN A DIRECTOR BE MADE LIABLE FOR THE ACTS OF HIS CODIRECTORS?
Nothing done by the Board can impose liability on a Director, who did not
participate in the Board's action or, did not know about it. To incur liability,
he must either be a party to the wrongful act or, later acquiesce (consent)
to it. Thus, the absence of a Director from a meeting of the Board does not
make him liable for the fraudulent act of a co-Director.
Where a Director is made liable for the acts of a co-Director, he is entitled
to contribution from the other Directors or co-Directors, who were a party
to the wrongful act. However, where the Director, seeking contribution
alone, benefited from the wrongful act, he is not entitled to contribution.
Corporate restructuring
A listed company undergoing corporate restructuring (amalgamation,
merger or demerger) is required to mandatorily submit an auditors'

certificate to the stock exchange to the effect that the accounting

treatment followed in respect of financials contained in the scheme is in
compliance with all the applicable accounting standards.
Joint liability
If parties have joint liability, then they are each liable up to the full
amount of the relevant obligation.
Several liability
The converse is several or proportionate liability, where the parties are
liable for only their respective obligations. A common example of several
liabilities is in syndicated loan agreements, which will normally provide
that each bank is severally liable for its own part of the loan.
Joint and several liability
Under joint and several liability or all sums, a claimant may pursue an
obligation against any one party as if they were jointly liable and it
becomes the responsibility of the defendants to sort out their respective
proportions of liability and payment.
Limited Liability Partnership
The Limited Liability Partnership Act 2008 was published in the official
Gazette of India on January 9, 2009 and has been notified with effect from
31 March 2009. However, the Act has been notified with limited sections
only.
1. In India, for all purposes of taxation, an LLP is treated like any other
partnership firm.
2. be limited to their agreed contribution in the LLP.
3. Further, no partner would be liable on account of the independent or
unauthorized actions of other partners, thus allowing individual partners to
be shielded from joint liability created by another partner's wrongful
business decisions or misconduct.
4. LLP shall be a body corporate and a legal entity separate from its
partners. It will have perpetual succession. Indian Partnership Act, 1932
shall not be applicable to LLPs and there shall not be any upper limit on
number of partners in an LLP unlike an ordinary partnership firm where the
maximum number of partners cannot exceed 20, LLP Act makes a
mandatory statement where one of the partners to the LLP should be an
Indian.
5. The Registrar of Companies (Roc) shall register and control LLPs also.
6. The governance of LLPs shall be in electronic mode based on the
successful model of the present Ministry of Corporate Affairs Portal.
MOA
It is basically a statement that the subscribers wish to form a company
under the 2006 Act, have agreed to become members and, in the case of
a company that is to have a share capital, to take at least a share each.
AOA
In corporate governance, a company's articles of association (called
articles of incorporation in some jurisdictions) are a document which,
along with the memorandum of association (in cases where the
memorandum exists) form the company's constitution, defining the
responsibilities of the directors, the kind of business to be undertaken, and
the means by which the shareholders exert control over the board of
directors.

INDEPENDENT DIRECTOR (also sometimes known as outside director

or non-executive director) is a director (member) of a board of directors
who does not have a material or pecuniary relationship with company or
related persons, except sitting fees. Independent Directors do not own
shares in the company.
SHELL CORPORATION is a company which serves as a vehicle for
business transactions without itself having any significant assets or
operations. Some shell companies may have had operations, but those
may have shrunk due to unfavourable market conditions or company
mismanagement. Shell corporations are not in themselves illegal and have
legitimate business purposes. However, they are a main component of the
underground economy, especially those based in tax havens.
IMPORTANT - PROMOTER LIABILITY
Prior to ratification by the Company the person or persons( promoters)
who purported to act in the name of the Company shall, unless there is an
agreement to the contrary, be personally bound by the contract or other
transaction and entitled to its benefit. In short the outsider can make the
promoters who acted when the Company was still in its pre-incorporation
stage, to be personally liable should the Company decide not to ratify the
contract after its incorporation. For ratification to take place there must be
an express agreement between the Company and the Promoter.
COMPOSITION OF BOD
The Company shall have at least three (3) but not more than fourteen (14)
directors and such directors shall be appointed at a general meeting of
shareholders; provided, however, that independent directors shall be
elected from the persons recommended by the Independent Director
Candidate Recommendation Committee. The representative director shall
be elected by the Board of Directors. The representative director shall
represent the Company and in case there are several representative
directors, each shall represent the Company respectively.
The term of office of a Director and Independent Director shall be three (3)
years
As per Clause 49, for a company with an Executive Chairman, at least 50
per cent of the board should comprise independent directors. In the case
of a company with a non-executive Chairman, at least one-third of the
board should be independent directors.
FIDUCIARY
A fiduciary is a legal or ethical relationship of trust between two or more
parties. Typically, a fiduciary prudently takes care of money for another
person. One party, for example a corporate trust company or the trust
department of a bank, acts in a fiduciary capacity to the other one, who
for example has funds entrusted to it for investment. In a fiduciary
relationship, one person, in a position of vulnerability, justifiably vests
confidence, good faith, reliance and trust in another whose aid, advice or
protection is sought in some matter. In such a relation good conscience
requires the fiduciary to act at all times for the sole benefit and interest of
the one who trusts.

A fiduciary is someone who has undertaken to act for and on behalf of

another in a particular matter in circumstances which give rise to a
relationship of trust and confidence.
A fiduciary duty is the highest standard of care at either equity or law. A
fiduciary (abbreviation fid) is expected to be extremely loyal to the person
to whom he owes the duty (the "principal"): he must not put his personal
interests before the duty, and must not profit from his position as a
fiduciary, unless the principal consents.
When a fiduciary duty is imposed, equity requires a different, arguably
stricter, standard of behaviour than the comparable tortious duty of care
at common law.
MPL
The MPL has been approved as both a free software license (albeit one
with a weak copyleft totally free) by the Free Software Foundation and an
open-source software license by the Open Source Initiative. The MPL allows
covered source code to be mixed with other files under a
different, even proprietary license. However, code files licensed under
the MPL must remain under the MPL and freely available in source form.
This makes the MPL a compromise between the MIT or BSD
licenses, which permit all derived works to be relicensed as proprietary,
and the GPL, which requires the whole of a derived work, even new
components, to remain under the GPL. By allowing proprietary modules in
derived projects while requiring core files to remain open source, the MPL
is designed to motivate both businesses and the open-source community
to help develop core software.

The GNU General Public License (GNU GPL or GPL) is the most widely
used[5] free software license, which guarantees end users (individuals,
organizations, companies) the freedoms to use, study, share (copy), and
modify the software. Software that ensures that these rights are retained
is called free software. The license was originally written by Richard
Stallman of the Free Software Foundation (FSF) for the GNU project.
Craig Mundie, Microsoft Senior Vice President has described the GPL as
being "viral".[81] Mundie argues that the GPL has a "viral" effect in that it
only allows the conveyance of whole programs, which means programs
that link to GPL libraries must themselves be under a GPL-compatible
license, else they cannot be combined and distributed.

BSD licenses are a family of permissive free software licenses, imposing

minimal restrictions on the redistribution of covered software. This is in
contrast
to copyleft licenses,
which
have
reciprocity sharealike requirements. The original BSD license was used for its namesake,
the Berkeley Software Distribution (BSD), a Unix-like operating system.
The original version has since been revised and its descendants are more
properly termed modified BSD licenses.