Beruflich Dokumente
Kultur Dokumente
State
An entity becomes state if it posses the followings essential of statehoods
Population
Territory
Government
Sovereignty
Government – The agent or instrument of state for the administration of Justices. State
is a larger body consisting of entire population.
1. To make law
E.g. Indian Penal Act, Indian contract Act, Dowry prohibition Act, RTI etc...
Executive administrative
1. To frame Policy
Socialism policy in tune with that policy the legislature has to make law.
3. To make law
(Due to reasons like delay in passing of Bills on the part of legislature, technical subject
matters, etc... The legislature gives some of its law making power to the executive. They
also started law making)
Judiciary
1. Adjudication
E.g. Air India v. Nargesh Mirza Air India Service rules providing termination of service
on pregnancy – Supreme Court held it insult to womanhood unconstitutional and void
3. To make law
Whenever a gap is left by the legislature or executive that gap can be filled by the
judiciary. The products are called Judicial Legislation.
Eg. 1. Vishaga v. State of Rajasthan – (AIR 1997 SC 3011) All India Report – sexual
harassment of woman in work place
Law
Body of Principles recognized and applied by the state for the administration of Justice
1. What is law
2. Sources of law
1.1. Legislation (Supreme legislation as well as Subordinate Legislation)
1.2. Precedent (Decision of a court especially that of High court and Supreme
court)
1.4. Customs – But only valid customs becomes part of law. A custom can be
valid only if posses essentials
1.4.4. Continuity
Elements of law
1. Person- Natural and artificial person (artificial e.g. company and corporation)-
Any object capable of having rights and duties can be termed person, law confers
right s to unborn person and even dead person (descend burial, not to be
defamed and implement testament or will)
4. Duty – obligation – contractual obligation - e.g. An offer to sell his house to B for
5 lack and B accepts it. A is having an obligation to give the house and B have an
obligation to pay
Here law enforces rights and Here law punishes the offender
duties of parties and provides
e.g. by imposing fine, imprisonment, death sentence
for compensation or damages
With the aid of civil laws like With the aid of Criminal Laws like IPC, Narcotic drugs
Indian Contract Act, Sale of and psychotropic substances (NDPS) Act, Arms Act,
Goods Act and Transfer of Explosive Act etc...
Property Act.
6. High Court
7. Supreme Court
It is to be noted that certain acts are regarded both as Crimes as well as Civil Wrongs
E.g. Defamation is a Crime as per Sec 499 and 500 of IPC; it is a Civil Wrong also which
entitle the victim to get compensation.
More over CRPC not applicable if the accused is a Juvenile – below 18 years.
Juvenile Justice (Care and Protection of Children) Act, 2000 provides special provision
in this regards.
In criminal Cases law punishes the Criminal. There are many theories relating to the
question – why punishment is given or what must be the aim of punishment.
7. Experts – forensic experts, Ballistic experts, Finger print experts and Doctors
etc...
9. Media – if proceeding are incamara (excluding outsiders) media shall not publish
the details of court proceedings. e.g. Name of a rape victim
9. Summary Trialable Offence – That can be tried without lengthy procedures e.g.
Theft involving a property less than Rs 2000
Sec 154 of CRPC requires the station house officer to get it reduced to writing to
prepare a report their own (FIR). If the information is related to non-cognizable offence
the person has to be directed to court. After making the FIR, police starts investigation
(whether the information was correct? If so committed by whom? Against whom?
When? Where? Why? How? Who witnessed? What the accused took away? What the
accused left in the crime scene). After the completion of investigation report has to be
forwarded to the court (investigation report). During investigation, the investigation
officer has to maintain a diary called Case Diary or Police Diary or Special Diary
(General Diary is kept at police station to record day to day activities.)
Inquest - In the case of un-natural death the police has to inform the executive
magistrate, and there after proceed to the spot and make investigation in the presence
of local witnesses and prepare a report.
CRPC also contain provisions for appeals, review and transfer of case etc...
But if the opposite party is Government Sec. 80 require two months notice. However
after 1976 amendment, if urgent relief is sort against Government, the court can
dispense with the requirement of notice.
2. Reply Notice –
1. Filing of Plaint – Document containing the material facts relied on by the plaintiff.
3. Defended files Written Statement. (Admissions denials etc... in reply to the plaint)
4. Framing of issues (the point of controversy) after reading the pleadings (plaint
and written statement) the judge has to frame the issue.
7. Decree (relief granted) – the person in whose favor the decree has been passed is
called Decree Holder and the person against whom it has been passed is called
Judgment Debtor.
The stage between the filing of pliant and passing of decree is called inter locutory stage.
In this stage the plaintiff or defended can seek many remedies e.g. Appointment of
receiver, Appointment of Commission, injunction, attachment before judgment etc...
In addition, there are provisions for appeal, second appeal, review etc...
4. Lawful object
1. Offer
2. Acceptance
3. Competency of Parties
4. Free consent
5. Consideration
6. Lawful Object
8. Types Of Contracts
1. Expressed
2. Implied
3. Void Agreements
4. Valid Contract
5. Voidable Contract
6. Void Contract
7. Bilateral contract
8. Unilateral Contract
9. Quasi Contract
9. Discharge
As soon as a valid contract is concluded a legal bond or tie comes into existence. The
process by which the parties get free from this tie is called. The major means of
discharge are
1. By performance,
4. By breach – if one party commits a breach the other party will be discharged.
Subsequently the agreed party can seek the following remedies.
1. General damages
2. Special damages
I. Offer
1. The starting point of a contract,
2. As per Sec.2 of the Indian Contract Act, when a person express his willingness to do
something or abstain from doing something, to another persons, with an intention of
getting accent thereto from the letter, the former is said to have made an offer or
proposal (in Indian law - Proposal, English law – Offer)
3. The person who makes the offer is called offerer or proposer; and whom it is made
is called offeree or proposee.
When the offer is accepted, it becomes promise and the parties become promiser and
promisee.
4. Offer can be
5. Offer is different from “invitation to offer”, Saree displayed with a price tag – here
offer must come from the customers
8. Quitting the lowest selling prize cannot be regarded as an offer, to sell on that prize
2. Acceptance
1. If the person to whom the offer is made gives his accent thereto, he is said to
have acceptance
4. If the offerer prescribed a mod of acceptance e.g. email, telephone, fax etc...
acceptance must be made in that mod
5. The usual mod is through post- the law relating to postal acceptance in England
has been aptly summarized by Anson as follows “acceptance is to offer what a
light match is to a train of gun powder” that is as soon as the letter of acceptance
is posted offerr and offeree become bound, and acceptance is irrevocable
But Indian law is different. As soon as the letter of acceptance is posted the offerer
becomes bound, but the accepter can revoke the acceptance by a speedily mode before
the letter of acceptance reaches the offerer
2. Competency of Parties
1. As per Indian Contract Act the parties must be competent, that is they must not be
Minors agreements is void abinitio (from the very beginning) – Mohory Beebies Case,
but if the minor fraudulently induces another person to enter in to agreements and
subsequently approaches the court to get it declared void the court can direct the minor
to restore the benefit received under the agreements: that it is traceable in the hands of
minor (doctrine of restitution)
4. Free Consent
Indian contract act mandates that the consent of parties must be free, that is consent
shall not be obtained by the following vitiating elements
1. Coercion Sec 15
3. Fraud Sec 17
4. Misrepresentation Sec 18
The term coercion is used in the Indian contract act. In England the term duress is used.
The term imp lice a threat to commit any offense e.g. showing a gun or attempt to
commit suicide to compel a party to sign an agreement.
In the case of undue influence one party is in a superior position and other is in a
inferior position so that the former may superimpose his will over the later (Alcade v.
Skinner (mother superior case)). Law usually presumes undue influence in the
following relations: Doctor and patient, Spiritual leader and Disciple
In Derry v. Peek the court brought out the distinction between misrepresentation and
fraud, the facts of case as follows; a company engaged in a business using horse driven
carriages, in order to get converted in to steam driven carriages company made an
application along with the plan before the Board of trade. The application was accepted.
The company issued a prospectus inviting the public to invest money stating that the
company has the right to use steam driven carriages , but after the allotment process
was over the application was rejected by the Board of trade. Public suede against the
directors on the ground of fraud.
The court held that it was only an innocent misrepresentation. The court further
enumerated the essentials of fraud as follows
If Consent is obtained by 1,2,3,4 the contact is voidable that is valid until set aside by a
court at the instance of agreed party, but consent is obtained by mistake it is void.
5. Consideration
1. A lawful consideration is an essential ingredient of valid contract, the term means
something in written or quide pro co
2. An agreements without consideration is void – (ex nudo pacto non oritor actio- no
cause of action arise from a nude agreement or bare promise)
4. the consideration must move from the promisee or any other person (but in England
the consideration must move from the promisee only – in England there is doctrine of
privity of consideration)
6. Consideration need not be adequate but must be real and having some value in the
eyes of law
Exception 1. Third party insurance contract executed between the insurance company
and owner of vehicle - Accident victim sues up on that contract for compensation
Exception 3. In trust the beneficiary can sue the trust deed entered in to between and
trustee
Examples
8. Wagering agreements (Sec 30) Ex Bet a promise to pay money or monies worth
up on the happening or non happening of uncertain event
10. Both parties are under a mistake as to the subject matter of contract (Sec 19, 20,
21)
Ex. Employees are entitled to get minimum wage under minimum wages act 1948,
bonus under bonus act 1965, PF under employees PF act. An employee executing an
agreement in favor of his employer where by waving his right to get bonus minimum
wage PF etc (contracting out) the intension is to defeat the provisions of labor laws-
hence void
Example film star prevented from engaging simultaneously in two or more films
Exception 2 Partnership act permits total restraints in business that of the partnership
firm
Exception 3 In the case of sale of good wills that buyer can prevent seller absolutely
8. Wagering Agreements- Exception in the case of horse race if the above Rs 500
There for one can conclude that “all contract are agreements, but all agreements are not
contracts”.
Types
1. Expressed Contracts - expressed by words spoken or written
3. Valid contracts - valid offer plus valid acceptance plus enforceability condition.
6. Voidable contracts – valid until set aside by a court at the instance of the agreed
party. Example if consent is obtains by coercion, fraud undue influence
Illustration: A gives his house to B on a condition that he shall marry daughter, till
marriage B's right is contingent, on marriage it becomes vested right
Conditional limitation – On the happening of a condition a right gets divest from one
person to another person: illustration: A transfers his property to his son on the
condition that, if a daughter is born it will go to her
10. Quasi contract (quasi as if) - Sec 68 to 72 of Indian contract act deals with
quasi contracts. That uses the phrase certain transactions creating obligations
resembling that created by contract.
Ex 2. Payment made by one person for another person bound by law to pay (Sec 69)
Illustration: Building tax paid by tenant – he can subsequently gets it from the land load.
Ex 3. Payment for non gratuitous services (Sec 70) – if a person enjoys the benefit of a
non gratuitous service; he has to give reasonable sum for the service returned.
Illustration: Producer hired a script writer. Script was completed mean while the
Producer doped the project; court held the script writer entitled to get reasonable
remuneration to the service rendered (quantom meruit)
Ex 4. Finder of goods
The law relating to quasi contract is based on the doctrine of unjust enrichment that is
one person shall not grow rich at the loss of another
Discharged of contract
As soon as a valid contract is made, a legal bond or tie comes in to existence. Discharge
is the process by which the parties get free from this bond. The modes of discharge are
1. By performance, 2. By agreements (alteration, novation and substitution) 3. By
Subsequent impossibility or super winning impossibility or doctrine of frustration, 4. By
breach
Assignment of Contract – Parties can transfer the rights or liabilities to known party to
contract (Example Sub contracting), in that case that party has to perform. But in
personal rights or liabilities (to sing or paint) vicarious performance is not necessary.
II. By agreements
Parties can alter the terms; substitute the existing contract with a new one
e) Death or incapacity
f) Nonoccurrence contemplated event – Illustrative case law: Krel v. Henry Coronation
procession case, room hired to view the coronation procession, but the event
postponed.
IV. By breach
Failure on the part of one party to perform his part. It can be one
2. Legal Remedy
a) Under Specific Relief Act 1963 – Suite for Injection (to do or not do), Specific
Performance (if loss cannot be compensated in terms of money), Cancellation or
rectification of instruments
The defended is liable to compensate to extend of foreseeable limit. There is a limit for
foreseen ability beyond that limit, the damage is said to be remote and defended is not
liable. Facts of the case Crankshaft in Plaintiff's mill was damaged. It was entrusted with
the defended to get it replaced from the manufacturer, but delayed and hence loss of
profit to Plaintiff. Court held defended not liable to pay loss of profit.
Additional topics
Appropriation of payments (Sec 59, 60 and 61)
1. By deter (One creditor deter owes several debts a payment made by the deter
with a request to wipe out a particular deter
2. By Creditor – If no request made by deter the creditor can excise his discretion
3. By law – If neither nor the creditor makes appropriation, law wipe out the dept
in the order of time.
This is defense available to a person in court the aim is to protect illiterate and blind
persons
There can also be request for quotation (RFP) request for Information (RFI) request for
Qualification (RFQ) Annual maintenance Contract (AMC)
The term cyber is originated from cybernetics Science of Communication and control
over man and machine
Netizen is person who lives in cyber space and constantly interacts with the INTERNET.
What is Cyber Crime – Crime committed with the aid of computer and
telecommunication systems. In such case computer can be offender as well as victim.
Today telecommunication system has been computerized the term hacker covers
Phreaker etc...
The above said crimes adversely affect the following legally protected interests.
1. National Security – Cyber terrorism
1. Vaccine software
IT Act 2000
Aim of Act
1. legalize e-commerce – alternative for paper based documents of communication
and storage
3. Amend Indian Penal Code (IPC), Evidence Act, bankers book of evidence
4. To constitute a cyber regulation applet tribunal (CRAT)
Chapter 9 Chapter 11
Computers can be ceased. Investigating officers can seek the help of Internet service
providers. One of the peculiar characteristic of cyber crime is that it can be committed
in any jurisdiction without having physical jurisdiction. Hence international law of
extradition is necessary. Another major defect is LOVE (lack of visual evidence)
Habeous Corps – To produce a body before the court to find out whether the detention
legal or not (can be filed against private person also)