Beruflich Dokumente
Kultur Dokumente
No: 511011167
Assignment Set- 2
Matrimonial matters
Guardianship of a minor or any other person under disability
Testamentary matters
Insolvency, proceedings
Criminal proceedings
• Conciliator
Conciliation is a process in which the parties to a dispute, with the
assistance of a neutral third party (the conciliator), identify the disputed
issues, develop options, consider alternatives and endeavour to reach an
agreement.
The conciliator may have an advisory role on the content of the
dispute or the outcome of its resolution, but not a determinative role.
The conciliator may advise on or determine the process of conciliation
whereby resolution is attempted, and may make suggestions for terms of
settlement, give expert advice on likely settlement terms, and may actively
encourage the participants to reach an agreement.
In order to understand what Parliament meant by ‘Conciliation’, we
have necessarily to refer to the functions of a ‘Conciliator’ as visualized by
Part III of the 1996 Act. It is true, section 62 of the said Act deals with
reference to ‘Conciliation’ by agreement of parties but sec. 89 permits the
Court to refer a dispute for conciliation even where parties do not consent,
provided the Court thinks that the case is one fit for conciliation. This makes
no difference as to the meaning of ‘conciliation’ under sec. 89 because; it
says that once a reference is made to a ‘conciliator’, the 1996 Act would
apply. Thus the meaning of ‘conciliation’ as can be gathered from the 1996
Act has to be read into sec. 89 of the Code of Civil Procedure. The 1996 Act
is, it may be noted, based on the UNCITRAL Rules for conciliation.
MB0051- Legal Aspects of Business Page 3 of 14
Roll
No: 511011167
• Role of conciliator:
The conciliator shall assist the parties in an independent and impartial
manner in their attempt to reach an amicable settlement of their dispute.
• Conciliators do not:
Make decisions for disputing parties
Make judgments about who is right, who is wrong or what the outcome of
the dispute should be.
Tell people what to do
Make rulings
Force parties to participate in the conciliation process.
An unfair trade practice means a trade practice, which, for the purpose of
promoting any sale, use or supply of any goods or services, adopts unfair
method, or unfair or deceptive practice.
• 1. False Representation:
Falsely suggests that the goods are of a particular standard quality, quantity,
grade, composition, style or model;
Falsely suggests that the services are of a particular standard, quantity or
grade;
Falsely suggests any re-built, second-hand renovated, reconditioned or old
goods as new goods;
Represents that the goods or services have sponsorship, approval,
performance, characteristics, accessories, uses or benefits which they do not
have;
Represents that the seller or the supplier has a sponsorship or approval or
affiliation which he does not have;
Makes a false or misleading representation concerning the need for, or the
usefulness of, any goods or services;
Gives any warranty or guarantee of the performance, efficacy or length of
life of the goods, that is not based on an adequate or proper test;
Makes to the public a representation in the form that purports to be-
• warranty or guarantee of the goods or services,
• a promise to replace, maintain or repair the goods until it has achieved
a specified result,
Materially misleads about the prices at which such goods or services are
available in the market; or
Gives false or misleading facts disparaging the goods, services or trade of
another person.
Offering any gifts, prizes or other items along with the goods when the real
intention is different, or
Creating impression that something is being offered free along with the
goods, when in fact the price is wholly or partly covered by the price of the
article sold, or
Offering some prizes to the buyers by the conduct of any contest, lottery or
game of chance or skill, with real intention to promote sales or business.
• Relief Available:
After making an inquiry into the unfair trade practices if the Commission
is of the opinion that the practice is prejudicial to the pubic interest, or to the
interest of any consumer it may direct that?
The practice shall be discontinued or shall not be repeated;
The agreement relating thereto shall be void in respect of such unfair trade
practice or shall stand modified.
Any information, statement or advertisement relating to such unfair trade
practice shall be disclosed, issued or published as may be specified
The Commission may permit the party to carry on any trade practice to take
steps to ensure that it is no longer prejudicial to the public interest or to the
interest of the consumer.
For example; Sunil offers to sell his car to Padmaja for Rs. 50000. This is a
proposal. Sunil is the offeror and Padmaja is the offeree.
The offer must be made in order to create legal relations otherwise there
will be an agreement. If an offer does not give rise to legal obligations
between the parties it is not a valid offer in the eye of law. In business
transactions there is a presumption that the parties propose to make legal
relationships. For example a person invite to another person to diner if the
other person accepts the invitation then it is not any legal agreement between
the parties it is social agreement.
An offer must be definite and clear. If the terms of an offer are not
definite and clear it cannot be called a valid offer. If such offer is accepted it
cannot create a binding contract. An agreement to agree in future is not a
contract because the terms of an agreement are not clear. A person has two
motorbikes. He offers to another person to sell his one bike for a certain
price then it is not a legal and valid offer because there is an ambiguity in the
offer that which motorcycle the person wants to sell. There is a difference
between the offer and invitation of offer. Sometime people offer the
invitation for the sale.
A valid offer must intend to create legal relations. It must not be a casual
statement. If the offer is not intended to create legal relationship, it is not an
offer in the eyes of law e.g. Sunil invites Sridhar to a dinner party and
Sridhar accepts the invitation. Sridhar does not turn up at the dinner party.
Sunil cannot sue Sridhar for breach of contract as there was no intention to
create legal obligation. Hence, an offer to perform social, religious or moral
acts without any intention of creating legal relations will not be a valid offer.
The terms of an offer must be definite, unambiguous and certain. They must
not be loose and vague. A promise to pay an extra Rs. 500 if a particular
house proves lucky is too vague to be enforceable. E.g. Sridhar says to Sunil
"I will give you some money if you marry my daughter". This is not an offer
which can be accepted because the amount of money to be paid is not
certain.
An offer should may contain any term or condition. The offeror may
prescribe any mode of acceptance. But he cannot prescribe the form or time
of refusal so as to fix a contract on the acceptor. He cannot say that if the
acceptor does not communicate his acceptance within a specified time, he is
deemed to have accepted the offer.
The offeror is free to lay down any terms any terms and conditions in his
offer. If the other party accepts it, then he has to abide by all the terms and
conditions of the offer. It is immaterial whether the terms and conditions
The earlier principle of “Caveat Emptor” or “let the buyer beware” which
was prevalent has given way to the principle of “Consumer is King”. The
origins of this principle lie in the fact that in today’s mass production
economy where there is little contact between the producer and consumer,
often sellers make exaggerated claims and advertisements, which they do not
intend to fulfill. This leaves the consumer in a difficult position with very
few avenues for redressal. The onset on intense competition also made
producers aware of the benefits of customer satisfaction and hence by and
large, the principle of “consumer is king” is now accepted. The need to
recognize and enforce the rights of consumers is being understood and
several laws have been made for this purpose. In India, we have the Indian
Contract Act, the Sale of Goods Act, the Dangerous Drugs Act, the
Agricultural Produce (Grading and Marketing) Act, the Indian Standards
Institution (Certification Marks) Act, the Prevention of Food Adulteration
Act, the Standards of Weights and Measures Act, the Trade and
Merchandise Marks Act, etc which to some extent protect consumer
interests. However, these laws required the consumer to initiate action by
way of a civil suit, which involved lengthy legal process proving, to be too
expensive and time consuming for lay consumers. Therefore, the need for a
more simpler and quicker access to redressal to consumer grievances was
felt and accordingly, it lead to the legislation of the Consumer Protection
Act, 1986.
Glossary
Complaint: Complaint many allegation in writing by a complainant
with a view to obtaining any relief under the Act.
Consumer: Any person who buys any goods for consideration which
has been paid or promised or partly paid and partly promised.
In May 2000, at the height of the dot-com boom, India enacted the IT Act
and became part of a select group of countries to have put in place cyber
laws. In all these years, despite the growing crime rate in the cyber world,
only less than 25 cases have been registered under the IT Act 2000 and no
final verdict has been passed in any of these cases as they are now pending
with various courts in the country.
Although the law came into operation on October 17, 2000, it still has an
element of mystery around it. Not only from the perception of the common
man, but also from the perception of lawyers, law enforcing agencies and
even the judiciary.
The prime reason for this is the fact that the IT Act is a set of technical
laws. Another major hurdle is the reluctance on the part of companies to
report the instances of cyber crimes, as they don't want to get negative
publicity or worse get entangled in legal proceedings. A major hurdle in
cracking down on the perpetrators of cyber crimes such as hacking is the fact
that most of them are not in India. The IT Act does give extra-territorial
jurisdiction to law enforcement agencies, but such powers are largely
inefficient. This is because India does not have reciprocity and extradition
treaties with a large number of countries.
The Indian IT Act also needs to evolve with the rapidly changing
technology environment that breeds new forms of crimes and criminals. We
are now