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THE INDIAN CONTRACT

ACT, 1872
Are the following contracts ?
1. A daughter asks her mother to buy a particular brand of chocolate. The product is
not available in the market and hence the mother buys another equally good brand
chocolate and gives it to her daughter. Is there is contract in this situation ?
2. A, orders pizza for an event from the best pizza company in the country. As a part of
promotion the pizza company decides to provide pizzas free of cost. The goods are
delivered ½ hr late and the pizza is raw. Can the pizza company be held liable for
committing a breach of contract ?
3. A owns a Maruti car and drives Uber during spare time. The engine of car seizes
during the warranty period. Does A have any rights against Maruti ?
4. Vodofone Ltd was served noticed by Indian Income Tax authorities for their asset
acquisition of Hutchison Essar Ltd, to which they denied payment?
Development of Contract Law
• Contract law is a branch of commerce.
• In 1756, Blackstone’s Commentaries on the Laws of England.
380 pages on law of property and 28 pages to contracts
• From 1760, 1820, 1840 – structural changes from agriculture towards industrial
revolution.
• By mid of 18th century, Britain controlled colonies in North America, Caribbean,
Indian subcontinent (through the activities of East India Company).
Sources of law
• Customs
• Precedents
• Legislation

• British contract law relies on precedents


• Indian contract law relies on legislation: Indian Contract Act, 1872
Various definitions
 British law – a contract is an agreement which the law recognizes as giving rise to
enforceable obligations
 American law - A contract is a promise or a set of promises for the breach of which
the law gives a remedy, or the performance of which the law in some way
recognizes as a duty.
 Indian Contract Act, 1872- according to Sec 2(h)- An agreement enforceable by
law is a contract
Agreement is a wider term than contract where as all contracts are agreements.
All agreements are not contracts
An agreement enforceable by law in a contract 2 (h)

6
An agreement enforceable by law in a contract 2 (h)

Agreement Enforceable
Contract

7
Indian Contracts Act, 1872
Contracts can be both written and oral

Every Contract has three stages

• Formation
• Performance
• Discharge
Written Contracts
• (a) A negotiable instrument, such as a bill of exchange, cheque, promissory note
(The Negotiable Instruments Act, 1881).
• (b) A Memorandum and Articles of Association of a company, an application for
shares in a company; an application for transfer of shares in a company,
mortgages and charges (The Companies Act, 2013).
• (c) A promise to pay a time-barred debt (Sec. 25 of the Indian Contract Act, 1872).
• (d) A lease, gift, sale or mortgage of immovable property (The Transfer of Property
Act, 1882).
• (e) The arbitration clause or arbitration agreement in the contract (Arbitration and
Conciliation Act, 1996).
Registration
The following contracts in addition to being written are also required to be registered:
(a) Documents coming within the purview of Sec. 17 of the Registration Act, 1908.
(b) Transfer of immovable property under the Transfer of Property Act, 1882.
(c) Contracts without consideration but made on account of natural love and affection
between parties standing in a near relation to each other (Sec. 25, The Indian Contract
Act, 1872).
• Instruments are chargeable to stamp duty. However there are few instruments which
are exempted from stamp duty. Instrument executed in India must be stamped before
or at the time of execution . An instrument not duly stamped cannot be accepted as an
evidence in civil court.
Contents of a written contract :
• Details of contracting parties
• The goal or objectives that the parties intend to achieve through the transaction;
• The scope of work to be performed by a service provider in case of a services
agreement and by parties in case of a cooperation agreement;
• The description of the goods to be sold (in case of a contract for the sale of goods) and
terms governing the manner in which such sale is to be executed (such as delivery
terms;
• The consideration agreed to be paid and terms of payment;
• The indemnities which each party would give the other as applicable;
Cond…
• The limit of the liability of each person vis-à-vis the other party or a third party (for
whom the project is to be performed, for instance)
• Grounds of termination of the contract;
• Jurisdiction;
• Governing law;
• Arbitration, if necessary;
• Depending on the nature of the contract, a contract also has to also be looked into
from the perspective of applicable Indian laws, such Foreign Direct Investments,
Companies Act, 1956, Foreign Exchange Management Act, 1999, Indian Contract
Act, 1872, and applicable tax laws, if necessary.
ARBITRATION

CONCEPT OF ARBITRATION
1. The concept of arbitration means resolution of disputes
between the parties at the earliest point of time without getting into the procedural technicalities associated with the functioning of a civil court.

2. Arbitration is a legal mechanism encouraging settlement of disputes between two or more parties mutually by the appointment of a third party whose decision is binding on the parties
referring the said dispute.

3. Arbitration is a judicial process.

4. Arbitration is an effective way of expediting resolution of disputes in these modern times when there is scarcity of time.
ADVANTAGES OF ARBITRATION
a) Minimalization of court intervention.
b) Reduction in costs of dispute redressal and resolution.
c) Expeditious and timely disposal.
d) Enforcement of awards through neutrality of arbitrator.
e) Encouragement of foreign investment by recognising the country as that having a sound legal
framework.
f) Effective conduct of and maintaining sound foreign relations.
g) Choice of language, venue and time of the proceedings.
HISTORY OF ARBITRATION
The second Schedule Recognizing the flaws in the act The Government Decided to accept
of CPC, 1908 was of 1940 post the 1991 reforms, almost all the recommendations and
Completely devoted to the arbitration and Conciliation Act, subsequently, the Amendment Bill
Arbitration 1908 1996 was Passed was introduced in the Rajya Sabha
1996 2003

1899 1940 2001


The first direct law Based on the (English) Based on the UNCITRAL Model
On arbitration was Arbitration Act, 1934, Arbitration act law, the 1996 Act, failed to adapt to
The Indian Arbitration Act 1940, was the first major consolidated many aspects of domestic disputes
1899, Limited to the Presidency legislation to govern the conduct of following which, 176th Law
Towns of Calcutta, Bombay arbitrations across the country Commission Report undertook a
and Madras Comprehensive review of the Act
CONTD…
The bill was withdrawn based Based on the Law Commission The bill further amended in
On the Committee’s suggestion Report, a draft bill to amend the year 2019 and the Parliament
That there remained sufficient the Arbitration and Conciliation received the assent of the
Room for court intervention (2005) Act ,1996 was introduced President on 9th August 2019
In the Arbitral Proceedings 2015 2019

2004 2014 2018


The Justice Saraf Committee The 246th Report of the Law Amendment bill was proposed by

On Arbitration was set up to review Commission to amend the a committee constituted by


the recommendations of the 176th 1996 Act was submitted Central Government, under
Report of the Law Commission Chairmanship of Justice B.N Srikrishna
Difference between Arbitration, Conciliation and Meditation
Arbitration Conciliation Meditation
It is formal and quasi-Judicial It is informal process and normally Mediation is a negotiation Process
Adjudicatory process involves a ‘round table’ discussion. and the mediator facilitates the
process
Arbitral Award is final and binding It is not binding upon parties until A binding settlement is reached
they signed the decision only if parties arrive at a mutually
acceptable agreement
Arbitrator is bound with the The conciliator is not bound by the Procedure and settlement are not
statutory provision rules of procedure and evidence governed by statutory provision
Award is enforceable and Not enforceable Not appealable
appealable on specific ground
Adversarial in nature Non- Adversarial in nature Collaborative in nature
No opportunity for parties to Parties can directly involves with Optimal Opportunity to
communicate directly with each each other communicate with each other
other
a) Criminal offences
b) Guardianship matters
DISPUTES WHICH FALL
c) Insolvency and winding up proceedings
OUTSIDE CATEGORIES OF
ARBITRABLE DISPUTES ARE d) Matters of probate, letters of administration,
succession certificate etc
 Booz Allen Hamilton v SBI Home
Finance (2011) 5 SCC 532 e) Eviction proceedings
f) Patents, trademarks, copyright
g) Anti Trust/ competition laws
h) Bribery/Corruption Laws
i) Fraud
ARBITRATIONS IN INDIA ON THE BASIS OF
JURISDICTION
A. DOMESTIC ARBITRATION: It happens in India, wherein both parties must be Indians and the
conflict has to be decided in accordance with the substantive law of India. The Term domestic
Arbitration is not defined in the Act. However, Section 2 (2) (7) of the Act 1996 together, it is implied
that the arbitral proceedings must necessarily be held in India, and according to Indian substantive and
procedural law, and the cause of action for the dispute has completely arisen in India, or in the event
that the parties are subject to Indian jurisdiction.
B. INTERNATIONAL ARBITRATION: When arbitration happens within India or outside India
containing elements which are foreign in origin in relation to the parties or the subject of the dispute, it
is called as International Arbitration.
C. INTERNATIONAL COMMERICAL ARBIRATION: The term ‘International Commercial
Arbitration’ has been defined in Sec. 2(f) of the Arbitration and Conciliation Act 1996. International
Arbitration is ‘commercial’ if it relates to disputes arising out of a legal relationships, whether
contractual or not, considered as commercial under the law in force in India and where at least one of
the parties is-
CONTD…

(1) An individual who is a national of, or habitually resident in, any country other than
India or
(2) A body corporate which is incorporated in any country other than India, or
(3) A company or an association or a body of individuals whose central management and
control is exercised in any country other than India or
(4) The government of a foreign country.
TYPES OF ARBITRATIONS (1) When an arbitral Institution conducts
THAT ARE PRIMARILY arbitration, it is called Institutional
RECOGNIZED IN INDIA ON Arbitration.
THE BASIS OF PROCEDURE
AND RULES: (2) If the parties agree among themselves and
arrange for arbitration, it is called Ad hoc
Arbitration without having an institutional
proceeding.
1.Institutional arbitration
(3) Fast track arbitration is a method, which is
2.Ad hoc arbitration time dependent in the provision of the
3.Fast track arbitration arbitration and conciliation act. Its
procedure is established in a way that it
has abandoned all the methods, which
consume time, and uphold the simplicity
which is the originally the prime purpose
of such arbitration.
PROCESS OF ARBITRATION
Arbitration works as under: while entering into a contract, parties agree that in case of a conflict the matter would be
sought to be resolved by an arbitrator.

Often the name of the potential arbitrator, agreed upon by both the parties, is mentioned in the contract itself.

In case a dispute arises, the first step is issuing of an arbitration notice by either of the parties.

This is followed by response by the other party and subsequently appointment of an arbitrator, decision on rules and
procedures, place of arbitration and language.

Once the arbitration proceedings commence, there are formal hearings and written proceedings.

The arbitrator, if the matter so requires, issues interim reliefs followed by a final award which is binding on both parties.

The tricky part arises if either of the parties, unhappy with the award, challenges it before the court. This can be before the
appellate court or the Supreme Court depending upon the matter.
STAGES OF ARBITRATION PROCEEDING
Chapter I-
Notice for invoking Arbitration & Reply by the other Party
General Provisions- Sec.3
Chapter III-Composition of
Arbitral Tribunal-Sec. 10,11
Appointment of Arbitrator/s

Chapter V –Conduct of
Arbitral Proceedings-Sec. 18,19,20,22.
Equal Treatment of Parties, Determination of Rules and Procedure,
place of Arbitration, Language

Chapter V –Conduct of
Commencement of the Arbitral Proceedings & Hearing and Written
Arbitral Proceedings- Sec. 21,24. proceeding

Chapter-II- Interim Measures by Court Interim reliefs in aid of Arbitration


And Arbitral Tribunal- Sec-9, 17
CONTD..
Chapter V- Statements of Claims
and Defense - Sec. 23, 24 Oral Hearings and Written Proceedings

Chapter VI Making of Arbitral Award and Arbitral Award and Termination of Proceedings
Termination of Proceedings- Sec. 31, 32

Challenging the Award passed by the Arbitrator/s


Chapter VII- Recourse against Arbitral
Award- Sec-34
Execution of the Award Passed by the Arbitrator/s

Chapter VII- Finality and Enforcement


of Arbitral Awards Sec-35, 36 Appeals to Appellate Courts and to the Supreme Court of
India

Chapter IX Appeals Sec. 37


AMENDMENTS MADE BY THE 2019 ACT
•Effect of arbitration and related court proceedings commenced before the 2015 Act came into
force (i.e. 23 October 2015);
•Establishment of an independent body called the Arbitration Council of India;

•Appointment of Arbitrator;

•Interim measures ordered by the Arbitral Tribunal;

•Time limit for arbitral award;

•Appealable Orders of Court and tribunal;

•Confidentiality;

•Power of Judicial Authority to refer parties to arbitration in International commercial arbitration;


and
•Schedule 8 regarding qualifications and experience of arbitrator.
PROVISIONS OF THE ARBITRATION AND CONCILIATION (AMENDMENT) ACT, 2019
Section 1 Short title and commencement.

Section 4 Amendment of section 17 – Interim measures ordered by Arbitral Tribunal.

Section 5 Amendment of section 23 – Statements of claim and defence


Section 6 Amendment of section 29A – Time limit for arbitral award.
Section 7 Amendment of section 34 – Application for setting aside arbitral award
Section 8 Amendment of section 37 – Appealable orders

Section 9 Insertion of new sections 42A – Confidentiality of information and 42B –


Protection of action taken in good faith.

Section 11 Amendment of section 45 – Power of judicial authority to refer parties to


arbitration
Section 12 Amendment of section 50 – Appealable orders
KEY ELEMENT OF 2019 ACT
1. Part 1A has introduced the concept of an Arbitration Council of India (‘Council’), which will be
established by a notification by the Central Government, and will have its headquarters in
Delhi. 
2. Section- 1 (ca)- arbitral institution’ as an arbitral institution designated by the Supreme Court or
a High Court under the Act.
3. Section-11- Act empowers the Supreme Court in the case of an international commercial
arbitration and the High Court in cases other than international commercial arbitration to
designate arbitral institutions for the purpose of appointment of arbitrators. Such arbitral
institutions will be graded by the Arbitration Council of India, If not available, the chief of
concerned High Court may maintain the panel. Further, the deadline for the arbitral institution
or the Court to appoint arbitrator(s) is made 30 days from the date of service to the opposite
party and the fee of arbitrator(s) and the manner of its payment is made subject to Fourth
Schedule.
4. Schedule 8 regarding qualification and experience of arbitrator, However, it does enumerate
qualification and experience for foreign arbitrators
CONTD…
5. Section 23: Completion of pleadings: the statement of claim and defense must be completed within
a period of six months from the date the arbitrator or all the arbitrators (as the case may be) received
notice, in writing, of their appointment. Timelines for arbitral award, it twelve months from the date
of completion of pleadings. However, the timelines appear to be mandatory only for domestic
arbitration.
6. Section 34 and Section 50: Non-obstante provision and act replaces the words “furnishes proof
that”, with “establishes on the basis of the record of the arbitral tribunal that”, to clarify that the
parties must rely on the record before the arbitral tribunal alone at the time of challenge of an award.
7. Sections-45: Part II of the Act; substitute the words “unless it finds”, with the words “unless it
prima facie finds”.
8. Confidentiality of the Arbitration Proceedings : The arbitrator, the arbitral institution and the
parties to the arbitration agreement must maintain confidentiality of all arbitral proceedings except the
award where its disclosure is necessary for the purpose of implementation and enforcement of award.
The amendments made to the
Applicability of Act by the Arbitration and
Arbitration and Conciliation (Amendment)
Conciliation Act, 2015 Act, 2015 will not apply to the
BCCI v. Kochi Cricket arbitral proceedings which
Private Limited commenced before the
(2018) 6 SCC 287 commencement of the
Arbitration and Conciliation
(Amendment) Act, 2015 i.e.,
October 23, 2015
•A three (3) member bench of the Hon'ble Supreme Court
comprising of Hon'ble Mr. Justice R.F. Nariman, Hon'ble Mr.
Justice Surya Kant and Hon'ble Mr. Justice V. Ramasubramanium
(Bench) has struck down Section 87of the Arbitration &
RECENT Conciliation Act, 1996 (Arbitration Act) as being "manifestly
arbitrary" in terms of Article 14 of the Constitution of India.
JUDGMENTS • The Bench observed that Section 87 of the Arbitration Act is
Hindustan Construction against the intent of the Arbitration and Conciliation
(Amendment) Act, 2015 (2015 Amendment) and further nullifies
Company Limited & Anr. Vs.
the ratio laid down in the recent judgment of Board of Control for
Union of India & Ors Cricket in India Vs. Kochi Cricket Pvt. Ltd., wherein it was
Judgment dated 27 November 2019 observed that the intent and purport of Section 87 is contrary to
in Writ Petition (Civil) No. 1074 of the overall scheme of the Arbitration Act and the 2015
2019 Amendment.
• Accordingly, Section 26 of the 2015 Amendment was revived by
the Supreme Court and the decision rendered in Board of Control
for Cricket in India Vs. Kochi Cricket Pvt. Ltd. continues to apply
as the guiding principle for determining the applicability of the
2015 Amendment.
CONTD…

The Oriental Insurance Co. Ltd. and Brahmani River Pellets Limited Vs.
Ors. Vs. Dicitex Furnishing Ltd Kamachi Industries Limited
Judgment dated 13 November 2019 in Civil Judgment dated 08 August 2019 in Civil
Appeal No. 8550 of 2019. Appeal No. 5850 of 2019

• • The Supreme Court, while relying


The Supreme Court held that an
arbitration clause can be invoked by on Swastik Gases (P) Ltd. Vs. Indian
an aggrieved party pursuant to Oil Corporation Ltd. observed that
execution of no objection certificates non-use of words like 'exclusive
or discharge vouchers jurisdiction', 'only', 'exclusive', 'alone'
is not decisive and does not make any
material difference
Flow chart of a contract Sec 2(h) – an agreement enforceable by
law is a contract
Offer followed
by an
acceptance =
Agreement

Enforceability- 1. Intention of contracting parties


to bind each other into a contract
2. Compliance to Section 10

Valid Contract
Valid offer sec 2(a)
According to Sec 2(a) when one person signifies to another his willingness to do or to
abstain from doing something with a view to obtaining the assent of that other to such
act or abstinence, he is said to make a proposal thereby, 
An offer is a proposal made with an intention of entering into an agreement.
Acceptance
• An acceptance is a final and unqualified assent to all the terms of the offer.

• Sec 2(b) When the person to whom the proposal is made, signifies his assent there to, the proposal
is said to be accepted. A proposal, when accepted, becomes promise.
Definitions

• Promise 2(b) - A Proposal when accepted becomes a promise.

In simple words, when an offer is accepted it becomes promise

• Agreement 2(e)- Every promise and set of promises forming the consideration
for each other.
Compliance to Section 10
• According to Sec 10 - “All agreements are contracts, if they are made –

by free consent of the parties, competent to contract,

for a lawful consideration and

with a lawful object, and

not hereby expressly declared to be void.”


Section 10: What agreements are contracts

All agreements are contracts if they are made by the free consent of parties competent to contract,
for a lawful consideration and with a lawful object, and are not here by expressly declared to be
void.

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Some common examples of contracts
• A contract to watch online sessions.
• Buying goods through vending machine.
• A contract of carriage (travel by bus or train).
• A contract for the sale of goods (the purchase of groceries).
• A contract for the supply of services (a haircut).
• A contract involving both sale and the supply of services (having a meal at a restaurant).
Types of offers

Explicit and Implicit offers


• Most offers are made explicitly or in words (spoken or written).
• Implied offers are mainly by conduct and hence are made through means
other than that of an explicit offer.

• Case: Upton-On-Severn Rural District Council V/s Powell


General and Specific offers
• A general offer is one which is made to the public at large. Anyone who acts upon the
offer or performs what has been set out in the offer (the conditions), after seeing the
offer, will be said to have accepted the offer.
• A specific offer is one which is made to a specific person or a specific set of persons.
• Case: Carlill v/s Carbolic smoke ball co.
Offer (i.e. Proposal)
a. Intention to create a legal relationship

Test to determine intention is objective not subjective


What matters is not what parties have in their mind but what a reasonable man thinks in
these circumstances, their intention to be:
Blue vs Ashley
Rebuttable presumption- social and domestic contracts
b. Its terms must be certain
c. It must be communicated
Lalman Shukla v/s Gauri Datt
Invitation to offer
• Invitation to Offer → Offer → Acceptance
• An invitation to offer, as the term suggests, is an invitation to another person to make
an offer, thereby an invitation to offer precedes an offer.
• Tenders, shops
• Offer → Acceptance → Agreement
• It would also be the same party who has the choice to either negate or validate the
other party’s statement (which, would be the offer). The promisor (offeror) cannot
refuse to perform after the promisee accepts the offer.
• An invitation to offer does not carry any willingness to enter into a binding agreement.
Invitation to offer
• Invitation to bargain is not an offer- Harvey v Facey or Bumper Hall Pen
Will you sell bumper hall pen lowest sale price
Lowest price 900 Pound
We agree to buy 900 pound as asked by you
• Price quote is generally not an offer.
• An advertisement is generally not an offer.
• Placing an item up for auction is not an offer, it is merely a request for an offer.
Some other types of offers
• Cross offer: similar offers (do they end up as valid agreements ?)
• Counter offer: when offeree becomes the offeror
• Standing or continuous offer: open or continuous offers
illustrations: Media advertisements
What is Lapse of offer Sec 6
Acceptance

• Anson lighted match to train of gun powder Produces something


which cannot be revoked and uncalled
• Offer can lapse due to want of acceptance or be revoked before
acceptance
• Assent should be signified
Acceptance- Essentials

1. Must be communicated but in exceptional circumstances it can be waived off where


performance of the conditions of the proposal is acceptance.
Carlil v. Carbolic Smoke ball Co
2. The moment Communication of acceptance is there contract comes into existence and
both parties are bound by the same
Acceptance Section 4
• In case of proposer when it in course of transmission in case of acceptor when it comes in
knowledge of proposer
A makes an offer B. B accepts A’s Proposal by a letter sent by post. The communication of
acceptance is complete,
as against A, when the letter of acceptance is posted to him,
as against B, when the letter of acceptance is received by A.
Acceptance Section 7
• Acceptance by telephone offeror hears acceptance at his/her end.
2. Acceptance should be absolute and qualified
I offer to sell radio at 500 and you said you will only pay 400 it is counter offer
3. Acceptance should be in the usual/ prescribed manner
4. Acceptance should be made while the offer is still subsisting
Acceptance section 2 (b)
 Acceptance should be given by a proper person i.e. to whom the offer was made.

 Within proper time even if no specific time has been mentioned.

 Must be communicated. Mental acceptance is no acceptance.

 It can either be expressed or implied.

 Acceptance must succeed the offer.

 Offer once rejected cannot be accepted

Cross Offers, Counter Offers


Promise and agreement
• Section 2(b) defines promise as “when the person to whom the proposal is
made signifies his assent thereto, the proposal is said to be accepted.
Proposal when accepted, becomes a promise”.
• Section 2(e) defines agreement as, “every promise and every set of
promise, forming the consideration for each other”.
Are these contracts ?
• Heads of terms
• MoU
• Letter of Intent
• E contracts
Privity of Contract.
• As a contract is entered into by two or more persons thereby creating rights and obligations for them,
it is a party to the contract only who can enforce his rights as against the other party (i.e., the
promisor). The basic principle underlying law of contracts is that a stranger to a contract cannot
maintain a suit for a remedy. The law entitles only those who are parties to the contract to file suits
for exercising their rights. This is known as ‘privity of contract’.
• Example. A is indebted to B. A sells certain goods to C.
• C gives a promise to A to pay off A’s debt to B. In case C fails to pay, B has no right to sue C, being a
stranger to the contract between C and A. In other words C is not in privity with B. However, C is in
privity with A.
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2.Interpretation-clause. In this Act the following words and expressions are used in the
following senses, unless a contrary intention appears from the context :-
Sec 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 to such act or abstinence,
he is said to make a proposal:
Sec 2 (b) When the person to whom the proposal is made signifies his assent thereto, the
proposal is said to be accepted. A proposal, when accepted, becomes a promise:
Sec 2 (c) The person making the proposal is called the “promisor”, and the person accepting
the proposal is called the “promisee”
Sec 2 (d) When, at the desire of the promisor, the promisee or any other person has done or
abstained from doing, or does or abstains from doing, or promises to do or to abstain from
doing, something, such act or abstinence or promise is called a consideration for the promise
Sec 2(e) Every promise and every set of promises, forming the consideration for each other, Sec 2
is an agreement
Important Definitions
Sec 2 (f) Promises which form the consideration or part of the consideration for each other
are called reciprocal promises

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Sec 2(g) An agreement not enforceable by law What is a


is said to be void
Contract,
Sec 2(h) An agreement enforceable by law is a
contract agreement,
Sec 2(i) An agreement which is enforceable by promise and
law at the option of one or more of the parties proposal ?
thereto, but not at the option of the other or
others, is a voidable contract
Sec 2(j) A contract which ceases to be Section 2:
enforceable by law becomes void when it Important definitions
ceases to be enforceable.

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