Kanoon With Kabir

distinguish between contract of indemnity and contract of guarantee and explain both [2019] what is a contract of guarantee. in what events is surety discharged from his liability [2023] what is a contract of indemnity. distinguish between contract of indemnity and guarantee [2023] Contract of Guarantee Sec 126, 127 A contract to perform the promise or discharge liability of a third person in case his default. In English law it is defined as a promise to answer for the debt, default or miscarriage of another. Surety - person who gives the guaratee Primary debtholder - person in respect of whose default guarantee is given Creditor - person to whom the guarantee is given Essential features of a guarantee Tripartite privity - concurrence of 3 parties Ex: Birkmyr vs Darnell (1704) the principle debtor may be a party incompetent to contract (e.g. a minor), in this case surety is regarded as principle debtor Consideration - Sec 127 lays  Anything done, or any promise made, for the bene...

Indian Contract Act 1872 Preliminary  Sec 2 Interpretation clause ( a) Proposal - willingness to do or abstain from something with a view to obtaining assent of the other party (b) Promise - proposal when accepted becomes a promise (c) Promisor and promisee - The promisor is the party making the proposal and promises the party accepting the proposal (d) Consideration of the promise (e) Agreement - set of promises and considerations (promise against the acceptance) against it together to form an agreement  (f) Reciprocal promises (g) Void agreement - agreement which cant be enforced by law (h) Contract - agreement enforceable by law (i)  Voidable contrac t -  agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others (j)  contract becomes void when it ceases to be unenforceable Proposal -- proposal when accepted becomes a promise -- consideration for promise involved -- set of...

Essentials of a Valid Contract  All contracts are agreements but all agreements are not contracts. [DAVV 2023] Essential elements of a valid contract [DAVV 2022] The formation of an agreement     defines the proposal. When is the communication of an offer complete as against a proposal versus that of an acceptor? acceptance of a general offer need not be communicated. Explain with leading cases/ [DAVV 2015] Consideration  An agreement without consideration is void. [DAVV 2023] Limitations on freedom of contract All agreements in restraint of legal proceedings are void? [DAVV 2023] The extent to which the following agreements are valid and enforceable? [DAVV 2022] in restraint of marriage in restraint of trade What are agreements against public policy? Discharge of contract     What is the Doctrine of Frustration? In which circumstances this doctrine is applicable? [DAVV 2023] Competent to contract Who is competent to contract? When is a person regarded ...

Carlill v. Carbolic Smoke Ball Co 1891-4  All ER 127 Case judgement Case facts The Carbolic Smoke Ball company advertised in daily that they would pay 100 to anybody who contracts influenza after using their smoke balls 3 times a day for 2 weeks. They also mentioned they had deposited 1000 in the bank to showcase their genuineness and sincerity. The plaintiff, Carlill believing in the accuracy of the statements in the advertisement purchased the smoke balls and used them as prescribed for 2 weeks yet caught influenza. When they approached the company to ask for 100 as a reward, the company denied them the reward Subsequently, they filed a case. Contentions put forth by the Carbolic Smoke Ball co      - it is not a binding contract as      - vague offer as it does not specify to whom it is made and for what time limit      - that there is no consideration       - they had no intention of creating a contract ...

This post covers a basic introduction to Indian contracts, the essentials of a valid contract, types of contracts.  Legislations: Indian Contract Act 1872 Specific Relief Act 1963Indian Majority Act 1875 Information Technology Act 2000 Introduction The contract is derived from Latin Contractus, ‘to work on contract’ Based on the principle of “Pacto sunt Servanda” pacts must be kept / agreements to be kept "Mutuality” – equality of rights to enforce the contract (for ex: both parties being non-minors there is mutuality, in the case of a minor entering a contract there is no mutuality) Consensus ad idem – meeting of the minds – know each other’s consent by way of offer and acceptance Based mainly on English common law consisting of judicial precedents Separate acts for negotiable instruments, transfer of property, sale of goods, partnership, insurance etc. The decision of English courts possess only a persuasive value [Satyabrata Ghose vs Mugneeram Bangur & Co AIR 1954 SC 44...

Mohori Bibee v Dharmodas Ghose, [1903] UKPC 12 The case held that a contract entered into by a  minor  is totally void Case Judgement PDF Case facts Dharmodas Ghose, a minor,   mortgaged  his property in favour of a moneylender, Brahmo Dutt, against a loan of Rs 20,000.  Dutt's attorney, acting on behalf of him, was aware of Ghose's minority .{as throughout the transaction brahmo Dutt was absent from Calcutta}.  Ghose, through his mother and guardian, sued Dutt claiming that the mortgage was void due to his minority.  The Court of First Instance held in Ghose's favour, and on appeal, the  High Court of Judicature at Fort William  upheld that decision. Before the appeal to the Privy Council, Dutt died and the proceeding was continued by his heirs. Question to be addressed in the case: Whether the parties were competent to enter into a contract which they made? Can the minor be compelled to repay the money by law? Is the contract void ab ini...

Balfour v Balfour   (1918-19) ALL ER 860 (C.A.) Part 1 Case facts in brief  Mr Balfour made an oral promise to his wife Mrs Balfour to pay a monthly allowance of £30 to sustain herself until he returned from Ceylon (Sri Lanka) back to England Over time they drifted apart Mrs Balfour sued him in March 1918 to enforce continued payment of £30 payments contending that there in fact exists a legal agreement between her and her husband Part 2 Legal aspects of the case   Legal consideration   Does a legally binding contract arise between the said parties for an agreement which domestic in nature? In other words, did the parties intend to create a legal obligation on each-other for promises entered in a domestic relationship (husband and wife, Mrs and Mr balfour)? Abjudication (judgement) In the first instance,  Judge  Charles Sargant  held the verdict that Mr Balfour was obliged to support his wife. However,  Court of Appeal unanimously held and ove...

The Paisley Snail  The Paisley Snail | Donoghue vs Stevenson  [1932] AC 562 | Duty of Care and Negligence Link to original transcript of the case Part 1 Case facts in brief  Mrs Donoghue visited a cafe with her friend and ordered some ice cream and a bottle of ginger beer She drank some of the ginger beer. She witnessed a decomposed snail flow out of the bottle as she poured more ginger beer into her tumbler Consequently, she suffered gastroenteritis and shock and was admitted to a hospital The bottled ginger beer was produced by David Stevenson, whose details mentioned on the bottle were noted by Mrs Donoghue's friend Mrs Donoghue sued Mr Stevenson for damages Part 2 Legal aspects   Arguments by the plaintiff (Mrs Donoghue) Duty of care owed by Mr Stevenson (ginger beer bottle manufacturer) Breach of duty of care by Mr Stevenson Arguments by the defendant (Mr Stevenson) that he had not caused Donoghue any injury; that the claimed amount was excessive. that ...