Mercantile Law CA Pooja Sharma PH No

MERCANTILE LAW CA POOJA SHARMA PH NO: 09811599587 THE INDIAN
CONTRACT ACT, 1872

CHAPTER 1- NATURE OF CONTRACT
The law of contract is that branch of law which determines the circumstances in which
promise made by the parties to a contract shall be legally binding on them. All of us enter
into a number of contracts everyday knowingly or unknowingly. Each contract creates
some right and duties upon the contracting parties. Indian contract deals with the
enforcement of these rights and duties upon the parties. Indian Contract Act, 1872 came
into effect from 1st September, 1872. It extends to the whole of India except the state of
Jammu and Kashmir.
CONTRACT [SECTION 2(h)]: A contract is “an agreement enforceable by law”. Thus,
CONTRACT = AGREEMENT (+) ENFORCEABILITY BY LAW
“All contracts are agreements but all agreements are not contracts”
AGREEMENT [SECTION 2(e)]: An agreement means, “Every promise or every set of
promises, forming consideration for each other”.
AGREEMENT = PROMISE(S) BY ONE PARTY (+) PROMISE(S) BY THE OTHER
PARTY
PROMISE [SECTION 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.”
PROMISE = PROPOSAL + ACCEPTANCE
PROPOSAL/OFFER [SECTION 2(a)]: A person is said to make a proposal when “he signifies
to another his willingness to do or to abstain from doing anything with a view to obtaining
assent of that other to such act or abstinence”
PROPOSAL = WILLINGNESS TO DO OR ABSTAIN FROM DOING
(+) WILLINGNESS’ TO OBTAIN ASSENT OF THE OTHER PARTY TO SUCH ACT
OR ABSTINENCE
CONSIDERATION [SECTION 2(d)]: “When, at the desire of the promisor, the promise 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 cat or abstinence is called
consideration”. In other words, consideration is something in return. MERCANTILE LAW CA
POOJA SHARMA PH NO: 09811599587 THE INDIAN CONTRACT ACT, 1872
ESSENTIAL ELEMENTS OF A VALID CONTRACT [Section 10]:
According to Section 10, “All agreements are contracts if they are made by free consent
of parties, competent to contract, for a lawful consideration and with a lawful object
and are not hereby expressly declared to be void”. The essential elements of a valid
contract are:
􀂙Agreement: To constitute a contract there must be an agreement. There must be two
parties to an agreement, i.e. one party making an offer (offeror) and the other party
accepting the offer (offeree). The terms of the offer must be definite and acceptance
must be absolute and unconditional. The acceptance must be according to the mode
prescribed and must be communicated to the offeror.
􀂙Consensus-ad-idem (meeting of minds): To constitute a valid contract, there must be
meeting of minds i.e. consensus-ad-idem. The parties should agree to the same thing
in the same sense and at the same time.
􀂙Intention to create legal relationship: When the two parties enter into an
agreement, there must be an intention by both parties to legally bind the other as a
result of such agreement. Thus, agreements of social or household nature are not
contracts.
􀂙Capacity of parties (competence): The parties to the agreement must be capable of
entering into a valid contract. According to Section 11, every person is competent to
contract if he or she,
1. is of the age of majority;
2. is of sound mind; and
3. is not disqualified from contracting by any law to which he is subject.
􀂙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.
􀂙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.
􀂙Lawful object: The object of the agreement must not be illegal or unlawful.
Section 23: According to Section 23, the consideration or object of an agreement is
lawful, unless-
• It is forbidden by law; or
• Is of such nature that, if permitted it would defeat the provisions of any law or is
fraudulent; or
• Involves or implies, injury to the person or property of another; or
• The court regards it as immoral, or opposed to public policy.
􀂙Agreement not declared void or illegal: Agreements which have been expressly
declared void or illegal by law are not enforceable at law; hence does not constitute a
valid contract.
􀂙Certainty and possibility of performance: The terms of agreement must be certain
and not vague. If it is not possible to ascertain the meaning of the agreement, it is not
enforceable at law. Also, agreements to do impossible acts cannot be enforced.
MERCANTILE LAW CA POOJA SHARMA PH NO: 09811599587 THE INDIAN CONTRACT ACT,
1872
􀂙Legal formalities: A contract may be oral or in writing. If, however, the law requires
for a particular contract, it should comply with all the legal formalities as to writing,
registration and attestation.
TYPES OF CONTRACTS:
CLASSIFICATION OF CONTRACTS
On the basis of On the basis of On the basis of
Validity Formation Performance
1. Valid contract 1. Express contract 1. Executed contract
2. Void contract 2. Implied contract 2. Executory contract
3. Voidable contract 3. Quasi Contracts 3. Unilateral contract
4. Void agreement 4. Bilateral contract
• 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.
• 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.
• Void contract [Section 2(j)]: 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.
• Void agreement: An agreement not enforceable by law is said to be void. Such
agreement does not confer any right to any of the parties to it. The agreement, in
such a case, is void-ab-initio (from the very beginning). Such an agreement does
not result in a contract at all.
• Unenforceable contracts: 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.
• Illegal agreement: An agreement is illegal if it is forbidden by law; or is of such
nature that, if permitted, would defeat the provisions of nay law or is fraudulent;
or involves or implies injury to a person or property of another, or court regards it
as
1872
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.”
• 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.
• 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.
• Quasi contracts: 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.
• Executed contract: An executed contract is one in which both the parties have
performed their respective obligation.
• 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.
• 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 o the contract or before the
contract comes into existence.
• 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.
1872

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MERCANTILE LAW CA POOJA SHARMA PH NO: 09811599587 THE INDIAN

CONTRACT ACT, 1872

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