PAPER – 2

BUSINESS LAWS

INDEX

CHAPTER NO. CHAPTER NAME PAGE NO.

Chapter 1 The Indian Contract Act, 1872 1 – 104
Unit 1 – Nature of Contracts 1 – 34
Unit 2 – Consideration 35 – 41
Unit 3 – Other Essential Elements of a Contract 42 – 70
Unit 4 – Performance of Contract 71 – 86
Unit 5 – Breach of Contract and its Remedies 87 – 95
Unit 6 – Contingent and Quasi Contracts 96 – 104
Chapter 2 The Sale of Goods Act, 1930 105 – 136
Unit 1 – Formation of the Contract of Sale 105 – 113
Unit 2 – Conditions & Warranties 114 – 119
Unit 3 – Transfer of Ownership and Delivery of Goods 120 – 129
Unit 4 – Unpaid Seller 130 – 136
Chapter 3 The Indian Partnership Act, 1932 137 – 176
Unit 1 – General Nature of a Partnership 137 – 150
Unit 2 – Relations of Partners 151 – 166
Unit 3 – Registration and Dissolution of a Firm 167 – 176
Chapter 4 The Limited Liability Partnership Act, 2008 177 – 204
Chapter 5 The Companies Act, 2013 205 – 230

AUDICHYA BHAWAN
Behind High Court, South Tukoganj,
Indore [M.P.] | 8181815951
 CHAPTER 1 THE INDIAN CONTRACT ACT, 1872

UNIT – 1
NATURE OF CONTRACT

CONTRACT

Elements of Contract Essential of a valid Contract Types of Contracts

Agreement Enforceability at Law

Offer Acceptance

Legal Rules of Kinds of Essentials of a Communication Legal Rules of Communication

a valid offer offer proposal of offer a valid acceptance of acceptance

THE LAW OF CONTRACT: INTRODUCTION

The Law of Contract constitutes the most important branch of mercantile or commercial law. It
affects everybody, more so, trade, commerce and industry. It may be said that the contract is the
foundation of the civilized world. The law relating to contract is governed by the Indian Contract
Act, 1872. It came into force on September 01, 1872. The preamble to the Act says that it is an
Act "to define and amend certain parts of the law relating to contract". It extends to the whole of
India.
The Act mostly deals with the general principles and rules governing contracts. The Act is divisible
into two parts. The first part (Section 1-75) deals with the general principles of the law of
contract, and therefore applies to all contracts irrespective of their nature. The second part
(Sections 124-238) deals with certain special kinds of contracts, e.g., Indemnity and guarantee,
bailment, pledge, and agency.
As a result of increasing complexities of business environment, innumerable contracts are entered
into by the parties in the usual course of carrying on their business. ‘Contract’ is the most usual
method of defining the rights and duties in a business transaction. This branch of law is different
from other branches of law in a very important aspect. It does not prescribe so many rights and
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duties, which the law will protect or enforce; instead it contains a number of limiting principles
subject to which the parties may create rights and duties for themselves. The Indian Contract
Act, 1872 codifies the legal principles that govern ‘contracts’. The Act basically identifies the
ingredients of a legally enforceable valid contract in addition to dealing with certain special type
of contractual relationships like indemnity, guarantee, bailment, pledge, quasi contracts, contingent
contracts etc. It basically defines the circumstances in which promises made by the parties to a
contract shall be legally binding on them.
This unit refers to the essentials of a legally enforceable agreement or contract. It sets out rules
for the offer and acceptance and revocation thereof. It states the circumstances when an
agreement is voidable or enforceable by one party only, and when the agreements are void, i.e. not
enforceable at all.

WHAT IS A CONTRACT?

The term contract is defined under section 2(h) of the Indian Contract Act, 1872 as-
“an agreement enforceable by law”.
The contract consists of two essential elements:
(i) an agreement, and
(ii) its enforceability by law.
(i) Agreement - The term ‘agreement’ given in Section 2(e) of the Act is defined as- “every
promise and every set of promises, forming the consideration for each other”.
To have an insight into the definition of agreement, we need to understand promise.
Section 2 (b) defines promise as-“when the person to whom the proposal is made signifies
his assent there to, the proposal is said to be accepted. Proposal when accepted, becomes
a promise”.
The following points emerge from the above definition:
1. when the person to whom the proposal is made
2. signifies his assent on that proposal which is made to him
3. the proposal becomes accepted
4. accepted proposal becomes promise
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 Thus, we say that an agreement is the result of the proposal made by one party to the
other party and that other party gives his acceptance thereto of course for mutual
consideration.
Agreement = Offer/Proposal + Acceptance
(ii) Enforceability by law – An agreement to become a contract must give rise to a legal
obligation which means a duly enforceable by law.
Thus, from above definitions it can be concluded that –
Contract = Accepted proposal/Agreement + Enforceability by law
On elaborating the above two concepts, it is obvious that contract comprises of an agreement
which is a promise or a set of reciprocal promises, that a promise is the acceptance of a
proposal giving rise to a binding contract. Further, section 2(h) requires an agreement capable of
being enforceable by law before it is called ‘contract’. Where parties have made a binding
contract, they created rights and obligations between themselves.

Example 1: A agrees with B to sell car for Rs. 2 lacs to B. Here A is under an obligation to give
car to B and B has the right to receive the car on payment of Rs. 2 lacs and also B is under an
obligation to pay Rs. 2 lacs to A and A has a right to receive Rs. 2 lacs.

Example 2: Father promises his son to pay him pocket allowance of Rs. 500 every month. But he
refuses to pay later. The son cannot recover the same in court of law as this is a social
agreement. This is not created with an intention to create legal relationship and hence it is not a
contract.
So, Law of Contract deals with only such legal obligations which has resulted from agreements.
Such obligation must be contractual in nature. However, some obligations are outside the purview
of the law of contract.

Example 3: An obligation to maintain wife and children, an order of the court of law etc. These are
status obligations and so out of the scope of the Contract Act.

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 Difference between Agreement and Contract
Basis of differences Agreement Contract
Meaning Every promise and every set of Agreement enforceable by law.
promises, forming the consideration (Agreement + Legal enforceability)
for each other.
(Offer + Acceptance)
Scope It’s a wider term including both It is used in a narrow sense with
legal and social agreement. the specification that contract is
only legally enforceable agreement.
Legal obligation It may not create legal obligation. Necessarily creates a legal
An agreement does not always obligation. A contract always grants
grant rights to the parties certain rights to every party.
Nature All agreement are not contracts. All contracts are agreements.

ESSENTIALS OF A VALID CONTRACT

As given by Section 10 of Not given by Section 10
Indian Contract Act, 1872 but are also considered essential
1. Agreement 1. Two parties
2. Free consent AFII 2. Intention to create legal relationship
3. Competency of the parties 3. Fulfilments of legal formalities
4. Lawful consideration 4. Certainty of meaning
5. Legal object 5. Possibility of performance
6. Not expressly declared to be void —
[as per Section 24 to 30 and 56] TEIL CI
In terms of Section 10 of the Act, “all agreements are contracts if they are made by the
free consent of the parties competent to contract, for a lawful consideration and with a
lawful object and are not expressly declared to be void”.
Since section 10 is not complete and exhaustive, so there are certain others sections which also
contains requirements for an agreement to be enforceable. Thus, in order to create a valid

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contract, the following elements should be present:
1. Two Parties: One cannot contract with himself. A contract involves at least two parties- one
party making the offer and the other party accepting it. A contract may be made by natural
persons and by other persons having legal existence e.g. companies, universities etc. It is
necessary to remember that identity of the parties be ascertainable.
Example 4: To constitute a contract of sale, there must be two parties- seller and buyer. The
seller and buyer must be two different persons, because a person cannot buy his own goods.
In State of Gujarat vs. Ramanlal S & Co. when on dissolution of a partnership, the assets of
the firm were divided among the partners, the sales tax officer wanted to tax this transaction.
It was held that it was not a sale. The partners being joint owner of those assets cannot be
both buyer and seller.

2. Parties must intend to create legal obligations: There must be an intention on the part of the
parties to create legal relationship between them. Social or domestic type of agreements are
not enforceable in court of law and hence they do not result into contracts.
Example 5: A husband agreed to pay to his wife certain amount as maintenance every month
while he was abroad. Husband failed to pay the promised amount. Wife sued him for the
recovery of the amount. Here, in this case, wife could not recover as it was a social agreement
and the parties did not intend to create any legal relations. (Balfour v. Balfour)
Example 6: Lekhpal promises to pay Rs. 5 lakhs to his son if the son passes the CA exams. On
passing the exams, the son claims the money. Here, the son could not recover as it was a
social agreement.
Example 7: A sold goods to B on a condition that he must pay for the amount of goods within
30 days. Here A intended to create legal relationship with B. Hence the same is contract. On
failure by B for making a payment on due date, A can sue him in the court of law.

3. Other Formalities to be complied with in certain cases: A contract may be written or spoken.
As to legal effects, there is no difference between a written contract and contract made by
word of mouth. But in the interest of the parties the contract must be written. In case of
certain contracts some other formalities have to be complied with to make an agreement
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 legally enforceable.
For e.g. Contract of Insurance is not valid except as a written contract. Further, in case of
certain contracts, registration of contract under the laws which is in force at the time, is
essential for it to be valid, e.g. in the case of immovable property.
Thus, where there is any statutory requirement that any contract is to be made in writing or
in the presence of witness, or any law relating to the registration of documents must be
complied with.
4. Certainty of meaning: The agreement must be certain and not vague or indefinite.
Example 8: A agrees to sell to B a hundred tons of oil. There is nothing certain in order to
show what kind of oil was intended for.
Example 9: XYZ Ltd. agreed to lease the land to Mr. A for indefinite years. The contract is not
valid as the period of lease is not mentioned.

5. Possibility of performance of an agreement: The terms of agreement should be capable of

performance. An agreement to do an act impossible in itself cannot be enforced.
Example 10: A agrees with B to discover treasure by magic. The agreement cannot be
enforced as it is not possible to be performed.

Essential elements of a valid contract

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According to Section 10 of the Indian Contract Act, 1872, the following are the essential
elements of a Valid Contract:
I. Offer and Acceptance or an agreement: An agreement is the first essential element of a
valid contract. According to Section 2(e) of the Indian Contract Act, 1872, “Every promise and
every set of promises, forming consideration for each other, is an agreement” and according to
Section 2(b) “A proposal when accepted, becomes a promise”. An agreement is an outcome of
offer and acceptance.

II. Free Consent: Two or more persons are said to consent when they agree upon the same thing
in the same sense. This can also be understood as identity of minds in understanding the terms
viz consensus ad idem. Further such a consent must be free. Consent would be considered as
free consent if it is not caused by coercion, undue influence, fraud, misrepresentation or
mistake.
Example 11: A, who owns two cars is selling red car to B. B thinks he is purchasing the black
car. There is no consensus ad idem and hence no contract.
To determine consensus ad idem the language of the contract should be clearly drafted. Thus,
if A says B “ Will you buy my red car for Rs. 30000? “ and B says “yes” to it. There is said to
be consensus ad idem i.e. the meaning is taken in same sense by both the parties.
Example 12: A threatened to shoot B if he (B) does not lend him Rs.2000 and B agreed to it.
Here the agreement is entered into under coercion and hence not a valid contract.
(Students may note that the terms coercion, undue influence, fraud, misrepresentation, mistake
are explained in the coming units)

III. Capacity of the parties: Capacity to contract means the legal ability of a person to enter into
a valid contract. Section 11 of the Indian Contract Act specifies that every person is
competent to contract who
(a) is of the age of majority according to the law to which he is subject and
(b) is of sound mind and
(c) is not otherwise disqualified from contracting by any law to which he is subject. A person
competent to contract must fulfil all the above three qualifications.
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 Qualification (a) refers to the age of the contracting person i.e. the person entering into
contract must be of 18 years of age. Persons below 18 years of age are considered minor,
therefore, incompetent to contract.
Qualification (b) requires a person to be of sound mind i.e. he should be in his senses so that he
understands the implications of the contract at the time of entering into a contract. A lunatic,
an idiot, a drunken person or under the influence of some intoxicant is not supposed to be a
person of sound mind.
Qualification (c) requires that a person entering into a contract should not be disqualified by
his status, in entering into such contracts. Such persons are an alien enemy, foreign
sovereigns, convicts etc. They are disqualified unless they fulfil certain formalities required by
law.
Contracts entered by persons not competent to contract are not valid.

IV. Consideration: It is referred to as ‘quid pro quo’ i.e. ‘something in return’. A valuable
consideration in the sense of law may consist either in some right, interest, profit or benefit
accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or
undertaken by the other.
Example 13:- A agrees to sell his books to B for Rs. 100.
B’s promise to pay Rs. 100 is the consideration for A’s promise to sell his books. A’s promise to
sell the books is the consideration for B’s promise to pay Rs. 100.

V. Lawful Consideration and Object: The consideration and object of the agreement must be
lawful.
Section 23 states that consideration or object is not lawful if it is prohibited by law, or it is
such as would defeat the provisions of law, if it is fraudulent or involves injury to the person or
property of another or court regards it as immoral or opposed to public policy.
Example 14: ‘A’ promises to drop prosecution instituted against ‘B’ for robbery and ‘B’ promises
to restore the value of the things taken. The agreement is void, as its object is unlawful.
Example 15: A agrees to sell his house to B against 100 kgs of cocaine (drugs). Such agreement
is illegal as the consideration is unlawful.
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VI. Not expressly declared to be void: The agreement entered into must not be which the law
declares to be either illegal or void. An illegal agreement is an agreement expressly or impliedly
prohibited by law. A void agreement is one without any legal effects.
Example 16: Threat to commit murder or making/publishing defamatory statements or entering
into agreements which are opposed to public policy are illegal in nature. Similarly, any
agreement in restraint of trade, marriage, legal proceedings, etc. are classic examples of void
agreements.

TYPES OF CONTRACT

Now let us discuss various types of contracts.

Types of Contracts on the basis of

Validity of enforceability Formation Performance

Valid contracts Express contract Executed contract

Void contracts Implied contract Executory contract

Voidable contracts Quasi-contract Unilateral Bilateral

contract contract
Illegal agreements E.com. contracts

Unenforceable contracts

I. On the basis of the validity

1. Valid Contract: An agreement which is binding and enforceable is a valid contract. It
contains all the essential elements of a valid contract.
Example 17: A ask B if he wants to buy his bike for Rs.10,000. B agrees to buy bike. It is
agreement which is enforceable by law. Hence, it is a valid contract.
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2. Void Contract: Section 2 (j) states as follows: “A contract which ceases to be enforceable
by law becomes void when it ceases to be enforceable”. Thus a void contract is
one which cannot be enforced by a court of law.
Example 18: Mr. X agrees to write a book with a publisher. Such contract is valid. But after
few days, X dies in an accident. Here the contract becomes void due to the impossibility of
performance of the contract. Thus, a valid contract when cannot be performed because of
some uncalled happening becomes void.
Example 19: A contracts with B (owner of the factory) for the supply of 10 tons of sugar,
but before the supply is effected, the fire caught in the factory and everything was
destroyed. Here the contract becomes void.
It may be added by way of clarification here that when a contract is void, it is not a
contract at all but for the purpose of identifying it, it has to be called a [void] contract.

3. Voidable Contract: Section 2(i) defines that “an agreement which is enforceable by law at
the option of one or more parties thereto, but not at the option of the other or
others is a voidable contract”.
This in fact means where one of the parties to the agreement is in a position or is legally
entitled or authorized to avoid performing his part, then the agreement is treated and
becomes voidable. Such a right might arise from the fact that the contract may have been
brought about by one of the parties by coercion, undue influence, fraud or
misrepresentation and hence the other party has a right to treat it as a voidable contract.
Example 20: X promise to sell his scooter to Y for Rs. 1 Lac. However, the consent of X has
been procured by Y at a gun point. X is an aggrieved party and the contract is voidable at
his option but not on the option of Y. It means if X accepts the contract, the contract
becomes a valid contract then Y has no option of rescinding the contract.
At this juncture it would be desirable to know the distinction between a Void Contract and
a Voidable Contract. These are elaborated hereunder:

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S. No. Basis Void Contract Voidable Contract
1 Meaning A Contract ceases to be An agreement which is
enforceable by law becomes enforceable by law at the
void when it ceases to be option of one or more of the
enforceable. parties thereto, but not at the
option of the other or others,
is a voidable contract.
2 Enforceability A void contract cannot be It is enforceable only at the
enforced at all. option of aggrieved party and
not at the option of other
party.
3 Cause A contract becomes void due A contract becomes a voidable
to change in law or change in contract if the consent of a
circumstances beyond the party was not free.
contemplation of parties.
4 Performance A void contract cannot be If the aggrieved party does
of contract performed. not, within reasonable time,
exercise his right to avoid the
contract, any party can sue
the other for claiming the
performance of the contract.
5 Rights A void contract does not grant The party whose consent was
any legal remedy to any party. not free has the right to
rescind the contract within a
reasonable time. If so
rescinded it becomes a void
contract. If it is not rescinded
it becomes a valid contract

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4. Illegal Contract: It is a contract which the law forbids to be made. The court will not
enforce such a contract but also the connected contracts. All illegal
agreements are void but all void agreements are not necessarily illegal. Despite
this, there is similarity between them is that in both cases they are void ab initio and cannot
be enforced by law.
Example 21: Contract that is immoral or opposed to public policy are illegal in nature.
Similarly, if R agrees with S, to purchase brown sugar, it is an illegal agreement.
According to Section 2(g) of the Indian Contract Act, “an agreement not enforceable by
law is void”. The Act has specified various factors due to which an agreement may be
considered as void agreement. One of these factors is unlawfulness of object and
consideration of the contract
i.e. illegality of the contract which makes it void. The illegal and void agreement differ from
each other in the following respects:
Basis of difference Void agreement Illegal agreement
Scope A void agreement is not An illegal agreement is always
necessarily illegal. void.

Nature Not forbidden under law. Are forbidden under law.

Punishment Parties are not liable for any Parties to illegal agreements
punishment under the law. are liable for punishment

Collateral It’s not necessary that Agreements collateral to illegal

Agreement agreements collateral to void agreements are always void.
agreements may also be void. It
may be valid also.

5. Unenforceable Contract: Where a contract is good in substance but because

of some technical defect i.e. absence in writing, barred by limitation etc. one or
both the parties cannot sue upon it, it is described as an unenforceable contract.
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 Example 22: A bought goods from B in 2015. But no payment was made till 2019. B cannot
sue A for the payment in 2019 as it has crossed three years and barred by Limitation Act.
A good debt becomes unenforceable after the period of three years as barred by
Limitation Act.

II. On the basis of the formation of contract

1. Express Contracts: A contract would be an express contract if the terms are
expressed by words or in writing. Section 9 of the Act provides that if a
proposal or acceptance of any promise is made in words, the promise is said to be express.
Example 23: A tells B on telephone that he offers to sell his house for Rs. 2 lacs and B in
reply informs A that he accepts the offer, this is an express contract.

2. Implied Contracts: Implied contracts in contrast come into existence by

implication. Most often the implication is by action or conduct of parties or
course of dealings between them. Section 9 of the Act contemplates such implied contracts
when it lays down that in so far as such proposal or acceptance is made otherwise than in
words, the promise is said to be implied.
Example 24: Where a coolie in uniform picks up the luggage of A to be carried out of the
railway station without being asked by A and A allows him to do so, it is an implied contract
and A must pay for the services of the coolie detailed by him.
Example 25: A drinks a coffee in restaurant. There is an implied contract that he should
pay for the price of coffee.
Tacit Contracts: The word Tacit means silent. Tacit contracts are those that are inferred
through the conduct of parties without any words spoken or written. A classic example of
tacit contract would be when cash is withdrawn by a customer of a bank from the
automatic teller machine [ATM]. Another example of tacit contract is where a contract is
assumed to have been entered when a sale is given effect to at the fall of hammer in an
auction sale. It is not a separate form of contract but falls within the scope of implied
contracts.

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 3. Quasi-Contract: A quasi-contract is not an actual contract but it resembles a contract. It is
created by law under certain circumstances. The law creates and enforces
legal rights and obligations when no real contract exists. Such obligations are
known as quasi-contracts. In other words, it is a contract in which there is no intention on
part of either party to make a contract but law imposes a contract upon the parties.
Example 26: Obligation of finder of lost goods to return them to the true owner or liability
of person to whom money is paid under mistake to repay it back cannot be said to arise
out of a contract even in its remotest sense, as there is neither offer and acceptance nor
consent. These are said to be quasi-contracts.

4. E-Contracts: When a contract is entered into by two or more parties using

electronics means, such as e-mails is known as e-commerce contracts. In electronic commerce,
different parties/persons create networks which are linked to other networks through ED1
- Electronic Data Inter change. This helps in doing business transactions using electronic
mode. These are known as EDI contracts or Cyber contracts or mouse click contracts.

III. On the basis of the performance of the contract

1. Executed Contract: The consideration in a given contract could be an act or
for bearance.When the act is done or executed or the forbearance is brought on
record, then the contract is an executed contract.
Example 27: When a grocer sells a sugar on cash payment it is an executed contract because
both the parties have done what they were to do under the contract.

2. Executory Contract: In an executory contract the consideration is reciprocal

promise or obligation. Such consideration is to be performed in future only and
therefore these contracts are described as executory contracts.
Example 28: Where G agrees to take the tuition of H, a pre-engineering student, from the next
month and H in consideration promises to pay G Rs. 1,000 per month, the contract is executory
because it is yet to be carried out.

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 Unilateral or Bilateral are kinds of Executory Contracts and are not separate kinds.
(a) Unilateral Contract: Unilateral contract is a one sided contract in which one party
has performed his duty or obligation and the other party’s obligation is outstanding.
Example 29: M advertises payment of award of Rs. 5000 to any one who finds his missing
boy and brings him. As soon as B traces the boy, there comes into existence an executed
contract because B has performed his share of obligation and it remains for M to pay the
amount of reward to B. This type of Executory contract is also called unilateral contract.
(b) Bilateral Contract: A Bilateral contract is one where the obligation or promise
is outstanding on the part of both the parties.
Example 30: A promises to sell his plot to B for Rs.1 lacs cash down, but B pays only
Rs. 25,000 as earnest money and promises to pay the balance on next Sunday. On the
other hand, A gives the possession of plot to B and promises to execute a sale deed on the
receipt of the whole amount. The contract between the A and B is executory because
there remains something to be done on both sides. Such Executory contracts are also
known as Bilateral contracts.

PROPOSAL / OFFER [SECTION 2(a) OF THE INDIAN CONTRACT ACT, 1872]

Definition of Offer/Proposal:
According to Section 2(a) of the Indian Contract Act, 1872, “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”.

Kinds of offer

How made To whom made?

Express offer Implied offer General offer Specific offer

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 CLASSIFICATION OF OFFER
An offer can be classified as general offer, special/specific offer, cross offer, counter offer,
standing/ open/ continuing offer.

General Special Counter Cross Standing

Offer Offer Offer Offer Offer

Now let us examine each one of them.

(a) General offer: It is an offer made to public at large and hence anyone can
accept and do the desired act (Carlill v. Carbolic Smoke Ball Co.). In terms of
Section 8 of the Act, anyone performing the conditions of the offer can be considered to have
accepted the offer. Until the general offer is retracted or withdrawn, it can be accepted by
anyone at any time as it is a continuing offer.
Case Law: Carlill Vs. Carbolic Smoke Ball Co. (1893)
Facts: In this famous case, Carbolic smoke Ball Co. advertised in several newspapers that a
reward of £100 would be given to any person who contracted influenza after using the smoke
balls produced by the Carbolic Smoke Ball Co. according to printed directions. One lady, Mrs.
Carlill, used the smoke balls as per the directions of company and even then, suffered from
influenza. Held, she could recover the amount as by using the smoke balls she had accepted the offer.

(b) Special/specific offer: When the offer is made to a specific or an ascertained

person, it is known as a specific offer. Specific offer can be accepted only by that
specified person to whom the offer has been made. [Boulton v. Jones]
Example 36: ‘A’ offers to sell his car to ‘B’ at a certain cost. This is a specific offer.

(c) Cross offer: When two parties exchange identical offers in ignorance at the time
of each other’s offer, the offers are called cross offers. There is no binding
contract in such a case because offer made by a person cannot be construed as acceptance of
the another’s offer.
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 Example 37: If A makes a proposal to B to sell his car for Rs. 2 lacs and B, without knowing
the proposal of A, makes an offer to purchase the same car at Rs. 2 lacs from A, it is not an
acceptance, as B was not aware of proposal made by A. It is only cross proposal (cross offer).
And when two persons make offer to each other, it cannot be treated as mutual acceptance.
There is no binding contract in such a case.

(d) Counter offer: When the offeree offers to qualified acceptance of the offer
subject to modifications and variations in the terms of original offer, he is said to
have made a counter offer. Counter-offer amounts to rejection of the original offer. It is also
called as Conditional Acceptance.
Example 38: ‘A’ offers to sell his plot to ‘B’ for Rs.10 lakhs. ’B’ agrees to buy it for Rs. 8 lakhs.
It amounts to counter offer. It will result in the termination of the offer of ’A’. If later on ‘B’
agrees to buy the plot for Rs. 10 lakhs, ’A’ may refuse.

(e) Standing or continuing or open offer: An offer which is allowed to remain open
for acceptance over a period of time is known as standing or continuing or open
offer. Tenders that are invited for supply of goods is a kind of standing offer.

Essential of a valid offer

1. It must be capable of creating legal relations: Offer must be such as in law is capable of being
accepted and giving rise to legal relationship. If the offer does not intend to give rise to legal
consequences and creating legal relations, it is not considered as a valid offer in the eye of
law. A social invitation, even if it is accepted, does not create legal relations because it is not
so intended.

2. It must be certain, definite and not vague: If the terms of an offer are vague or indefinite, its
acceptance cannot create any contractual relationship. Thus, where A offers to sell B 100
quintals of oil, there is nothing whatever to show what kind of oil was intended. The offer is not
capable of being accepted for want of certainty.
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3. It must be communicated to the offeree: An offer, to be complete, must be communicated to
the person to whom it is made, otherwise there can be no acceptance of it. Unless an offer is
communicated, there can be no acceptance by it. An acceptance of an offer, in ignorance of
the offer, is not acceptance and does not confer any right on the acceptor.
This can be illustrated by the landmark case of Lalman Shukla v. GauriDutt
Facts: G (Gauridutt) sent his servant L (Lalman) to trace his missing nephew. He then
announced that anybody who traced his nephew would be entitled to a certain reward. L
traced the boy in ignorance of this announcement. Subsequently when he came to know of the
reward, he claimed it. Held, he was not entitled to the reward, as he did not know the offer.

4. It must be made with a view to obtaining the assent of the other party: Offer must be
made with a view to obtaining the assent of the other party addressed and not merely with a
view to disclosing the intention of making an offer.

5. It may be conditional: An offer can be made subject to any terms and conditions by the
offeror.
Example 39: Offeror may ask for payment by RTGS, NEFT etc. The offeree will have to
accept all the terms of the offer otherwise the contract will be treated as invalid.

6. Offer should not contain a term the non-compliance of which would amount to acceptance:
Thus, one cannot say that if acceptance is not communicated by a certain time the offer would
be considered as accepted.
Example 40: A proposes B to purchase his android mobile for Rs.5000 and if no reply by him in
a week, it would be assumed that B had accepted the proposal. This would not result into
contract.

7. The offer may be either specific or general: Any offer can be made to either public at large
or to the any specific person. (Already explained in the heading types of the offer)

18
8. The offer may be express or implied: An offer may be made either by words or by conduct.
Example 41: A boy starts cleaning the car as it stops on the traffic signal without being asked
to do so, in such circumstances any reasonable man could guess that he expects to be paid for
this, here boy makes an implied offer.

9. Offer is Different from a mere statement of intention, an invitation to offer, a mere

communication of information, a prospectus and Advertisement.
(i) A statement of intention and announcement.
Example 42: A father wrote his son about his wish of making him the owner of all his
property is mere a statement of intention.
Example 43: An announcement to give scholarships to children scoring more than 95% in
12th board is not an offer.
(ii) Offer must be distinguished from an answer to a question.
Case Law: Harvey vs. Facie [1893] AC 552
In this case, Privy Council succinctly explained the distinction between an offer and an
invitation to offer. In the given case, the plaintiffs through a telegram asked the
defendants two questions namely,
(i) Will you sell us Bumper Hall Pen? and
(ii) Telegraph lowest cash price.
The defendants replied through telegram that the “lowest price for Bumper Hall Pen is £
900”. The plaintiffs sent another telegram stating “we agree to buy Bumper Hall Pen at £
900”. However, the defendants refused to sell the property at the price.
The plaintiffs sued the defendants contending that they had made an offer to sell the
property at £ 900 and therefore they are bound by the offer.
However, the Privy Council did not agree with the plaintiffs on the ground that while
plaintiffs had asked two questions, the defendant replied only to the second question by
quoting the price but reserved their answer with regard to their willingness to sell. Thus,
they made no offer at all. Their Lordships held that the mere statement of the lowest
price at which the vendor would sell contained no implied contract to sell to the person who
had enquired about the price.
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 The above decision was followed in Mac Pherson vs Appanna [1951] A.S.C. 184 where the
owner of the property had said that he would not accept less than £ 6000/- for it. This
statement did not indicate any offer but indicated only an invitation to offer.
(iii) A statement of price is not an offer: Quoting the price of a product does not constitute it
as offer. (refer case of Harvey Vs. Facie as discussed above)
Example 44: The price list of goods does not constitute an offer for sale of certain goods
on the listed prices. It is an invitation to offer.
(iv) An invitation to make an offer or do business. In case of “an invitation to make an offer”, the
person making the invitation does not make an offer rather invites the other party to make
an offer. His objective is to send out the invitation that he is willing to deal with any person
who, on the basis of such invitation, is ready to enter into contract with him subject to final
terms and conditions.
Example 45: An advertisement for sale of goods by auction is an invitation to the offer. It
merely invites offers/bids made at the auction.
When goods are sold through auction, the auctioneer does not contract with anyone who
attends the sale. The auction is only an advertisement to sell but the items are not put for
sale though persons who have come to the auction may have the intention to purchase.
Similar decision was given in the case of Harris vs. Nickerson (1873).
Similarly, Red Herring Prospectus issued by a company, is only an invitation to the public to
make an offer to subscribe to the securities of the company.

10. A statement of price is not an offer

What is invitation to offer?
An offer should be distinguished from an invitation to offer. An offer is definite and capable of
converting an intention into a contract. Whereas an invitation to an offer is only a circulation of
an offer, it is an attempt to induce offers and precedes a definite offer. An invitation to offer
is an act precedent to making an offer. Acceptance of an invitation to an offer does not result
in the contract and only an offer emerges in the process of negotiation.
When a person advertises that he has stock of books to sell or houses to let, there is no offer
to be bound by any contract. Such advertisements are offers to negotiate-offers to receive

20
offers. In order to ascertain whether a particular statement amounts to an ‘offer’ or an
‘invitation to offer’, the test would be intention with which such statement is made. Does the
person who made the statement intend to be bound by it as soon as it is accepted by the
other or he intends to do some further act, before he becomes bound by it. In the former case,
it amounts to an offer and in the latter case, it is an invitation to offer.

Difference between offer and invitation to make an offer:

In terms of Section 2(a) of the Act, an offer is the final expression of willingness by the
offeror to be bound by the offer should the other party chooses to accept it. On the other
hand, offers made with the intention to negotiate or offers to receive offers are known as
invitation to offer. Thus, where a party without expressing his final willingness proposes
certain terms on which he is willing to negotiate he does not make an offer, but only invites the
other party to make an offer on those terms. Hence the only thing that is required is the
willingness of the offeree to abide by the terms of offer.
In order to ascertain whether a particular statement amounts to an offer or an invitation to
offer, the test would be intention with which such statement is made. The mere statement of
the lowest price which the vendor would sell contains no implied contract to sell at that price
to the person making the inquiry.
If a person who makes the statement has the intention to be bound by it as soon as the other
accepts, he is making an offer. Thus, the intention to be bound is important factor to be
considered in deciding whether a statement is an ‘offer’ or ‘invitation to offer.’

Following are instances of invitation to offer to buy or sell:

(i) An invitation by a company to the public to subscribe for its shares.
(ii) Display of goods for sale in shop windows.
(iii) Advertising auction sales and
(iv) Quotation of prices sent in reply to a query regarding price.

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 Basis Offer Invitation to offer
Meaning Section 2(a) of the Act, an offer is the final Where a party without
expression of willingness by the offeror to be expressing his final willingness
bound by the offer should the other party proposes certain terms on
chooses to accept it. which he is willing to negotiate
he does not make an offer, but
only invites the other party to
make an offer on those terms.

Intention If a person who makes the statement has If a person has the intention of
of the the intention to be bound by it as soon as the negotiating on terms it is called
parties other accepts, he is making an offer. invitation to offer

Sequence An offer cannot be an act precedent to An invitation to offer is always

invitation to offer an act precedent to offer

How to make an offer?

ACCEPTANCE

Definition of Acceptance: In terms of Section 2(b) of the Act, ‘the term acceptance’ is
defined as follows:
“When the person to whom the proposal is made signifies his assent thereto, proposal is said
to be accepted. The proposal, when accepted, becomes a promise”.

22
Legal Rules regarding a valid acceptance
1. Acceptance can be given only by the person to whom offer is made: In case of a specific
offer, it can be accepted only by the person to whom it is made. [Boulton vs. Jones (1857)]
Case Law: Boulton vs. Jones (1857)
Facts: Boulton bought a business from Brocklehurst. Jones, who was Broklehurst’s creditor,
placed an order with Brocklehurst for the supply of certain goods. Boulton supplied the goods
even though the order was not in his name. Jones refused to pay Boultan for the goods
because by entering into the contract with Blocklehurst, he intended to set off his debt
against Brocklehurst. Held, as the offer was not made to Boulton, therefore, there was no
contract between Boulton and Jones.
In case of a general offer, it can be accepted by any person who has the knowledge of the
offer. [Carlill vs. Carbolic Smoke Ball Co. (1893)]

2. Acceptance must be absolute and unqualified: As per section 7 of the Act, acceptance is valid
only when it is absolute and unqualified and is also expressed in some usual and reasonable
manner unless the proposal prescribes the manner in which it must be accepted. If the
proposal prescribes the manner in which it must be accepted, then it must be accepted
accordingly.
M offered to sell his land to N for £280. N replied purporting to accept the offer but enclosed
a cheque for £ 80 only. He promised to pay the balance of £ 200 by monthly instalments of £
50 each. It was held that N could not enforce his acceptance because it was not an unqualified
one. [Neale vs. Merret [1930] W. N. 189].
A offers to sell his house to B for Rs. 1,00,000/-. B replied that, “I can pay Rs. 80,000 for it. The
offer of ‘A’ is rejected by ‘B’ as the acceptance is not unqualified. B however changes his mind
and is prepared to pay Rs. 1,00,000/-. This is also treated as counter offer and it is upto A
whether to accept it or not. [Union of India v. Bahulal AIR 1968 Bombay 294].
Example 46: ‘A’ enquires from ‘B’, “Will you purchase my car for Rs. 2 lakhs?” If ‘B’ replies “I
shall purchase your car for Rs. 2 lakhs, if you buy my motorcycle for Rs. 50000/-, here ‘B’
cannot be considered to have accepted the proposal. If on the other hand ‘B’ agrees to
purchase the car from ‘A’ as per his proposal subject to availability of valid Registration
23
 Certificate / book for the car, then the acceptance is in place though the offer contained no
mention of R.C. book. This is because expecting a valid title for the car is not a condition.
Therefore, the acceptance in this case is unconditional.

3. The acceptance must be communicated: To conclude a contract between the parties, the
acceptance must be communicated in some perceptible form. Any conditional acceptance or
acceptance with varying or too deviant conditions is no acceptance. Such conditional
acceptance is a counter proposal and has to be accepted by the proposer, if the original
proposal has to materialize into a contract. Further when a proposal is accepted, the offeree
must have the knowledge of the offer made to him. If he does not have the knowledge, there
can be no acceptance. The acceptance must relate specifically to the offer made. Then only it
can materialize into a contract. The above points will be clearer from the following examples:
Brogden vs. Metropolitan Railway Co. (1877)
Facts: B a supplier, sent a draft agreement relating to the supply of coal to the manager of
railway Co. viz, Metropolitian railway for his acceptance. The manager wrote the word
“Approved” on the same and put the draft agreement in the drawer of the table intending to
send it to the company’s solicitors for a formal contract to be drawn up. By an oversight the
draft agreement remained in drawer. Held, that there was no contract as the manager had
not communicated his acceptance to the supplier, B.
Where an offer made by the intended offeree without the knowledge that an offer has been
made to him cannot be deemed as an acceptance thereto. (Bhagwandas v. Girdharilal)
A mere variation in the language not involving any difference in substance would not make the
acceptance ineffective. [Heyworth vs. Knight [1864] 144 ER 120].
Example 47: A proposed B to marry him. B informed A’s sister that she is ready to marry him.
But his sister didn’t inform A about the acceptance of proposal. There is no contract as
acceptance was not communicated to A.

4. Acceptance must be in the prescribed mode: Where the mode of acceptance is prescribed
in the proposal, it must be accepted in that manner. But if the proposer does not insist on the
proposal being accepted in the manner prescribed after it has been accepted otherwise, i.e.,
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 not in the prescribed manner, the proposer is presumed to have consented to the acceptance.
Example 48: If the offeror prescribes acceptance through messenger and offeree sends
acceptance by email, there is no acceptance of the offer if the offeror informs the offeree
that the acceptance is not according to the mode prescribed. But if the offeror fails to do so,
it will be presumed that he has accepted the acceptance and a valid contract will arise.

5. Time: Acceptance must be given within the specified time limit, if any, and if no time is
stipulated, acceptance must be given within the reasonable time and before the offer lapses.
What is reasonable time is nowhere defined in the law and thus would depend on facts and
circumstances of the particular case.
Example 49: A offered to sell B 50 kgs of bananas at Rs. 500. B communicated the acceptance
after four days. Such is not a valid contract as bananas being perishable items could not stay
for a period of week. Four days is not a reasonable time in this case
Example 50: A offers B to sell his house at Rs. 10,00,000. B accepted the offer and
communicated to A after 4 days. Held the contract is valid as four days can be considered as
reasonable time in case of sell of house.

6. Mere silence is not acceptance: The acceptance of an offer cannot be implied from the
silence of the offeree or his failure to answer, unless the offeree has in any previous conduct
indicated that his silence is the evidence of acceptance.
Case Law: Felthouse vs. Bindley (1862)
Facts: F (Uncle) offered to buy his nephew’s horse for £30 saying “If I hear no more about it I
shall consider the horse mine at £30.” The nephew did not reply to F at all. He told his
auctioneer, B to keep the particular horse out of sale of his farm stock as he intended to
reserve it for his uncle. By mistake the auctioneer sold the horse. F sued him for conversion of
his property. Held, F could not succeed as his nephew had not communicated the acceptance to him.

Example 51: ’A’ subscribed for the weekly magazine for one year. Even after expiry of his
subscription, the magazine company continued to send him magazine for five years. And also ‘A’
continued to use the magazine but denied to pay the bills sent to him. ’A’ would be liable to pay
as his continued use of the magazine was his acceptance of the offer.
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7. Acceptance by conduct/Implied Acceptance: Section 8 of the Act lays down that “the
performance of the conditions of a proposal, or the acceptance of any consideration for a
reciprocal promise which may be offered with a proposal, constitutes an acceptance of the
proposal. This section provides the acceptance of the proposal by conduct as against other
modes of acceptance i.e. verbal or written communication.
Therefore, when a person performs the act intended by the proposer as the consideration for
the promise offered by him, the performance of the act constitutes acceptance.
Example 52: when a tradesman receives an order from a customer and executes the order by
sending the goods, the customer’s order for goods constitutes the offer, which has been
accepted by the trades man subsequently by sending the goods. It is a case of acceptance by
conduct.
Example 53: When a cobbler sits with a brush and polish, a person giving his shoes for
polishing constitutes as acceptance by conduct.

COMMUNICATION OF OFFER AND ACCEPTANCE

The importance of ‘offer’ and ‘acceptance’ in giving effect to a valid contract was explained
in the previous paragraphs. One important common requirement for both ‘offer’ and
‘acceptance’ is their effective communication. Effective and proper communication prevents
avoidable revocation and misunderstanding between parties.
When the contracting parties are face-to-face, there is no problem of communication because
there is instantaneous communication of offer and acceptance. In such a case the question of
revocation does not arise since the offer and its acceptance are made instantly.
The difficulty arises when the contracting parties are at a distance from one another and they
utilise the services of the post office or telephone or email (internet). In such cases, it is very much
relevant for us to know the exact time when the offer or acceptance is made or complete.
The Indian Contract Act, 1872 gives a lot of importance to “time” element in deciding when the
offer and acceptance is complete.
Communication of offer: In terms of Section 4 of the Act, “the communication of offer is complete
when it comes to the knowledge of the person to whom it is made”
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Example 54: Where ‘A’ makes a proposal to ‘B’ by post to sell his house for Rs. 5 lakhs and if the
letter containing the offer is posted on 10th March and if that letter reaches ‘B’ on 12th March
the offer is said to have been communicated on 12th March when B received the letter.
Thus, it can be summed up that when a proposal is made by post, its communication will be
complete when the letter containing the proposal reaches the person to whom it is made.
Mere receiving of the letter is not sufficient, he must receive or read the message contained in
the letter.
He receives the letter on 12th March, but he reads it on 15th of March. In this case offer is
communicated on 15th of March, and not 12th of March.
Communication of acceptance: There are two issues for discussion and understanding. They are:
The modes of acceptance and when is acceptance complete?
Let us, first consider the modes of acceptance. Section 3 of the Act prescribes in general terms
two modes of communication namely, (a) by any act and (b) by omission, intending thereby, to
communicate to the other or which has the effect of communicating it to the other.
Communication by act would include any expression of words whether written or oral. Written
words will include letters, telegrams, faxes, emails and even advertisements. Oral words will include
telephone messages. Again communication would include any conduct intended to communicate like
positive acts or signs so that the other person understands what the person ‘acting ‘or ‘making
signs’ means to say or convey.
Communication of acceptance by ‘omission’ to do something. Such omission is conveyed by a
conduct or by forbearance on the part of one person to convey his willingness or assent. However,
silence would not be treated as communication by ‘omission’.
Example 55: A offers Rs. 50000 to B if he does not arrive before the court of law as an evidence
to the case. B does not arrive on the date of hearing to the court. Here omission of doing an act
amounts to acceptance.
Communication of acceptance by conduct. For instance, delivery of goods at a price by a seller to
a willing buyer will be understood as a communication by conduct to convey acceptance. Similarly,
one need not explain why one boards a public bus or drop a coin in a weighing machine. The first
act is a conduct of acceptance against its communication to the offer by the public transport
authority to carry any passenger. The second act is again a conduct conveying acceptance to use

27
the weighing machine kept by the vending company as an offer to render that service for a
consideration.
The other issue in communication of acceptance is about the effect of act or omission or conduct.
These indirect efforts must result in effectively communicating its acceptance or non acceptance.
If it has no such effect, there is no communication regardless of which the acceptor thinks about
the offer within himself. Thus, a mere mental unilateral assent in one’s own mind would not amount
to communication. Where a resolution passed by a bank to sell land to ‘A’ remained
uncommunicated to ‘A’, it was held that there was no communication and hence no contract.
[Central Bank Yeotmal vs Vyankatesh (1949) A. Nag. 286].
Let us now come to the issue of when communication of acceptance is complete. In terms of
Section 4 of the Act, it is complete,
post Bod
(i) As against the proposer, when it is put in the course of transmission to him so as to be out of
the power of the acceptor to withdraw the same;
(ii) As against the acceptor, when it comes to the knowledge of the proposer.
Where a proposal is accepted by a letter sent by the post, the communication of acceptance will
be complete as against the proposer when the letter of acceptance is posted and as against the
acceptor when the letter reaches the proposer.
For instance in the above example, if ‘B’ accepts, A’s proposal and sends his acceptance by post
on 14th, the communication of acceptance as against ‘A’ is complete on 14th, i.e. when the letter is
posted. As against ‘B’ acceptance will be complete, when the letter reaches ‘A’.
Here ‘A’ the proposer will be bound by B’s acceptance, even if the letter of acceptance is delayed
in post or lost in transit. The golden rule is proposer becomes bound by the contract, the moment
acceptor has posted the letter of acceptance. But it is necessary that the letter is correctly
addressed, adequately stamped and duly posted. In such an event the loss of letter in transit,
wrong delivery, non delivery etc., will not affect the validity of the contract.
However, from the view point of acceptor, he will be bound by his acceptance only when the
letter of acceptance has reached the proposer. So it is crucial in this case that the letter
reaches the proposer. If there is no delivery of the letter, the acceptance could be treated as
having been completed from the viewpoint of proposer but not from the viewpoint of acceptor. Of
course this will give rise to an awkward situation of only one party to the contract, being treated

28
as bound by the contract though no one would be sure as to where the letter of acceptance had
gone.
Acceptance over telephone or telex or fax: When an offer is made of instantaneous communication
like telex, telephone, fax or through e-mail, the contract is only complete when the acceptance is
received by the offeree, and the contract is made at the place where the acceptance is received
(Entores Ltd. v. Miles Far East Corporation). However, in case of a call drops and disturbances in
the line, there may not be a valid contract.
Communication of special conditions: Sometimes there are situations where there are contracts
with special conditions. These special conditions are conveyed tacitly and the acceptance of these
conditions are also conveyed by the offeree again tacitly or without him even realizing it.
Example 56: Where a passenger undertakes a travel, the conditions of travel are printed at the
back of the tickets, sometimes these special conditions are brought to the notice of the
passenger, sometimes not. In any event, the passenger is treated as having accepted the special
condition the moment he bought his ticket.
When someone travels from one place to another by air, it could be seen that special conditions
are printed at the back of the air ticket in small letters [in a non-computerized train ticket even
these are not printed] Sometimes these conditions are found to have been displayed at the notice
board of the Airlines office, which passengers may not have cared to read. The question here is
whether these conditions can be considered to have been communicated to the passengers of the
Airlines and can the passengers be treated as having accepted the conditions. The answer to the
question is in the affirmative and was so held in Mukul Datta vs. Indian Airlines [1962] AIR cal. 314
where the plaintiff had travelled from Delhi to Kolkata by air and the ticket bore conditions in fine
print. But such terms and condition should be reasonable.
Example 57: Where a launderer gives his customer a receipt for clothes received for washing. The
receipt carries special conditions and are to be treated as having been duly communicated to the
customer and therein a tacit acceptance of these conditions is implied by the customer’s
acceptance of the receipt [Lily White vs. R. Mannuswamy [1966] A. Mad. 13].

29
CASE LAW: Lilly White vs. Mannuswamy (1970)
Facts: P delivered some clothes to drycleaner for which she received a laundry receipt containing
a condition that in case of loss, customer would be entitled to claim 15% of the market price of
value of the article, P lost her new saree. Held, the terms were unreasonable and P was entitled
to recover full value of the saree from the drycleaner.
In the cases referred above, the respective documents have been accepted without a protest
and hence amounted to tacit acceptance.
Standard forms of contracts: It is well established that a standard form of contract may be
enforced on another who is subjectively unaware of the contents of the document, provided the
party wanting to enforce the contract has given notice which, in the circumstances of a case, is
sufficiently reasonable. But the acceptor will not incur any contractual obligation, if the document
is so printed and delivered to him in such a state that it does not give reasonable notice on its
face that it contains certain special conditions. In this connection, let us consider a converse
situation. A transport carrier accepted the goods for transport without any conditions.
Subsequently, he issued a circular to the owners of goods limiting his liability for the goods. In such
a case, since the special conditions were not communicated prior to the date of contract for
transport, these were not binding on the owners of goods [Raipur transport Co. vs. Ghanshyam
[1956] A. Nag.145].

COMMUNICATION OF PERFORMANCE

We have already discussed that in terms of Section 4 of the Act, communication of a

proposal is complete when it comes to the knowledge of the person to whom it is meant. As
regards acceptance of the proposal, the same would be viewed from two angles. These are:
(i) from the viewpoint of proposer and
(ii) the other from the viewpoint of acceptor himself
From the viewpoint of proposer, when the acceptance is put into a course of transmission, when it
would be out of the power of acceptor. From the viewpoint of acceptor, it would be complete
when it comes to the knowledge of the proposer.
At times the offeree may be required to communicate the performance (or act) by way of
30
acceptance. In this case it is not enough if the offeree merely performs the act but he should also
communicate his performance unless the offer includes a term that a mere performance will
constitute acceptance. The position was clearly explained in the famous case of Carlill Vs Carbolic
& Smokeball Co. In this case the defendant a sole proprietary concern manufacturing a medicine
which was a carbolic ball whose smoke could be inhaled through the nose to cure influenza, cold
and other connected ailments issued an advertisement for sale of this medicine. The
advertisement also included a reward of $100 to any person who contracted influenza, after using
the medicine (which was described as ‘carbolic smoke ball’). Mrs. Carlill bought these smoke balls
and used them as directed but contracted influenza. It was held that Mrs. Carlill was entitled to a
reward of $100 as she had performed the condition for acceptance. Further as the advertisement
did not require any communication of compliance of the condition, it was not necessary to
communicate the same.
The court thus in the process laid down the following three important principles:
(i) an offer, to be capable of acceptance, must contain a definite promise by the offeror that he
would be bound provided the terms specified by him are accepted;
(ii) an offer may be made either to a particular person or to the public at large, and
(iii) if an offer is made in the form of a promise in return for an act, the performance of that act,
even without any communication thereof, is to be treated as an acceptance of the offer

REVOCATION OF OFFER AND ACCEPTANCE

If there are specific requirements governing the making of an offer and the acceptance of that
offer, we also have specific law governing their revocation.
In term of Section 4, communication of revocation (of the proposal or its acceptance) is
complete.
(i) as against the person who makes it when it is put into a course of transmission to the person
to whom it is made so as to be out of the power of the person who makes it, and
(ii) as against the person to whom it is made, when it comes to his knowledge.
The above law can be illustrated as follows: If you revoke your proposal made to me by a
telegram, the revocation will be complete, as far as you are concerned when you have dispatched
the telegram. But as far as I am concerned, it will be complete only when I receive the telegram.

31
As regards revocation of acceptance, if you go by the above example, I can revoke my
acceptance (of your offer) by a telegram. This revocation of acceptance by me will be complete
when I dispatch the telegram and against you, it will be complete when it reaches you.
But the important question for consideration is when a proposal can be revoked? And when can
an acceptance be revoked? These questions are more important than the question when the
revocation (of proposal and acceptance) is complete.
Ordinarily, the offeror can revoke his offer before it is accepted. If he does so, the offeree cannot
create a contract by accepting the revoked offer.
Example 58: The bidder at an auction sale may withdraw (revoke) his bid (offer) before it is
accepted by the auctioneer by fall of hammer.
An offer may be revoked by the offeror before its acceptance, even though he had originally
agreed to hold it open for a definite period of time. So long as it is a mere offer, it can be
withdrawn whenever the offeror desires.
Example 59: X offered to sell 50 bales of cotton at a certain price and promised to keep it open
for acceptance by Y till 6 pm of that day. Before that time X sold them to Z. Y accepted before 6
p.m., but after the revocation by X. In this case it was held that the offer was already revoked.
In terms of Section 5 of the Act a proposal can be revoked at any time before the communication
of its acceptance is complete as against the proposer. An acceptance may be revoked at any
time before the communication of acceptance is complete as against the acceptor.
Example 60: A proposes, by a letter sent by post, to sell his house to B. B accepts the proposal
by a letter sent by post. A may revoke his proposal at any time before or at the moment when B
posts his letter of acceptance, but not afterwards. Whereas B may revoke his acceptance at any
time before or at the moment when the letter communicating it reaches A, but not afterwards.
An acceptance to an offer must be made before that offer lapses or is revoked.
The law relating to the revocation of offer is the same in India as in England, but the law relating
to the revocation of acceptance is different.
In English law, the moment a person expresses his acceptance of an offer, that moment the
contract is concluded, and such an acceptance becomes irrevocable, whether it is made orally or
through the post. In Indian law, the position is different as regards contract through post.
Contract through post- As acceptance, in English law, cannot be revoked, so that once the letter

32
of acceptance is properly posted the contract is concluded. In Indian law, the acceptor or can
revoke his acceptance any time before the letter of acceptance reaches the offeror, if the
revocation telegram arrives before or at the same time with the letter of acceptance, the
revocation is absolute.
Contract over Telephone- A contract can be made over telephone. The rules regarding offer and
acceptance as well as their communication by telephone or telex are the same as for the
contract made by the mutual meeting of the parties. The contract is formed as soon as the offer
is accepted but the offeree must make it sure that his acceptance is received by the offeror,
otherwise there will be no contract, as communication of acceptance is not complete. If telephone
unexpectedly goes dead during conversation, the acceptor must confirm again that the words of
acceptance were duly heard by the offeror.
Revocation of proposal otherwise than by communication: When a proposal is made, the
proposer may not wait indefinitely for its acceptance. The offer can be revoked otherwise than by
communication or sometimes by lapse.

Modes of revocation of offer

(i) By notice of revocation:
Example 61: A offered B to sell goods at Rs. 5,000 through a post but before B could accept
the offer A received highest bid for the goods from C. So, A revoked the offer to B by
informing B over the telephone and sold goods to C.
(ii) By lapse of time: The time for acceptance can lapse if the acceptance is not given within the
specified time and where no time is specified, then within a reasonable time. This is for the
reason that proposer should not be made to wait indefinitely. It was held in Ramsgate Victoria
Hotel Co. Vs Montefiore (1866 L.R.Z. Ex 109), that a person who applied for shares in June was
not bound by an allotment made in November. This decision was also followed in India
Cooperative Navigation and Trading Co. Ltd. Vs Padamsey Prem Ji. However, these decisions
now will have no relevance in the context of allotment of shares since the Companies Act, 2013
has several provisions specifically covering these issues.
(iii) By non-fulfilment of condition precedent: Where the acceptor fails to fulfill a condition
precedent to acceptance the proposal gets revoked. This principle is laid down in Section 6 of
33
 the Act. The offeror for instance may impose certain conditions such as executing a certain
document or depositing certain amount as earnest money. Failure to satisfy any condition will
result in lapse of the proposal. As stated earlier ‘condition precedent’ to acceptance prevents
an obligation from coming into existence until the condition is satisfied. Suppose where ‘A’
proposes to sell his house to be ‘B’ for Rs. 5 lakhs provided ‘B’ leases his land to ‘A’. If ‘B’
refuses to lease the land, the offer of ‘A’ is revoked automatically.
(iv) By death or insanity: Death or insanity of the proposer would result in automatic revocation of
the proposal but only if the fact of death or insanity comes to the knowledge of the acceptor.
(v) By counter offer
(vi) By the non-acceptance of the offer according to the prescribed or usual mode
(vii) By subsequent illegality.

34
 UNIT – 2
CONSIDERATION

WHAT IS CONSIDERATION?
Consideration is the price agreed to be paid by the promisee for the obligation of the promisor.
The word consideration was described in a very popular English case of Misa v. Currie as:
“A valuable consideration in the sense of law may consist either in some right, interest, profit or
benefit accruing to one party (i.e. promisor) or forbearance, detriment, loss or responsibility given,
suffered or undertaken by the other (i.e. the promisee).”
Section 2(d) defines consideration as follows:
“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 abstain from doing something,
such an act or abstinence or promise is called consideration for the promise”.

LEGAL RULES REGARDING CONSIDERATION

(i) Consideration must move at the desire of the promisor: Consideration must be offered by
the promisee or the third party at the desire or request of the promisor. This implies “return”
element of consideration. Contract of marriage in consideration of promise of settlement is
enforceable.
An act done at the desire of a third party is not a consideration.
In Durga Prasad v. Baldeo, D (defendant) promised to pay to P (plaintiff) a certain commission
on articles which would be sold through their agency in a market. Market was constructed by
P at the desire of the C (Collector), and not at the desire of the D. D was not bound to pay as
it was without consideration and hence void.
Example 5: R saves S’s goods from fire without being asked to do so. R cannot demand any
reward for his services, as the act being done voluntary.

(ii) Consideration may move from promisee or any other person: In India, consideration may
proceed from the promisee or any other person who is not a party to the contract. The
definition of consideration as given in Section 2(d) makes that proposition clear. According to
35
 the definition, when at the desire of the promisor, the promisee or any other person does
something such an act is consideration. In other words, there can be a stranger to a
consideration but not stranger to a contract.
Example 6: An old lady made a gift of her property to her daughter with a direction to pay a
certain sum of money to the maternal uncle by way of annuity. On the same day, the daughter
executed a writing in favour of the brother agreeing to pay annuity. The daughter did not,
however, pay the annuity and the uncle sued to recover it. It was held that there was
sufficient consideration for the uncle to recover the money from the daughter. [Chinnayya vs.
Ramayya (1882)]

(iii) Executed and executory consideration: A consideration which consists in the performance of
an act is said to be executed. When it consists in a promise, it is said to be executory. The
promise by one party may be the consideration for an act by some other party, and vice
versa.
Example 7: A pays Rs. 5,000 to B and B promises to deliver to him a certain quantity of wheat
within a month. In this case, A pays the amount, whereas B merely makes a promise.
Therefore, the consideration paid by A is executed, whereas the consideration promised by B
is executory.

(iv) Consideration may be past, present or future: The words “has done or abstained from doing”
[as contained in Section 2(d)] are a recognition of the doctrine of past consideration. In order
to support a promise, a past consideration must move by a previous request. It is a general
principle that consideration is given and accepted in exchange for the promise. The
consideration, if past, may be the motive but cannot be the real consideration of a subsequent
promise. But in the event of the services being rendered in the past at the request or the
desire of the promisor, the subsequent promise is regarded as an admission that the past
consideration was not gratuitous.
Example 8: ’A’ performed some services to ‘B’ at his desire. After a week, ‘B’ promises to
compensate ‘A’ for the work done by him. It is said to be past consideration and A can sue B
for recovering the promised money.
36
 Example 9: A cash sale of goods is an example of present consideration. The consideration is
immediately made against delivery of goods.

(v) Consideration need not be adequate: Consideration need not to be of any particular value. It
need not be approximately of equal value with the promise for which it is exchanged but it
must be something which the law would regard as having some value. Something in return
need not be equal to something given. It can be considered a bad bargain of the party.
It may be noted in this context that Explanation 2 to Section 25 states that an agreement to
which the consent of the promisor is freely given is not void merely because the consideration
is inadequate.
But as an exception if it is shockingly less and the other party alleges that his consent was
not free than this inadequate consideration can be taken as an evidence in support of this allegation.
Example 10: X promises to sell a house worth Rs.6 lacs for Rs.1 lacs only, the adequacy of the
price in itself shall not render the transaction void, unless the party pleads that transaction
takes place under coercion, undue influence or fraud.

(vi) Performance of what one is legally bound to perform: (consideration must not be performance
of existing duty) The performance of an act by a person who is legally bound to perform the
same cannot be consideration for a contract. Hence, a promise to pay money to a witness is
void, for it is without consideration. Hence, such a contract is void for want of consideration.
Similarly, an agreement by a client to pay to his counsel after the latter has been engaged, a
certain sum over and above the fee, in the event of success of the case would be void, since it
is without consideration.
But where a person promises to do more that he is legally bound to do, such a promise
provided it is not opposed to public policy, is a good consideration. It should not be vague or
uncertain.

(vii) Consideration must be real and not illusory: Consideration must be real and must not be
illusory. It must be something to which the law attaches some value. If it is legally or physically
impossible it is not considered valid consideration.
37
 Examples 11: A man promises to discover treasure by magic, bringing the dead person to live
again. This transaction can be said to be void as it is illusory.

(viii)Consideration must not be unlawful, immoral, or opposed to public policy. Only presence of
consideration is not sufficient it must be lawful. Anything which is immoral or opposed to public
policy also cannot be valued as valid consideration.
Example 12: ABC Ltd. promises to give job to Mr. X in a Government bank against payment of
Rs. 50,000 is void as the promise is opposed to public policy.

SUIT BY A THIRD PARTY TO A CONTRACT

Though under the Indian Contract Act, 1872, the consideration for an agreement may proceed
from a third party, the third party cannot sue on contract. Only a person who is party to a
contract can sue on it.
Thus, the concept of stranger to consideration is a valid and is different from stranger to a
contract.
Example 13: P who is indebted to Q, sells his property to R and R promises to pay off the debt
amount to Q. If R fails to pay, then in such situation Q has no right to sue, as R is a stranger to
contract.
The aforesaid rule, that stranger to a contract cannot sue is known as a “doctrine of privity
of contract”, is however, subject to certain exceptions. In other words, even a stranger to a
contract may enforce a claim in the following cases:
1. In the case of trust, a beneficiary can enforce his right under the trust, though he was not a
party to the contract between the settler and the trustee.

2. In the case of a family settlement, if the terms of the settlement are reduced into writing, the
members of family who originally had not been parties to the settlement may enforce the
agreement.
Example 14: Two brothers X and Y agreed to pay an allowance of Rs. 20,000 to mother on
partition of joint properties. But later they denied to abide by it. Held their mother although
stranger to contract can require their sons for such allowance in the court of law.
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3. In the case of certain marriage contracts/arrangements, a provision may be made for the
benefit of a person, he may file the suit though he is not a party to the agreement.
Example 15: Mr. X’s wife deserted him for ill-treating her. Mr. X promised his wife’s father Mr.
Puri that he will treat her properly or else pay her monthly allowance. But she was again ill-
treated by her husband. Held, she has all right to sue Mr. X against the contract made
between Mr. X and Mr. Puri even though she was stranger to contract.

4. In the case of assignment of a contract, when the benefit under a contract has been
assigned, the assignee can enforce the contract but such assignment should not involve any
personal skill.

5. Acknowledgement or estoppel – where the promisor by his conduct acknowledges himself as

an agent of the third party, it would result into a binding obligation towards third party.
Example 16: If L gives to M Rs.20,000 to be given to N, and M informs N that he is holding the
money for him, but afterwards M refuses to pay the money. N will be entitled to recover the
same from the former
i.e. M.

6. In the case of covenant running with the land, the person who purchases land with notice that
the owner of land is bound by certain duties affecting land, the covenant affecting the land
may be enforced by the successor of the seller.
Example 17: One owner of the land having two land adjacent to each other. One was
agricultural land. He sold the other land containing a condition that it can never be used for
Industrial purpose so as to protect the other agricultural land from pollution. Such condition is
attached with the land so who so ever is the successor of land has to abide by it. Such are
called restrictive covenants and all successor are bind to it.

7. Contracts entered into through an agent: The principal can enforce the contracts entered
by his agent where the agent has acted within the scope of his authority and in the name of
the principal.
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 VALIDITY OF AN AGREEMENT WITHOUT CONSIDERATION

The general rule is that an agreement made without consideration is void (Section 25). In every
valid contract, consideration is very important. A contract may only be enforceable when
consideration is there. However, the Indian Contract Act contains certain exceptions to this rule. In
the following cases, the agreement though made without consideration, will be valid and enforceable.
1. Natural Love and Affection: Conditions to be fulfilled under section 25(1)
(i) It must be made out of natural love and affection between the parties.
(ii) Parties must stand in near relationship to each other.
(iii) It must be in writing.
(iv) It must also be registered under the law.
A written and registered agreement based on natural love and affection between the parties
standing in near relation (e.g., husband and wife) to each other is enforceable even without
consideration.
Example 18: A husband, by a registered agreement promised to pay his earnings to his wife.
Held the agreement though without consideration, was valid.
Example 19: A out of natural love and affection promises to give his newly wedded daughter- in
-law a golden necklace worth Rs. 5,00,000. ‘A’ made the promise in writing and signed it and
registered. The agreement is valid.

2. Compensation for past voluntary services: A promise to compensate, wholly or in part, a

person who has already voluntarily done something for the promisor, is enforceable under
Section 25(2). In order that a promise to pay for the past voluntary services be binding, the
following essential factors must exist:
(i) The services should have been rendered voluntarily.
(ii) The services must have been rendered for the promisor.
(iii) The promisor must be in existence at the time when services were rendered.
(iv) The promisor must have intended to compensate the promisee.
(v) Example 20: P finds R’s wallet and gives it to him. R promises to give P Rs.10,000. This is a
(vi) valid contract.
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 Example 21: Mr. X had helped his nephew Mr. Y to fight a case in the court of law using his
knowledge and intellect. After Mr. Y won the case, he promised Mr. X to pay Rs. 10,000. Held,
this is a valid contract as it is compensation to past services.

3. Promise to pay time barred debt: Where a promise in writing signed by the person making it
or by his authorised agent, is made to pay a debt barred by limitation it is valid without
consideration [Section 25(3)].
Example 22: A is indebted to C for Rs.60,000 but the debt is barred by the Limitation Act. A
sign a written promise now to pay Rs.50,000 in final settlement of the debt. This is a contract
without consideration, but enforceable.

4. Agency: According to Section 185 of the Indian Contract Act, 1872, no consideration is
necessary to create an agency.

5. Completed gift: In case of completed gifts, the rule no consideration no contract does not
apply. Explanation (1) to Section 25 states “nothing in this section shall affect the validity as
between the donor and donee, of any gift actually made.” Thus, gifts do not require any
consideration.

6. Bailment: No consideration is required to affect the contract of bailment. Section 148 of the
Indian Contract Act, 1872, defines bailment as the delivery of goods from one person to
another for some purpose. This delivery is made upon a contract that post accomplishment of
the purpose, the goods will either be returned or disposed of, according to the directions of
the person delivering them. No consideration is required to affect a contract of bailment
Example 23: Mr. A hand over the keys of his godown to Mr. Y as Mr. Y had deposited his goods
in the same. Mr. Y gets possession of godown but not the ownership. As soon as Mr. Y lifts his
goods from godown he is liable to hand over the keys back to Mr. A.

7. Charity: If a promisee undertakes the liability on the promise of the person to contribute to
charity, there the contract shall be valid. (Kadarnath v. Gorie Mohammad)
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 UNIT 3
OTHER ESSENTIAL ELEMTNS OF A CONTRACT

CAPACITY TO CONTRACT

Meaning: Capacity refers to the competence of the parties to make a contract. It is one of the
essential elements to form a valid contract.
Who is competent to contract (Section 11)
“Every person is competent to contract who is of the age of majority according to the law to
which he is subject, and who is of sound mind and is not disqualified from contracting by any law
to which he is subject”.

(A) Age of Majority: In India, the age of majority is regulated by the Indian Majority Act, 1875.
Every person domiciled in India shall attain the age of majority on the
completion of 18 years of age and not before. The age of majority being 18
years, a person less than that age even by a day would be minor for the purpose of contracting.

Law relating to Minor’s agreement/Position of Minor

1. A contract made with or by a minor is void ab-initio: A minor is not competent to contract
and any agreement with or by a minor is void from the very beginning.
In the leading case of Mohori Bibi vs. Dharmo Das Ghose (1903), “A, a minor borrowed
Rs. 20,000 from B and as a security for the same executed a mortgage in his favour. He
became a major a few months later and filed a suit for the declaration that the mortgage
executed by him during his minority was void and should be cancelled. It was held that a
mortgage by a minor was void and B was not entitled to repayment of money. Further
money lender’s request for repayment of amount advanced to the minor as part of
consideration for the mortgage was also not accepted.
It is especially provided in Section 10 that a person who is incompetent to contract cannot
make a contract within the meaning of the Act.

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2. No ratification after attaining majority: A minor cannot ratify the agreement on attaining
majority as the original agreement is void ab initio and a void agreement can never be ratified.

Example 1: X, a minor makes a promissory note in the name of Y. On attaining majority, he

cannot ratify it and if he makes a new promissory note in place of old one, here the new
promissory note which he executed after attaining majority is also void being without
consideration.

3. Minor can be a beneficiary or can take benefit out of a contract: Though a minor is not
competent to contract, nothing in the Contract Act prevents the minor from making the
other party bound to him r. Thus, a promissory note duly executed in favour of a minor is
not void and can be sued upon by him, because he though incompetent to contract, may yet
accept a benefit.
A minor cannot become partner in a partnership firm. However, he may with the consent
of all the partners, be admitted to the benefits of partnership (Section 30 of the Indian
Partnership Act, 1932).
Example 2: A mortgage was executed in favour of a minor. Held, he can get a decree for
the enforcement of the mortgage.

4. A minor can always plead minority: A minor can always plead minority and is not stopped
to do so even where he has taken any loan or entered into any contract by falsely
representing that he was major. Rule of estoppel cannot be applied against a minor. It
means he can be allowed to plea his minority in defence.
Example 3: A, a minor has falsely induced himself as major and contracted with Mr. X for
loan of Rs.20,000. When Mr. X asked for the repayment A denied to pay. He pleaded that
he was a minor so cannot enter into any contract. Held, A cannot be held liable for
repayment of amount. However, if he has not spent the same, he may be asked to repay it
but the minor shall not be liable for any amount which he has already spent even though
he received the same by fraud. Thus, a minor can always plead minority and is not
estopped from doing so even where he had produced a loan or entered into some other

43
 contract by falsely representing that he was of full age, when in reality he was a minor.

5. Liability for necessaries: The case of necessaries supplied to a minor or to any other
person whom such minor is legally bound to support is governed by section 68 of the Indian
Contract Act. A claim for necessaries supplied to a minor is enforceable by law. But a
minor is not liable for any price that he may promise and never for more than the value of
the necessaries. There is no personal liability of the minor, but only his property is liable.
To render minor’s estate liable for necessaries two conditions must be satisfied.
(i) The contract must be for the goods reasonably necessary for his support in the station
in life.
(ii) The minor must not have already a sufficient supply of these necessaries.
Necessaries mean those things that are essentially needed by a minor. They cannot include
luxuries or costly or unnecessary articles. Necessaries extend to all such things as
reasonable persons would supply to an infant in that class of society to which the infant
belongs. Expenses on minor’s education, on funeral ceremonies come within the scope of the
word ‘necessaries’.
The whole question turns upon the minor’s status in life. Utility rather than ornament is the
criterion.
Example 4: Shruti being a minor purchased a laptop for her online classes of Rs.70,000 on
credit from a shop. But her assets could pay only Rs.20,000. The shop keeper could not
hold Shruti personally liable and could recover only amount recoverable through her assets
i.e. upto Rs. 20,000.

6. Contract by guardian - how far enforceable: Though a minor’s agreement is void, his
guardian can, under certain circumstances enter into a valid contract on minor’s behalf.
Where the guardian makes a contract for the minor, which is within his competence and
which is for the benefit of the minor, there will be valid contract which the minor can enforce.

But all contracts made by guardian on behalf of a minor are not valid. For instance, the
guardian of a minor has no power to bind the minor by a contact for the purchase of

44
 immovable Property. But a contract entered into by a certified guardian (appointed by the
Court) of a minor, with the sanction of the court for the sale of the minor’s property, may
be enforced by either party to the contract.

7. No specific performance: A minor’s agreement being absolutely void, there can be no

question of the specific performance of such an agreement.

8. No insolvency: A minor cannot be declared insolvent as he is incapable of contracting debts

and dues are payable from the personal properties of minor and he shall never be held
personally liable.

9. Partnership: A minor being incompetent to contract cannot be a partner in a partnership

firm, but under Section 30 of the Indian Partnership Act, he can be admitted to the
benefits of partnership.

10. Minor can be an agent: A minor can act as an agent. But he will not be liable to his
principal for his acts. A minor can draw, deliver and endorse negotiable instruments
without himself being liable.
Example 5: A minor can have an account in the bank. He can draw a cheque for his
purchases. But he shall not be liable for cheque bounces nor can he be sued under court
of law for any fraud done from his account.

11. Minor cannot bind parent or guardian: In the absence of authority, express or implied, an
infant is not capable of binding his parent or guardian, even for necessaries. The parents
will be held liable only when the child is acting as an agent for parents.
Example 6: Richa a minor entered into contract of buying a scooty from the dealer and
mentioned that her parents will be liable for the payment of scooty. The dealer sent a
letter to her parents for money. The parents will not be liable for such payment as the
contract was entered by a minor in their absence and out of their knowledge.

45
 12. Joint contract by minor and adult: In such a case, the adult will be liable on the contract
and not the minor. In Sain Das vs. Ram Chand, where there was a joint purchase by two
purchasers, one of them was a minor, it was held that the vendor could enforce the
contract against the major purchaser and not the minor.

13. Surety for a minor: In a contract of guarantee when an adult stands surety for a minor
then he (adult) is liable to third party as there is direct contract between the surety and
the third party.
Example 7: Mr. X guaranteed for the purchase of a mobile phone by Krish, a minor. In case
of failure for payment by Krish, Mr. X will be liable to make the payment.

14. Minor as Shareholder: A minor, being incompetent to contract cannot be a shareholder of

the company. If by mistake he becomes a member, the company can rescind the
transaction and remove his name from register. But, a minor may, acting though his lawful
guardian become a shareholder by transfer or transmission of fully paid shares to him.

15. Liability for torts: A tort is a civil wrong. A minor is liable in tort unless the tort in reality is
a breach of contract. Thus, where a minor borrowed a horse for riding only he was held
liable when he lent the horse to one of his friends who jumped and killed the horse.
Similarly, a minor was held liable for his failure to return certain instruments which he had
hired and then passed on to a friend.

(B) Person of sound mind: According to Section 12 of Indian Contract Act, “a person is said to
be of sound mind for the purposes of making a contract if, at the time when he
makes it is capable of understanding it and of forming a rational judgement as to its
effect upon his interests.”
A person who is usually of unsound mind, but occasionally of sound mind, may make a contract
when he is of sound mind.
A person who is usually of sound mind, but occasionally of unsound mind, may not make a

46
 contract when he is of unsound mind.
Example 8: A patient in a lunatic asylum, who is at intervals, of sound mind, may contract
during those intervals.
Example 9: A sane man, who is delirious from fever, or who is so drunk that he cannot
understand the terms of a contract, or form a rational judgement as to its effect on his
interests, cannot contract whilst such delirium or drunkenness lasts.
Position of unsound mind person making a contract: A contract by a person who is not of
sound mind is void.

Person who is usually of Unsound Mind but occasionally of Sound Mind

may make a Contract when he is of Sound Mind.

Person who is usually of Unsound Mind but occasionally of Unsound Mind
may make a Contract when he is of Unsound Mind.

(C) Contract by disqualified persons:

Besides minors and persons of unsound mind, there are also other persons who are disqualified
from contracting, partially or wholly, so that the contracts by such person are void.
Incompetency to contract may arise from political status, corporate status, legal status, etc.

The following persons fall in this category:

Foreign Sovereigns and Ambassadors, Alien enemy, Corporations, Convicts, Insolvent etc.

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 FREE CONSENT
Consent is not free when it is caused by

Coercion Undue influence Fraud Misrepresentation Mistake

Effect
Contract is Voidable Contract is Void

Bilateral Mistake Unilateral Mistake

As to subject matter Possibility of performance

Nature of Contract As to identify ofperson

Definition of Consent according to Section 13:

“two or more persons are said to consent when they agree upon the same thing
in the same sense.”
Parties are said to have consented when they not only agreed upon the same thing but also
agreed upon that thing in the same sense. ‘Same thing’ must be understood as the whole content
of the agreement. Consequently, when parties to a contract make some fundamental error as to
the nature of the transaction, or as to the person dealt with or as to the subject-matter of the
agreement, it cannot be said that they have agreed upon the same thing in the same sense. And
if they do not agree in the same sense, there cannot be consent. A contract cannot arise in the
absence of consent.
If two persons enter into an apparent contract concerning a particular person or ship, and it
turns out that each of them, misled by similarity of name, had a different person or ship in his
mind, no contract would exist between them as they were not ad idem, i.e., of the same mind.
Again, ambiguity in the terms of an agreement, or an error as to the nature of any transaction or
as to the subject-matter of any agreement may prevent the formation of any contract on the
ground of absence of consent. In the case of fundamental error, there is really no consent

48
whereas, in the case of mistake, there is no real consent.
As has been said already, one of the essential elements of a contract is consent and there cannot
be a contract without consent. Consent may be free or not free. Only free consent is necessary
for the validity of a contract.

Definition of ‘Free Consent’ (Section 14)

Consent is said to be free when it is not caused by:
1. Coercion, as defined in Section 15; or
2. Undue Influence, as defined in Section 16; or
3. Fraud, as defined in Section 17; or
4. Misrepresentation, as defined in Section 18 or
5. Mistake, subject to the provisions of Sections 20, 21, and 22.
When consent to an agreement is caused by coercion, fraud, misrepresentation, or undue
influence, the agreement is a contract voidable at the option of the party whose consent was so
caused. When the consent is vitiated by mistake, the contract becomes void.

ELEMENTS VITIATING FREE CONSENT

We shall now explain these elements one by one.
(I) Coercion (Section 15)
“Coercion’ is the committing, or threatening to commit, any act forbidden by the Indian Penal
Code or the unlawful detaining, or threatening to detain any property, to the prejudice of any
person whatever, with the intention of causing any person to enter into an agreement.”
Effects of coercion under section 19 of Indian Contract Act, 1872
(i) Contract induced by coercion is voidable at the option of the party whose consent was so
obtained.
(ii) As to the consequences of the rescission of voidable contract, the party rescinding a void
contract should, if he has received any benefit, thereunder from the other party to the
contract, restore such benefit so far as may be applicable, to the person from whom it was
received.

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(iii) A person to whom money has been paid or anything delivered under coercion must repay or
return it. (Section 72)
Example 10: Where husband obtained a release deed from his wife and son under a threat of
committing suicide, the transaction was set aside on the ground of coercion, suicide being
forbidden by the Indian Penal Code. The threat of suicide amounts to coercion within Section 15.
Example 11: An agent refused to give books of accounts to the principal unless he frees him from
all his liabilities. The principal had to give the release deed. Held, the contract was under coercion
by unlawful detaining of the principal’s property.

(II) Undue influence (Section 16)

According to section 16 of the Indian Contract Act, 1872, “A contract is said to be induced by
‘undue influence’ where the relations subsisting between the parties are such that one of the
parties is in a position to dominate the will of the other and he uses that position to obtain an
unfair advantage over the other”.

A person is deemed to be in position to dominate the will of another:

(a) Where he holds a real or apparent authority over the other; or
(b) Where he stands in a fiduciary relationship to the other; or
(c) Where he makes a contract with a person whose mental capacity is temporarily or
permanently affected by reason of age, illness or mental or bodily distress for example, an
old illiterate person.
Example 12: A having advanced money to his son, B, during his minority, upon B’s coming of age
obtains, by misuse of parental influence, a bond from B for a greater amount than the sum due in
respect of the advance. A employs undue influence.
Example 13: A, a man enfeebled by disease or age, is induced by B’s influence over him as his
medical attendant, to agree to pay B an unreasonable sum for his professional services. B
employs undue influence.
Ex. 14: A, being in debt to B, the money-lender of his village, contracts a fresh loan on terms which
appear to be unconscionable. It lies on B to prove that the contract was not induced by undue influence.

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Example 15: A applies to a banker for a loan at a time when there is a stringency in money
market. The banker declines to make the loan except at an unusually high rate of interest. A
accepts the loan on these terms. This is a transaction in the ordinary course of business, and the
contract is not induced by undue influence.

Power to set aside contract induced by undue influence- (Section 19A)

When consent to an agreement is caused by undue influence, the agreement is a contract
voidable at the option of the party whose consent was so caused.
Any such contract may be set aside either absolutely or, if the party who was entitled to avoid it
has received any benefit thereunder, upon such terms and conditions as to the Court may seem
just.
Example 22: A, a money lender advances Rs. 1,00,000 to B, an agriculturist, and by undue influence
induces B to execute a bond for Rs. 2,00,000 with interest at 6 percent per month. The court may
set aside the bond, ordering B to repay Rs. 1,00,000 with such interest as may seem just.
Case study: A student was induced by his teacher to sell his brand-new car to the latter at less
than the purchase price to secure more marks in the examination. Accordingly, the car was sold.
However, the father of the student persuaded him to sue his teacher. State on what ground the
student can sue the teacher?
Yes, the student can sue his teacher on the ground of undue influence under the provisions of
Indian Contract Act, 1872. A contract brought as a result of coercion, undue influence, fraud or
misrepresentation would be voidable at the option of the person whose consent was caused.

(III) Fraud (Section 17)

Definition of Fraud under Section 17: ‘Fraud’ means and includes any of the following acts
committed by a party to a contract, or with his connivance, or by his agent, with an intent to
deceive another party thereto or his agent, or to induce him to enter into the contract:
1. the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. the active concealment of a fact by one having knowledge or belief of the fact;
3. a promise made without any intention of performing it;

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4. any other act fitted to deceive;
5. any such act or omission as the law specially declares to be fraudulent.

Explanation to Section 17
Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not
fraud, unless the circumstances of the case are such that, regard being had to them, it is the
duty of the person keeping silence to speak, or unless his silence is, in itself, equivalent to speech.

Example 23: A sell, by auction, to B, a horse which A knows to be unsound, A says nothing to B
about the unsoundness of the horse. This is not fraud by A.

Example 24: B is A’s daughter and has just come of age. Here, the relation between the parties
would make it A’s duty to tell B if the horse is unsound.

Example 25: B says to A –“If you do not deny it, I shall assume that the horse is sound”. A says
nothing. Here A’s silence is equivalent to speech.

Example 26: A and B being traders, enter into a contract. A has private information of a change
in prices which would affect B’s willingness to proceed with the contract. A is not bound to inform
B.

Effect of Fraud upon validity of a contract:

When the consent to an agreement in caused by the fraud, the contract is voidable at option of
the party defrauded and he has the following remedies:
1. He can rescind the contract within a reasonable time.
2. He can sue for damages.
3. He can insist on the performance of the contract on the condition that he shall be put in the
position in which he would have been had the representation made been true.

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Mere silence is not fraud
A party to the contract is under no obligation to disclose the whole truth to the other party.
‘Caveat Emptor’ i.e. let the purchaser beware is the rule applicable to contracts. There is no duty
to speak in such cases and silence does not amount to fraud. Similarly, there is no duty to disclose
facts which are within the knowledge of both the parties.
Example 27: H sold to W some pigs which were to his knowledge suffering from fever. The pigs
were sold ‘with all faults’ and H did not disclose the fact of fever to W. Held there was no fraud.
[Word vs. Hobbs. (1878)].
Example 28: A sells by auction to B, a horse which A knows to be unsound, A says nothing to B
about the unsoundness of horse. This is not fraud by A.
Silence is fraud when:
1. Duty of person to speak: Where the circumstances of the case are such that it is the duty of
the person observing silence to speak. For example, in contracts of uberrimae fidei (contracts
of utmost good faith).
Following contracts come within this category:
(a) Fiduciary Relationship: Here, the person in whom confidence is reposed is under a duty to
act with utmost good faith and make full disclosure of all material facts concerning the
agreement, known to him.
Example 29: A broker was asked to buy shares for client. He sold his own shares without
disclosing this fact. The client was entitled to avoid the contract or affirm it with a right to
claim secret profit made by broker on the transaction since the relationship between the
broker and the client was relationship of utmost good faith. (Regier V. Campbell Staurt)
(b) Contracts of Insurance: In contracts of marine, fire and life insurance, there is an implied
condition that full disclosure of material facts shall be made, otherwise the insurer is
entitled to avoid the contract.
(c) Contracts of marriage: Every material fact must be disclosed by the parties to a contract
of marriage (Hazi Ahmed v. Abdul Gassi).
(d) Contracts of family settlement: These contracts also require full disclosure of material
facts within the knowledge of the parties.

53
 (e) Share Allotment contracts: Persons issuing ‘Prospectus’ at the time of public issue of
shares/debentures by a joint stock company have to disclose all material facts within their
knowledge.

2. Where the silence itself is equivalent to speech: For example, A says to B “If you do not
deny it, I shall assume that the horse is sound.” A says nothing. His silence amounts to speech.
In case of fraudulent silence, contracts are not voidable if the party whose consent was so
obtained had the means of discovering the truth with ordinary diligence
(Exception to section 19)

(IV) Misrepresentation (Section 18)

Misrepresentation means and includes -
1. the positive assertion, in a manner not warranted by the information of the person making
it, of that which is not true, though he believes it to be true;
2. any breach of duty which, without an intent to deceive, gains an advantage to the person
committing it, or any one claiming under him; by misleading another to his prejudice or to
the prejudice of any one claiming under him;
3. causing, however, innocently, a party to an agreement to make a mistake as to the
substance of the thing which is the subject of the agreement.

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 Difference between Coercion and Undue influence

Basis of difference Coercion Undue Influence

Nature of action It involves the physical force or It involves moral or mental
threat. The aggrieved party is pressure.
compelled to make the contract
against its will.

Involvement of criminal action It involves committing or No such illegal act is committed

threatening to commit and act or a threat is given.
forbidden by Indian Penal Code
or detaining or threatening to
detain property unlawfully.
Relationship between parties It is not necessary that there Some sort of relationship
must be some sort of between the parties is absolutely
relationship between the parties. necessary.

Exercised by whom Coercion need not proceed from Undue influence is always
the promisor nor need it be the exercised between parties to the
directed against the promisor. It contract.
can be used even by a stranger
to the contract.
Enforceability The contract is voidable at the Where the consent is induced by
option of the party whose undue influence, the contract is
consent has been obtained by either voidable or the court may
the coercion. set it aside or enforce it in a
modified form.
Position of benefits received In case of coercion where the The court has the discretion to
contract is rescinded by the direct the aggrieved party to
aggrieved party, as per Section return the
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 Distinction between fraud and misrepresentation

Basis of difference Fraud Misrepresentation

Intention To deceive the other party by There is no such intention to
hiding the truth. deceive the other party.

Knowledge of truth The person making the The person making the
suggestion believes that the statement believes it to be true,
statement as untrue. although it is not true.

Rescission of the The injured party can repudiate The injured party is entitled to
contract and claim for the contract and claim damages. repudiate the contract or sue
damages for restitution but cannot claim
the damages.

Means to discover the The party using the fraudulent Party can always plead that the
truth act cannot secure or protect injured party had the means to
himself by saying that the discover the truth.
injured party had means to
discover the truth.
Legal effects of agreements without free consent - (Section 19)
When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement
is a contract voidable at the option of the party whose consent was so caused.
A party to contract, whose consent was so caused by fraud or misrepresentation may, if he
thinks fit, insist that the contract shall be performed, and that he shall be put in the position in
which he would have been if the representation made had been true.
Exception - If such consent was caused by misrepresentation or by silence, fraudulent within the
meaning of section 17, the contract is not voidable, if the party whose consent was so caused had
the means of discovering the truth with ordinary diligence.

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Explanation to Section 19 - A fraud or misrepresentation which did not cause the consent to a
contract of the party on whom such fraud was practiced, or to whom such misrepresentation
was made, does not render a contract voidable.
Example 34: A, intending to deceive B, falsely represents that 500 maunds of indigo are made
annually at A’s factory, and thereby induces B to buy the factory. The contract is voidable at the
option of B. This is because when consent to an agreement is caused by coercion, fraud or
misrepresentation, the agreement is a contract voidable at the option of the party whose consent
was so caused.
Mistake

Mistake of Law Mistake of Fact

Mistake of Indian Law Bilateral Unilateral

Mistake of Foreign Law Mistake as to Mistake as to possibility Identity of person

subject matter of performance

Quality Legal Character of

written document
existence

Identity

Title

Price

Quantity

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Mistake: Mistake may be defined as innocent or erroneous belief which leads the
party to misunderstand the others. Mistake may be either Bilateral or Unilateral.

Bilateral mistake is when both the parties to a contract are under a mistake.
Unilateral mistake is when only one party to the contract is under a mistake.

Effect of mistake on validity of a contract:

Mistake is some unintentional act, omission or error, arising from unconsciousness, ignorance or
forgetfulness, imposition or misplaced confidence. It may be of two kinds-

Mistake

Mistake of Law Mistake of Fact

It is essential for the creation of a contract that both the parties should agree to the same thing
in the same sense. Thus, if two persons enter into a contract, each of them thinking about a
different subject matter, no contract will arise. As a result, a mistake may lead a contract
towards voidness. Its effect can be broadly studied as under:
(i) Mistake of Law: A mistake of law does not render a contract void as one cannot take excuse
of ignorance of the law of his own country. But if the mistake of law is caused through the
inducement of another, the contract may be avoided. Mistake of foreign law is excusable and is
treated like a mistake of fact. Contract may be avoided on such mistake.
(ii) Mistake of fact: Where the contracting parties misunderstood each other and are at cross
purposes, there is a bilateral or mutual mistake. Where both the parties to an agreement are
under a mistake as to a matter of fact essential to the agreement, the agreement is void.
Example 36: A offers to sell his Ambassador Car to B, who believes that A has only Fiat Car,
agrees to buy the car. Here, the two parties are thinking about different subject matter so
that there is no real consent and the agreement is void.

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 LEGALITY OF OBJECT AND CONSIDERATION
Which considerations and objects are lawful, and those which are not (Section 23):
The consideration or object of an agreement is lawful, unless-
1. It is forbidden by law; or
2. Is of such a nature that, if permitted, it would defeat the provisions of any law; or
3. Is fraudulent; or
4. Involves injury to the person or property of another; or
5. The court regards it as immoral; or
6. Opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every
agreement of which the object or consideration is unlawful is void.
Example 37: A, B and C enter into an agreement for the division among them of gains acquired, or
to be acquired, by them by fraud. The agreement is void, as its object, viz., acquisition of gains by
fraud is unlawful.
Example 38: A promises to B to abandon a prosecution which he had instituted against B for
robbery and B promises in lieu thereof to restore the value of the property robbed. The
agreement is void as its object, namely, the stifling of prosecution, is unlawful.
Section 10 of the Indian Contract Act provides for the legality of consideration and objects
thereto. Section 23 of the Act also states that every agreement of which the object or
consideration is unlawful is void.
The following is an example of the agreement which is void because of unlawful consideration.
Example 39: A promises to obtain for B an employment in the public service and B promises, in
return, to pay Rs.1,00,000 to A. The agreement is void. The consideration, being opposed to public
policy, is unlawful.
Under Section 23 of the Indian Contract Act, in each of the following cases the consideration or
object of an agreement is said to be unlawful:
(i) When consideration or object is forbidden by law: Acts forbidden by law are those which
are punishable under any statute as well as those prohibited by regulations or orders made in
exercise of the authority conferred by the legislature.

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 Example 40: A licence to cut grass is given to X by the Forest Department under the Forest
Act. One of the terms of licence is that the licencee should not assign his interest under the
licence without the permission of the Forest Officer, and a fine is prescribed for a breach of
this condition. But the observance of the conditions of the licence is not obligatory under the
Forest Act. If X in breach of the condition, agrees to assign his interest under the licence to B,
that agreement will be valid. Here, the assignment is not prohibited by law, the condition
against assignment has been imposed only for administrative purpose or solely for the
protection of revenue.
Example 41: A father had arranged for marriage of his 17 years boy and took dowry from the
girl’s parents. Such marriage contract cannot take place as in India the minimum age for boy
marriage is 21 years and dowry is not permissible in Indian law. Such is not a valid contract as
the consideration and object both are forbidden by law.

(ii) When consideration or object defeats the provision of law: The words ‘defeat the provisions
of any law’ must be taken as limited to defeating the intention which the law has expressed.
The court looks at the real intention of the parties to an agreement. If the intention of the
parties is to defeat the provisions of law, the court will not enforce it.
Legislative enactment would be defeated by an agreement by a debtor not to plead limitation,
as the object is to defeat the provisions of the Limitation Act. The Hindu Law is defeated by
an agreement to give son in adoption in consideration of annual allowance to the natural
parents.

(iii) When it is fraudulent: Agreements which are entered into to promote fraud are void. For
example, an agreement for the sale of goods for the purpose of smuggling them out of the
country is void and the price of the goods so sold, cannot be recovered.

(iv) When consideration defeats any rule for the time being in force in India.

(v) When consideration involves injury to the person or property of another: The general term

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 “injury” means criminal or wrongful harm. In the following examples, the object or consideration
is unlawful as it involves injury to the person or property of another.
Example 42: An agreement to print a book in violation of another’s copyright is void, as the
object is to cause injury to the property of another. It is also void as the object of the
agreement is forbidden by the law relating to copyright.
Example 43: A promises to repay his debt by doing manual labour daily for a special period
and agrees to pay interest at an exorbitant rate in case of default. Here A’s promise to repay
by manual labour is the consideration for the loan, and this consideration is illegal as it imposes
what, in substance, amounts to slavery on the part of A. In other words, as the consideration
involves injury to the person A, the consideration is illegal. Here, the object too is illegal, as it
seeks to impose slavery which is opposed to public policy. Hence, the agreement is void.

(vi) When consideration is immoral: The following are the examples of agreements where the
object or consideration is unlawful, being immoral.
Example 44: Where P had advanced money to D, a married woman to enable her to obtain a
divorce from her husband and D had agreed to marry him as soon as she could obtain the
divorce, it was held that P was not entitled to recover the amount, since the agreement had
for its object the divorce of D from her husband and the promise of marriage given under
these circumstances was against good morals.
(vii) When consideration is opposed to public policy: The expression ‘public policy’ can be
interpreted either in a wide or in a narrow sense. The freedom to contract may become
illusory, unless the scope of ‘public policy’ is restricted. In the name of public policy, freedom of
contract is restricted by law only for the good for the community. In law, public policy covers
certain specified topics, e.g., trading with an enemy, stifling of prosecutions, champerty,
maintenance, interference with the course of justice, marriage brokerage, sales of public
offices, etc. Agreements tending to create interest against duty, agreements tending to
create monopolies and agreements not to bid at an auction are also opposed to public policy.
An attempt to enlarge the scope of the doctrine is bound to result in the curtailment of
individual freedom of contract.

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 Agreements opposed to public policy
Some of the agreements which are held to be opposed to public policy are-
1. Trading with enemy: Any trade with person owing allegiance to a Government at war with
India without the licence of the Government of India is void, as the object is opposed to public
policy. Here, the agreement to trade offends against the public policy by tending to prejudice
the interest of the State in times of war.
Example 45: India entered in war like situation with China. Mr. A from India entered into
contract with China for import of toys. Such contract is void as China is alien enemy of India.
The contract if made before such war like situation may be suspended or dissolved. Like India
felt apps like tik tok and PUBG will provide some internal information of the country, hence
such apps were banned and any contract with them were dissolved.

2. Stifling Prosecution: An agreement to stifle prosecution i.e. “an agreement to present

proceedings already instituted from running their normal course using force” tends to be a
perversion or an abuse of justice; therefore, such an agreement is void. The principle is that
one should not make a trade of felony. The compromise of any public offence is generally illegal.
Under the Indian Criminal Procedure Code, there is, however, a statutory list of compoundable
offences and an agreement to drop proceeding relating to such offences with or without the
permission of the Court, as the case may be, in consideration the accused promising to do
something for the complainant, is not opposed to public policy. Thus, where A agrees to sell
certain land to B in consideration of B abstaining from taking criminal proceeding against A
with respect to an offence which is compoundable, the agreement is not opposed to public
policy. But, it is otherwise, if the offence is uncompoundable.

3. Maintenance and Champerty: Maintenance is an agreement in which a person promises to

maintain suit in which he has no interest.
Example 46: A offer B Rs. 2000, if he sues C for a case which they could have settled
mutually under provisions of law, just to annoy C. Such agreement is maintenance agreement.
Champerty is an agreement in which a person agrees to assist another in litigation in-

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 exchange of a promise to hand over a portion of the proceeds of the action.
Example 47: A agrees to pay expenses to B if he sues C and B agrees to pay half of the
amount received from result of such suit. This is an agreement of champerty. The agreement
for supplying funds by way of Maintenance or Champerty is valid unless
(a) It is unreasonable so as to be unjust to other party or
(b) It is made by a malicious motive like that of gambling in litigation or oppressing other party
by encouraging unrighteous suits and not with the bonafide object of assisting a claim
believed to be just.

4. Trafficking relating to Public Offices and titles: An agreement to trafficking in public office
is opposed to public policy, as it interferes with the appointment of a person best qualified for
the service of the public. Public policy requires that there should be no money consideration
for the appointment to an office in which the public is interested. The following are the
examples of agreements that are void; since they are tantamount to sale of public offices.
(1) An agreement to pay money to a public servant in order to induce him to retire from his
office so that another person may secure the appointment is void.
(2) An agreement to procure a public recognition like Padma Vibhushan for reward is void.
Example 48: Harish paid Rs. 15000 to the officer to give his son the job in the Forest
department of India. On failure by officer he couldn’t recover the amount as such contract
amounts to trafficking in public office which is opposed to public policy.

5. Agreements tending to create monopolies: Agreements having for their object the
establishment of monopolies are opposed to public policy and therefore void.
Example 49: XYZ and ABC were only the manufactures of oxygen cylinders in West Bengal.
They both entered into contract of supplying the same at very high rates and enjoy the
monopoly rates during the covid period in the country. Such contract is opposed to public
policy as they intended to create monopolies.

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6. Marriage brokerage agreements: An agreement to negotiate marriage for reward, which is
known as a marriage brokerage contract, is void, as it is opposed to public policy. For instance,
an agreement to pay money to a person hired to procure a wife is opposed to public policy
and therefore void.
Note: Marriage bureau only provides information and doesn’t negotiate marriage for reward,
therefore, it is not covered under this point.

7. Interference with the course of justice: An agreement whose object is to induce any judicial
officer of the State to act partially or corruptly is void, as it is opposed to public policy; so
also is an agreement by A to reward B, who is an intended witness in a suit against A in
consideration of B’s absenting himself from the trial. For the same reasons, an agreement
which contemplates the use of under-hand means to influence legislation is void.

8. Interest against obligation: The following are examples of agreement that are void as they
tend to create an interest against obligation. The object of such agreements is opposed to
public policy.
(1) An agreement by an agent to receive without his principal’s consent compensation from
another for the performance of his agency is invalid.
(2) A, who is the manager of a firm, agrees to pass a contract to X if X pays to A Rs.200,000
privately; the agreement is void.

9. Consideration Unlawful in Part: By virtue of Section 24, if any part of a single consideration
for one or more objects, or any one or any part of any one of several considerations for a
single object, is unlawful, the agreement is void.”
This section is an obvious consequence of the general principle of Section 23. There is no
promise for a lawful consideration if there is anything illegal in a consideration which must be
taken as a whole. The general rule is that where the legal part of a contract can be severed
from the illegal part, the bad part may be rejected and the good one can be retained. But
where the illegal part cannot be severed, the contract is altogether void.

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 VOID AGREEMENTS
Expressly declared Void Agreements
 Made by incompetent parties (Section 11)
 Agreements made under Bilateral mistake of fact (Section 20)
 Agreements the consideration or object of which is unlawful (Section 23)
 Agreement the consideration or object of which is unlawful in parts (Section 24)
 Agreements made without consideration (Section 25)
 Agreement in restraint of marriage (Section 26)
 Agreements in restraint of trade (Section 27)
 Agreement in restraint of legal proceedings (Section 28)
 Agreement the meaning of which is uncertain (Section 29)
 Wagering Agreement (Section 30)
 Agreements to do impossible Acts (Section 56)

1. Agreement in restraint of marriage (Section 26): Every agreement in restraint of marriage

of any person other than a minor, is void. So, if a person, being a major, agrees for good
consideration not to marry, the promise is not binding and considered as void agreement.

2. Agreement in restraint of trade (Section 27): An agreement by which any

person is restrained from exercising a lawful profession, trade or business of any kind, is to that
extent void. .But this rule is subject to the following exceptions, namely, where a person sells the goodwill
of a business and agrees with the buyer to refrain from carrying on a similar business, within
specified local limits, so long as the buyer or his successor in interest carries on a like
business therein, such an agreement is valid (goodwill is the advantage enjoyed by a business
on account of public patronage and encouragement from habitual customers). The local limits
within which the seller of the goodwill agrees not to carry on similar business must be
reasonable. Under Section 36 of the Indian Partnership Act, 1932 if an outgoing partner
makes an agreement with the continuing partners that he will not carry on any business
similar to that of the firm within a specified period or within specified local limits, such an

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 agreement, thought in restraint of trade, will be valid, if the restrictions imposed are
reasonable. Similarly, under Section 11 of that Act an agreement between partners not to
carry on competing business during the continuance of partnership is valid.
But an agreement of service by which an employee binds himself, during the term of his
agreement, not to compete with his employer is not in restraint of trade.

Example 50: B, a physician and surgeon, employs A as an assistant for a term of three years
and A agrees not to practice as a surgeon and physician during these three years. The
agreement is valid and A can be restrained by an injunction if he starts independent practice
during this period.

Example 51: An agreement by a manufacturer to sell during a certain period his entire
production to a wholesale merchant is not in restraint of trade.

Example 52: Agreement among the sellers of a particular commodity not to sell the commodity
for less than a fixed price is not an agreement in restraint of trade.
sale of Goodwill
Statutory Provision Indian Partnership Act, 1932
LLP Act, 2008
Exception to Rule that an Agreement

in Restraint of Trade is Void Trade Combinations

Judicial Interpretations Service Agreements
Sole or Exclusive Dealing
Agreements and Franchise

3. Agreement in restraint of legal proceedings (Section 28): An agreement in

restraint of legal proceeding is the one by which any party thereto is restricted
absolutely from enforcing his rights under a contract through a Court or which abridges the
usual period for starting legal proceedings. A contract of this nature is void.

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 However, there are certain exceptions to the above rule:
(i) A contract by which the parties agree that any dispute between them in respect of any
subject shall be referred to arbitration and that only the amount awarded in such
arbitration shall be recoverable is a valid contract.
(ii) Similarly, a contract by which the parties agree to refer to arbitration any question
between them which has already arisen or which may arise in future, is valid; but such a
contract must be in writing.

4. Agreement - the meaning of which is uncertain (Section 29): An agreement, the meaning of
which is not certain, is void, but where the meaning thereof is capable of being made certain,
the agreement is valid.
Example 53: A agrees to sell B “a hundred tons of oil”. There is nothing whatever to show what
kind of oil was intended. The agreement is void for uncertainty. But the agreement would be
valid if A was dealer only in coconut oil; because in such a case its meaning would be capable
of being made certain.

5. Wagering agreement (Section 30): An agreement by way of a wager is void. It is

an agreement involving payment of a sum of money upon the determination of an
uncertain event. The essence of a wager is that each side should stand to win or lose,
depending on the way an uncertain event takes place in reference to which the chance is taken
and in the occurrence of which neither of the parties has legitimate interest.
Example 54: A agrees to pay Rs. 50,000 to B if it rains, and B promises to pay a like amount to
A if it does not rain, the agreement will be by way of wager. But if one of the parties has
control over the event, agreement is not a wager.
Essentials of a Wager
(1) There must be a promise to pay money or money’s worth.
(2) Promise must be conditional on an event happening or not happening.
(3) There must be uncertainty of event.

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 (4) There must be two parties, each party must stand to win or lose.
(5) There must be common intention to bet at the timing of making such agreement.
(6) Parties should have no interest in the event except for stake.
Transactions similar to Wager (Gambling)
(i) Lottery transactions: A lottery is a game of chance and not of skill or knowledge. Where the
prime motive of participant is gambling, the transaction amounts to a wager. Even if the
lottery is sanctioned by the Government of India it is a wagering transaction. The only effect
of such sanction is that the person responsible for running the lottery will not be punished
under the Indian Penal Code. Lotteries are illegal and even collateral transactions to it are
tainted with illegality (Section 294A of Indian Penal Code).

(ii) Crossword Puzzles and Competitions: Crossword puzzles in which prizes depend upon the
correspondence of the competitor’s solution with a previously prepared solution kept with the
editor of a newspaper is a lottery and therefore, a wagering transaction.
Case Law: State of Bombay vs. R.M.D. Chamarbangwala AIR (1957)
Facts: A crossword puzzle was given in magazine. Abovementioned clause was stated in the
magazine. A solved his crossword puzzle and his solution corresponded with previously
prepared solution kept with the editor. Held, this was a game of chance and therefore a
lottery (wagering transaction).
Crossword puzzles, picture competitions and athletic competitions where prizes are awarded
on the basis of skill and intelligence are the games of skill and hence such competitions are
valid. According to the Prize Competition Act, 1955 prize competitions in games of skill are not
wagers provided the prize money does not exceed Rs. 1,000.

(iii) Speculative transactions: an agreement or a share market transaction where the parties
intend to settle the difference between the contract price and the market price of certain
goods or shares on a specified day, is a gambling and hence void.
(iv) Horse Race Transactions: A horse race competition where prize payable to the bet winner is
less than Rs. 500, is a wager.

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 Example 55: A and B enter into an agreement in which A promises to pay Rs. 2,00,000 provided
‘Chetak’ wins the horse race competition. This is not a wagering transaction.
However, Section 30 is not applicable in an agreement to contribute toward plate, prize or
sum of money of the value of Rs. 500 or above to be awarded to the winner of a horse race.
Transactions resembling with wagering transaction but are not void
(i) Chit fund: Chit fund does not come within the scope of wager (Section 30). In case of a chit
fund, a certain number of persons decide to contribute a fixed sum for a specified period and
at the end of a month, the amount so contributed is paid to the lucky winner of the lucky draw.
(ii) Commercial transactions or share market transactions: In these transactions in which
delivery
of goods or shares is intended to be given or taken, do not amount to wagers.
(iii) Games of skill and Athletic Competition: Crossword puzzles, picture competitions and athletic
competitions where prizes are awarded on the basis of skill and intelligence are the games of
skill and hence such competition are valid. According to the Prize Competition Act, 1955 prize
competition in games of skill are not wagers provided the prize money does not exceed Rs.
1,000.
(iv) A contract of insurance: A contract of insurance is a type of contingent contract and is valid
under law and these contracts are different from wagering agreements.

Distinction between Contract of Insurance and Wagering Agreement

Basis Contracts of Insurance Wagering Agreement

Meaning It is a contract to indemnify the It is a promise to pay money or
loss. money’s worth on the happening
or non- happening of an uncertain
event.

Consideration The crux of insurance contract is There is no consideration between

the mutual consideration (premium the two parties. There is just

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 and compensation amount). gambling for money.

Insurable Interest Insured party has insurable There is no property in case of

interest in the life or property wagering agreement.
sought to be insured. There is betting on other’s life and
properties.
Contract of Indemnity Except life insurance, the contract Loser has to pay the fixed amount
of insurance indemnifies the on the happening of uncertain
insured person against loss. event.

Enforceability It is valid and enforceable It is void and unenforceable

agreement.

Premium Calculation of premium is based on No such logical calculations are

scientific and actuarial calculation required in case of wagering
of risks. agreement.

Public Welfare They are beneficial to the society. They have been regarded as
against the public welfare.

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 UNIT 4
PERFORMANCE OF CONTRACT

OBLIGATIONS OF PARTIES TO CONTRACTS (SECTION 37)

The parties to a contract must either perform, or offer to perform, their respective promises
unless such performance is dispensed with or excused under the provisions of the Contract Act
or of any other law.
Promises bind the representatives of the promisor in case of death of such promisor before
performance, unless a contrary intention appears from the contract.
Example 1: A promises to deliver goods to B on a certain day on payment of Rs. 1,00,000. A die
before that day. A’s representatives are bound to deliver the goods to B, and B is bound to pay
Rs. 1,00,000 to A’s representatives.
Example 2: A promises to paint a picture for B by a certain day, at a certain price. A die before
the day. The contract cannot be enforced either by A’s representatives or by B because it
involves use of personal skill. It is a contract of personal nature.

Actual Performance: Where a party to a contract has done what he had undertaken to do or
either of the parties have fulfilled their obligations under the contract within the time and in the
manner prescribed.
Example 3: X borrows Rs. 5,00,000 from Y with a promise to be paid after 1 month. X repays the
amount on the due date. This is actual performance.
Offer to perform or attempted performance or tender of performance: It may happen
sometimes, when the performance becomes due, the promisor offers to perform his obligation but
the promisee refuses to accept the performance.

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 EFFECT OF REFUSAL TO ACCEPT OFFER OF PERFORMANCE (SECTION 38)

According to Section 38 of the Act - where a promisor has made an offer of performance to the
promisee, and the offer has not been accepted, then the promisor is not responsible for non
performance, nor does he thereby lose his rights under the contract.
Every such offer must fulfill certain conditions which are as follows, namely:
(i) it must be unconditional;
(ii) it must be made at a proper time and place, and under such circumstances that the person to
whom it is made may have a reasonable opportunity of ascertaining that the person by whom
it is made is able and willing there and then to do the whole of what he is bound by his
promise to do;
(iii) if the offer is an offer to deliver anything to the promisee, then the promisee must have a
reasonable opportunity of seeing that the thing offered is the thing which the promisor is
bound by his promise to deliver.
An offer to one of several joint promisees has the same legal consequences as an offer to all of
them.
Example 4: P promises to deliver certain goods to R. P takes the goods to the appointed place
during business hours but R refuses to take the delivery of goods. This is an attempted
performance as P the promisor has done what he was required to do under the contract.

EFFECT OF REFUSAL OF PARTY TO PERFORM WHOLLY (SECTION 39)

Section 39 provides that when a party to a contract has refused to perform or disabled himself
from performing his promise in its entirety the promisee may put an end to the contract unless
he had signified, by words or conduct his acquiescence in its continuance.
Example 5: X, a singer enters into a contract with Y, the manager of a theatre to sing at his
theatres two nights in every week during the next two months, and Y engaged to pay her Rs.
10,000 for each night’s performance. On the sixth night, X willfully absents herself from the
theatre. Y is at liberty to put an end to the contract.

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 BY WHOM A CONTRACT MAY BE PERFORMED (SECTION 40, 41 AND 42)
Person by whom promise is to be performed- Section 40
If it appears from the nature of the case that it was the intention of the parties to any contract
that any promise contained in it should be performed by the promisor himself, such promise must
be performed by the promisor. In other cases, the promisor or his representatives may employ a
competent person to perform it.
Example 6: A promises to pay B a sum of money. A may perform this promise, either by personally
paying the money to B, or by causing it to be paid to B by another; and if A dies before the time
appointed for payment, his representatives must perform the promise, or employ some proper
person to do so.
Example 7: A promises to paint a picture for B and this must be performed by the promisor
himself.

DISTINCTION BETWEEN SUCCESSION AND ASSIGNMENT

Distinction between two legal concepts, viz., succession and assignment may be noted carefully.
When the benefits of a contract are succeeded to by process of law, then both burden and
benefits attaching to the contract, may sometimes devolve on the legal heir. Suppose, a son
succeeds to the estate of his father after his death, he will be liable to pay the debts and
liabilities of his father owed during his life-time. But if the debts owed by his father exceed the
value of the estate inherited by the son then he would not be called upon to pay the excess. In
other words, the liability of the son will be limited to the extent of the property inherited by him.
In the matter of assignment, however the benefit of a contract can only be assigned but not the
liabilities thereunder. This is because when liability is assigned, a third party gets involved therein.
Thus, a debtor cannot relieve himself of his liability to creditor by assigning to someone else his
obligation to repay the debt.
On the other hand, if a creditor assigns the benefit of a promise, he thereby entitles the assignee
to realise the debt from the debtor but where the benefit is coupled with a liability or when a
personal consideration has entered into the making of the contract then the benefit cannot be
assigned.

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 LIABILITY OF JOINT PROMISOR & PROMISEE
Devolution of joint liabilities (Section 42)
When two or more persons have made a joint promise, then, unless a contrary intention appears
by the contract, all such persons, during their joint lives, and, after the death of any of them, his
representative jointly with the survivor or survivors, and, after the death of last survivor, the
representatives of all jointly, must fulfil the promise.
Example 13: X, Y and Z who had jointly borrowed money must, during their life-time jointly repay
the debt. Upon the death of X his representative, say, S along with Y and Z should jointly repay
the debt and so on. If in an accident all the borrowers X, Y and Z dies then their legal
representatives must fulfil the promise and repay the borrowed amount. This rule is applicable
only if the contract reveals no contrary intention.
We have seen that Section 42 deals with voluntary discharge of obligations by joint promisors.
But if they do not discharge their obligation on their own volition, what will happen? This is what
Section 43 resolves.

Any one of joint promisors may be compelled to perform – Section 43

When two or more persons make a joint promise, the promisee may, in the absence of express
agreement to the contrary, compel any one or more of such joint promisors to perform the whole
of the promise.
Each promisor may compel contribution – Each of two or more joint promisors may compel every
other joint promisor to contribute equally with himself to the performance of the promise, unless
a contrary intention appears from the contract.
In other words, if one of the joint promisors is made to perform the whole contract, he can call
for a contribution from others.
Sharing of loss by default in contribution – If any one of two or more joint promisors makes
default in such contribution, the remaining joint promisors must bear the loss arising from such
default in equal shares.
Explanation to Section 43
Nothing in this section shall prevent a surety from recovering, from his principal, payments made

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by the surety on behalf of the principal, or entitle the principal to recover anything from the
surety on account of payment made by the principal.
Example 14: A, B and C jointly promise to pay D Rs. 3,00,000. D may compel either A or B or C to
pay him Rs. 3,00,000.
Example 15: A, B and C are under a joint promise to pay D Rs. 3,00,000. C is unable to pay anything
A is compelled to pay the whole. A is entitled to receive Rs. 1,50,000 from B.
Example 16: X, Y and Z jointly promise to pay Rs. 6,000 to A. A may compel either X or Y or Z to
pay the amount. If Z is compelled to pay the whole amount; X is insolvent but his assets are
sufficient to pay one-half of his debts. Z is entitled to receive Rs. 1,000 from X's estate and Rs.
2,500 from Y.We thus observe that the effect of Section 43 is to make the liability in the event of
a joint contract, both joint & several, in so far as the promisee may, in the absence of a contract
to the contrary, compel anyone or more of the joint promisors to perform the whole of the
promise.

Effect of release of one joint promisor- Section 44

The effect of release of one of the joint promisors is dealt with in Section 44 which is stated
below:
Where two or more persons have made a joint promise, a release of one of such joint promisors
by the promisee does not discharge the other joint promisor or joint promisors, neither does it
free the joint promisors so released from responsibility to the other joint promisor or promisors.
Example 17: ‘A’, ‘B’ and ‘C’ jointly promised to pay Rs. 9,00,000 to ‘D’. ‘D’ released ‘A’ from liability. In
this case, the release of ‘A’ does not discharge ‘B’ and ‘C’ from their liability. They remain liable to
pay the entire amount of Rs. 9,00,000 to ‘D’. And though ‘A’ is not liable to pay to ‘D’, but he
remains liable to pay to ‘B’ and ‘C’ i.e. he is liable to make the contribution to the other joint
promisors.

Rights of Joint Promisees

The law relating to Devolution of joint rights is contained in Section 45 which is reproduced below:
“When a person has made a promise to two or more persons jointly, then unless a contrary

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intention appears from the contract, the right to claim performance rests, as between him and
them, with them during their joint lives, and after the death of any of them, with the
representative of such deceased person jointly with the survivor or survivors, and after the death
of the last survivor, with the representatives of all jointly”.
Example 18: A, in consideration of Rs. 5,00,000 rupees lent to him by B and C, promises B and C
jointly to repay them that sum with interest on a specified day but B dies. In such a case right to
demand payment shall rest with B’s legal representatives, jointly with C during C’s life-time, and
after the death of C, with the legal representatives of B and C jointly.

TIME AND PLACE FOR PERFORMANCE OF THE PROMISE

The law on the subject is contained in Sections 46 to 50 explained below:
(i) Time for performance of promise, where no application is to be made and no time is
specified - Section 46
Where, by the contract, a promisor is to perform his promise without application by the
promisee, and no time for performance is specified, the engagement must be performed within
a reasonable time.
Explanation to Section 46 - The expression reasonable time is to be interpreted having regard
to the facts and circumstances of a particular case.

(ii) Time and place for performance of promise, where time is specified and no application to
be made - Section 47
When a promise is to be performed on a certain day, and the promisor has undertaken to
perform it without application by the promise, the promisor may perform it at any time during
the usual hours of business, on such day and the place at which the promise ought to be
performed.
Example 19: If the delivery of goods is offered say after 8.30 pm, the promisee may refuse to
accept delivery, for the usual business hours are over. Moreover, the delivery must be made at
the usual place of business.

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(iii) Application for performance on certain day to be at proper time and place - Section 48
When a promise is to be performed on a certain day, and the promisor has not undertaken to
perform it without application by the promisee, it is the duty of the promisee to apply for
performance at a proper place and within the usual hours of business.
Explanation to Section 48 states that the question “what is a proper time and place” is, in
each particular case, a question of fact.

(iv) Place for the performance of promise, where no application to be made and no place
fixed for performance - Section 49
When a promise is to be performed without application by the promisee, and no place is fixed
for the performance of it, it is the duty of the promisor to apply to the promisee to appoint a
reasonable place for the performance of the promise, and to perform it at such a place.
Example 20: A undertakes to deliver a thousand maunds of jute to B on a fixed day. A must
apply to B to appoint a reasonable place for the purpose of receiving it, and must deliver it to
him at such place.

(v) Performance in manner or at time prescribed or sanctioned by promisee - Section 50

The performance of any promise may be made in any such manner, or at any time which the
promisee prescribes or sanctions.

PERFORMANCE OF RECIPROCAL PROMISE

The law on the subject is contained in Sections 51 to 58. The provisions thereof are
summarized below:
(i) Promisor not bound to perform, unless reciprocal promise ready and willing to perform-
Section 51
When a contract consists of reciprocal promises to be simultaneously performed, no promisor
needs to perform his promise unless the promisee is ready and willing to perform his
reciprocal promise.
Example 21: A and B contract that A shall deliver the goods to B to be paid for by B on

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 delivery. A need not deliver the goods, unless B is ready and willing to pay for the goods on
delivery.

(ii) Order of performance of reciprocal promises- Section 52

When the order of performance of the reciprocal promises is expressly fixed by the contract,
they shall be performed in that order; and where the order is not expressly fixed by the
contract, they shall be performed in that order which the nature of the transaction requires.
Example 22: A and B contract that A shall build a house for B at a fixed price. A’s promise to
build the house must be performed before B’s promise to pay for it.

(iii) Liability of party preventing event on which the contract is to take effect - Section 53
When a contract contains reciprocal promises, and one party to the contract prevents the
other from performing his promise, the contract becomes voidable at the option of the party
so prevented; and he is entitled to compensation from the other party for any loss he may
sustain in consequence of the non- performance of the contract.
Example 23: A and B contract that B shall execute some work for A for a thousand rupees. B
is ready and willing to execute the work accordingly, but A prevents him from doing so. The
contract is voidable at the option of B; and if he elects to rescind it, he is entitled to recover
from A compensation for any loss which he has incurred by its non-performance.
Example 24: In a contract for the sale of standing timber, the seller is to cut and cord it,
whereupon buyer is to take it away and pay for it. The seller cords only a part of the timber
and neglects to cord the rest. In that event the buyer may avoid the contract and claim
compensation from the seller for any loss which he may have sustained for the non-
performance of the contract.

(iv) Effect of default as to that promise which should be first performed, in contract
consisting of reciprocal promises (Section 54)
When a contract consists of reciprocal promises, such that one of them cannot be performed,
or that its performance cannot be claimed till the other has been performed, and the

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 promisor of the promise last mentioned fails to perform it, such promisor cannot claim the
performance of the reciprocal promise, and must make compensation to the other party to
the contract for any loss which such other party may sustain by the non- performance of the
contract.

(v) Effects of Failure to Perform at a Time Fixed in a Contract in which Time is Essential
(Section 55)
The law on the subject is contained in Section 55 which is reproduced below:
“When a party to a contract promises to do certain thing at or before the specified time, and
fails to do any such thing at or before the specified time, the contract, or so much of it as has
not been performed, becomes voidable at the option of the promisee, if the intention of the
parties was that time should be of essence of the contract”.
Effect of such failure when time is not essential
If it was not the intention of the parties that time should be of essence of the contract, the
contract does not become voidable by the failure to do such thing at or before the specified
time; but the promisee is entitled to compensation from the promisor for any loss occasioned
to him by such failure.
Effect of acceptance of performance at time other than agreed upon -
If, in case of a contract voidable on account of the promisor’s failure to perform his promise
at the time agreed, the promisee accepts performance of such promise at any time other
than agreed, the promisee cannot claim compensation for any loss occasioned by the non-
performance of the promise at the time agreed, unless, at the time of acceptance, he gives
notice to the promisor of his intention to do so.

(vi) Agreement to do Impossible Act

Section 56 contemplates various circumstances under which agreement may be void, since it is
impossible to carry it out. The Section is reproduced below:
“An agreement to do an act impossible in itself is void”.
Contract to do act afterwards becoming impossible or unlawful: A contract to do an act

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 which, after the contract is made, becomes impossible, or, by reason of some event which the
promisor could not prevent, unlawful, becomes void when the act becomes impossible or
unlawful.
Compensation for loss through non-performance of act known to be impossible or unlawful:
where one person has promised to do something which he knew, or, with reasonable diligence,
might have known, and which the promisee did not know, to be impossible or unlawful, such
promisor must make compensation to such promisee for any loss which such promisee sustains
through the non-performance of the promise.
Example 27: A agrees with B to discover treasure by magic. The agreement is void.

(vii) Reciprocal promise to do certain things that are legal, and also some other things that
are illegal- Section 57-
Where persons reciprocally promise, first to do certain things which are legal and secondly,
under specified circumstances, to do certain other things which are illegal, the first set of
promises is a valid contract, but the second is a void agreement.
Example 32: A and B agree that A will sell a house to B for Rs. 500,000 and also that if B uses
it as a gambling house, he will pay a further sum of Rs. 750,000. The first set of reciprocal
promises, i.e. to sell the house and to pay Rs. 500,000 for it, constitutes a valid contract. But the
object of the second, being unlawful, is void.

(viii) ‘Alternative promise’ one branch being illegal- Section 58

The law on this point is contained in Section 58 which says that “In the case of the alternative
promise, one branch of which is legal and the other illegal, the legal branch alone can be
enforced”.
Example 33: A and B agree that A shall pay B Rs. 1,00,000, for which B shall afterwards
deliver to A either rice or smuggled opium.
This is a valid contract to deliver rice, and a void agreement as to the opium.

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 APPROPRIATION OF PAYMENTS
Sometimes, a debtor owes several debts to the same creditor and makes payment,
which is not sufficient to discharge all the debts. In such cases, the payment is appropriated (i.e.
adjusted against the debts) as per Section 59 to 61 of the Indian Contract Act.
(i) Application of payment where debt to be discharged is indicated (Section 59): Where a
debtor, owing several distinct debts to one person, makes a payment to him either with express
intimation or under circumstances implying that the payment is to be applied to the discharge
of some particular debt, the payment, if accepted, must be applied accordingly.

(ii) Application of payment where debt to be discharged is not indicated (Section 60): Where
the debtor has omitted to intimate and there are no other circumstances indicating to which debt

the payment is to be applied the creditor may apply it at his discretion to any lawful debt
actually due and payable to him from the debtor, where its recovery is or is not barred by the
law in force for the time being as to the limitation of suits. However he cannot apply the
payment to the disputed debt.

(iii) Application of payment where neither party appropriates (Section 61): Where neither
party makes any appropriation, the payment shall be applied in discharge of the debts in order of
time, whether they are or are not barred by the law in force for the time being as to the
limitation of suits. If the debts are of equal standing, the payments shall be applied in
discharge of each proportionately.

CONTRACTS, WHICH NEED NOT BE PERFORMED –

WITH THE CONSENT OF BOTH THE PARTIES
Under this heading, we shall discuss the principles of Novation, Rescission and Alteration. The
law is contained in Sections 62 to 67 of the Contract Act.
(i) Effect of novation, rescission, and alteration of contract (Section 62)
“If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it,
the original contract need not be performed”

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(ii) Promisee may waive or remit performance of promise (Section 63): “Every promisee may
dispense with or remit, wholly or in part, the performance of the promise made to him, or may
extend the time for such performance or may accept instead of it any satisfaction which he
thinks fit”. In other words, a contract may be discharged by remission.
Example 35: A owes B Rs.5,00,000. A pays to B, and B accepts, in satisfaction of the whole
debt,Rs. 2,00,000 paid at the time and place at which the Rs. 5,00,000 were payable. The whole
debt is discharged.

(iii) Restoration of Benefit under a Voidable Contract (Section 64)

The law on the subject is “When a person at whose option a contract is voidable rescinds it,
the other party thereto need not perform any promise therein contained in which he is the
promisor. The party rescinding avoidable contract shall, if he has received any benefit
thereunder from another party to such contract, restore such benefit, so far as may be, to
the person from whom it was received”.
Example 36: An insurance company may rescind a policy on the ground that material fact has
not been disclosed. When it does so, the premium collected by it in respect of the policy
reduced by the amount of expenses incurred by it in this connection must be repaid to the
policy holder.

(iv) Obligations of Person who has Received Advantage under Void Agreement or contract
that becomes void (Section 65)
“When an agreement is discovered to be void or when a contract becomes void, any person
who has received any advantage under such agreement or contract is bound to restore it, or
to make compensation for it to the person from whom he received it.”
Example 37: A pays B Rs. 1,00,000, in consideration of B’s promising to marry C, A’s daughter. C
is dead at the time of the promise. The agreement is void, but B must repay A Rs. 1,00,000.
In a case, the plaintiff hired a godown from the defendant for twelve months and paid the
whole of the rent in advance. After about seven months the godown was destroyed by fire,
without any fault or negligence on the part of the plaintiff and the plaintiff claimed a refund

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 of a proportionate amount of the rent. Held, the plaintiff was entitled to recover the rent for
the unexpired term, of the contract.
The Act requires that a party must give back whatever he has received under the contract.
The benefit to be restored under this section must be benefit received under the contract
(and not any other amount). A agrees to sell land to B for Rs. 400,000. B pays to A Rs. 40,000
as a deposit at the time of the contract, the amount to be forfeited by A if B does not
complete the sale within a specified period. B fails to complete the sale within the specified
period, nor is he ready and willing to complete the sale within a reasonable time after the
expiry of that period. A is entitled to rescind the contract and to retain the deposit. The
deposit is not a benefit received under the contract, it is a security that the purchaser would
fulfil his contract and is ancillary to the contract for the sale of the land.

(v) Communication of rescission (Section 66): You have noticed that a contract voidable at the
option of one of the parties can be rescinded; but rescission must be communicated to the
other party in the same manner as a proposal is communicated under Section 4 of the
Contract Act. Similarly, a rescission may be revoked in the same manner as a proposal is
revoked.

(vi) Effects of neglect of promisee to afford promisor reasonable facilities for performance
(Section 67): If any promisee neglects or refuses to afford the promisor reasonable facilities
for the performance of his promise, the promisor is excused by such neglect or refusal as to
any non-performance caused thereby.
Example 38: If an apprentice refuses to learn, the teacher cannot be held liable for not
teaching.
Example 39: A contracts with B to repair B’s house. B neglects or refuses to appoint out to A
the places in which his house requires repair. A is excused for the non-performance of the
contract, if it is caused by such neglect or refusal.

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 DISCHARGE OF A CONTRACT
A contract is discharged when the obligations created by it come to an end. A
contract may be discharged in any one of the following ways:
(i) Discharge by performance: It takes place when the parties to the contract fulfil their
obligations arising under the contract within the time and in the manner prescribed. Discharge
by performance may be
(1) Actual performance; or
(2) Attempted performance.
Actual performance is said to have taken place, when each of the parties has done what he
had agreed to do under the agreement. When the promisor offers to perform his obligation,
but the promisee refuses to accept the performance, it amounts to attempted performance
or tender.
Example 40: A contracts to sell his car to B on the agreed price. As soon as the car is
delivered to B and B pays the agreed price for it, the contract comes to an end by performance.

Example 41: A contracted to supply certain quantity of timber to B. B made the supply of
timber at appointed time and place but A refused to accept the delivery. This is called as
attempted performance.

(ii) Discharge by mutual agreement: Section 62 of the Indian Contract Act provides if the parties
to a contract agree to substitute a new contract for it, or to rescind or remit or alter it, the
original contract need not be performed. The principles of Novation, Rescission, Alteration and
Remission are already discussed.
Example 42: A owes B Rs. 1,00,000. A enters into an agreement with B and mortgage his (A’s),
estates for Rs. 50,000 in place of the debt of Rs. 1,00,000. This is a new contract and
extinguishes the old.
Example 43: A owes B Rs. 5,00,000. A pays to B Rs. 3,00,000 who accepts it in full satisfaction
of the debt. The whole is discharged.

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(iii) Discharge by impossibility of performance: The impossibility may exist from the very start. In
that case, it would be impossibility ab initio. Alternatively, it may supervene. Supervening
impossibility may take place owing to:
(a) an unforeseen change in law;
(b) the destruction of the subject-matter essential to that performance;
(c) the non-existence or non-occurrence of particular state of things, which was naturally
contemplated for performing the contract, as a result of some personal incapacity like
dangerous malady;
(d) the declaration of a war (Section 56).
Example 44: A agrees with B to discover a treasure by magic. The agreement is void due to
initial impossibility.
Example 45: A and B contract to marry each other. Before the time fixed for the marriage, A
goes mad. The contract becomes void.
Example 46: A contracts to act at a theatre for six months in consideration of a sum paid in
advance by B. On several occasions A is too ill to act. The contract to act on those occasions
becomes void.
Example 47: X agrees to sell his horse to Y for Rs. 5,000 but the horse died in an accident.
Here, it become impossible to perform the contract due to destruction of the subject. Thus, a
valid contract changes into void contract because of impossibility of performance.

(iv) Discharge by lapse of time: A contract should be performed within a specified period as
prescribed by the Limitation Act, 1963. If it is not performed and if no action is taken by the
promisee within the specified period of limitation, he is deprived of remedy at law.
Example 48: If a creditor does not file a suit against the buyer for recovery of the price
within three years, the debt becomes time-barred and hence irrecoverable.

(v) Discharge by operation of law: A contract may be discharged by operation of law which
includes by death of the promisor, by insolvency etc.

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(vi) Discharge by breach of contract: Breach of contract may be actual breach of contract or
anticipatory breach of contract. If one party defaults in performing his part of the contract
on the due date, he is said to have committed breach thereof. When on the other hand, a
person repudiates a contract before the stipulated time for its performance has arrived, he is
deemed to have committed anticipatory breach. If one of the parties to a contract breaks the
promise the party injured thereby, has not only a right of action for damages but he is also
discharged from performing his part of the contract.
Example 49: A contracted with B to supply 100 kgs of rice on 1st June. But A failed to deliver
the same on said date. This is actual breach of contract. If time is not essential essence of
contract B can give him another date for supply of goods and he will not be liable to claim for
any damages if prior notice for the same is not given to A while giving another date.

(vii) Promisee may waive or remit performance of promise: Every promisee may dispense with or
remit, wholly or in part, the performance of the promise made to him, or may extend the time
for such performance or may accept instead of it any satisfaction which he thinks fit. In other
words, a contract may be discharged by remission. (Section 63)
Example 50: A owes B Rs. 5,00,000. C pays to B Rs.1,00,000 and B accepts them, in satisfaction
of his claim on A. This payment is a discharge of the whole claim.

(viii)Effects of neglect of promisee to afford promisor reasonable facilities for performance:

If any promisee neglects or refuses to afford the promisor reasonable facilities for the
performance of his promise, the promisor is excused by such neglect or refusal as to any non-
performance caused thereby. (Section 67)
(ix) Merger of rights: Sometimes, the inferior rights and the superior rights coincide and meet in
one and the same person. In such cases, the inferior rights merge into the superior rights. On
merger, the inferior rights vanish and are not required to be enforced.
Example 51: A took a land on lease from B. Subsequently, A purchases that very land. Now, A
becomes the owner of the land and the ownership rights being superior to rights of a lessee,
the earlier contract of lease stands terminated.

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 UNIT 5
BREACH OF CONTRACT AND ITS REMEDIES

ANTICIPATORY BREACH OF CONTRACT

An anticipatory breach of contract is a breach of contract occurring before the time fixed for
performance has arrived. When the promisor refuses altogether to perform his promise and
signifies his unwillingness even before the time for performance has arrived, it is called
Anticipatory Breach.
Anticipatory breach of a contract may take either of the following two ways:
(a) Expressly by words spoken or written, and
(b) Impliedly by the conduct of one of the parties.
Example 1: Where A contracts with B on 15th July, 2020 to supply 10 bales of cotton for a
specified sum on 14th August, 2020 and on 30th July informs B, that he will not be able to supply
the said cotton on 14th August, 2020, there is an express rejection of the contract.
Example 2: Where A agrees to sell his white horse to B for Rs. 50,000/- on 10th of August, 2020,
but he sells this horse to C on 1st of August, 2020, the anticipatory breach has occurred by the
conduct of the promisor.
Section 39 of the Indian Contract Act deals with anticipatory breach of contract and
provides as follows: “When a party to a contract has refused to perform or disable himself from
performing, his promise in its entirety, the promisee may put an end to the contract, unless he has
signified, but words or conduct, his acquiescence in its continuance.”
Effect of anticipatory breach: The promisee is excused from performance or from further
performance. Further he gets an option:
(1) To either treat the contract as “rescinded and sue the other party for damages from breach
of contract immediately without waiting until the due date of performance;
or
(2) He may elect not to rescind but to treat the contract as still operative, and wait for the time
of performance and then hold the other party responsible for the consequences of non-
performance. But in this case, he will keep the contract alive for the benefit of the other

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 party as well as his own, and the guilty party, if he so decides on re-consideration, may still
perform his part of the contract and can also take advantage of any supervening impossibility
which may have the effect of discharging the contract.

ACTUAL BREACH OF CONTRACT

In contrast to anticipatory breach, it is a case of refusal to perform the promise on the
scheduled date. The parties to a lawful contract are bound to perform their respective promises.
But when one of the parties breaks the contract by refusing to perform his promise, he is said to
have committed a breach. In that case, the other party to the contract obtains a right of action
against the one who has refused to perform his promise.
Actual breach of contract may be committed-
(a) At the time when the performance of the contract is due.
Example 3: A agrees to deliver 100 bags of sugar to B on 1st February 2020. On the said day,
he failed to supply 100 bags of sugar to B. This is actual breach of contract. The breach has
been committed by A at the time when the performance becomes due.
(b) During the performance of the contract: Actual breach of contract also occurs when during
the performance of the contract, one party fails or refuses to perform his obligation under it
by express or implied act.
Remedies for Breach of Contract

Suit for Damages

Rescission of Contract

REMEDIES AVAILABLE Suit for specific performance

Suit for Injunction

Suit upon quantum meruit

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 SUIT FOR DAMAGES
Compensation for loss or damage caused by breach of contract (Section 73)
When a contract has been broken, the party who suffers by such a breach is entitled to receive,
from the party who has broken the contract, compensation for any loss or damage caused to him
thereby, which naturally arose in the usual course of things from such breach, or which the
parties knew, when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damage sustained by
reason of the breach.

Compensation for failure to discharge obligation resembling those created by contract: When
an obligation resembling those created by contract has been incurred and has not been
discharged, any person injured by the failure to discharge it is entitled to receive the same
compensation from the party in default, as if such person had contracted to discharge it and had
broken his contract.
Explanation to Section 73
In estimating the loss or damage arising from a breach of contract, the means which existed of
remedying the inconvenience caused by the non-performance of the contract must be taken into
account.
Remedy by way of Damages or Kind of Damages
Remedy by way of damages is the most common remedy available to the injured party. This
entitles the injured party to recover compensation for the loss suffered by it due to the breach
of contract, from the party who causes the breach. Section 73 to 75 of the Contract Act
incorporate the provisions in this regard. The damages which may be awarded to the injured
party may be of the following kinds:
Damages

General / Special Vindictive or Nominal Damages for Pre-fixed

Ordinary Exemplary deterioration damages
caused by delay

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(i) Ordinary damages: When a contract has been broken, the party who suffers by
such breach is entitled to receive, from the party who has broken the contract,
compensation for any loss or damage cause to him thereby, which naturally arose in the usual
course of things from such breach, or which the parties know, when they made the contract, to
be likely to result from the breach of it:
Such compensation is not to be given for any remote and indirect loss or damage sustained by
reasons of the breach. (Section 73 of the Contract Act and the rule in Hadley vs. Baxendale).
HADLEY vs. BAXENDALE- Facts
The crankshaft of P’s flour mill had broken. He gives it to D, a common carrier who promised
to deliver it to the foundry in 2 days where the new shaft was to be made. The mill stopped
working, D delayed the delivery of the crankshaft so the mill remained idle for another 5 days.
P received the repaired crankshaft 7 days later than he would have otherwise received.
Consequently, P sued D for damages not only for the delay in the delivering the broken part
but also for loss of profits suffered by the mill for not having been worked. The count held
that P was entitled only to ordinary damages and D was not liable for the loss of profits
because the only information given by P to D was that the article to be carried was the
broken shaft of a mill and it was not made known to them that the delay would result in loss
of profits.
Example 4: A agrees to sell to B bags of rice at Rs. 5,000 per bag, delivery to be given after
two months. On the date of delivery, the price of rice goes up to Rs. 5,500 per bag. A refuse to
deliver the bags to B. B can claim from A Rs. 500 as ordinary damages arising directly from
the breach.

(ii) Special damages: Where a party to a contract receives a notice of special

circumstances affecting the contract, he will be liable not only for damages arising
naturally and directly from the breach but also for special damages.
Example 5: ‘A’ delivered a machine to ‘B’, a common carrier, to be conveyed to ‘A’s mill without
delay. ‘A’ also informed ‘B’ that his mill was stopped for want of the machine. ‘B’ unreasonably
delayed the delivery of the machine, and in consequence ‘A’ lost a profitable contract with the

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 Government. In this case, ‘A’ is entitled to receive from ‘B’, by way of compensation, the
average amount of profit, which would have been made by running the mill during the period
of delay. But he cannot recover the loss sustained due to the loss of the Government
contract, as ‘A’s contract with the Government was not brought to the notice of ‘B’.

(iii) Vindictive or Exemplary damages

These damages may be awarded only in two cases -
(a) for breach of promise to marry because it causes injury to his or her feelings; and
(b) for wrongful dishonour by a banker of his customer’s cheque because in this case the
injury due to wrongful dishonour to the drawer of cheque is so heavy that it causes loss of
credit and reputation to him. A business man whose credit has suffered will get exemplary
damages even if he has sustained no pecuniary loss. But a non-trader cannot get heavy
damages in the like circumstances, unless the damages are alleged and proved as special
damages. (Gibbons v West Minister Bank)

(iv) Nominal damages: Nominal damages are awarded where the plaintiff has proved
that there has been a breach of contract but he has not in fact suffered any
real damage. It is awarded just to establish the right to decree for the breach of contract. The
amount may be a rupee or even 10 paise.

(v) Damages for deterioration caused by delay: In the case of deterioration caused
to goods by delay, damages can be recovered from carrier even without notice.
The word ‘deterioration’ not only implies physical damages to the goods but it may also mean
loss of special opportunity for sale.

(vi) Pre-fixed damages: Sometimes, parties to a contract stipulate at the time of its
formation that on a breach of contract by any of them, a certain amount will be
payable as damage. It may amount to either liquidated damages (i.e., a reasonable estimate of
the likely loss in case of breach) or a penalty (i.e., an amount arbitrarily fixed as the damages payable).

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 Section 74 provides that if a sum is named in a contract as the amount to be paid in case of
a breach, the aggrieved party is entitled to receive from the party at fault a reasonable
compensation not exceeding the amount so named (Section 74).
Example 6: If the penalty provided by the contract is Rs. 1,00,000 and the actual loss because
of breach is Rs. 70,000, only Rs. 70,000 shall be available as damages, i.e., the amount of actual
loss and not the amount stipulated. But if the loss is, say, Rs. 1,50,000, then only, Rs.1,00,000
shall be recoverable.
Example 7: X promised Y, a priest, to pay Rs. 10,000 as charity. The priest on X’s promise
incurred certain liabilities towards the repairing of the temple to the extent of Rs. 7,500. Y,
the priest, can recover from X Rs. 7,500.

PENALTY AND LIQUIDATED DAMAGES (SECTION 74)

The parties to a contract may provide before hand, the amount of compensation payable in case
of failure to perform the contract. In such cases, the question arises whether the courts will
accept this figure as the measure of damage.

English Law: According to English law, the sum so fixed in the contract may be interpreted either
as liquidated damages or as a penalty.
If the sum fixed in the contract represents a genuine pre-estimate by the parties of the
Indian Law: Indian law makes no distinction between ‘penalty ‘and liquidated damages’. The Courts
in India award only a reasonable compensation not exceeding the sum so mentioned in the
contract. Section 74 of the Contract Act lays down if the parties have fixed what the damages
will be, the courts will never allow more. But the court may allow less. A decree is to be passed
only for reasonable compensation not exceeding the sum named by the parties. Thus, Section 74
entitles a person complaining of breach of contract to get reasonable compensation and does not
entitle him to realise anything by way of penalty.
Exception: Where any person gives any bond to the Central or State government for the
performance of any public duty or act in which the public are interested, on breach of the
condition of any such instrument, he shall be liable to pay the whole sum mentioned therein.

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Example 8: A contracts with B, that if A practices as a surgeon in Kolkata, he will pay B Rs.
50,000. A practice as a surgeon at Kolkata, B is entitled to such compensation not exceeding Rs.
50,000 as the court considers reasonable.
Example 9: A borrows Rs. 10,000 from B and gives him a bond for Rs. 20,000 payable by five
yearly instalments of Rs. 4,000 with a stipulation that in default of payment, the whole shall
become due. This is a stipulation by way of penalty.
Example 10: A undertakes to repay B, a loan of Rs. 10,000 by five equal monthly instalments with a
stipulation that in default of payment of any instalment, the whole shall become due. This
stipulation is not by way of penalty and the contract may be enforced according to its terms.
Distinction between liquidated damages and penalty
Penalty and liquidated damages have one thing in common that both are payable on the
occurrence of a breach of contract. It is very difficult to draw a clear line of
distinction between the two but certain principles as laid down below may be helpful.
1. If the sum payable is so large as to be far in excess of the probable damage on breach, it is
certainly a penalty.
2. Where a sum is expressed to be payable on a certain date and a further sum in the event of
default being made, the latter sum is a penalty because mere delay in payment is unlikely to
cause damage.
3. The expression used by the parties is not final. The court must find out whether the sum fixed
in the contract is in truth a penalty or liquidated damages. If the sum fixed is extravagant or
exorbitant, the court will regard it is as a penalty even if, it is termed as liquidated damages
in the contract.
4. The essence of a penalty is payment of money stipulated as a terrorem of the offending
party. The essence of liquidated damages is a genuine pre-estimate of the damage.
5. English law makes a distinction between liquidated damages and penalty, but no such
distinction is followed in India. The courts in India must ascertain the actual loss and award
the same which amount must not, however exceed the sum so fixed in the contract. The
courts have not to bother about the distinction but to award reasonable compensation not
exceeding the sum so fixed.

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Besides claiming damages as a remedy for the breach of contract, the following remedies
are also available:
(i) Rescission of contract: When a contract is broken by one party, the other party may treat
the contract as rescinded. In such a case he is absolved of all his obligations under the
contract and is entitled to compensation for any damages that he might have suffered.
Example 11: A promises B to deliver 50 bags of cement on a certain day. B agrees to pay the
amount on receipt of the goods. A failed to deliver the cement on the appointed day. B is
discharged from his liability to pay the price.
(ii) Quantum Meruit: Where one person has rendered service to another in circumstances which
indicate an understanding between them that it is to be paid for although no particular
remuneration has been fixed, the law will infer a promise to pay. Quantum Meruit i.e. as much
as the party doing the service has deserved. It covers a case where the party injured by the
breach had at time of breach done part but not all of the work which he is bound to do under
the contract and seeks to be compensated for the value of the work done. For the application
of this doctrine, two conditions must be fulfilled:
(1) It is only available if the original contract has been discharged.
(2) The claim must be brought by a party not in default.
The object of allowing a claim on quantum meruit is to recompensate the party or person for
value of work which he has done. Damages are compensatory in nature while quantum merit
is restitutory. It is but reasonable compensation awarded on implication of a contract to
remunerate. Where a person orders only 12 bottles of a whiskey from a wine merchant but
also receives 2 bottles of brandy, and the purchaser accepts them, the purchaser must pay
a reasonable price for the brandy.
The claim for quantum meruit arises in the following cases:
(a) When an agreement is discovered to be void or when a contract becomes void.
(b) When something is done without any intention to do so gratuitously.
(c) Where there is an express or implied contract to render services but there is no
agreement as to remuneration.
(d) When one party abandons or refuses to perform the contract.

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(e) Where a contract is divisible and the party not in default has enjoyed the benefit of part
performance.
(f) When an indivisible contract for a lump sum is completely performed but badly the person who has
performed the contract can claim the lump sum, but the other party can make a deduction for bad work.

Example 12: X wrongfully revoked Y‘s (his agent) authority before Y could complete his duties.
Held, Y could recover, as a quantum meruit, for the work he had done and the expenses he
had incurred in the course of his duties as an agent.
Example 13: A agrees to deliver 100 bales of cottons to B at a price of Rs.1000 per bale. The
cotton bales were to be delivered in two instalments of 50 each. A delivered the first
instalment but failed to supply the second. B must pay for 50 bags.
(iii) Suit for specific performance: Where damages are not an adequate remedy in the case of
breach of contract, the court may in its discretion on a suit for specific performance direct
party in breach, to carry out his promise according to the terms of the contract.
(iv) Suit for injunction: Where a party to a contract is negating the terms of a contract, the
court may by issuing an ‘injunction orders’, restrain him from doing what he promised not to do.
Example 14: N, a film star, agreed to act exclusively for a particular producer, for one year.
During the year she contracted to act for some other producer. Held, she could be restrained
by an injunction.
Example 15: A, a singer, agreed with B to perform at his theatre for two months, on a
condition that during that period, he would not perform anywhere. In this case, B could move
to the Court for grant of injunction restraining A from performing in other places.
Party rightfully rescinding contract, entitled to compensation (Section 75)
A person who rightfully rescinds a contract is entitled to compensation for any damage which
he has sustained through non-fulfilment of the contract.
Example 16: A, a singer, contracts with B, the manager of a theatre, to sing at his theatre for
two nights in every week during the next two months, and B engages to pay her Rs. 100 for
each night’s performance. On the sixth night, A wilfully absents herself from the theatre, and
B, in consequence, rescinds the contract. B is entitled to claim compensation for the damage
which he has sustained through the non- fulfilment of the contract.

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 UNIT – 6
CONTINGENT AND QUASI CONTRACTS

CONTINGENT CONTRACTS
In this unit, we shall briefly examine what is called a ‘contingent contract’, its essentials and the
rules regarding enforcement of this type of contracts. The Contract Act recognises certain
cases in which an obligation is created without a contract. Such obligations arise out of certain
relations which cannot be called as contracts in the strict sense. There is no offer, no
acceptance, no consensus ad idem and in fact neither agreement nor promise and yet the law
imposes an obligation on one party and confers a right in favour of the other. We shall have a
look on these cases of ‘Quasi-contracts’.
A contract may be absolute or a contingent. An Absolute contract is one where the promisor
undertakes to perform the contract in any event without any condition.
Definition of ‘Contingent Contract’ (Section 31)
“A contract to do or not to do something, if some event, collateral to such contract, does or
does not happen”.
Contracts of Insurance, indemnity and guarantee fall under this category.
Example 1: A contracts to pay B Rs. 1,00,000 if B’s house is burnt. This is a contingent contract.
Example 2: A makes a contract with B to buy his house for Rs. 5,00,000 if he is able to secure to
bank loan for that amount. The contract is contingent contract.
Meaning of collateral Event: Pollock and Mulla defined collateral event as “an event which is
neither a performance directly promised as part of the contract, nor the whole of the
consideration for a promise”.
Example 3: A contracts to pay B Rs. 100,000 if B’s house is burnt. This is a contingent contract.
Here the burning of the B’s house is neither a performance promised as part of the contract nor
it is the consideration obtained from B. The liability of A arises only on the happening of the
collateral event.
Example 4: A agrees to transfer his property to B if her wife C dies. This is a contingent
contract because the property can be transferred only when C dies.

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Essentials of a contingent contract
(a) The performance of a contingent contract would depend upon the happening or non-
happening of some event or condition. The condition may be precedent or subsequent.
Example 5: ‘A’ promises to pay Rs. 50,000 to ‘B’ if it rains on first of the next month.

(b) The event referred to as collateral to the contract. The event is not part of the contract. The
event should be neither performance promised nor a consideration for a promise.
Thus (i) where A agrees to deliver 100 bags of wheat and B agrees to pay the price only
afterwards, the contract is a conditional contract and not contingent; because the event on
which B’s obligation is made to depend is part of the promise itself and not a collateral event.
(ii) Similarly, where A promises to pay B Rs. 1,00,000 if he marries C, it is not a contingent
contract. (iii) ‘A’ agreed to construct a swimming pool for ‘B’ for Rs. 200,000. And ‘B’ agreed to
make the payment only on the completion of the swimming pool. It is not a contingent contract
as the event (i.e. construction of the swimming pool) is directly connected with the contract.

(c) The contingent event should not be a mere ‘will’ of the promisor. The event should be
contingent in addition to being the will of the promisor.
Example 6: If A promises to pay B Rs. 100,000, if he so chooses, it is not a contingent contract.
(In fact, it is not a contract at all). However, where the event is within the promisor’s will but
not merely his will, it may be contingent contract.
Example 7: If A promises to pay B Rs.100,000 if it rains on 1st April and A leave Delhi for
Mumbai on a particular day, it is a contingent contract, because going to Mumbai is an event no
doubt within A’s will, but raining is not merely his will.
(d) The event must be uncertain. Where the event is certain or bound to happen, the contract is
due to be performed, then it is a not contingent contract.
Example 8: ‘A’ agreed to sell his agricultural land to ‘B’ after obtaining the necessary
permission from the collector. As a matter of course, the permission was generally granted on
the fulfilment of certain formalities. It was held that the contract was not a contingent
contract as the grant of permission by the collector was almost a certainty.

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 RULES RELATING TO ENFORCEMENT
The rules relating to enforcement of a contingent contract are laid down in
sections 32, 33, 34, 35 and 36 of the Act.
(a) Enforcement of contracts contingent on an event happening: Where a contract identifies
happening of a future contingent event, the contract cannot be enforced until and unless the
event ‘happens’. If the happening of the event becomes impossible, then the contingent
contract is void.
Section 32 says that “where a contingent contract is made to do or not to do anything if an
uncertain future event happens, it cannot be enforced by law unless and until that event has
happened. If the event becomes impossible, such contracts become void”.
Example 9: A contracts to pay B a sum of money when B marries C. C dies without being
married to B. The Contract becomes void.

(b) Enforcement of contracts contingent on an event not happening: Where a contingent

contract is made contingent on a non-happening of an event, it can be enforced only when it’s
happening becomes impossible. Section 33 says that “Where a contingent contract is made to
do or not do anything if an uncertain future event does not happen, it can be enforced only
when the happening of that event becomes impossible and not before”.
Example 10: Where ‘P’ agrees to pay ‘Q’ a sum of money if a particular ship does not return,
the contract becomes enforceable only if the ship sinks so that it cannot return.
Where A agrees to pay sum of money to B if certain ship does not return however the ship
returns back. Here the contract becomes void.
(c) A contract would cease to be enforceable if it is contingent upon the conduct of a living
person when that living person does something to make the ‘event’ or ‘conduct’ as impossible
of happening.
Section 34 says that “if a contract is contingent upon as to how a person will act at an
unspecified time, the event shall be considered to have become impossible when such person
does anything which renders it impossible that he should so act within any definite time or
otherwise than under further contingencies”.

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 Example 11: Where ‘A’ agrees to pay ‘B’ a sum of money if ‘B’ marries ‘C’. ‘C’ marries ‘D’. This
act of ‘C’ has rendered the event of ‘B’ marrying ‘C’ as impossible; it is though possible if
there is divorce between ‘C’ and ‘D’.
In Frost V. Knight, the defendant promised to marry the plaintiff on the death of his father.
While the father was still alive, he married another woman. It was held that it had become
impossible that he should marry the plaintiff and she was entitled to sue him for the breach
of the contract.
(d) Contingent on happening of specified event within the fixed time: Section 35 says that
Contingent contracts to do or not to do anything, if a specified uncertain event happens
within a fixed time, becomes void if, at the expiration of time fixed, such event has not
happened, or if, before the time fixed, such event becomes impossible.
Example 12: A promises to pay B a sum of money if certain ship returns within a year. The
contract may be enforced if the ship returns within the year, and becomes void if the ship is
burnt within the year.
(e) Contingent on specified event not happening within fixed time: Section 35 also says that -
“Contingent contracts to do or not to do anything, if a specified uncertain event does not
happen within a fixed time, may be enforced by law when the time fixed has expired, and
such event has not happened or before the time fixed has expired, if it becomes certain that
such event will not happen”.
Example 13: A promises to pay B a sum of money if a certain ship does not return within a
year. The contract may be enforced if the ship does not return within the year, or is burnt
within the year.
(f) Contingent on an impossible event (Section 36): Contingent agreements to do or not to do
anything, if an impossible event happens are void, whether the impossibility of the event is
known or not to the parties to the agreement at the time when it is made.
Example 14: ‘A’ agrees to pay ‘B’ Rs.one lakh if sun rises in the west next morning. This is an
impossible event and hence void.
Example 15: X agrees to pay Y Rs.1,00,000 if two straight lines should enclose a space. The
agreement is void.

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 Difference between a contingent contract and a wagering contract

Basis of difference Contingent contract Wagering contract

Meaning A contingent contract is a contract A wagering agreement is a
to do or not to do something with promise to give money or money’s
reference to a collateral event worth with reference to an
happening or not happening. uncertain event happening or not
happening.

Reciprocal promises Contingent contract may not A wagering agreement consists of

contain reciprocal promises. reciprocal promises.

Uncertain event In a contingent contract, the event In a wagering contract, the

is collateral. uncertain event is the core factor.

Nature of contract Contingent contract may not be A wagering agreement is

wagering in nature. essentially contingent in nature.

Interest of Contracting parties have interest The contracting parties have no

contracting parties in the subject matter in contingent interest in the subject matter.
contract.

Doctrine of mutuality Contingent contract is not based A wagering contract is a game,

of lose and gain on doctrine of mutuality of lose and losing and gaining alone matters.
gain.

Effect of contract Contingent contract is valid. A wagering agreement is void.

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 QUASI CONTRACTS
A valid contract must contain certain essential elements, such as offer and acceptance, capacity
to contract, consideration and free consent. But sometimes the law implies a promise imposing
obligations on one party and conferring right in favour of the other even when there is no offer,
no acceptance, no genuine consent, lawful consideration, etc. and in fact neither agreement nor
promise. Such cases are not contract in the strict sense, but the Court recognises them as
relations resembling those of contracts and enforces them as if they were contracts. Hence the
term Quasi –contracts (i.e. resembling a contract). Even in the absence of a contract, certain
social relationships give rise to certain specific obligations to be performed by certain persons.
These are known as quasi contracts as they create same obligations as in the case of regular
contract.
Quasi contracts are based on principles of equity, justice and good conscience.
A quasi or constructive contract rest upon the maxims, “No man must grow rich out of
another person’s loss”.
Example 16: T, a tradesman, leaves goods at C’s house by mistake. C treats the goods as his own.
C is bound to pay for the goods.
Example 17: A pays some money to B by mistake. It is really due to C. B must refund the money to A.
Example 18: A fruit parcel is delivered under a mistake to R who consumes the fruits thinking
them as birthday present. R must return the parcel or pay for the fruits. Although there is no
agreement between R and the true owner, yet he is bound to pay as the law regards it a Quasi-
contract.
These relations are called as quasi-contractual obligations. In India it is also called as
‘certain relation resembling those created by contracts.
Salient features of quasi contracts:
(a) In the first place, such a right is always a right to money and generally, though not always, to
a liquidated sum of money.
(b) Secondly, it does not arise from any agreement of the parties concerned, but is imposed by
the law; and

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(c) Thirdly, it is a right which is available not against all the world, but against a particular
person or persons only, so that in this respect it resembles a contractual right.
Cases Deemed as Quasi – Contracts

Claims for Payment by an Obligation of a Responsibility of Money paid by

necessaries interested person person enjoying finder of goods mistake or under
supplied [ Section 69] benefit of non [Section 71] coercion
[Section 68] gratuitous act [Section 72]
[Section 70]
Under the provisions of the Indian Contract Act, the relationship of quasi contract is deemed to
have come to exist in five different circumstances which we shall presently dilate upon. But it
may be noted that in none of these cases there comes into existence any contract between the
parties in the real sense. Due to peculiar circumstances in which they are placed, the law
imposes in each of these cases the contractual liability.
(a) Claim for necessaries supplied to persons incapable of contracting (Section 68): If a
person, incapable of entering into a contract, or anyone whom he is legally bound to support, is
supplied by another person with necessaries suited to his condition in life, the person who has
furnished such supplies is entitled to be reimbursed from the property of such incapable person.

Example 19: A supplies B, a lunatic, or a minor, with necessaries suitable to his condition in life.
A is entitled to be reimbursed from B’s property.
To establish his claim, the supplier must prove not only that the goods were supplied to the
person who was minor or a lunatic but also that they were suitable to his actual requirements
at the time of the sale and delivery.
(b) Payment by an interested person (Section 69): A person who is interested in the payment of
money which another is bound by law to pay, and who therefore pays it, is entitled to be
reimbursed by the other.
Example 20: B holds land in Bengal, on a lease granted by A, the zamindar. The revenue
payable by A to the Government being in arrear, his land is advertised for sale by the
Government. Under the revenue law, the consequence of the sale will be the annulment of B’s

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 lease. B, to prevent the sale and the consequent annulment of his own lease, pays to the
government the sum due from A. A is bound to make good to B the amount so paid.
(c) Obligation of person enjoying benefits of non-gratuitous act (Section 70): In term of section
70 of the Act “where a person lawfully does anything for another person, or delivers anything to
him not intending to do so gratuitously and such other person enjoys the benefit thereof, the
latter is bound to pay compensation to the former in respect of, or to restore, the thing so
done or delivered”.
It thus follows that for a suit to succeed, the plaintiff must prove:
(i) that he had done the act or had delivered the thing lawfully;
(ii) that he did not do so gratuitously; and
(iii) that the other person enjoyed the benefit.
(iv) The above can be illustrated by a case law where ‘K’ a government servant was compulsorily
(v) retired by the government. He filed a writ petition and obtained an injunction against the
(vi) order. He was reinstated and was paid salary but was given no work and in the meantime
government went on appeal. The appeal was decided in favour of the government and ‘K’ was
directed to return the salary paid to him during the period of reinstatement. [Shyam Lal vs.
State of U.P. A.I.R (1968) 130]
Example 21: A, a tradesman, leaves goods at B’s house by mistake. B treats the goods as his
own. He is bound to pay A for them.
(d) Responsibility of finder of goods (Section 71): ‘A person who finds goods belonging to another
and takes them into his custody is subject to same responsibility as if he were a bailee’.
Thus, a finder of lost goods has:
(i) to take proper care of the property as man of ordinary prudence would take
(ii) no right to appropriate the goods and
(iii) to restore the goods if the owner is found.
(iv) In Hollins vs. Howler L. R. & H. L., ‘H’ picked up a diamond on the floor of ‘F’s shop and handed
(v) over the same to ‘F’ to keep till the owner was found. In spite of the best efforts, the true
owner could not be traced. After the lapse of some weeks, ‘H’ tendered to ‘F’ the lawful
expenses incurred by him and requested to return the diamond to him. ‘F’ refused to do so.

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 Held, ‘F’ must return the diamond to ‘H’ as he was entitled to retain the goods found against
everybody except the true owner.
Example 22: ‘P’ a customer in ‘D’s shop puts down a brooch worn on her coat and forgets to
pick it up and one of ‘D’s assistants finds it and puts it in a drawer over the weekend. On
Monday, it was discovered to be missing. ‘D’ was held to be liable in the absence of ordinary
care which a prudent man would have taken.
(e) Money paid by mistake or under coercion (Section 72): “A person to whom money has been
paid or anything delivered by mistake or under coercion, must repay or return it”.
Every kind of payment of money or delivery of goods for every type of ‘mistake’ is
recoverable. [Shivprasad Vs Sirish Chandra A.I.R. 1949 P.C. 297]
Example 23: A payment of municipal tax made under mistaken belief or because of mis-
understanding of the terms of lease can be recovered from municipal authorities. The above
law was affirmed by Supreme Court in cases of Sales tax officer vs. Kanhaiyalal A. I. R. 1959
S. C. 835
Similarly, any money paid by coercion is also recoverable. The word coercion is not necessarily
governed by section 15 of the Act. The word is interpreted to mean and include oppression,
extortion, or such other means [Seth Khanjelek vs National Bank of India].
In a case where ‘T’ was traveling without ticket in a tram car and on checking he was asked
to pay Rs.5/- as penalty to compound transaction. T filed a suit against the corporation for
recovery on the ground that it was extorted from him. The suit was decreed in his favour.
[Trikamdas vs. Bombay Municipal Corporation A. I. R.1954]
In all the above cases the contractual liability arose without any agreement between the parties.

Difference between quasi contracts and contingent contracts

Basis of distinction Quasi- Contract Contingent- Contract

Essential for the The essentials for the formation of The essentials for the formation of
valid contract a valid contract are absent a valid contract are present
Obligation Imposed by law Created by the consent of the parties

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 CHAPTER 2 THE SALE OF GOODS ACT, 1930

UNIT – 1
FORMATION OF THE CONTRACT OF SALE

Q1. Define contract of sale?

Ans. According to section 4(1),
 A contract of sale of goods is a contract
 whereby the seller transfers or agrees to transfer
 the property in goods
 to the buyer
 for a price
Wider scope: The term “Contract of Sale” broader than the term Sale. It includes “Sale”
and “an Agreement to Sell”. A contract of sale may be absolute or conditional. [Section 4(2]
 Where under a contract of sale  where the transfer of
 the property in the goods  the property in the goods
 is transferred from the seller to the buyer,  is to take place at a future time or subject
 the contract is called a sale [Section 4(3)] to some condition thereafter to be fulfilled,
 the contract is called an agreement to sell.
[Section 4(3)]
 An agreement to sell becomes a sale when
the time elapses or the conditions are
fulfilled subject to which the property in the
goods is to be transferred. [Section 4(4)]

Q2. What are the elements of a contract of sale?

Ans. The essential elements of a contract of sale are :
(i) There must be at least two parties, the seller and the buyer.
(ii) The subject matter of the contract must necessarily be goods covering only movable property.
It may be either existing goods or future goods
(iii) A price in money (not in kind) should be paid or promised But the consideration can be partly in
money and partly in kind.
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 (iv) A transfer of property in goods from seller to the buyer must take place.
(v) A contract of sale may be absolute or conditional.
(vi) All other essential elements of a valid contract must be present in the contract of sale,
e.g. competency of parties, legality of object and consideration etc.

Q3. Define the following terms :

Ans. Goods
“Good means” —
 every kind of movable property
 other than actionable claims and money; and
 includes stock and shares, growing crops, grass, and things attached to or forming part of the
land,
 which are agreed to be severed before sale or under the contract of sale. [Section 2(7)]

Buyer and Seller

 Buyer means a person who buys or agrees to buy goods [Section 2(1)].
 Seller means a person who sells or agrees to sell goods [Section2(13)].

Document of title to goods

Document of title to goods” includes
 bill of lading,
 dock-warrant,
 warehouse keeper’s certificate,
 wharfingers’ certificate,
 railway receipt,
 multimodal transport document,
 warrant or order for the delivery of goods and
 any other document used in the ordinary course of business
 as proof of the possession or control of goods or

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 authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of
the document to transfer or receive goods thereby represented. [Section 2(4)]
A document amounts to a document of title only where it shows an unconditional undertaking to
deliver the goods to the holder of the document.
However, there is a difference between a ‘document showing title’ and ‘document of title’.
A share certificate is a ‘document’ showing title but not a document of title. It merely shows
that the person named in the share certificate is entitled to the share represented by it,
but id does not allow that person to transfer the share mentioned therein by mere
endorsement on the back of the certificate and the delivery of the certificate.

Property [Section 2(11)]

‘Property’ here means ‘ownership’ or general property. In every contract of sale, the ownership of
goods must be transferred by the seller to the buyer, or there should be an agreement by the
seller to transfer the ownership to the buyer. It means the general property (right of owner-ship-
in goods) and not merely a special property.
The general property in a thing may be transferred, subject to the special property continuing to
remain with another person i.e., the pledgee who has a right to retain the goods pledged till
payment of the stipulated dues.
Example: When "A" owns certain Goods, he has general property in the Goods. If it is pledged
with "B", "B" has mere possession or limited interest, i.e. special property and A continues to have a
general property

Mercantile Agent [Section 2(9)]

It means an agent having in the customary course of business as such agent authority either to
sell goods or to consign goods for the purpose of sale or to buy goods or to raise money on the
security of the goods.

Price[Section 2(10)]
Price means the money consideration for a sale of goods.

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Q4. Define Delivery and its various types?
Ans. Delivery means voluntary transfer of possession from one person to another
[Section 2(2)] As a general rule, delivery of goods may be made by doing anything, which has the
effect of putting the goods in the possession of the buyer, or any person authorized to hold them
on his behalf.
TYPES OF DELIVERY

Actual Delivery Constructive Delivery Symbolic delivery

When the goods are physically When it is effected without (i) When there is a delivery of
delivered to the buyer any change in the custody or a thing
actual possession of the thing (ii) in token of a transfer of
as in the case of delivery by something else,
attornment (acknowledgement) (iii) i.e., delivery of goods in the
Ex. : where a warehouseman course of transit may be
holding the goods of A agrees made by handing over
to hold them on behalf of B, at documents of title to goods,
A’s request. like bill of lading or railway
receipt or delivery orders
or the key of a warehouse
containing the goods is
handed over to buyer.

Q5. Distinction between sale and an agreement to sell?

Ans. Basis Sale Agreement to Sale
Transfer of property The property in the goods Property in the goods passes
passes to the buyer to the buyer on future date or
immediately. on fulfilment of some condition.

Nature of contract It is an executed contract. It is an executory contract.

i.e. contract for which i.e. contract for which
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 consideration has been paid. consideration is to be paid at a
future date.

Remedies for breach The seller can sue the buyer The aggrieved party can sue
for the price of the goods for damages only and not for
because of the passing of the the price, unless the price was
property therein to the buyer. payable at a stated date.

Liability of parties A subsequent loss or Such loss or destruction is the

destruction of the goods is the liability of the seller.
liability of the buyer.

Burden of risk Risk of loss is that of buyer Risk of loss is that of seller.
since risk follows ownership.

Nature of rights It creates Jus in rem It creates Jus in personam

Right of resale The seller cannot resell the The seller may sell the goods
goods. since ownership is with the seller.

Q6. The Subject matter of a contract of sale is Good- Comment.

Or
What are the types of goods?
Ans. The subject matter of a contract of sale is always goods.
 The goods which form the subject of a contract of sale may be either existing goods, owned
or possessed by the seller, or future goods. (Section 6)
 There may be a contract for the sale of goods the acquisition of which by the seller depends
upon a contingency which may or may not happen.
 Where by a contract of sale the seller purports to effect a present sale of future goods,
the contract operates as an agreement to sell the goods.
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 The goods are classified into following types:
Existing Goods Future Goods Contingent Goods
Existing goods are such goods Future goods means goods to The acquisition of which by the
as are in existence at the time be manufactured or produced seller depends upon an
of the contract of sale, or acquired by the seller after uncertain contingency
i.e., those owned or possessed making the contract of sale (uncertain event) are called
by the seller at the time of [Section 2 (6)]. A contract for ‘contingent goods’ [Section
contract of sale (Section 6). the sale of future goods is 6(2)]. Contingent goods also
always an agreement to sell. It operate as ‘an agreement to
is never actual sale sell’ and not a ‘sale’

Q7. What are the types of existing goods?

Ans. Existing goods are further classified into:
Specific Goods Ascertained Goods Unascertained Goods
Specific goods means goods Ascertained Goods are those Unascertained goods are the
identified and agreed upon at goods which are identified in goods which are not
the time a contract of sale is accordance with the specifically identified or
made [Section 2(14)]. agreement after the contract ascertained at the time of
of sale is made. In actual making of the contract. They
practice the term ‘ascertained are indicated or defined only
goods’ is used in the same by description or sample.
sense as ‘specific goods.’

Q8. Distinguish between

(a) Sale and Hire purchase
(b) Sale and Bailment
(c) Sale and contract for work and labour

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Ans. Sale and Hire purchase
Basis Sale Hire Purchase

Time of passing property Property in the goods is The property in goods pases
transferred to the buyer to the hirer upon payment of
immediately at the time of the last installment.
contract.

Position of the party The position of the buyer is The position of the hirer is
that of the owner of the goods. that of a bailee till he pays the
last installment.

Termination of contract The buyer cannot terminate The hirer may, if he so likes,
the contract and is bound to terminate the contract by
pay the price of the goods. returning the goods to its
owner without any liability to
pay the remaining installments.

Burden of Risk of insolvency The seller takes the risk of The owner takes no such risk,
of the buyer any loss resulting from the for if the hirer fails to pay an
insolvency of the buyer. installment, the owner has
right to take back the goods.

Transfer of title The buyer can pass a good The hirer cannot pass any title
title to a bona fide purchaser even to a bona fide purchaser.
from him.

Resale The buyer in sale can resell The hire purchaser cannot
the goods resell unless he has paid all
the installments.
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 Sale and Bailment
Basis Sale Bailment

Transfer of property The property in goods is There is only transfer of

transferred from the seller to possession of goods from the
the buyer bailor to the bailee for any of
the reasons .

Return of goods The return of goods in The bailee must return the
contract of sale is not possible. goods to the bailor on the
accomplishment of the purpose
for which the bailment was made.

Consideration The consideration is the price The consideration may be

in terms of money. gratuitous or non-gratuitous.

Sale and contract for work and labour

 A contract of sale of goods is one in which some goods are sold or are to be sold for a price.
 But where not goods are sold, and there is only the doing or rendering of some work of labour,
then the contract is only of work and labour and not of sale of goods

Q9. How contract of sale is made ?

Ans. A contract of sale may be made in any of the following modes:
 Contract of sale is made by an offer to buy or sell goods for a price and acceptance of
such offer.
 There may be immediate delivery of the goods; or
 There may be immediate payment of price, but it may be agreed that the delivery is to be
made at some future date; or
 There may be immediate delivery of the goods and an immediate payment of price; or
 It may be agreed that the delivery or payment or both are to be made in installments; or
 It may be agree that the delivery or payment or both are to be made at some future date
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Q10. What are the consequences of “destruction of goods” under the Sale of Goods Act, 1930, where
the goods have been destroyed after the agreement to sell but before the sale is affected?
Ans. Consequences of destruction of goods —
(a) Goods perishing before making of contract (Section 7):
Where there is a contract for the sale of specific goods, the contract is void if the goods
without the knowledge of the seller have perished or become so damaged as no longer to
answer to their description contract, at the time when the contract was made.
(b) Goods perishing before sale but after agreement to sell (Section 8):
Where there is an agreement to sell specific goods, and subsequently the goods without any
fault on the part of the seller or buyer perish or become so damaged as no longer to answer
to their description in the agreement before the risk passes to the buyer, the agreement is
thereby avoided.

Q11. What are the rules relating to ascertainment of price in a contract of sale ?
Ans. ‘Price’ means the monetary consideration for sale of goods [Section 2 (10)].
By virtue of Section 9, the price in the contract of sale may be
(1) fixed by the contract, or
(2) agreed to be fixed in a manner provided by the contract, e.g., by a valuer, or
(3) determined by the course of dealings between the parties.
Where the price is not determined in accordance with the above provisions, the buyer shall
pay the seller a reasonable price

Agreement to sell at valuation (Section 10):

(1) Where there is an agreement to sell goods on the terms that the price is to be fixed by the
valuation of third party cannot or does not make such valuation, the agreements is thereby
avoided:
Provided that, if the goods or any part thereof have been delivered to, and appropriated by,
the buyer, he shall pay a reasonable price therefore.
(2) Where such third party is prevented from making the valuation by the fault of the seller
or buyer, the party not in fault may maintain a suit for damages against the party in default
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 UNIT – 2
CONDITIONS & WARRANTIES

Q1. Define Condition and Warranty?

Ans. At the time of selling the goods, a seller usually makes certain statements or representations with
a view to induce the intending buyer to purchase the goods. A representation which forms a part
of the contract of sale and affects the con- tract, is called a stipulation.
 Sec. 12(1) : Condition and warranty (Section 12): A stipulation in a contract of sale with
reference to goods which are the subject thereof may be a condition or a warranty.
 Sec. 12(2) : “A condition is a stipulation essential to the main purpose of the contract, the
breach of which gives rise to a right to treat the contract as repudiated”.
 Sec. 12(3) : “A warranty is a stipulation collateral to the main purpose of the contract, the
breach of which gives rise to a claim for damages but not to a right to reject the goods and
treat the contract as repudiated”.
 Sec. 12(4) : Whether a stipulation in a contract of sale is a condition or a warranty depends in
each case on the construction of the contract. A stipulation may be a condition, though called
a warranty in the contract.

Q2. Difference between condition and warranty?

Point of Differences Condition Warranty
Meaning A condition is essential to the It is only collateral to the main
main purpose of the contract. purpose of the contract.
Right in case of breach The aggrieved party can The aggrieved party can claim
repudiate the contract or claim only damages in case of
damages or both in the case of breach of warranty.
breach of condition.
Conversion of stipulations A breach of condition may be A breach of warranty cannot
treated as a breach of be treated as a breach of
warranty. condition.

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 Q3. When a condition can be treated as warranty?
Section 13 specifies cases where a breach of condition be treated as a breach of
warranty. As a result of which the buyer loses his right to rescind the contract and can claim for
damages only.
In the following cases, a contract is NOT avoided even on ac- count of a breach of a condition:
(i) Where the buyer altogether waives the performance of the condition. A party may for his own
benefit waive a condition.
(ii) Where the buyer elects to treat the breach of the conditions, as one of warranty. That is to
say, he may claim only dam- ages instead of repudiating the contract.
(iii) Where the contract is non-severable and the buyer has accepted either the whole goods or
any part thereof. Acceptance means acceptance as envisaged in Section 72 of the Indian
Contract Act, 1872.
(iv) Where the fulfillment of any condition or warranty is excused by law by reason of
impossibility or otherwise.

Q4. Define Express condition and warranty?

Ans. Express conditions are those, which are agreed upon between the parties at the
time of contract and are expressly provided in the contract.
The implied conditions are those which are presumed by law to be present in the contract. It
should be noted that an im- plied condition may be negated or waived by an express agreement.

Q.5. Which conditions are implied in a contract of a sale unless a different intention appears .
Ans. Condition as to title [Section 14(a)]. In every contract of sale, unless there is an
agreement to the contrary, the first implied condition on the part of the seller is that
(a) in case of a sale, he has a right to sell the goods, and
(b) in the case of an agreement to sell, he will have right to sell the goods at the time when the
property is to pass.
Sale by description [Section 15]:
 Where there is a contract of sale of goods by description, there is an implied condition that
the goods shall correspond with the description.

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 This rule is based on the principle that “ if you contract to sell peas, you cannot compel the
buyer to take beans.”
 The buyer is not bound to accept and pay for the goods which are not in accordance with the
description of goods
A sale has been deemed to be by the description
(i) where the class or kind to which the goods belong has been specified,
e.g. ,‘Egyptian cotton’, “ java sugar”, “ Shfleld crockery” etc., and
(ii) where the goods have been described by certain characteristics essential to their
identification, e.g., jute bales of specified shipment, steel of specific dimension etc.

Sale by sample [Section 17]:

In a contract of sale by sample, there is an implied condition that
(a) The bulk shall correspond with the sample in quality;
(b) The buyer shall have a reasonable opportunity of comparing the bulk with the sample,
(c) The goods shall be free from any defect rendering them un- merchantable which would not be
apparent on reasonable examination of the sample.
This condition is applicable only with regard to defects, which could not be discovered by an
ordinary examination of the goods. But if the defects are latent, then the buyer can avoid the contract.

Sale by sample as well as by description [Section 15]:

 Where the goods are sold by sample as well as by description
 the implied condition is that the bulk of the goods supplied shall correspond both with the
sample and the description.
 In case the goods correspond with the sample but do not tally with description or vice versa or
 both, the buyer can repudiate the contract.

Condition as to quality or fitness [Section 16(1)]:

Ordinarily, there is no implied condition as to the quality or fitness of the goods sold for any
However, the condition as to the reasonable fitness of goods for a particular purpose may be
implied if:
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  the buyer had made known to the seller the purpose of his purchase and
 relied upon the skill and judgment of the seller to select the best goods and
 the seller has ordinarily been dealing in those goods.
As a general rule, it is the duty of the buyer to examine the goods thoroughly before he buys
them in order to satisfy himself that the goods will be suitable for his purpose for which he is
buying them

Condition as to Merchantability [Section 16(2)]:

Where goods are bought by description from a seller who deals in goods of that description
(whether he is the manufacturer or producer or not), there is an implied condition that the goods
shall be of merchantable quality.
Provided that, if the buyer has examined the goods, there shall be no implied condition as regards
defects which such examination ought to have revealed.
Goods should be of "Merchantable Quality" if they are in such condition as a man of ordinary
prudence would accept them as Goods of that description. It applies to Goods whether or not the
Goods are sold under a patent or trade name.
Condition as to wholesomeness: In the case of eatables and provisions, in addition to the implied
condition as to merchantability, there is another implied condition that the goods shall be
wholesome.

Q6. Which implied warranties are presumed in a con- tract of sale of goods ?
Ans. It is a warranty which the law implies into the contract of sale. These may also be
excluded by the course of dealings be- tween the parties or by usage of trade (Section 62).
Warranty as to undisturbed possession [Section 14(b)]:
 An implied warranty that the buyer shall have and enjoy quiet possession of the goods.
 That is to say, if the buyer having got possession of the goods, is later on disturbed in his
possession, he is entitled to sue the seller for the breach of the warranty.

Warranty as to non-existence of encumbrances [Section 14(c)]:

 An implied warranty that the goods shall be free from any charge or encumbrance in favourof
117
 of any third party
 not declared or known to the buyer before or at the time the contract is entered into.

Warranty as to quality or fitness by usage of trade [Section 16(3)]:

An implied warranty as to quality or fitness for a particular purpose may be annexed or attached
by the usage of trade.

Disclosure of dangerous nature of goods:

 Where the goods are dangerous in nature and the buyer is ignorant of the danger, the seller
must warn the buyer of the probable danger.
 If there is a breach of warranty, the seller may be liable in damages.

Q7. Define Caveat Emptor. What are the exceptions to the rule “ Caveat Emptor “ ?
Ans. Caveat emptor’ means “let the buyer beware”, i.e. in sale of goods the seller is under
no duty to reveal unflattering truths about the goods sold. Therefore, when a person buys some
goods, he must examine them thoroughly.
It is the duty of the buyer to satisfy himself before buying the goods that the goods will serve the
purpose for which they are being bought. If the goods turn out to be defective or do not serve his
purpose or if he depends on his own skill or judgment, the buyer cannot hold the seller
responsible.
The rule of Caveat emptor is laid down in the Section 16, which states that, “subject to the
provisions of this Act or of any other law for the time being in force, there is no implied warranty
or condition as to the quality or fitness for any particular purpose of goods supplied under a
contract of sale”.
The rule of caveat emptor does not apply in the following cases:
(i) Fitness for buyer’s purpose:
Following are the conditions to be satisfied:
- if the buyer had made known to the seller the purpose of his purchase, and
- the buyer relied on the seller’s skill and judgement, and
- seller’s business is to supply goods of that description
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the seller must supply the goods which shall be fit for the buyer’s purpose. (Section16(1)
Case laws : { Priest vs. last } or { Bombay Burma Trading Corporation ltd. vs. Aga Muhammad }

(ii) Sale under a patent or trade name: In the case of a con- tract for the sale of a specified
article under its patent or other trade name, there is no implied condition that the goods shall
be reasonably fit for any particular purpose (Section 16(1) )

(iii) Merchantable quality: Where goods are bought by description from a seller who deals in
goods of that description (whether he is in the manufacturer or producer or not), there is an
implied condition that the goods shall be of merchantable quality. But if the buyer has
examined the goods, there is no implied condition as regards defects which such examination
ought to have revealed. (Section 16(2) )

(iv) Usage of trade: An implied warranty or condition as to qualify or fitness for a particular
purpose may be annexed by the usage of trade. (Section 16(3)).

(v) Goods sold by description: Where the goods are sold by description there is an implied
condition that the goods shall correspond with the description [Section 15]. If it is not so then
seller is responsible.

(vi) Goods by sample as well as description: Where the goods are bought by sample as well as
description, the rule of Caveat emptor is not applicable in case the goods do not correspond
with both the sample and description or either of the condition [Section 15].

(vii) Consent by fraud: Where the consent of the buyer, in a contract of sale, is obtained by the
seller by fraud or where the seller knowingly conceals a defect which could not be
discovered on a reasonable examination, the doctrine of caveat emptor does not apply.

(viii)Sale by sample: Where the goods are bought by sample, this rule of Caveat emptor does not
apply if the bulk does not correspond with the sample [Section 17].
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 UNIT – 3
TRANSFER OF OWNERSHIP AND DELIVERY OF GOODS

Q1. What are the rules relating to the transfer of ownership of specific goods or ascertained goods ?
Ans. Specific goods means goods identified and agreed upon at the time when a contract
of sale is made. [ Sec. 2(14)]
General rule ( Sec. 19 )
Sec. 19(1): Where there is a contract for the sale of specific or ascertained goods
the property in them is transferred to the buyer at such time as the parties to the contract
intend it to be transferred.
Sec. 19(2): For the purpose of ascertaining the intention of the parties regard shall be
had to the terms of the contract, the conduct of the parties and the circumstances of the case.
Sec. 19(3): Unless a different intention appears, the following rules applies.

Specific goods in a deliverable state (Sec. 20)

 where there is an unconditional contract for the sale of specific goods in a deliverable state,
 the property in the goods passes to the buyer when the contract is made, and
 it is immaterial whether the time of payment of the price or the time of delivery of the goods,
or both, is postponed.

Specific goods to be put into a deliverable state (Sec. 21 )

 Where there is a contract for the sale of specific goods and
 the seller is bound to do something to the goods for the purpose of putting them into a
deliverable state,
 the property does not pass until such thing is done and the buyer has notice thereof.

Specific goods in a deliverable state, when the seller has to do anything there to in order
to ascertain price (Sec. 22)
 Where there is a contract for the sale of specific goods in a deliverable state,
 but the seller is bound to weigh, measure, test or do some other act or thing with reference to
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 the goods
 for the purpose of ascertaining the price,
 the property does not pass until such act or thing is done and the buyer has notice thereof.

Q.2. What are the rules relating to the transfer of ownership of Unascertained good and
future goods?
Ans. Sec.18 — Where there is a contract for the sale of unascertained goods, no property in the
goods is transferred to the buyer unless and until the goods are ascertained.

Sale of unascertained goods and Appropriation:

Appropriation of goods involves selection of goods with the intention of using them in performance
of the contract and with the mutual consent of the seller and the buyer.
The essentials are:
(a) There is a contract for the sale of unascertained or future goods.
(b) The goods should conform to the description and quality stated in the contract.
(c) The goods must be in a deliverable state.
(d) The goods must be unconditionally (as distinguished from an intention to appropriate)
appropriated to the contract either by delivery to the buyer or his agent or the carrier.
(e) The appropriation must be made by:
 the seller with the assent of the buyer; or
 the buyer with the assent of the seller.
(f) The assent may be expressed or implied.
(g) The assent may be given either before appropriation or after appropriation.

Q3. What are the rules relating to the transfer of ownership in case of goods sent on
approval or on “sale or return ” ?
Ans. When goods are delivered to the buyer on approval or “on sale or return” or other similar terms,
the property therein passes to the buyer-
(a) when he signifies his approval or acceptance to the seller or does any other act adopting the
transaction;
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 (b) if he does not signify his approval or acceptance to the seller but retains the goods without
giving notice of rejection, then,
 If a time has been fixed for the return of the goods, on the expiration of such time and
 if no time has been fixed, on the expiration of a reasonable time; or
(c) he does something to the goods which is equivalent to accepting the goods e.g. he pledges or
sells the goods.
 where the goods have been delivered by a person on “sale or return” on the terms that
 the goods were to remain the property of the seller till they are paid for,
 the property therein does not pass to the buyer until the terms are complied with, i.e., cash
is paid for.

Q4. Can a seller reserve the right of disposal of the goods ?

Ans. Sec. 25(1) — Where there is a contract for the sale of specific goods or where
goods are subsequently appropriated to the contract, the seller may reserve the right of disposal
of the goods by the terms of the contract or appropriation.

In such case, the property in the goods does not pass to the buyer until the conditions imposed by
the seller are fulfilled even if the goods have already been delivered to a buyer, or to a carrier or
other bailee for the purpose of transmission to the buyer,

Q5. What are the modes of Reservation of right of disposal of goods?

Ans. Sec. 25(2) —
 Where goods are shipped, or delivered to a railway administration for carriage by railway and
 by the bill of lading or railway receipts, the goods are deliverable to the order of the seller or
his agent,
 the seller is prima facie deemed to reserve the right of disposal.

Sec. 25(3) —
 Where the seller of goods
 draws on the buyer for the price and transmits to the buyer the bill of exchange together
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 with the bill of lading or the railway receipt,
 to secure acceptance or payment of the bill of exchange,
 the ownership of goods will not be transferred to the buyer until the buyer honors the bill of
exchange.
The buyer is bound to return the bill of lading or the railway receipt if he does not honour the bill
of exchange and if he wrongfully retains the bill of lading or the railway receipt, the property in
the goods does not pass to him

Q6. Risk prima facie passes with the property. Comment. ?

Ans. The general rule is that the risk follows ownership. It is the owner of the goods who
has to bear the loss.
Sec. 26: The general rule is, “unless otherwise agreed, the goods remain at the seller’s risk until
the property therein is transferred to the buyer, but when the property therein is transferred to
the buyer, the goods are at the buyer’s risk whether delivery has been made or not”.
However, the parties may by special agreement stipulate that ‘risk’ will pass sometime after or
before the ‘property’ has passed.
The aforesaid rule is, however, subject to two qualifications:
(i) If delivery has been delayed by the fault of the seller or the buyer, the goods shall be at the
risk of the party in default, as regards loss which might not have arisen but for the default.
(ii) The duties and liabilities of the seller or the buyer as bailee of goods for the other party
remain unaffected even when the risk has passed generally.

Q7. “Nemo Dat Quod Non Habet” – “None can give or transfer goods what he does not
himself own.” Explain the rule and state the cases in which the rule does not apply
under the provisions of the Sale of Goods Act, l930 ?
Ans. The term “Nemo Dat Quod Non Habet” means “none can give or transfer goods what he does not
himself own”.
The seller cannot give a better title to the buyer than he him self has .
Exception to the Rule and the cases in which the Rule does not apply under the provisions of the
Sale of Goods Act, 1930 are enumerated below:
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Sale by a Mercantile Agent:
A sale made by a mercantile agent of the goods or document of title to goods would pass a good
title to the buyer in the following circumstances, namely;
(a) if he was in possession of the goods or documents with the consent of the owner;
(b) if the sale was made by him when acting in the ordinary course of business as a mercantile
agent; and
(c) if the buyer had acted in good faith and has at the time of the contract of sale, no notice of
the fact that the seller had no authority to sell. (Proviso to Sec. 27).

Sale by one of the joint owners (Sec. 28):

 If one of the several joint owners of goods has the sole possession of them with the permission
of the others
 the property in the goods may be transferred to any person who buys them from such a joint
owner in good faith and does not at the time of the contract of sale have notice that the
seller has no authority to sell.

Sale by a person in possession under voidable contract:

 A buyer would acquire a good title to the goods sold to him
 by seller who had obtained possession of the goods under a contract voidable on the ground of
coercion, fraud, misrepresentation or undue influence
 provided that the contract had not been rescinded until the time of the sale (Sec. 29).

Sale by one who has already sold the goods but continues in possession thereof:
 If a person has sold goods
 but continues to be in possession of them or of the documents of title to them,
 he may sell them to a third person, and
 if such person obtains the delivery thereof in good faith without notice of the previous sale, he
would have good title to them, although the property in the goods had passed to the first buyer earlier.

A pledge or other deposition of the goods or documents of title by the seller in possession are
equally valid. [Sec. 30(1)]
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 Sale by buyer obtaining possession before the property in the goods has vested in him :
 Where a buyer with the consent of seller
 obtains possession of the goods before the property in them has passed to him,
 he may sell, pledge or otherwise dispose of the goods to a third person, and
 if such person obtains delivery of the goods in good faith and without notice of the lien or
other right of the original seller, he would get a good title to them. [Sec. 30 (2) ]

Sale by an unpaid seller:

 Where an unpaid seller who had exercised his right of lien or stoppage in transit resells the
goods,
 the buyer acquires a good title to the goods as against the original buyer [Sec. 54(3)]

Sale under the provisions of other Act:

 Sale by an official Receiver or liquidator of the company will give the purchaser a valid title.
 Purchase of goods from a finder of goods will get a valid title under circumstances.
Sale by a pawnee under default of pawnor will give valid title to the purchaser

Q8. Define delivery? What are the rules as to delivery ?

Ans. Definition of Delivery [Sec. 2(2)]: Delivery means voluntary transfer of possession
from one person to another.
Payment and delivery are concurrent conditions (Sec. 32)
 Unless otherwise agreed, delivery of the goods and payment of the price are concurrent
conditions,
 that is to say, the seller shall be ready and willing to give possession of the goods to the buyer
in exchange for the price, and the buyer shall be ready and willing to pay the price in
exchange for possession of the goods.

Mode of delivery (Sec. 33)

Delivery must have the effect of putting the goods into the buyer’s on his authorized agent’s
possession.
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Effect of part delivery (Sec. 34 )
 A delivery of part of goods,
 with an intention of giving the delivery of the whole ,
 amounts to the delivery of the whole for the purpose of transfer of ownership of goods.
But
 a delivery of part of the goods,
 with an intention of severing it from the whole,
 does not operate as a delivery of the remainder.

Buyer to apply for delivery (Sec. 35)

Unless otherwise agreed , the seller of goods is not bound to deliver them until the buyer applies
for delivery.

Place of delivery [Sec. 36(1)]

 Where there is a contract as to the place of delivery , the goods are to be delivered at the
agreed place.
 Where there is no contract as to the place of delivery
(a) goods sold are to be delivered at the place at which they are at the time of the sale,
(b) goods agreed to be sold are to be delivered at the place at which they are at the time of
the agreement to sell
(c) in case of future goods , at the place at which they are manufactured or produced.

Time of delivery [Sec. 36(2)]

 Where under the contract of sale
 the seller is bound to send the goods to the buyer within agreed time ,
 but no time for sending them is fixed, the seller is bound to send them within a reasonable time.

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Goods in possession of a third party [Sec. 36(3)]
 Where the goods at the time of sale are in possession of a third person,
 there is no delivery unless and until such third person acknowledges to the buyer that he holds
the goods on his behalf.
 Provided that nothing in this Sec. shall affect the operation of the issue or transfer of any
document of title to goods.

Time for tender of delivery [ Sec. 36(4)].

 Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour.
What is reasonable hour is a question of fact.

Expenses for delivery [Sec. 36(5)]

 The expenses of and incidental to putting the goods into a deliverable state must be borne by
the seller
 in the absence of a contract to the contrary

Instalment deliveries (Sec. 38)

Unless otherwise agreed, the buyer is not bound to accept delivery in instalments.

Delivery to carrier [Sec. 39(1)]

 Subject to the terms of contract, the delivery of the goods to the carrier for transmission to
the buyer,
 is prima facie deemed to be delivery to the buyer.

Deterioration during transit (Sec. 40)

 Where goods are delivered at a distant place,
 the liability for deterioration necessarily incidental to the course of transit will fall on the buyer
 though the seller agrees to deliver at his own risk.

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 Buyer’s right to examine the goods (Sec. 41)
Where goods are delivered to the buyer, who has not previously examined them,
 he is entitled to a reasonable opportunity of examining them in order to ascertain
 whether they are in conformity with the contract.
 Unless otherwise agreed, the seller is bound, on request, to auord the buyer a reasonable
opportunity of examining the goods.

Q9. What are the rules as to delivery of wrong quantity ?

Ans. Delivery of wrong quantity [Section 37]
Sec. 37 (1) — Where the seller delivers to the buyer a quality of goods less than he contracted
to sell,
 the buyer may reject them,
 but if the buyer accepts the goods so delivered he shall pay for them at the contract rate.

Sec. 37 (2) — Where the seller delivers to the buyer a quantity of goods larger than he
contracted to sell,
 the buyer may accept the goods included in the contract and reject the rest, or
 he may reject the whole. If the buyer accepts the whole of the goods so delivered, he shall
pay for them at the contract rate

Sec. 37 (3) — Where the seller delivers to the buyer the goods he contracted to sell mixed with
goods of a different description not included in the contract,
 the buyer may accept the goods which are in accordance with the contract and reject, or
 may reject the whole.

Sec. 37 (4 ) — The provisions of this section are subject to any usage of trade, special
agreement or course of dealing between the parties.

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Ql0. What are the rules as to acceptance of delivery?
Ans. Section 42 : Acceptance is deemed to take place when the buyer-
(a) intimates to the seller that he had accepted the goods; or
(b) does any act to the goods, which is inconsistent with the ownership of the seller; or
(c) retains the goods after the lapse of a reasonable time, without intimating to the seller that he
has rejected them.

Q11. What are the duties and liabilities of buyer in case of refusing to accept the goods ?
Ans. Buyer not bound to return rejected goods (Section 43):
 Unless otherwise agreed,
 where goods are delivered to the buyer and he refuses to accept them,
 he is not bound to return them to the seller,
 but it is suflcient if he intimates to the seller that he refus- es to accept them.

Liability of buyer for neglecting or refusing delivery of goods (Section 44):

 When the seller is ready and willing to deliver the goods and requests the buyer to take
delivery, and
 the buyer does not within a reasonable time take delivery of the goods,
 he is liable to the seller for any loss occasioned by his ne- glect or refusal to take delivery and
 also for a reasonable charge for the care and custody of the goods.
The above section does not affects seller’s right to repudiate the contract where the buyer
neglect or refuses to take delivery.

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 UNIT – 4
UNPAID SELLER

Q1. Define Unpaid Seller?

Ans. According to Section 45(1) of the Sale of Goods Act, 1930 the seller of goods is
deemed to be an ‘Unpaid Seller’ when-
(a) The whole of the price has not been paid or tendered and the seller had an immediate right of
action for the price.
(b) when a bill of exchange or other negotiable instrument has been received as conditional
payment, and the condition on which it was received has not been fulfilled by reason of the
dishonour of the instrument or otherwise.
The term ‘seller ‘ here includes any person who is in the posi- tion of a seller, as, for instance, an
agent of the seller to whom the bill of lading has been endorsed, or a consignor or agent who has
himself paid, or is directly responsible for, the price [Section 45(2)].

Q2. What are the unpaid sellers right against the goods and the buyer ?
Ans. Rights of an unpaid seller [Sec. 46]: The unpaid seller has by implication of law the following rights
Rights of an Unpaid Seller
Against the Goods Against the Buyer
When Property in Goods has passed to the
Buyer -
 Right of Lien on the Goods in his possession,  Right to file a suit for price,
 Right of stoppage of Goods in transit if the Buyer  Right to file a suit for damages, and
becomes insolvent,  Right to file a suit for interest.
 Right of Resale.
When property in Goods has NOT passed to the Buyer-
 In addition to the above 3 remedies, the right of
withholding delivery.

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 Q3. When right of lien can be used by the unpaid seller against the goods?
Ans. Seller’s lien (Section 47): According to sub-section (1), subject to the provisions of
this Act, the unpaid seller of goods who is in possession of them is entitled to retain possession of
them until payment or tender of the price in the following cases, namely:-
(a) where the goods have been sold without any stipulation as to credit;
(b) where the goods have been sold on credit, but the term of credit has expired;
(c) where the buyer becomes insolvent

According to sub-section (2), the seller may exercise his right of lien notwithstanding that he in
possession of the goods as agent or bailee for the buyer.

Part delivery (Section 48): Where an unpaid seller has made part delivery of the goods, he may
exercise his right of lien on the remainder, unless such part delivery has been made under such
circumstances as to show an agreement to waive the lien.

Q4. When right of lien comes to an end?

Or
When right of lien is terminated?
Ans. Termination of lien (Section 49): According to sub-section (1), the unpaid seller of goods loses his
lien in the following circumstances :
(a) when he delivers the goods to a carrier or other bailee for the purpose of transmission to the
buyer without reserving the right of disposal of the goods;
(b) when the buyer or his agent lawfully obtains possession of the goods;
(c) by waiver thereof.
(d) By Estoppel i.e., where the seller so conducts himself that he leads third parties to believe that
the lien does not exist.
Exceptions
The unpaid seller of goods, having a lien thereon, does not lose his lien by reason only that he has
obtained a decree for the price of the goods. [Sub-section (2)]

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Q5. When right of stoppage in transit can be exercised?
Ans. The right of stoppage in transit means the right of stop- ping the goods while they
are in transit, to regain the posses- sion and to retain them till the full price is paid.
When the unpaid seller has parted with the goods to a carrier and the buyer has become
insolvent, he can exercise this right of asking the carrier to return the goods back, or not to
deliver the goods to the buyer.
This right is the extension of the right of lien because it entitles the seller to regain possession
even when the seller has parted with the possession of the goods.
However, the right of stoppage in transit is exercised only when the following conditions are
fulfilled: ( Sec 50 )
(a) The seller must be unpaid.
(b) He must have parted with the possession of goods.
(c) The goods are in transit.
(d) The buyer has become insolvent.
(e) The right is subject to provisions of the Act. [Section 50]
Effect of stoppage:
The contract of sale is not rescinded when the seller exercises his right of stoppage in transit.
The contract still remains in force and the buyer can ask for delivery of goods on payment of
price.

Q6. When goods are deemed to be in Transit? When transit comes to an end?
Or
When right of stoppage of an unpaid seller comes to an end ?
Ans. Duration of Transit ( Sec 51 )
 Goods are deemed to be in the course of transit
 from the time when they are delivered to a carrier or other bailee for the purpose of
transmission to the buyer,
 until the buyer or his agent in that behalf takes delivery of them from such carrier or other
bailee.

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 The right of stoppage in transit is lost when transit comes to an end. Transit comes to an
end in the following cases:
 When the buyer or other bailee obtains delivery.
 Buyer obtains delivery before the arrival of goods at destination.
 Where the carrier or other bailee acknowledges to the buyer or his agent that he holds the
goods as soon as the goods are loaded on the ship, unless the seller has reserved the right of
disposal of the goods.
 If the carrier wrongfully refuses to deliver the goods to the buyer.
 Where goods are delivered to the carrier hired by the buyer, the transit comes to an end.
 Where the part delivery of the goods has been made to the buyer, there the transit will come
to an end for the remaining goods which are yet in the course of transmission.
 Where the goods are delivered to a ship chartered by the buyer, the transit comes to an end.
[section 51]

Q7. How stoppage in transit is executed?

Ans. There are two modes of stoppage in transit-
(a) By taking actual possession of goods
(b) By giving notice to the carrier not to deliver the goods
Where the notice of stoppage in transit is given by the seller to the carrier or other bailee in
possession of the goods, he shall re-deliver the goods to, or according to the directions of, the
seller. The expenses of such re-delivery shall be borne by the seller.

Q8. Difference between Right of lien and Right of stoppage in transit?

Ans. Right of lien Right of stoppage in transit
The essence of a right of lien is to retain The right of stoppage in transit is right to
possession. regain possession.

Seller should be in possession of goods under In stoppage in transit

lien. (i) seller should have parted with the
possession
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 (ii) possession should be with a carrier, &
(iii) buyer has not acquired the possession.
Right of lien can be exercised even when the It is not the case with right of stoppage in x
buyer is not insolvent. buyer is not insolvent.
The end of the right of lien is the starting point Right of stoppage in transit begins when the
of the right of stoppage in transit. right of lien ends.
Q9. When a right of re- sale can be exercised?
Ans. Right of re-sale [Section 54]: The unpaid seller can exercise the right to re-sell the
goods under the following conditions:
(i) Where the goods are of a perishable nature: In such a case the buyer need not be informed
of the intention of resale.
(ii) Where he gives notice to the buyer of his intention to re-sell the goods: If after the receipt
of such notice the buyer fails within a reasonable time to pay or tender the price, the seller
may resell the goods.
It may be noted that in such cases, on the resale of the goods, the seller is also entitled to:
(a) Recover the difference between the contract price and resale price, from the original
buyer, as damages.
(b) Retain the profit if the resale price is higher than the con- tract price.
(iii) A re-sale by the seller where a right of re-sale is expressly reserved in a contract of sale:
Sometimes, it is expressly reserved in a contract of sale: Sometimes, it is expressly agreed
between the seller and the buyer that in case the buyer makes default in payment of the
price, the seller will resell the goods to some other person. In such cases, the seller is said to
have reserved his right of resale, and he may resell the goods on buyer’s default.
It may be noted that in such cases, the seller is not required to give notice of resale. He is entitled
to recover damages from the original buyer even if no notice of resale is given.

Q10. When a right of withholding can be exercised?

Ans. Where the property in goods has not passed to the buyer , the unpaid seller has in
addition to his remedies a right of with- holding delivery of the goods. This right is similar to lien
and is called “quasi-lien”.
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Q11. Explain the rights of an unpaid seller against a buyer?
Ans. Suit for price (Section 55)
Section 55(1) —
 Where under a contract of sale the property in the goods has passed to the buyer and
 the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the
contract,
 the seller may sue him for the price of the goods.
Section 55(2) —
 Where under a contract of sale
 the price is payable on a day certain irrespective of delivery and
 the buyer wrongfully neglects or refuses to pay such price,
 the seller may sue him for the price
 although the property in the goods has not passed and the goods have not been appropriated
to the contract.

Suit for damages for non- acceptance (Section 56)

 Where the buyer wrongfully neglects or refuses to accept and pay for the goods,
 the seller may sue him for damages for non-acceptance.
 As regards measure of damages, Section 73 of the Indian Contract Act, 1872 applies.

Suit for interest [Section 61]

 Where there is specific agreement between the seller and the buyer as to interest on the
price of the goods from the date on which payment becomes due, the seller may recover
interest from the buyer.
 If there is no specific agreement to this effect, the seller may charge interest on the price
when it becomes due from such day as he may notify to the buyer.
 In the absence of a contract to the contrary, the Court may award interest to the seller in a
suit by him at such rate as it thinks fit on the amount of the price from the date of the tender
of the goods or from the date on which the price was payable.
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Q12. Write note on Auction Sale.
AUCTION SALE (SECTION 64)
An ‘Auction Sale’ is a mode of selling property by inviting bids publicly and the property is sold to
the highest bidder. An auctioneer is an agent governed by the Law of Agency. When he sells, he is
only the agent of the seller. He may, however, sell his own property as the principal and need not
disclose the fact that he is so selling.
Legal Rules of Auction sale: Section 64 of the Sale of Goods Act, 1930 provides following rules to
regulate the sale by auction:
(a) Where goods are sold in lots: Where goods are put up for sale in lots, each lot is prima facie
deemed to be subject of a separate contract of sale.
(b) Completion of the contract of sale: The sale is complete when the auctioneer announces its
completion by the fall of hammer or in any other customary manner and until such
announcement is made, any bidder may retract from his bid.
(c) Right to bid may be reserved: Right to bid may be reserved expressly by or on behalf of the
seller and where such a right is expressly reserved, but not otherwise, the seller or any one
person on his behalf may bid at the auction.
(d) Where the sale is not notified by the seller: Where the sale is not notified to be subject to a
right to bid on behalf of the seller, it shall not be lawful for the seller to bid himself or to employ
any person to bid at such sale, or for the auctioneer knowingly to take any bid from the seller
or any such person; and any sale contravening this rule may be treated as fraudulent by the buyer
(e) Reserved price: The sale may be notified to be subject to a reserve or upset price; and
(f) Pretended bidding: If the seller makes use of pretended bidding to raise the price, the sale is
voidable at the option of the buyer.
INCLUSION OF INCREASED OR DECREASED TAXES IN CONTRACT OF SALE (SECTION 64A)
Where after a contract has been made but before it has been performed, tax revision takes
place. Where tax is being imposed, increased, decreased or remitted in respect of any goods
without any stipulations to the payment of tax, the parties would become entitled to read just the
price of the goods accordingly. Following taxes are applied on the sale or purchase of goods:
 Any duty of customs or excise on goods,
 Any tax on the sale or purchase of goods
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 CHAPTER 3 INDIAN PARTNERSHIP ACT, 1932

UNIT – 1
GENERAL NATURE OF PARTNERSHIP
Q. 1 Define partnership, partner and firm?
Ans. Section 4: ‘Partnership’ is the relation between persons who have agreed to share
the profits of a business carried on by all or any of them acting for all.
Persons who have entered into partnership with one another are called individually ‘partners’ and
collectively ‘a firm’, and the name under which their business is carried on is called the ‘firm name’.

Q. 2 What are the essential elements of partnership?

or
What do you mean by mutual agency?
Ans. The following are the essential elements of partnership :
1. Association of two or more persons:
Partnership is an association of two or more persons.
Again, only persons recognized by law can enter into an agreement of partnership. Therefore,
a firm, since it is not a person recognized in the eyes of law cannot be a partner. Again, a
minor cannot be a partner in a firm, but with the consent of all the partners, may be admitted
to the benefits of partnership.
The partnership Act is silent about the maximum number of partners but section 464 of the
Companies Act, 2013 has now put a limit of 50 partners in any association/partnership firm.

2. Agreement:
Partnership must be the result of an agreement between two or more persons. There must be
an agreement, either express or implied , entered into by all the persons concerned. Thus, the
nature of the partnership is voluntary and contractual.

3. Business:
There must exist a business. For the purpose, the term ‘business’ includes every trade,
occupation and profession. The motive of the business is the “acquisition of gains”.

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 4. Agreement to share profits:
The sharing of profits is an essential feature of partnership. Partners must agree to share
the profits in any manner they choose. But an agreement to share losses is not an essential
element.

5. Business carried on by all or any of them acting for all:

 The business must be carried on by all the partners or by anyone or more of the partners
acting for all. This is the cardinal principle of the partnership Law. In other words, there
should be a binding contract of mutual agency between the partners.
 An act of one partner in the course of the business of the firm is in fact an act of all
partners
 He is an agent in so far as he can bind the other partners by his acts and he is a principal
to the extent that he is bound by the act of other partners.
 It may be noted that the true test of partnership is mutual agency rather than sharing of
 profits. If the element of mutual agency is absent, then there will be no partnership.

Q. 3 What is the true test of partnership?

or
What is the mode of existence of partnership?
Ans. Mode of determining existence of partnership (Section 6):
In determining whether a group of persons is or is not a firm, or whether a person is or not a
partner in a firm, regard shall be had to the real relation between the parties, as shown by all
relevant facts taken together.
For determining the existence of partnership, it must be proved.
1. There was an agreement between all the persons concerned
2. The agreement was to share the profits of a business and
3. the business was carried on by all or any of them acting for all.

1. Agreement:
 Partnership is created by agreement and by status (Section 5).
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  The relation of partnership arises from contract and not from status
 So the members of a Hindu Undivided family carrying on a family business as such, or a
Burmese Buddhist husband and wife carrying on business as such are not partners in such
business.

2. Sharing of Profit:
Sharing of profit is an essential element to constitute a partnership. But, it is only a prima
facie evidence and not conclusive evidence, in that regard.
Although the right to participate in profits is a strong test of partnership, and there may be
cases where, upon a simple participation in profits, there is a partnership, yet whether the
relation does or does not exist must depend upon the whole con- tract between the parties.
According to Section 6, regard must be had to the real relation between the parties as shown
by all relevant facts taken together.

3. Agency:
 Existence of Mutual Agency which is the cardinal principal of partnership law, is very much
helpful in reaching a conclusion in this regard.
 Each partner carrying on the business is the principal as well as an agent of other
partners. So, the act of one partner done on behalf of firm, binds all the partners.
 If the elements of mutual agency relationship exist between the parties constituting a
group formed with a view to earn profits by running a business, a partnership may be
deemed to exist.

Q. 4 Difference between
(a) Partnership Vs. Joint Stock company
(b) Partnership Vs. Club
(c) Partnership vs. Hindu Undivided Family
(d) Partnership vs. Co-ownership
(e) Partnership vs. Association

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Ans. (a) Partnership Vs. Joint Stock company
Basis Partnership Joint Stock Company
Legal status A firm is not legal entity i.e., it has no A company is a separate legal
legal personality distinct from the entity distinct from its
personalities of its constituent members (Salomon v. Salomon).
members.

Agency In a firm, every partner is an agent of In a company, a member is not

the other partners, as well as of the an agent of the other
firm. members or of the company,
his actions do not bind either

Distribution of profits The profits of the firm must be There is no such compulsion to
distributed among the partners distribute its profits among its
according to the terms of the members. Some portion
partnership deed. become distributable among
the shareholders only when
dividends are declared.
Extent of liability In a partnership, the liability of the In a company limited by shares,
partners is unlimited. the liability of a shareholder is
This means that each partner is liable limited to the amount, if any,
for debts of a firm incurred in the unpaid on his shares.
course of the business of the firm and In the case of a guarantee
these debts can be recovered from his company, the liability is limited
private property, if the joint estate is to the amount for which he has
insufficient to meet them wholly. agreed to be liable. However,
there may be companies
where the liability of members
is unlimited.

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Property The firm’s property is that which is the In a company, its property is
“joint estate” of all the partners as separate from that of its
distinguished from the ‘separate’ members who can receive it
estate of any of them and it does not back only in the form of
belong to a body distinct in law from its dividends or refund of capital.
members.

Transfer of shares A share in a partnership cannot be In a company a shareholder

transferred without the consent of all may transfer his shares,
the partners. subject to the provisions
contained in its Articles.
In the case of public limited
companies whose shares are
quoted on the stock exchange,
the transfer is usually
unrestricted.

Management In the absence of an express Members of a company are not

agreement to the contrary, all the entitled to take part in the
partners are entitled to participate in management unless they are
the management. appointed as directors, in
which case they may
participate.

Registration Registration is not compulsory in the A company cannot come into

case of partnership. existence unless it is
registered under the
Companies Act, 2013.

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Winding up A partnership firm can be dissolved at A company, being a legal
any time if all the partners agree. person is either wind up by the
National Company Law Tribunal
or its name is struck of by the
Registrar of Companies.

Number of According to section 464 of the A private company may have

membership Companies Act, 2013, the number of as many as 200 members but
partners in any association shall not not less than two and a public
exceed 100. company may have any number
However, the Rule given under the of members but not less than
Companies (Miscellaneous) Rules, 2014 seven. A private Company can
restrict the present limit to 50 also be formed by one person
known as one person
Company.

Duration of existence Unless there is a contract to the A company enjoys a perpetual

contrary, death, retirement or succession.
insolvency of a partner results in the
dissolution of the firm.

(b) Partnership Vs. club

Basis Partnership Club
Definition It is an association of persons formed A club is an association of
for earning profits from a business persons formed with the
carried on by all or any one of them object not of earning profit,
acting for all. but of promoting some
beneficial purposes such as
improvement of health or

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 providing recreation for the
members, etc.

Relationship Persons forming a partnership are Persons forming a club are

called partners and a partner is an called members.
agent for other partners. A member of a club is not the
agent of other members.

Interest in the Partner has interest in the property of A member of a club has no
property the firm. interest in the property of the
club.

Dissolution A change in the partners of the firm A change in the membership of

affect its existence. a club does not affect its
existence.

(c) Partnership Vs. Joint Hindu Family

Basis Partnership Joint Hindu family
Mode of creation Partnership is created necessarily by The right in the joint family is
an agreement. created by status means its
creation by birth in the family.

Death of a member Death of a partner ordinarily leads to The death of a member in the
the dissolution of partnership. Hindu undivided family does not
give rise to dissolution of the
family business.

Management All the partners are equally entitled to The right of management of
take part in the partnership business. joint family business generally

143
 vests in the Karta, the
governing male member or
female member of the family.

Authority to bind Every partner can, by his act, bind the The Karta or the manager, has
firm. the authority to contract for
the family business and the
other members in the family.

Liability In a partnership, the liability of a In a Hindu undivided family, only

partner is unlimited. the liability of the Karta is
unlimited, and the other
coparcener are liable only to
the extent of their share in the
profits of the family business.

Calling for accounts A partner can bring a suit against the On the separation of the joint
on closure firm for accounts, provided he also family, a member is not entitled
seeks the dissolution of the firm. to ask for account of the
family business.

Governing Law A partnership is governed by the Indian A Joint Hindu Family business is
Partnership Act, 1932. governed by the Hindu Law.
Minor’s capacity In a partnership, a minor cannot In HUF business, a minor
become a partner, though he can be becomes a member of the
admitted to the benefits of ancestral business by the
partnership, only with the consent of all incidence of birth. He does not
the partners. have to wait for attaining
majority.

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Continuity A firm subject to a contract between A Joint Hindu family has the
the partners gets dissolved by death continuity till it is divided. The
or insolvency of a partner. status of Joint Hindu family is
not thereby affected by the
death of a member.

Number of Members In case of Partnership number of Members of HUF who carry on

members should not exceed 50. a business may be unlimited in
number

Share in the business In a partnership each partner has a In a HUF, no coparceners has
defined share by virtue of an a definite share. His interest is
agreement between the partners. a fluctuating one. It is capable
of being enlarged by deaths in
the family diminished by births
in the family.

(d) Partnership vs. Co ownership

Basis Partnership Co-ownership
Formation Partnership always arises out of a Co-ownership may arise either
contract, express or implied. from agreement or by the
operation of law, such as by
inheritance.

Implied agency A partner is the agent of the other A co-owner is not the agent of
partners. other co- owners.

Nature of interest There is community of interest which Co-ownership does not

means that profits and losses must necessarily involve sharing of

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 have to be shared. profits and losses.

Transfer of interest A share in the partnership is A co - owner may transfer his

transferred only by the consent of interest or rights in the
other partners. property without the consent
of other co-owners.

(e) Partnership vs. Association

Basis Partnership Association
Meaning Partnership means and involves setting Association evolve out of social
up relation of agency between two or cause where there is no
more persons who have entered into a necessarily motive to earn and
business for gains, with the intention to share profits. The intention is
share the profits of such a business. not to enter in a business for
gains.

Examples Partnership to run a business and earn Members of charitable society

profit thereon. or religious association or an
improvement scheme or
building corporation or a mutual
insurance society or a trade
protection association.

Q. 5 What are the various types of partnership ?

Ans. The various types of partnerships are :
Partnership at will ( Section 7 ):
 Partnership at will is a partnership when:
- no fixed period has been agreed upon for the duration of the partnership; and
- there is no provision made as to the determination of the partnership.

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 But where there is an agreement between the partners either for the duration of the
partnership or for the determination of the partnership, the partnership is not partnership at
will.
 Where a partnership entered into for a fixed term is continued after the expiry of such term,
it is to be treated as having become a partnership at will.
 It may be dissolved by any partner by giving notice in writing to all the other partners of his
intention to dissolve the same.

Partnership for a fixed period:

 Where a provision is made by a contract for the duration of the partnership, the partnership
is called ‘partnership for a fixed period’.
 It is a partnership created for a particular period of time. Such a partnership comes to an
end on the expiry of the fixed period.

Particular partnership:
 A partnership may be organized for the prosecution of a single adventure as well as for the
conduct of a continuous business.
 Where a person becomes a partner with another person in any particular adventure or
undertaking the partnership is called ‘particular partnership’.
A partnership, constituted for a single adventure or undertaking is, subject to any agreement,
dissolved by the completion of the adventure or undertaking.

General partnership:
 Where a partnership is constituted with respect to the business in general, it is called a
general partnership.
 A general partnership is different from a particular partnership.
In the case of a particular partnership the liability of the partners extends only to that particular
adventure or undertaking, but it is not so in the case of general partnership.

147
Q. 6 What are the various types of partners ?
Ans. The various types of partners are:
Active or Actual or Ostensible partner
It is a person
 Who has become a partner by agreement, and
 Who actively participates in the conduct of the partnership.
 He acts as an agent of other partners for all acts done in the ordinary course of business.
 In the event of his retirement, he must give a public notice in order to absolve himself of
liabilities for acts of other partners done after his retirement.

Sleeping or Dormant Partner

It is a person
 Who is a partner by agreement, and
 Who does not actively take part in the conduct of the partnership business.
 They are called as ‘sleeping’ or ‘dormant’ partners.
 They share profits and losses and are liable to the third parties for all acts of the firm. They
are, however not required to give public notice of their retirement from the firm.

Nominal Partner
 A person who lends his name to the firm, without having any real interest in it, is called a
nominal partner.
 He is not entitled to share the profits of the firm. Neither he invest in the firm nor takes part
in the conduct of the business. He is, however liable to third parties for all acts of the firm

Partner in profits only

A partner who is entitled to share the profits only without being liable for the losses is known as
the partner for profits only and also liable to the third parties for all acts of the profits only .

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Incoming partners
 A person who is admitted as a partners into an already existing firm with the consent of all
the existing partners is called as “ incoming partner”.
 Such a partner is not liable for any act of the firm done before his admission as a partner.

Outgoing partner
 A partner who leaves a firm in which the rest of the partners continue to carry on business is
called a retiring or outgoing partner.
 Such a partner remains liable to third parties for all acts of the firm until public notice is given
of his retirement.

Partner by holding out (Sec. 28)

 Partnership by holding out is also known as partnership by estoppel.
 Where a man holds himself out as a partner, or allows others to do it, he is then stopped from
denying the character he has assumed and upon the faith of which creditors may be
presumed to have acted.
 A person may himself, by his words or conduct have induced others to believe that he is a
partner or he may have allowed others to represent him as a partner. The result in both the
cases is identical.
 It is only the person to whom the representation has been made and who has acted thereon
that has right to enforce liability arising out of ‘holding out’.
 The rule given in Section 28 is also applicable to a former partner who has retired from the
firm without giving proper public notice of his retirement. In such cases a person who, even
subsequent to the retirement, give credit to the firm on the belief that he was a partner, will
be entitled to hold him liable.

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Q. 7 Write a short note on Partnership deed?
Ans. Partnership Deed
 Partnership is the result of an agreement. No particular formalities are required for an
agreement of partnership.
 It may be in writing or formed verbally. But it is desirable to have the partnership agreement
in writing to avoid future disputes.
 The document in writing containing the various terms and conditions as to the relationship of
the partners to each other is called the ‘partnership deed’.
 It should be drafted with care and be stamped according to the provisions of the Stamp Act,
1899.
 Where the partnership comprises immovable property, the instrument of partnership must be
in writing, stamped and registered under the Registration Act.
Partnership deed may contain the following information:-
1. Name of the partnership form.
2. Names of all the partners.
3. Nature and place of the business of the firm.
4. Date of commencement of partnership.
5. Duration of the partnership firm.
6. Capital contribution of each partner
7. Profit Sharing ratio of the partners.
8. Admission and Retirement of a partner.
9. Rates of interest on Capital, Drawings and loans.
10. Provisions for settlement of accounts in the case of dissolution of the firm.
11. Provisions for Salaries or commissions, payable to the partners, if any.
12. Provisions for expulsion of a partner in case of gross breach of duty or fraud.

150
 UNIT — 2
RELATION OF PARTNERS

Q. 1 Whether a minor may be admitted in the business of a partnership firm? Explain the
rights and liabilities of a minor during minority in the partnership firm.
Ans. A minor cannot be bound by a contract because a minor’s contract is void and not merely voidable.
Therefore, a minor cannot become a partner in a firm because partnership is founded on a
contract.
Though a minor cannot be a partner in a firm, he can none the- less be admitted to the benefits
of partnership under Section 30 of the Act. When this has been done and it can be done with the
consent of all the partners then the rights and liabilities of such a partner will be governed under
Section 30 as follows :
Rights —
(i) A minor partner has a right to his agreed share of the profits and of the firm.
(ii) He can have access to, inspect and copy the accounts of the firm.
(iii) He can sue the partners for accounts or for payment of his share BUT only when severing his
connection with the firm, and not otherwise.
(iv) On attaining majority he may within 6 months elect to become a partner or not to become a
partner.
- If he elects to become a partner, then he is entitled to the share to which he WAS
ENTITLED as a minor.
- If he does not, then his share is NOT liable for any acts of the firm after the date of the
public notice served to that effect.

Liabilities Before attaining majority —

(a) The liability of the minor is confined only to the EXTENT of his share in the profits and the
property of the firm.
(b) Minor has NO personal liability for the debts of the firm incurred during his minority.
(c) Minor CANNOT BE declared insolvent, but if the firm is declared insolvent his share in the firm
vests in the Official Receiver/Assignee.

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Q. 2 What are the liabilities of a minor after attaining majority ?
Ans. The liabilities of a minor after attaining majority are as follows :
Liabilities After attaining majority
 Within 6 months of his attaining majority or
 on his obtaining KNOWLEDGE that he had been admitted to the benefits of partnership,
 whichever date is LATER ,
 the minor partner has to DECIDE whether he shall remain a partner or leave the firm.

When he elects not to become a partner:

He may give public notice that he has elected NOT TO BECOME partner and such notice shall
determine his position as regards the firm.
(i) His rights and liabilities continue to be those of a minor up to the date of giving public notice.
(ii) His share shall not be liable for any acts of the firm done after the date of the notice.
(iii) He shall be entitled to sue the partners for his share of the property and profits. It may be
noted that such minor shall give notice to the Registrar that he has or has not become a
partner.

When he becomes partner:

If he fails to give such notice he shall become a partner in the firm on the EXPIRY of the said six
months.
If the minor becomes a partner on his OWN willingness or by his FAILURE to give the public
notice within specified time, his rights and liabilities as given in Section 30(7) are as follows:
(i) He becomes personally LIABLE to third parties for all acts of the firm done SINCE he was
admitted to the benefits of partnership.
(ii) His share in the property and the profits of the firm REMAINS THE SAME to which he was
entitled as a minor

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Q. 3 Explain the duties of a partner of a partnership firm?
Ans. The duties of a partner can be divided into two parts
(a) Mandatory duties : these are provided in Section 9 & 10 of the Indian Partnership Act , 1932
which cannot be changed by mutual agreement amongst partners :
Section 9 — The partners should carry business of the firm to the greatest common advantages
and
 to be just and faithful to each other i.e. a partner must observe the utmost good faith in his
dealings with the other partners and
 to render true accounts and full information of all things affecting the firm to any partner or
his legal representative.

SECTION 10 — Duty to indemnify for loss caused by fraud :

 Every partner shall indemnify ( compensate or to make good ) the firm
 for any loss caused to it
 by his fraud in the conduct of the business of the firm.

(b) General duties: The general duties as provided in the Act are subject to the agreement by
partners. These can be changed by an agreement amongst the partners. Unless other- wise
provided , every partner has the following duties :

To attend diligently [ Sec 12 (b) ] —

Every partner is bound to attend diligently ( carefully ) to his duties in the conduct of the business

Not to claim remuneration for taking part [ Sec. 13(a) ]

A partner is not entitled to receive remuneration for taking part in the conduct of the business;

To contribute equally to the losses [ Sec. 13(b) ]

The partners are entitled to share equally in the profits earned, and shall contribute equally to
the losses sustained by the firm;

153
 To indemnify the firm[ Sec. 13(f) ]
A partner shall indemnify the firm for any loss caused to it by his wilfull neglect in the conduct of
business of the firm.
To hold and use firm’s property for business purpose [ Sec 15]
 Subject to contract between the partners,
 the property of the firm shall be held and used by the partners exclusively for the purposes
of the business.

To account for and pay the personal profits from transactions of firm [ Sec 16(a) ]
If a partner derives any profit for himself from
 any transaction of the firm, or
 from the use of the property or
 business connection of the firm or
 the firm name,
he shall account for that profit and pay it to the firm;

To account for and pay the personal profits from competing business [ Sec 16(b)]
If a partner carries on any business of the same nature as and competing with that of the firm,
he shall account for and pay to the firm all profits made by him in that business.

Q. 4 What are the various rights of the partners?

Ans. Unless otherwise agreed , every partner has the following rights :
Right to take part [Sec.12 (a)]
Every partner has a right to take part in the conduct of the business;

Right to express opinion [Sec. 12 (c)]

Every partner shall have the right to express his opinion before the matter is decided. Any
difference arising as to ordinary matters connected with the business may be decided by
MAJORITY of the partners, but no change may be made in the nature of the business without the
consent of ALL partners;
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Right to have access to books [Sec. 12 (d)]
Every partner ,whether active or sleeping ,has a right to have access to and to inspect and copy
any of the books of the firm.
The right must, however, be exercised bona fide.

Right to share profits equally [Sec. 13 (b)]

The partners are entitled to share equally in the profits earned, and shall contribute equally to
the losses sustained by the firm

Right to receive interest on capital [Sec. 13 (c)]

The following elements must be there before a partner can be entitled to interest on moneys
brought by him in the partnership business:
(i) an express agreement to that effect, or practice of the particular partnership or
(ii) any trade custom to that effect; or
(iii) a statutory provision which entitles him to such interest.
Where a partner is entitled to interest on the capital subscribed by him such interest shall be
payable only out of profits.

Right to claim interest on advances [Sec. 13 (d)]

A partner making, any payment or advance beyond the amount of capital he has agreed to
subscribe, is entitled to interest thereon at the rate of six percent per annum;

Right to be indemnified [Section 13 (e)]

Every partner has the right to be indemnified by the firm in respect of payments made and
liabilities incurred by him
(i) in the ordinary and proper conduct of the business of the firm
(ii) in performing an act in an emergency for protecting the firm from any loss, he has acted in a
manner as a person of ordinary prudence would have acted in similar circumstances in his own

155
 Right to prevent introduction of a new partner[Sec. 31 ]
 Subject to contract between the partners and to the provisions of section 30,
 no person shall be introduced as a partner into a firm without the consent of all the existing
partners.

Other Rights
 Right to retire [ Sec. 32 ]
 Right not to be expelled [Sec 33]
 Right to carry on competing business [ Sec. 36(1) ]
 Right to share subsequent profits [ Sec. 37]
 Right to dissolve the partnership [ Sec 40 ]

Q. 5 How a partner can retire from the firm ? what are his rights and duties at/ after retirement ?
Ans. Retirement of partners [ Sec. 31(1)]
A partner may retire:
(a) with the consent of all the other partners;
(b) in accordance with an express agreement by the partners; or
(c) where the partnership is at will, by giving notice in writing to all the other partners of his
intention to retire.

Liabilities of an outgoing partner Sec. 31(3)

 A retiring partner CONTINUES to be liable to third party for acts of the firm after his
retirement
 until public notice of his retirement has been given
 But the retired partner will NOT be liable to any third party if the latter deals with the firm
without knowing that the former was partner.

156
Sec. 31( 2) —As regards the liability for acts of the firm done BEFORE his retirement,
 the retiring partner remains liable for the same,
 UNLESS there is an agreement made by him with the third party concerned and the partners
of the reconstituted firm.
 Such an agreement may be implied by a course of dealings between the third party and the
reconstituted firm after he had knowledge of the retirement.
 Notices under sub-section (3) may be given by the retired partner or by any partner of the
reconstituted firm.

Rights of an outgoing partner

Sec. 36 : Right to carry on competing business
 An outgoing partner may carry on business competing with that of the firm and he may
advertise such business, but unless otherwise agreed , he cannot,
(a) use the firm name,
(b) represent himself as carrying on the business of the firm or
(c) solicit the custom of persons who were dealing with the firm before he ceased to be a
partner.
EXCEPTION —
 However, the partner may agree with his partners that on his ceasing to be so,
 he will not carry on a business similar to that of the firm within a specified period or within
specified local limits.
 Such an agreement will not be in restraint of trade if the restraint is reasonable [Section
36(2)].
 A similar rule applies to such an agreement of sale of the firm’s goodwill [Section 53(3)].

Sec. 37 : Right to share subsequent profits :

 Section 37 deals with rights of outgoing partners and a liability of the surviving or continuing
partner,

157
  who without a settlement of accounts with legal representatives of the deceased partner
utilizes the assets of partnership for continuing the business.
 A retiring partner at his option ,is entitled to claim either of the following :
(a) such share of the profits made since he ceased to be a partner as may be attributable to
the use of his share of the property of the firm or
(b) to interest at the rate of six per cent per annum on the amount of his share in the
property of the firm.
 However if the surviving or continuing partners purchases the interest of a deceased or
outgoing partner , then the outgoing partner or his estate, is not entitled to any further or
other share of profit.

O
Q. 6 The relation of partners with third parties are governed by the mutual agency
relationship existing among the partners. Comment
Is the firm liable for all the acts of a partner due to mutual agency relationship. Comment.
Ans. A partnership is the relationship between the partners who have agreed to share the profits of
the business carried on by all or any of them acting for all (Section 4). This definition suggests
that any of the partners can be the agent of the others. Section 18 clarifies this position by
providing that, subject to the provisions of the Act, a partner is the agent of the firm for the
purpose of the business of the firm.
The partner indeed virtually embraces the character of BOTH a principal and an agent.
So far as he acts for himself and in his own interest in the common concern of the partnership,
he may properly be deemed a principal and so far as he acts for his partners, he may properly
be deemed as an agent.
The rule that a partner is the agent of the firm for the purpose of the business of the firm
CANNOT be applied to all transactions and dealings between the partners themselves.
It is applicable only to the act done by partners for the purpose of the business of the firm.

Q. 7 Define implied authority ?

v ur soy
Ans. Implied authority of partner as agent of the firm (section 19):
Subject to the provisions of section 22, the act of a partner which is done to carry on, business
158
 of the kind carried on by the firm, in the usual way , binds the firm.
The authority of a partner to bind the firm conferred by this section is called his “implied
authority”.
Sections 19(1) and 22 deal with the implied authority of a partner. The impact of these Sections is
that
 the act of a partner which is done to carry on, in the usual way,
 in the usual way,
 business of the kind carried on by the firm
 binds the firm,
 provided that the act is done in the firm name, or any manner expressing or implying an
intention to bind the firm.
 Such an authority of a partner to bind the firm is called his implied authority.
It is however subject to the following restrictions:
1. The act done must relate to the usual business of the firm, that is, within the scope of his
authority and related to the normal business of the firm.
2. The act is such as is done for normal conduct of business of the firm. [Section 19(1)].
3. The act to be done in the FIRM’S NAME or in any other manner expressing or implying an
intention to bind the firm (Section 22).

Q. 8 What are the restrictions on the implied authority of a partner ?

Ans. In the absence of any usage or custom of trade to the contrary, the implied
authority of a Partner does not empower him to-
(a) Submit a dispute relating to the business of the firm to arbitration;
(b) Open a banking account on behalf of the firm in his own name;
(c) Compromise or relinquish any claim or portion of a claim by the firm;
(d) Withdraw a suit or proceedings filed on behalf of the firm;
(e) Admit any liability in a suit or proceedings against the firm;
(f) Acquire immovable property on behalf of the firm
(g) Transfer immovable property belonging to the firm; and
(h) Enter into partnership on behalf of the firm.
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Q. 9 Can the authority of a partner be restricted or ex- tended ? What is the effect on
third parties of such restriction or extension ?
Ans. Extension and restriction of partners‘ implied authority (section 20):
The implied authority of a partner may be extended or restricted by contract between the
partners.
Under the following conditions, the restrictions imposed on the implied authority of a partner by
agreement shall be EFFECTIVE AGAINST a third party:
1. The third party knows about the restrictions, and
2. The third party does not know that he is dealing with a partner in a firm.
However, this restriction or extension is only possible with the consent of all the partners.
Any one partner, or even a majority of the partners, cannot restrict or extend the implied
authority.

Q. 10 All partners are liable to third parties for all acts of a partner which fall within the
scope of his implied authority. Explain the effect of implied authority and liability of
the firm towards third parties in various cases ?
Ans.
Sec. 20 —Extension and restriction of partners’ implied authority

Sec. 23 — Effect of admissions by a partner

An admission or representation made by a partner concerning the AFFAIRS of the firm is
evidence against the firm, if it is made in the ORDINARY COURSE of business.
An admission or representation by a partner will NOT BIND the firm if his authority on the point
is limited and the other party knows of the restriction

Sec. 24 — Effect of notice to acting partner

 Notice to a partner
 who habitually acts in the business of the firm ( working partner and not sleeping partner )
 of any matter relating to the AFFAIRS of the firm operates as notice to the firm,
 except in the case of a fraud on the firm committed by or with the consent of that partner.
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 Sec. 25 — Liability of a partner for acts of the firm
 Every partner is liable,
 jointly with all the other partners and also severally,
 for all acts of the firm done
 while he is a partner

Sec. 26 — Liability of the firm for wrongful acts of a partner

The firm is liable to the same extent as the partner for any loss or injury caused to a third party
by the wrongful acts of a partner, if they are done by the partner while acting.
(a) in the ordinary course of the business of the firm
(b) with the authority of the partners.

Sec. 27 — Liability Of Firm For Misapplication By Partners

The firm is liable to the third parties in the following two cases of misappropriation by a partner
(a) a partner acting within his APPARENT AUTHORITY receives money or property from a third
(b) a firm in the course of its business receives money or property from a third party, and the
money or property is misapplied by any of the partners while it is in the CUSTODY OF THE
FIRM .

Q. 11 State the modes by which a partner may transfer his interest in the firm in favour
of another person under the Indian Partnership Act, 1932. What are the rights of
such a transferee?
Ans. Section 29 of the Indian Partnership Act, 1932 provides that a share in a partnership is
transferable like any other property, but as the partnership relationship is based on mutual
confidence, the assignee of a partner’s interest by sale, mort- gage or otherwise CANNOT ENJOY
the same rights and privileges as the original partner.

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 The rights of such a transferee are as follows:
Rights during continuance —
During the continuance of partnership, such transferee is NOT entitled
(a) to interfere with the conduct of the business,
(b) to require accounts, or
(c) to inspect books of the firm.
He is only entitled to receive the SHARE of the profits of the transferring partner and he is
bound to accept the profits as agreed to by the partners, i.e., he cannot challenge the accounts.

Rights after dissolution —

On the dissolution of the firm or on the retirement of the transferring partner, the transferee will
be ENTITLED , against the remaining partners:
(a) to receive the share of the assets of the firm to which the transferring partner was entitled,
and
(b) for the purpose of ascertaining the share,
he is entitled to AN ACCOUNT as from the date of the dissolution.

By virtue of Section 31, —

 no person can be introduced as a partner in a firm without the consent of all the partners.
 A partner cannot by transferring his own interest, make anybody else a partner in his place,
unless the other partners agree to accept that person as a partner.
 At the same time, a partner is not debarred from transfer- ring his interest. A partner’s
interest in the partnership can be regarded as an existing interest and tangible property
which can be assigned.

Q. 12 Can majority of partners expel any one partner? When an expulsion is valid?
Ans. Sec. 33(1) — A partner may not be expelled from a firm by any MAJORITY of the
partners, unless the following conditions are satisfied :

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 (i) the power of expulsion must have existed in a contract between the partners;
(ii) the power has been exercised by a majority of the partners; and
(iii) it has been exercised in good faith.
If all these conditions are not present, the expulsion is not deemed to be in bona fide interest of
the business of the firm.
The test of good faith as required under Section 33(1) includes
(i) The expulsion must be in the interest of the partnership.
(ii) The partner to be expelled is served with a notice.
(iii) He is given an opportunity of being heard.
If a partner is otherwise expelled, the expulsion is null and void.
Sec. 33(2) — The provisions of sub-section (2), (3) and (4) of section 32 shall apply to an expelled
partner as if he were a retired partner.

Q. 13 What are the effects of Insolvency of a partner?

Ans. Effects of insolvency of a partner (section 34)
Sec. 34(1) — The insolvent partner cannot be continued as a partner.
 He will be ceased to be a partner from the very date on which the order of adjudication is
 made

Sec. 34(2) — The estate of the insolvent partner is not liable for the acts of the firm done after
the date of order of adjudication.
 The firm is also not liable for any act of the insolvent partner after the date of the order of
adjudication.
 Ordinarily but not necessarily , the insolvency of a partner results in dissolution of a firm;
 but the partners are competent to agree among themselves that the adjudication of a partner
as an insolvent will not give rise to dissolution of the firm.

Sec 45 — No public notice is required on the insolvency of a partner.

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Q. 14 What are the effects of death of a partner?
Ans. Unless otherwise agreed by the partner, a firm is dissolved on the death of a
partner [ Sec. 42 ( c) ]
Where under a contract between the partners, the firm is not dissolved by the death of a
partner, the estate of a deceased partner is not liable for any act of the firm done after his
death. ( Sec. 35 )

Q. 15 What are the effects of introduction of a partner?

Ans. Introduction of a partner (section 31)
31(1) — Admission of a partner
 Subject to contract between the partners and to the provisions of section 30( regarding minor
partner ) ,
 no person shall be introduced as a partner into a firm without the consent of all the existing
partners.

31(2) — Rights and liabilities of new partner

 Subject to the provisions of section 30,
 a person who is introduced as a partner into a firm does not thereby become liable for any
acts of the firm done before he became a partner.
This rule has following exceptions :
(a) An incoming partner is liable for the acts done before his admission if
(i) The new firm, including the new partner who joins it, may agree to assume liability for the
existing debts of the old firm and
(ii) creditors may agree to accept the new firm as their debtor and discharge the old partners. A
minor on attaining majority decides to become a partner ,is liable for all acts of the firm
SINCE he was admitted to the benefits of partnership ( Sec 30)

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Q. 16 How a change in the constitution takes place?
Ans. The change in constitution of a firm takes place in the following cases :
 Where a new partner or partners come in
 Where some partner or partners go out, i.e., by death or retirement
 Where the partnership concerned carries on business other than the business for which it
was originally formed
 Where the partnership business is carried on after the expiry of the term fixed for the purpose.

Q. 17 What are the rights and duties of a partner after a change in the constitution in the
firm?
Ans. Subject to the contract between the partners, —
the mutual rights and duties of the partners in the reconstituted firm remain the same as they
were immediately before the change in the firm. Section 17 provides for the following 3 types of
changes :
 after a change in the firm Sec 17 (a)
 after the expiry of the term of the firm Sec 17 (b)
 where additional undertakings are carried out Sec 17 (c)

Q. 18 Can a partner exceed his authority in an emergency? what are his rights in an emergency ?
Ans. Partner‘s authority in an emergency (section 2l)
 A partner has authority, in an emergency,
 to do all such acts for the purpose of protecting the firm from loss
 as would be done by a person of ordinary prudence, in his own case,
 acting under similar circumstances, and such acts bind the firm.

Q. 19 Define partnership property and property of a partner?

Ans. The Property Of The Firm (Section 14)
The expression ‘property of the firm’, also referred to as ‘partnership property’, ‘partnership
assets’, ‘joint stock’, ‘common stock’ or joint estate’, denotes all property, rights and interests to
which the firm i.e. all partners collectively, may be entitled.
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 The property which is deemed as belonging to the firm, in the absence of any agreement between
the partners showing contrary intention, is comprised of the following items:
(i) all property, rights and interests which partners may have brought into the common stock--as
their contribution to the common business;
(ii) all the property, rights and interest acquired or purchased by or for the firm, or for the
purposes and in the course of the business of the firm; and
(iii) Goodwill of the business.
Property of a partner: Where the property is exclusively belonging to a person, it does not
become a property of the partner- ship merely because it is used for the business of the partner-
ship, such property will become property of the partnership if there is an agreement

Q. 20 What is the effect on continuing guarantee on change in constitution of partnership?

Ans. According to section 38, in the absence of an agreement to the contrary,
 a continuing guarantee given to a firm or to third party
 in respect of the transaction of a firm is,
 revoked as to future transactions
 from the date of any change in the constitution of the firm

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 UNIT – 3
REGISTRATION AND DISSOLUTION OF FIRM

Q. 1 How an application of registration of firm is to be made?

OR
What is the procedure for registration of firm?
Ans. Application for registration (section 58):
1. The registration of a firm may be effected at any time by sending by post or delivering to the
REGISTRAR of the area in which any place of business of the firm is situated or proposed to
be situated, a statement in the prescribed form and accompanied by the prescribed fee,
stating-
(a) The firm’s name
(b) The place or principal place of business of the firm,
(c) The names of any other places where the firm carries on business,
(d) the date when each partner joined the firm,
(e) the names in full and permanent addresses of the partners, and
(f) the duration of the firm.
The statement shall be signed by all the partners, or by their agents specially authorised in this
behalf.

2. Each person signing the statement shall also verify it in the manner prescribed.

3. A firm name shall not contain any of the following words, namely:-
 ‘Crown’, Emperor’, ‘Empress’, ‘Empire’, ‘Imperial’, ‘King’, ‘Queen’, ‘Royal’, or
 words expressing or implying the sanction, approval or patronage of Government
 except when the State Government signifies its consent to the use of such words as part of
the firm-name by order in writing.

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Q. 2 When Registrar shall issue a registration certificate?
Ans. Registration (section 59):
When the Registrar is satisfied that the provisions of section 58 have been duly complied with, he
shall record an entry of the statement in a register called the Register of Firms, and shall file
the statement.
However, registration is deemed to be completed as soon as an application in the prescribed form
with the prescribed fee and necessary details concerning the particulars of partnership is
delivered to the Registrar. The recording of an entry in the register of firms is a routine duty of
Registrar.
Registration may also be effected even after a suit has been filed by the firm but in that case it
is necessary to withdraw the suit first and get the firm registered and then file a fresh suit.

Q. 3 Is it necessary to get the firm registered? what are the consequences of non registration ?
OR
The non registration of a firm attracts certain disabilities. Comment.
Ans. The Indian Partnership Act does not make the registration of firms compulsory nor does it impose
any penalty for non-registration. However, under Section 69, non-registration of partnership gives
rise to a number of disabilities which are as follows:
No suit in a civil court by firm or other co-partners against third party —
 The firm or any other person on its behalf
 cannot bring an action against the third party
 for breach of contract entered into by the firm,
 unless the firm is registered and
 the persons suing are or have been shown in the register of firms as partners in the firm.

No relief to partners for set- off of claim —

 If an action is brought against the firm by a third party,
 then neither the firm nor the partner can claim any set-off,
 if the suit be valued for more than Rs. 100 or
 pursue other proceedings to enforce the rights arising from any contract.
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 Aggrieved partner cannot bring legal action against other partner or the firm —
 A partner of an unregistered firm (or any other person on his behalf)
 is precluded from bringing legal action
 against the firm or any person alleged to be or to have been a partner in the firm.
 But, such a person may sue for
 dissolution of the firm or for accounts and realization of his share in the firm’s property where
the firm is dissolved.

Third party can sue the firm —

 In case of an unregistered firm,
 an action can be brought against the firm by a third party.

Q. 4 Even if the firm is unregistered, it does not affects certain rights ?

OR
The non registration of a firm attracts some disability. What are the exceptions to these
disabilities?
Ans. Exceptions: Non-registration of a firm does not, however effect the following rights:
1. The right of third parties to sue the firm or any partner.
2. The right of partners to sue for the dissolution of the firm or for the settlement of the
accounts of a dissolved firm, or for realization of the property of a dissolved firm.
3. The power of an Official Assignees, Receiver of Court to release the property of the insolvent
partner and to bring an action.
4. The right to sue or claim a set-off if the value of suit does not exceed Rs. 100 in value.

Q. 5 Distinguish between Dissolution of firm and Dissolution of Partnership?

Ans. According to Section 39 of the Indian Partnership Act, 1932, the dissolution of
partnership between all partners of a firm is called the ‘dissolution of the firm’.
In the case of dissolution of the firm, the whole firm is dissolved. The partnership terminates as
between each and every partner of the firm.
But when only one or more partners retires or becomes incapacitated from acting as a partner
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 due to death, insolvency or insanity, the partnership, i.e. the relationship between such a partner
and other is dissolved, but the other partner decides to continues the business .
Basis Dissolution of Firm Dissolution of Partnership
Continuation of It involves discontinuation of business It does not affect continuation
business in partnership. of business. It involves only
reconstitution of the firm.
Winding up It involves winding up of the firm and It involves only reconstitution
requires realization of assets and and requires only revaluation of
settlement of liabilities. assets and liabilities of the firm.
Order of court A firm may be dissolved by the order Dissolution of partnership is
of the court. NOT ordered by the court.
Scope It necessarily involves dissolution of It may or may not involve
partnership. Dissolution of firm.
Final closure of books It involves final closure of books of the It does NOT involve final
firm. closure of the books.

Q. 6 What are the modes of dissolution of firm?

Ans. The following are the modes of dissolution of firm ?
I. Dissolution without the order of court.
II. Dissolution by the order of the court .

I. Dissolution without the order of court or Voluntary dissolution : It consists of following

four types:
Dissolution by agreement (Section 40) —
 Section 40 gives rights to the partners to dissolve the firm with the consent of all the
partners or
 in accordance with a contract between the partners.
 Contract between the partners’ means a contract already made.

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Compulsory dissolution (Section 41) —
 A firm is compulsorily dissolved
 by the happening of any event
 which makes it unlawful for the business of the firm
 to be carried on or for the partners to carry it on in partnership:
Provided that,
 when more than one separate adventure or undertaking is carried on by the firm,
 the illegality of one or more shall not of itself
 cause the dissolution of the firm in respect of its lawful adventures and undertakings.

Dissolution on the happening of certain contingencies (Section 42) —

Subject to contract between the partners, a firm can be dissolved on the happening of any of the
following contingencies :
 where the firm is constituted for a fixed term, on the expiry of that term
 where the firm is constituted to carry out one or more adventures or undertaking, then by
completion thereof
 by the death of a partner, and
 by the adjudication of a partner as an insolvent

Dissolution by notice of partnership at will (Section 43) —

 Where the partnership is at will,
 the firm may be dissolved
 by any partner giving notice in writing
 to all the other partners of his intention to dissolve the firm.
 If the date is mentioned ,
 the firm is dissolved as from the date mentioned in the notice as the date of dissolution, or
 if no date is so mentioned, as from the date of the communication of the notice.

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Q.. 7 What are the modes of dissolution of firm by the order of Court?
Or
In which circumstances, the court will order for dissolution of firm ?
Ans. Dissolution by the court ( section 44)
The Court may, at the suit of the partner, dissolve a firm on any of the following ground:
Insanity/ unsound mind —
 Where a partner (not a sleeping partner)
 has become of unsound mind,
 the court may dissolve the firm
 on a suit of the other partners or by the next friend of the insane partner.
 Temporary sickness is no ground for dissolution of firm.

Permanent incapacity —
 When a partner, other than the partner suing,
 has become in any way permanently incapable
 of performing his duties as partner,
 then the court may dissolve the firm.
 Such permanent incapacity may result from physical disability or illness etc.

Misconduct —
 Where a partner, other than the partner suing,
 is guilty of conduct which is likely to affect
 prejudicially the carrying on of business,
 the court may order for dissolution of the firm, by giving regard to the nature of business. .
 It is not necessary that misconduct must relate to the conduct of the business.
 The important point is the adverse effect of misconduct on the business. In each case nature
of business will decide whether an act is misconduct or not.

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Persistent breach of agreement —
 Where a partner other than the partner suing,
 wilfully or persistently commits breach of agreements
 relating to the management of the affairs of the firm or the conduct of its business, or
 otherwise so conduct himself in matters relating to the business that
 it is not reasonably practicable for other partners to carry on the business in partnership
with him,

Transfer of interest —
 Where a partner other than the partner suing,
 has transferred the whole of his interest in the firm to a third party or
 has allowed his share to be charged or sold by the court, in the recovery of arrears of land
revenue,
 the court may dissolve the firm at the instance of any other partner.

Continuous/ Perpetual losses —

 Where the business of the firm cannot be carried on
 EXCEPT at a loss in future also,
 the court may order for its dissolution.

Just and equitable grounds —

 Where the court considers any other ground
 to be just and equitable for the dissolution of the firm,
 it may dissolve a firm. The following are the cases for the just and equitable grounds :
(i) Deadlock in the management.
(ii) Where the partners are not in talking terms between them.
(iii) Loss of substratum.
(iv) Gambling by a partner on a On a stock exchange

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Q. 8 What are the rights and liabilities consequent to dissolution of firm?
Ans. Liability for acts of partners done after dissolution (Section 45) —
 Notwithstanding the dissolution of a firm,
 the partners continue to be liable as such to third parties
 for any act done by any of them
 which would have been an act of the firm if done before the dissolution,
 Untill public notice is given of the dissolution.

Therefore Section 45 has two fold objectives-

1. It seeks to protect third parties dealing with the firm who had no notice of prior dissolution
and
2. It also seeks to protect partners of a dissolved firm from liability towards third parties
However, there are exceptions to the Section 45 i.e. where notice of dissolution has NOT been
given, there will be NO liability for subsequent acts in the case of:
(a) the estate of a deceased partner,
(b) an insolvent partner, or
(c) a dormant partner, i.e., a partner, who was not known as a partner to the person dealing with
the firm.
(2) Notices under sub-section (1) may be given by any partner.

Right of partners to have business wound up after dissolution (Section 46) —

 On the dissolution of a firm
 every partner or his representative is entitled,
 as AGAINST all the other partners or their representative,
 to have the property of the firm APPLIED in payment of the debts and liabilities of the firm,
and
 to have the SURPLUS distributed among the partners or their representatives according to
their rights.

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 Continuing authority of partners for purposes of winding up (Section 47) —
 EVEN after the dissolution of a firm
 the authority of each partner to bind the firm, and the other mutual rights and obligations of
the partners, CONTINUES ,
 so far as may be necessary to wind up the affairs of the firm and to complete transactions
begun but unfinished at the time of the dissolution, but not otherwise:
Provided that the firm is in no case bound by the acts of a partner who has been adjudicated
insolvent;
However this proviso does not affect the liability of any person who has after the adjudication
represented himself or knowingly permitted himself to be represented as a partner of the
insolvent.

Q. 9 How accounts of partnership firm is settled after dissolution?

Ans. Settlement of partnership accounts (Section 48): In settling the accounts of a firm
after dissolution, prima facie, ac- counts between the partners shall be settled in the manner
prescribed by partnership agreement.
However the following rules shall, subject to agreement by the partners, be observed:-
(i) Losses, including deficiencies of capital, shall be paid first out of PROFITS, next out of
CAPITAL , and lastly, if necessary, by the partners individually in the proportions in which they
were entitled to share profits.
(ii) The assets of the firm, including any sums contributed by the partners to make up deficiencies
of capital, must be applied in the following manner and order:
(a) in paying the debts of the firm to third parties;
(b) in paying to each partner rateably what is due to him from capital;
(c) in paying to each partner rateably what is due to him on account of capital; and
(d) the residue, if any, shall be divided among the partners in the proportions in which they
were entitled to share profits.

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Q. 10 How the firm‘s property and separate property of a partner shall be applied for the
payments of the debts of the firm and debts of each partner?
Ans. Payment of firm debts and of separate debts (Section 49):
Where there JOINT DEBTS due from the firm and also SEPA- RATE debts due from any partner:
(i) the property of the firm shall be applied
 Firstly in payment of the debts of the firm, and
 if there is any surplus, then the share of each partner shall be applied to the payment of
his separate debts or paid to him;
be applied to the payment of his separate debts or paid to him;
(ii) the separate property of any partner shall be applied
 first in the payment of his separate debts and
 surplus, if any, in the payment of debts of the firm.

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 CHAPTER 4 THE LIMITED LIABILITY PARTNERSHIP ACT, 2008

Q.1 Give a brief introduction of LLP Act, 2008?

Ans. The Parliament passed the Limited Liability Partnership Bill on 12th December, 2008
and the President of India has as sented the Bill on 7th January, 2009 and called as the Limited
Liability Partnership Act, 2008.
This Act have been enacted to make provisions for the formation and regulation of Limited
Liability Partnerships and for matters connected there with or incidental thereto.
The LLP Act, 2008 has 81 sections and 4 schedules.
The First Schedule deals with mutual rights and duties of partners, as well limited liability
partnership and its partners where there is absence of a formal agreement with respect to
them.
The Second Schedule deals with conversion of a firm into LLP.
The Third Schedule deals with conversion of a private company into LLP.
The Fourth Schedule deals with conversion of unlisted public company into LLP.

Q.2 Define LLP?

Ans. A LLP is a new form of legal business entity with limited liability.
It is an alternative corporate business vehicle that not only gives the benefits of limited liability at
low compliance cost but allows its partners the flexibility of organising their internal structure as
a traditional partnership.
The LLP is a separate legal entity and while the LLP itself will be liable for the full extent of its
assets, the liability of the partners will be limited.
LLP is an alternative corporate business form that gives the benefits of limited liability of a
company and the flexibility of a partnership.
Since LLP contains elements of both ‘a corporate structure’ as well as ‘a partnership firm
structure’ LLP is called a hybrid between a company and a partnership.
Non-applicability of the Indian Partnership Act, 1932 (Section 4): Save as otherwise provided,
the provisions of the Indian Partnership Act, 1932 shall not apply to a LLP.

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Q. 3 Define the following :
Ans. Body Corporate [(Section 2(d)]:
It means a company as defined in clause (20) of section 2 of the Companies Act, 2013 and includes:
(i) a limited liability partnership registered under this Act;
(ii) a limited liability partnership incorporated outside India; and
(iii) a company incorporated outside India,
but does not include—
(i) a corporation sole;
(ii) a co-operative society registered under any law for the time being in force; and
(iii) any other body corporate (not being a company as defined in clause (20) of section 2 of the
Companies Act, 2013 or a limited liability partnership as defined in this Act), which the
Central Government may, by notification in the Official Gazette, specify in this behalf.

Business [Section 2(e)]:

“Business” includes every trade, profession, service and occupation except any activity which
the Central Government may, by notification, exclude
“Small limited liability partnership [Section 2(ta)]: It means a limited liability partnership—
(i) the contribution of which, does not exceed twenty-five lakh rupees or such higher amount, not
exceeding five crore rupees, as may be prescribed; and
(ii) the turnover of which, as per the Statement of Accounts and Solvency for the immediately
preceding financial year, does not exceed forty lakh rupees or such higher amount, not
exceeding fifty crore rupees, as may be prescribed; or
(iii) which meets such other requirements as may be prescribed, and fulfils such terms and
conditions as may be prescribed;

Financial Year [Section 2(l)]

 “ Financial year”, in relation to a LLP, means
 the period from the 1st day of April of a year to the 31st day of March of the following year.
However, in the case of a LLP incorporated after the 30th day of September of a year, the
financial year may end on the 31st day of March of the year next following that year.
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 Limited liability partnership [Section 2(n)]
Limited Liability Partnership means a partnership formed and registered under this Act.

Limited Liability partnership agreement [Section 2(o)]

It means any written agreement between the partners of the LLP or between the LLP and its
partners which determines the mutual rights and duties of the partners and their rights and
duties in relation to that LLP.

Partner [Section 2(q)]

Partner, in relation to a LLP, means any person who becomes a partner in the LLP in accordance
with the LLP agreement.

Designated Partner [Section 2(j)]

“ Designated partner” means any partner designated as such pursuant to section 7.

Entity [Section 2(k)]

‘’Entity” means any body corporate and includes, for the purposes of sections 18, 46, 47, 48, 49,
50, 52 and 53, a firm setup under the Indian Partnership Act, 1932.
Foreign LLP [section 2(m)]
It means a LLP formed, incorporated or registered outside India which establishes a place of
business within India.

Q. 4 Who is eligible to be a partner in a LLP?

Ans. Partners (Section 5):
Any individual or body corporate may be a partner in a LLP. However, an individual shall not be
capable of becoming a partner of a LLP, if —
(a) he has been found to be of unsound mind by a Court of competent jurisdiction and the finding
is in force;
(b) he is an undischarged insolvent; or

(c) he has applied to be adjudicated as an insolvent and his application is pending.

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Q. 5 How many persons should be there to form a LLP?
Ans. Minimum number of partners (Section 6):
(i) Every LLP shall have at least two partners.
(ii) What if no of partners reduced below two ;
 If at any time the number of partners of a LLP is reduced below two and

 the LLP carries on business for more than six months while the number is so reduced,

 the person, who is the only partner of the LLP during the time carries on business after those

six months and

 has the knowledge of the fact that it is carrying on business with him alone.

 shall be liable personally for the obligations of the LLP incurred during the period.

Q. 6 Write a short note on designated partners?

Ans. Designated partners (Section 7):
1. Every limited liability partnership shall have at least two designated partners who are individuals
and at least one of them shall be a resident in India:
Provided that in case of a limited liability partnership in which all the partners are bodies
corporate or in which one or more partners are individuals and bodies corporate, at least two
individuals who are partners of such limited liability partnership or nominees of such bodies
corporate shall act as designated partners.
Explanation - For the purposes of this section, the term resident in India means a person who
has stayed in India for a period of not less than one hundred and twenty days during the
financial year.
2. Subject to the provisions of sub-section (1),
(i) if the incorporation document
(a) specifies who are to be designated partners, such persons shall be designated partners
on incorporation; or
(b) states that each of the partners from time to time of limited liability partnership is to
be designated partner, every partner shall be a designated partner;
(ii) any partner may become a designated partner by and in accordance with the limited liability
180
 partnership agreement and a partner may cease to be a designated partner in accordance
with limited liability partnership agreement.
3. An individual shall not become a designated partner in any limited liability partnership unless
he has given his prior consent to act as such to the limited liability partnership in such form and
manner as may be prescribed.
4. Every limited liability partnership shall file with the Registrar the particulars of every individual
who has given his consent to act as designated partner in such form and manner
as may be prescribed within thirty days of his appointment.
5. An individual eligible to be a designated partner shall satisfy such conditions and requirements
as may be prescribed.
6. Every designated partner of a limited liability partnership shall obtain a Designated Partners
Identification Number (DPIN) from the Central Government and the provisions of sections 153 to
159 (both inclusive) of the Companies Act, 2013 shall apply mutatis mutandis for the said purpose.

Q. 7 What are the salient features of a LLP?

Ans. The salient features of a LLP are
LLP is a body corporate —
 Section 2(1)(d) of the LLP Act, 2008 provides that a LLP is a body corporate formed and
incorporated under this Act and
 is a legal entity separate from that of its partners and shall have perpetual succession.
 Therefore, any change in the partners of a LLP shall not affect the existence, rights or
liabilities of the LLP.

 Section 3 of LLP Act provides that a LLP is a body corporate formed and incorporated under

this Act and is a legal entity separate from that of its

Perpetual Succession —
 The LLP can continue its existence irrespective of changes in partners.
 Death, insanity, retirement or insolvency of partners has no impact on the existence of LLP.
 It is capable of entering into contracts and holding property in its own name.

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Separate Legal entity —

 The LLP is a separate legal entity, is liable to the full extent of its assets

 but liability of the partners is limited to their agreed contribution in the LLP.

 In other words, creditors of LLP shall be the creditors of LLP alone.

Mutual Agency —

 No partner is liable on account of the independent or un- authorized actions of other partners,

thus individual partners are shielded from joint liability created by another partner’s wrongful

business decisions or misconduct.

 In other words, all partners will be the agents of the LLP alone. No one partner can bind the

other partner by his acts.

Artificial Legal Person —

 A LLP is an artificial legal person because it is created by a legal process and is clothed with

all rights of an individual.

 It can do everything which any natural person can do, except it cannot be sent to jail, cannot

take an oath, cannot marry or get divorce nor can it practice a learned profession like CA or Medicine.

 A LLP is invisible, intangible, immortal (it can be dissolved by law alone) but not fictitious
because it really exists.

Common Seal —

 A LLP being an artificial person can act through its partners and designated partners.

 LLP may have a common seal, if it decides to have one [Section 14(c)].

 Thus, it is not mandatory for a LLP to have a common seal.

 It shall remain under the custody of some responsible official and it shall be affixed in the

presence of at least 2 designated partners of the LLP.

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Limited Liability —

 Every partner of a LLP is, for the purpose of the business of LLP, the agent of the LLP, but

not of other partners (Section 26).

 The liability of the partners will be limited to their agreed contribution in the LLP. Such

contribution may be of tangible or intangible nature or both.

Minimum and Maximum number of Partners —

 Every LLP shall have least two partners and shall also have at least 2 individuals as

designated partners, of whom at least one shall be resident in India.

 There is no maximum limit on the partners in LLP.

Business for Profit Only —

 The essential requirement for forming LLP is carrying on a lawful business with a view to earn

profit.

 Thus LLP cannot be formed for charitable or non-economic purpose.

LLP Agreement —
 Mutual rights and duties of the partners within a LLP are governed by an agreement between
the partners.
 The LLP Act, 2008 provides flexibility to partner to devise the agreement as per their choice.

 In the absence of any such agreement, the mutual rights and duties shall be governed by the

provisions of the LLP Act, 2008.

Management of Business —
The partners in the LLP are entitled to manage the business of LLP. But only the designated
partners are responsible for legal compliances.

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Q. 8 What are the advantages of LLP form?
Ans. The advantages of LLP form are

(a) Easy to dissolve

(b) Flexible capital structure
(c) All partners enjoy limited liability
(d) Easy to form
(e) provides flexibility without imposing detailed legal and procedural requirements.
(f) is organized and operates on the basis of an agreement.

Q. 9 What is the procedure to incorporate LLP ?

Ans. For a LLP to be incorporated:

 Two or more persons associated

 for carrying on a lawful business

 with a view to profit shall subscribe their names to an incorporation document;

the incorporation document shall be filed in such manner and with such fees, as may be
prescribed
with the Registrar of the State in which the registered office of the LLP is to be situated; and

Statement to be filed:
 there shall be filed along with the incorporation document,
 a statement in the prescribed form,

 made by either an advocate, or a Company Secretary or a Chartered Accountant or a

Cost Accountant, who is engaged in the formation of the LLP and

 by anyone who subscribed his name to the incorporation document,

 that all the requirements of this Act and the rules made there under have been complied
with,
 in respect of incorporation and matters precedent and incidental thereto.

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 The incorporation document shall—
(a) be in a form as may be prescribed;
(b) state the name of the LLP;
(c) state the proposed business of the LLP;
(d) state the address of the registered office of the LLP;

The incorporation document shall—

(a) be in a form as may be prescribed;
(b) state the name of the LLP;
(c) state the proposed business of the LLP;
(d) state the address of the registered office of the LLP;
(e) state the name and address of each of the persons who are to be partners of the LLP
on the incorporation .
(f) state the name and address of the persons who are to be designated partners of the
LLP on incorporation;
(g) contain such other information concerning the proposed LLP as may be prescribed.

If a person makes a statement as discussed above which he—

(a) knows to be false; or
(b) does not believe to be true, shall be punishable
 with imprisonment for a term which may extend to 2 years and

 with fine which shall not be less than Rs. 10,000 but which may extend to Rs. 5 Lakhs.

Q. 10 What are the effects of Registration of LLP?

Ans. When the requirements imposed by clauses (b) and (c) of sub-section (1) of section 11
have been complied with, the Registrar shall retain the incorporation document and,
unless the requirement imposed by clause (a) of that sub-section has not been complied with,
he shall, within a period of 14 days—
(a) register the incorporation document; and
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 (b) give a certificate that the LLP is incorporated by the name specified therein.
The certificate issued under clause (b) of sub-section (1) shall be signed by the Registrar and
authenticated by his official seal. The certificate shall be conclusive evidence that the LLP is
incorporated by the name specified therein.
On registration a LLP shall ,by its name, be capable of
suing and being sued acquiring, owning, doing and suffering Having common seal, if
holding and developing such other acts and it decides to have one.
or disposing of things as bodies
property, corporate may lawfully
whether movable or do and suffer.
immovable, tangible or
intangible

Q 11 Write Short Note on Registered office of LLP and How it can be change?
Registered office of LLP and change therein (Section 13):
1. Every limited liability partnership shall have a registered office to which all communications
and notices may be addressed and where they shall be received.
2. A document may be served on a limited liability partnership or a partner or designated partner
thereof by sending it by post under a certificate of posting or by registered post or by any
other manner, as may be prescribed, at the registered office and any other address specifically
declared by the limited liability partnership for the purpose in such form and manner as may be
prescribed.
3. A limited liability partnership may change the place of its registered office and file the notice of
such change with the Registrar in such form and manner and subject to such conditions
as may be prescribed and any such change shall take effect only upon such filing.
4. If any default is made in complying with the requirements of this section, the
limited liability partnership and its every partner shall be liable to a penalty of five hundred
rupees for each day during which the default continues, subject to a maximum of fifty thousand
rupees for the limited liability partnership and its every partner.

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Q. 12 Explain the provisions relating to Name of LLP?
Ans. Name (Section 15):
1. Every limited liability partnership shall have either the words limited liability partnership or the
acronym LLP as the last words of its name.
2. No limited liability partnership shall be registered by a name which, in the opinion of the Central
Government is
(a) undesirable; or
(b) identical or too nearly resembles to that of any other limited liability partnership or a
company or a registered trade mark of any other person under the Trade Marks Act, 1999.

Reservation of name (Section 16):

(a) A person may apply in such form and manner and accompanied by such fee as may be
prescribed to the Registrar for the reservation of a name set out in the application as—
(a) the name of a proposed LLP;
(b) the name to which a LLP proposes to change its name.

(b) Upon receipt of an application under sub- section (1) and on payment of the prescribed fee,
the Registrar may, if he is satisfied,

 subject to the rules prescribed by the Central Government in the matter,

 that the name to be reserved is not one which may be rejected on any ground referred
to in Section 15(2) ,

 reserve the name for a period of 3 months from the date of intimation by the Registrar

Change of name of LLP (Section 17):

1. Notwithstanding anything contained in sections 15 and 16, if through inadvertence or otherwise, a
limited liability partnership, on its first registration or on its registration by a new body
corporate, its registered name;"name, is registered by a name which is identical with or too
nearly resembles to —
(a) that of any other limited liability partnership or a company; or

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 (b) a registered trade mark of a proprietor under the Trade Marks Act, 1999, as is likely to be
mistaken for it, then on an application of such limited liability partnership or proprietor
referred to in clauses (a) and (b) respectively or a company, the Central Government may
direct that such limited liability partnership to change its name or new name within a period
of three months from the date of issue of such direction:
Provided that an application of the proprietor of the registered trade marks shall be
maintainable within a period of three years from the date of incorporation or registration or
change of name of the limited liability partnership under this Act.
2. Where a limited liability partnership changes its name or obtains a new name under sub-section
(1), it shall within a period of fifteen days from the date of such change, give notice of the
change to Registrar along with the order of the Central Government, who shall carry out
necessary changes in the certificate of incorporation and within thirty days of such change in
the certificate of incorporation, such limited liability partnership shall change its name in the
limited liability partnership agreement.
3. If the limited liability partnership is in default in complying with any direction given under sub-
section (1), the Central Government shall allot a new name to the limited liability partnership in
such manner as may be prescribed and the Registrar shall enter the new name in the register
of limited liability partnerships in place of the old name and issue a fresh certificate of
incorporation with new name, which the limited liability partnership shall use thereafter:
Provided that nothing contained in this sub-section shall prevent a limited liability partnership
from subsequently changing its name in accordance with the provisions of section 16.

Q. 13 Explain the steps to incorporate the LLP?

Ans. Name Reservation —

 The first step to incorporate LLP is reservation of name of LLP

 Applicant has to file e form 1, for ascertaining availability and reservation of the name of
a LLP business.

Incorporate LLP —

 file e form 2 for incorporating a new LLP

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  E form 2 contains the details of LLP proposed to be incorporated, partners/designated
partners, details and consent of the partners and designated partners to act as
partners and designated partners

LLP Agreement —

 Execution of LLP Agreement is mandatory as per Section 23 of the Act.

 LLP Agreement is required to be filed with the registrar in e-Form 3 within 30 days of
incorporation of LLP

Q. 14 How mutual rights and duties of partners and LLP will be decided?
OR
How is the relationship of partners mutually and with LLP decided?
Ans. Section 22:

 On the incorporation of a LLP,

 the persons who subscribed their names to the incorporation document shall be its partners
and
 any other person may become a partner of the LLP by and in accordance with the LLP
agreement.

Section 23 : Relationship of partners

 Save as otherwise provided by this Act,
 the mutual rights and duties of the partners of a LLP, and
 the mutual rights and duties of a LLP and its partners,
 shall be governed by the LLP agreement between the partners, or between the LLP and its
partners. Sec. 23 (1)
 An agreement in writing made before the incorporation of a LLP
 between the persons who subscribe their names to the incorporation document
 may impose obligations on the LLP,
 provided such agreement is ratified by all the partners after the incorporation of the LLP.
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 Sec. 23 (3)
 In the absence of agreement as to any matter,
 the mutual rights and duties of the partners and
 the mutual rights and duties of the LLP and the partners

Q. 15 Cessation of Partnership Interest Section 24

Ans. How a person may cease to be a partner from a LLP?
Voluntarily :
A person may cease to be a partner of a LLP

 in accordance with an agreement with the other partners or,

 in the absence of agreement with the other partners as to cessation of being a partner,
by giving a notice in writing of not less than 30 days to the other partners of his intention
to resign as partner. Sec. 24 (1)

Compulsorily :
A person shall cease to be a partner of a LLP—

 on his death or dissolution of the LLP; or

 if he is declared to be of unsound mind by a competent court; or

 if he has applied to be adjudged as an insolvent or declared as an insolvent. Sec. 24 (2)

After cessation, can he still be deemed to be a partner? Sec. 24 (3)

Where a person has ceased to be a partner of a LLP (here in after referred to as “former
partner”),
the former partner is to be regarded (in relation to any person dealing with the LLP) as still being
a partner of the LLP unless—
(a) the person has notice that the former partner has ceased to be a partner of the LLP; or
(b) notice that the former partner has ceased to be a partner of the LLP has been delivered
to the Registrar.

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 What are his obligations after cessation?
The cessation of a partner from the LLP does not by itself discharge the partner from any
obligation to the LLP or to the other partners or to any other person which he incurred while
being a partner. Sec. 24 (4)
A former partner or a person entitled to his share in consequence of the death or insolvency of
the former partner shall not have any right to interfere in the management of the LLP.
Sec. 24 (6)

What will be his rights or his legal heirs rights after cessation? Sec. 24 (5)

 Unless otherwise provided in the LLP agreement,

 where a partner of a LLP ceases to be a partner,

 the former partner or a person entitled to his share in consequence of the death or
insolvency of the former partner, shall be entitled to receive from the LLP—
(a) an amount equal to the capital contribution of the former partner actually made to the
LLP; and
(b) his right to share in the accumulated profits of the LLP, after the deduction of
accumulated losses of the LLP, determined as at the date the former partner ceased to
be a partner.

Q. 16 What are the rules relating to registration of changes in partners?

Ans. Section 25 : The following provisions are to be complied with --
1. Every partner shall inform the limited liability partnership of any change in his name or address
within a period of fifteen days of such change.
2. A limited liability partnership shall
(a) where a person becomes or ceases to be a partner, file a notice with the Registrar within
thirty days from the date he becomes or ceases to be a partner; and
(b) where there is any change in the name or address of a partner, file a notice with the
Registrar within thirty days of such change.
3. A notice filed with the Registrar under sub-section (2)

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 (a) shall be in such form and accompanied by such fees as may be prescribed;
(b) shall be signed by the designated partner of the limited liability partnership and
authenticated in a manner as may be prescribed; and
(c) if it relates to an incoming partner, shall contain a statement by such partner that he
consents to becoming a partner, signed by him and authenticated in the manner as
may be prescribed.
4. If the limited liability partnership contravenes the provisions of sub- section (2), the
limited liability partnership and its every designated partner shall be liable to a penalty
of ten thousand rupees.
5. If the contravention referred to in sub- section (1) is made by any partner of the
limited liability partnership, such partner shall be liable to a penalty of ten thousand rupees.
6. Any person who ceases to be a partner of a limited liability partnership may himself file with
the Registrar the notice referred to in sub-section (3) if he has reasonable cause to believe that
the limited liability partnership may not file the notice with the Registrar and in case of any
such notice filed by a partner, the Registrar shall obtain a confirmation to this effect from the
limited liability partnership unless the limited liability partnership has also filed such notice:
Provided that where no confirmation is given by the limited liability partnership within fifteen
days, the Registrar shall register the notice made by a person ceasing to be a partner under
this section.

Q. 17 What are the rules relating to extent of liability of a partner and that of LLP under
LLP Act, 2008?
Ans. The following provisions are to be complied with --
Partner as agent
Every partner of a LLP is, for the purpose of the business of the LLP, the agent of the LLP, but
not of other partners. (Section 26)

Extent of liability ofLLP (Section 27)

1. A LLP is not bound by anything done by a partner in dealing with a person if—
(a) the partner in fact has no authority to act for the LLP in doing a particular act; and
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 (b) the person knows that he has no authority or does not know or believe him to be a
partner of the LLP.
2. The LLP is liable if a partner of a LLP is liable to any person as a result of a wrongful act
or omission on his part in the course of the business of the LLP or with its authority.
3. An obligation of the LLP whether arising in contract or otherwise, shall be solely the
obligation of the LLP.
4. The liabilities of the LLP shall be met out of the property of the LLP.

Extent of liability partner (Section 28)

1. A partner is not personally liable, directly or indirectly for an obligation referred to in section
27(3) solely by reason of being a partner of the LLP.
2. The provisions of Section 27(3) and Section 28 (1) shall not affect the personal liability of a
partner for his own wrongful act or omission, but a partner shall not be personally liable for
the wrongful act or omission of any other partner of the LLP.

Q. 18 What do you mean by Partner by Holding Out?

Ans. Holding out (Section 29):

1. Any person,

 who by words spoken or written or by conduct,

 represents himself, or knowingly permits himself to be represented to be a partner in
a LLP

 is liable to any person

 who has on the faith of any such representation

 given credit to the LLP, whether the person representing himself or represented to
be a partner
 does or does not know that the representation has reached the person so giving credit.
However,
 where any credit is received by the LLP as a result of such representation,
 the LLP shall,
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  without prejudice to the liability of the person so representing himself or represented
to be a partner,
 be liable to the extent of credit received by it or any financial benefit derived thereon.

2. Where
 after a partner’s death the business is continued in the same LLP name,
 the continued use of that name or of the deceased part- ner’s name as a part thereof
 shall not of itself make his legal representative or his estate liable
 for any act of the LLP done after his death.

Q. 19 How a LLP can be wound up?

Ans. Winding up and dissolution (Section 63): The winding up of a LLP may be either
voluntary or by the Tribunal and LLP, so wound up may be dissolved.
Circumstances in which LLP may be wound up by Tribunal (Section 64): A LLP may be wound
up by the Tribunal:
(a) if the LLP decides that LLP be wound up by the Tribunal;
(b) if, for a period of more than six months, the number of partners of the LLP is reduced below
two;
(c) if the LLP is unable to pay its debts;
(d) if the LLP has acted against the interests of the sovereignty and integrity of India, the
security of the State or public order;
(e) if the LLP has made a default in filing with the Registrar the Statement of Account and
Solvency or annual return for any five consecutive financial years; or
(f) if the Tribunal is of the opinion that it is just and equitable that the LLP be wound up.

Q. 20 Difference between
(a) LLP and Partnership firm
(b) LLP and Limited Liability company

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Ans. (a) LLP and PARTNERSHIP FIRM —

BASIS LLP PARTNERSHIP FIRM

Regulating Act It is regulated by The Limited It is regulated by The Indian
Liability Partnership Act, 2008. Partnership Act, 1932.

Body corporate It is a body corporate. It is not a body corporate,

Separate legal entity It is a legal entity separate It is a group of persons with no

from its members. separate legal entity.

Creation It is created by a legal process It is created by an agreement

called registration under the between the partners.
LLP Act, 2008.

Registration Registration is mandatory. Registration is voluntary. Only

LLP can sue and be sued in its the registered partnership
own name. firm can sue the third parties.

Perpetual succession The death, insanity, retirement The death, insanity,

or insolvency of the partner(s) retirement or insolvency of the
does not affect its existence of partner(s) may affect its
LLP. Members may join or leave existence. It has no perpetual
but its existence continues succession.
forever.

Name Name of the LLP to contain No guidelines. The partners can

the word limited liability have any name as per their
partners (LLP) as suffix. choice.

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Liability Liability of each partner limited Liability of each partner is
to the extent to agreed unlimited. It can be extended
contribution except in case of upto the personal assets of
will ful fraud. the partners.

Mutual agency Each partner can bind the Each partner can bind the firm
LLP by his own acts but not as well as other partners by
the other partners. his own acts.

Designated partners At least two designated There is no provision for such

partners and atleast one of partners under the
them shall be resident in India. partnership Act, 1932.

Common seal It may have its common seal as There is no such concept in
its official signatures. partnership

Legal compliances Only designated partners are All partners are responsible
responsible for all the for all the compliances and
compliances and penalties penalties under the Act.
under this Act.

Foreign partnership Foreign nationals can become a Foreign nationals cannot

partner in a LLP. become a partner in a
partnership firm.

Minor as partner Minor cannot be admitted to Minor can be admitted to the

the benefits of LLP. benefits of the partnership
with the prior consent of the
existing partners.

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Annual Filing of documents LLP is required to file: Partnership firm is not
(i) Annual statement of accounts required to file any annual
(ii) Statement of solvency document with the registrar of
(iii) Annual return with the firms
registration of LLP every
year.

(b) LLP and Limited liability company —

Basis LLP Limited Liability Company
Regulating Act The LLP Act, 2008. The Companies Act, 2013.

Members/Partners The persons who contribute to The persons who invest the
LLP are known as partners of money in the shares are known
the LLP. as members of the company.

Internal governance The internal governance The internal governance

structure structure of a LLP is governed structure of a company is
by contract agreement regulated by statute (i.e.,
between the partners. Companies Act, 2013).

Name Name of the LLP to contain Name of the public company

the word “Limited Liability to contain the word “limited”
partnership” or “LLP” as suffix. and Pvt. Co. to contain the
word “Private limited” as
suffix.

No. of members/partners Minimum – 2 members Private company:

Minimum – 2 members
Maximum – No such limit on the Maximum 200 members
members in the Act. Public company:
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 The members of the LLP can Minimum – 7 members
corporate through the Maximum – No such limit on the
nominees. members. Members can be
organizations, trusts, another
business form or individuals.

Liability of members/ Liability of a partners is limited Liability of a member is limited

partners to the extent of agreed to the amount unpaid on the
contribution in case of intention shares held by them.
is fraud.

Management The business of the company The affairs of the company

managed by the partners are managed by board of
including the designated directors elected by the
partners authorized in the shareholders.
agreement.

Minimum number of directors/ Minimum 2 designated Pvt. Co. – 2 directors

designated partners partners. Public co. – 3 directors

Q. 21 What is the liability of partners and LLP in case of fraud?

Ans. Unlimited liability in case of fraud (Section 30):
1. In the event of an act carried out by a limited liability partnership, or any of its partners, with
intent to defraud creditors of the limited liability partnership or any other person, or for any
fraudulent purpose, the liability of the limited liability partnership and partners who acted with
intent to defraud creditors or for any fraudulent purpose shall be unlimited for all or any of the
debts or other liabilities of the limited liability partnership:
Provided that in case any such act is carried out by a partner, the limited liability partnership is
liable to the same extent as the partner unless it is established by the limited liability
partnership that such act was without the knowledge or the authority of the limited
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 liability partnership.
2. Where any business is carried on with such intent or for such purpose as mentioned in sub-
section (1), every person who was knowingly a party to the carrying on of the business in the
manner aforesaid shall be punishable with imprisonment for a term which may extend to five
years and with fine which shall not be less than fifty thousand rupees but which may extend to
five lakh rupees.
3. Where a limited liability partnership or any partner or designated partner or employee of such
limited liability partnership has conducted the affairs of the limited liability partnership in a
fraudulent manner, then without prejudice to any criminal proceedings which may arise under
any law for the time being in force, the limited liability partnership and any such partner or
designated partner or employee shall be liable to pay compensation to any person who has
suffered any loss or damage by reason of such conduct:
Provided that such limited liability partnership shall not be liable if any such partner or designated
partner or employee has acted fraudulently without knowledge of the limited liability partnership.

Q. 22 What are the provisions relating to maintenance of books of accounts under

LLP Act 2008?
Ans. Maintenance of books of account, other records and audit, etc. (Section 34):
1. The limited liability partnership shall maintain such proper books of account as may be
prescribed relating to its affairs for each year of its existence on cash basis or accrual basis
and according to double entry system of accounting and shall maintain the same at its
registered office for such period as may be prescribed.
2. Every limited liability partnership shall, within a period of six months from the end of each
financial year, prepare a Statement of Account and Solvency for the said financial year as at
the last day of the said financial year in such form as may be prescribed, and such statement
shall be signed by the designated partners of the limited liability partnership.
3. Every limited liability partnership shall file within the prescribed time, the Statement of Account
and Solvency prepared pursuant to sub-section (2) with the Registrar every year in such form
and manner and accompanied by such fees as may be prescribed.
4. The accounts of limited liability partnerships shall be audited in accordance with such rules as

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 may be prescribed:
Provided that the Central Government may, by notification in the Official Gazette, exempt any
class or classes of limited liability partnerships from the requirements of this sub-section.
5. Any limited liability partnership which fails to comply with the provisions of sub-section (3), such
limited liability partnership and its designated partners shall be liable to a penalty of one
hundred rupees for each day during which such failure continues, subject to a maximum of one
lakh rupees for the limited liability partnership and fifty thousand rupees for every
designated partner.
6. Any limited liability partnership which fails to comply with the provisions of sub-section (1), sub-
section (2) and sub-section (4), such limited liability partnership shall be punishable with fine
which shall not be less than twenty-five thousand rupees, but may extend to five lakh rupees
and every designated partner of such limited liability partnership shall be punishable with fine
which shall not be less than ten thousand rupees, but may extend to one lakh rupees.

[34A. Accounting and auditing standards. The Central Government may, in consultation
with the National Financial Reporting Authority constituted under section 132 of the Companies
Act, 2013 —
(a) prescribe the standards of accounting; and
(b) prescribe the standards of auditing, as recommended by the Institute of Chartered Accountants
of India constituted under section 3 of the Chartered Accountants Act, 1949, for a class or
classes of limited liability partnerships.]

Q. 23 What are the provisions relating to filing of annual returns under LLP Act 2008?
Ans. Annual return (Section 35):
1. Every limited liability partnership shall file an annual return duly authenticated with the
Registrar within sixty days of closure of its financial year in such form and manner and
accompanied by such fee as may be prescribed.
2. If any limited liability partnership fails to file its annual return under sub- section (1) before the
expiry of the period specified therein, such limited liability partnership and its designated
partners shall be liable to a penalty of one hundred rupees for each day during which such

200
 failure continues, subject to a maximum of one lakh rupees for the limited liability partnership
and fifty thousand rupees for designated partners.

Q. 24 What are the provisions relating to conversion of a firm, private company, unlisted
public company into a LLP?
Ans. Conversion from firm into Conversion from private Conversion from unlisted public

LLP (Section 55): company into LLP (Section 56): company into LLP (Section 57):

 A firm may convert into a  A private company may  An unlisted public company
LLP convert into a LLP may convert into a LLP
 in accordance with the  in accordance with the  in accordance with the
provisions of this Chapter provisions of this Chapter provisions of this chapter
and and and
 the Second Schedule  the third schedule  the fourth schedule

Registration of conversion (Section 58)

 The Registrar, on satisfying that a firm, private company or an unlisted public company, as the
case may be, has complied with the provisions of the various Schedules, provisions of this Act
and the rules made thereunder,
 register the documents and issue a certificate of registration in such form as the Registrar
may determine
 stating that the LLP is, on and from the date specified in the certificate, registered under this Act.
 The LLP shall, within 15 days of the date of registration,
 inform the concerned Registrar of Firms or Registrar of Companies, as the case may be,
 about the conversion and of the particulars of the LLP in such form and manner
Effect of Registration: Notwithstanding anything contained in any other law for the time being in
force, on and from the date of registration specified in the certificate of registration issued under
the various Schedule, as the case may be,—
 there shall be a LLP by the name specified in the certificate of registration registered under
this Act;
 all tangible (movable or immovable) and intangible property vested in the firm or the company,
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 as the case may be, all assets, interests, rights, privileges, liabilities, obligations relating to the
firm or the company, as the case may be, and the whole
 all tangible (movable or immovable) and intangible property vested in the firm or the company,
as the case may be, all assets, interests, rights, privileges, liabilities, obligations relating to the
firm or the company, as the case may be, and the whole of the undertaking of the firm or the
company, as the case may be,
shall be transferred to and shall vest in the limited liability partnership without further
assurance, act or deed; and
the firm or the company, as the case may be, shall be deemed to be dissolved and removed from
the records of the Registrar of Firms or Registrar of Companies, as the case may be.

Q. 25 Write Short Note on Special Courts in Section LLP Act, 2008?

67A. Establishment of Special Courts.—
1. The Central Government may, for the purpose of providing speedy trial of offences under this
Act, by notification, establish or designate as many Special Courts as may be necessary for
such area or areas, as may be specified in the notification.
2. The Special Court shall consist of—
(a) a single Judge holding office as Sessions Judge or Additional Sessions Judge, in case of
offences punishable under this Act with imprisonment of three years or more; and
(b) a Metropolitan Magistrate or a Judicial Magistrate of the first class, in the case of other
offences, who shall be appointed by the Central Government with the concurrence of the
Chief Justice of the High Court:
Provided that until Special Courts are designated or established under sub- section (1), the
Courts designated as Special Courts in terms of section 435 of the Companies Act, 2013 shall
be deemed to be Special Courts for the purpose of trial of offences punishable under this Act:
Provided further that notwithstanding anything contained in the Code of Criminal Procedure,
1973, any offence committed under this Act, which is triable by a Special Court shall, until a
Special Court is established under this Act or the Companies Act, 2013, be tried by a Court of
Sessions or the Court of Metropolitan Magistrate or a Judicial Magistrate of the first class, as
the case may be, exercising jurisdiction over the area.]
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67B. Procedure and powers of Special Court—
1. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences
specified under sub- section (1) of section 67A shall be triable only by the Special Court
established or designated for the area in which the registered office of the
limited liability partnership is situated in relation to which the offence is committed or where
there are more than one Special Courts for such area, by such one of them as may be specified
in this behalf by the High Court concerned.
2. While trying an offence under this Act, a Special Court may also try an offence other than an
offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973
be charged at the same trial.
3. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Special Court
may, if it thinks fit, try in a summary way any offence under this Act which is punishable with
imprisonment for a term not exceeding three years:
Provided that in the case of any conviction in a summary trial, no sentence of imprisonment for a
term exceeding one year shall be passed:
Provided further that, when at the commencement of or in the course of a summary trial, it
appears to the Special Court that the nature of the case is such that the sentence of
imprisonment for a term exceeding one year may have to be passed or that it is, for any other
reason, undesirable to try the case summarily, the Special Court shall, after hearing the parties,
record an order to that effect and thereafter recall any witnesses who may have been
examined and proceed to hear or re- hear the case in accordance with the procedure for the
regular trial.

67C. Appeal and revision—

The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters
XXIX and XXX of the Code of Criminal Procedure, 1973 on a High Court, as if a Special Court within
the local limits of the jurisdiction of the High Court were a Court of Sessions trying cases within
the local limits of the jurisdiction of the High Court.]

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Q. 26 Write Short Note on —
(A) Registration offices. 68A —
1. For the purpose of exercising such powers and discharging such functions as are conferred on
the Central Government by or under this Act or under rules made thereunder and for the
purpose of registration of limited liability partnerships under this Act, the Central Government
shall, by notification, establish such number of registration offices at such places as it thinks fit,
specifying their jurisdiction.
2. The Central Government may appoint such Registrars, Additional Registrars, Joint Registrars,
Deputy Registrars and Assistant Registrars as it considers necessary, for the registration of
limited liability partnerships and discharge of various functions under this Act.
3. The powers and duties of the Registrars referred to in sub-section (2) and the terms and
conditions of their service shall be such as may be prescribed.
4. The Central Government may direct the Registrar to prepare a seal or seals for the
authentication of documents required for, or connected with the registration of limited liability
partnerships.]

(B) Payment of additional fee (Section 69) —

Any document or return required to be registered or filed under this Act with Registrar, if, is not
registered or filed in time provided therein, may be registered or filed after that time, on
payment of such additional fee as may be prescribed in addition to any fee as is payable for filing
of such document or return:
Provided that such document or return shall be filed after the due date of filing, without prejudice
to any other action or liability under this Act:
Provided further that a different fee or additional fee may be prescribed for different classes of
limited liability partnerships or for different documents or returns required to be filed under this
Act or rules made thereunder.

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 CHAPTER 5 THE COMPANIES ACT, 2013

Q.1 To whom Companies Act is applicable?

Ans. Applicability of the Companies Act, 2013:
The provisions of the Act shall apply to-
 Companies incorporated under this Act or under any previous company law.
 Insurance companies (except where the provision of the said Act are inconsistent with the
provisions of the Insurance Act, 1938 or the IRDA Act, 1999)
 Banking companies (except where the provisions of the said Act are inconsistent with the
provisions of the Banking Regulation Act, 1949)
 Companies engaged in the generation or supply of electricity (except where the
provisions of the above Act are inconsistent with the provisions of the Electricity Act, 2003)
 Any other company governed by any special Act for the time being in force.
 Such body corporate which are incorporated by any Act for time being in force, and as
the Central Government may by notification specify in this behalf.

Q. 2 Define Company?
Ans. Section 2(20) of the Companies Act, 2013 defines the term ‘company’. “Company means a
company incorporated under this by any Act for time being Act or under any previous law.

Q. 3 Explain the features of a Company?

Ans. The main features of a company are:
Separate legal Entity :
 The most striking feature of a company is it acquires a unique character
of being a separate legal entity.
 When a company is registered, it is clothed with a legal personality.
 It comes to have almost the same rights and powers as a human being.
 Its existence is distinct and separate from that of its members.
 A company can own property, have bank account, raise loans, incur liabilities
and enter into contracts. (Macaura v. Northern Assurance Co. Limited)

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Perpetual Succession :
 Members may die or change, but the company goes on till it is wound up on the grounds
specified by the Act.

 Since a company is an artificial person created by law, law alone can bring an end
to its life. Its existence is not affected by the death or insolvency of its
members

Limited Liability:
 The liability of a member depends upon the kind of company of which he is a
member.

 In the case of a limited liability company The liability of the members of the
company is limited to the extent of the nominal value of shares held by them

 In the case of a company limited by guarantee, the members are liable only to the
extent of the amount guaranteed by them and that too only when the company goes
into liquidation.

 In the case of an unlimited company, the liability of its members is unlimited as well.

Artificial Legal Person:

 A company is an artificial person a sit is created by a process other than natural
birth.

 It is legal or judicial as it is created by law. It is a person since Company works

through the agency of human beings Common seal is the official signature of a
company, which is affixed by the officers and employees of the company on its
every document. The common seal is a seal used by a corporation as the symbol of its
incorporation.

 The Companies (Amendment) Act, 2015 has made the common seal optional.
 In case a company does not have a common seal, the authorization shall be made by
two directors or by a director and the Company Secretary, wherever the
company has appointed a Company Secretary. it is clothed with all the rights
of an individual.

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Q. 4 Short note on:
Artificial Legal Person —
A company is an artificial person as it is created by a process other than natural birth. It
is legal or judicial as it is created by law. It is a person since it is clothed with all the rights
of an individual.
Further, the company being a separate legal entity can own property, have banking account,
raise loans, incur liabilities and enter into contracts.
Even members can contract with company, acquire right against it or incur liability to it. It
can sue and be sued in its own name.
It can do everything which any natural person can do except be sent to jail, take an oath,
marry or practice a learned profession. Hence, it is a legal person in its own sense.
As the company is an artificial person, it can act only through some human agency, viz.,
directors. The directors can either on their own or through the common seal (of the
company) can authenticate its formal acts.
Thus, a company is called an artificial legal person.

Separate Legal Entity -

The most striking feature in the company form of organization is that it acquires a unique
character of being a separate legal entity.
When a company is registered, it is clothed with a legal personality. It comes to have almost
the same rights and powers as a human being. Its existence is distinct and separate from
that of its members. A company can own property, have bank account, raise loans, incur
liabilities and enter into contracts.
1. It is at law, a person is different altogether from the subscribers to the memorandum of
association. Its personality is distinct and separate from the personality of those who
compose it.
2. Even members can contract with company, ac quire right against it or incur liability to it.
A company is capable of enjoying and disposing of property in its own name.
Although the capital and assets are contributed by the shareholders, the company becomes
the owner of its capital and assets. The share holders are not the private or joint owners of

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 the company’s property.
A member does not even have an insurable interest in the property of the company.
(Macaura v. Northern Assurance Co. Limited .)

Q. 5 Define corporate veil?

Ans. Corporate Veil refers to a legal concept whereby the company is identified
separately from the members of the company.
The term Corporate Veil refers to the concept that members of a company are shielded
from liability connected to the company’s actions.
If the company incurs any debts or contravenes any laws, the corporate veil concept implies that
members should not be liable for those errors. In other words, they enjoy corporate insulation.
Thus, the shareholders are protected from the acts of the company.
(Salomon Vs. Salomon and Co Ltd)

Q. 6 Explain the facts of the case “Salomon Vs. Salomon and Co Ltd”?
Ans. The Salomon Vs. Salomon and Co Ltd. laid down the foundation of the concept of
corporate veil or independent corporate personality. In Salomon vs. Salomon & Co. Ltd. the House
of Lords laid down that a company is a person distinct and separate from its members.
Facts : In this case one Salomon incorporated a company named “Salomon & Co. Ltd.”, with
seven subscribers consisting of himself, his wife, four sons and one daughter.
This company took over the personal business assets of Salomon for €38,782 and inturn,
Salomon took 20,000 shares of € 1 each, debentures worth € 10,000 of the company with charge
on the company’s assets and the balance in cash.
His wife, daughter and four sons took upon € 1 share each.
Subsequently, the company went into liquidation due to general trade depression.
The unsecured creditors to the tune of £ 7,000 contended that Salomon could not be treated as a
secured creditor of the company, in respect of the debentures held by him, as he was the
managing director of one-man company, which was not different from Salomon and the cloak of
the company was a mere sham and fraud.

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 Decision: It was held by Lord Mac Naughten:
“The Company is at law a different person altogether from the subscribers to the memorandum,
and though it may be that after incorporation the business is precisely the same as it was
before and the same persons are managers, and the same hands receive the profits, the
company is not in law the agent of the subscribers or trustees for them. Nor are the subscribers,
as members, liable, in any shape or form, except to the extent and in the manner provided by
the Act.”
Reserved in a contract of sale: Sometimes, it is expressly agreed between the seller and the
buyer that in case the buyer makes default in payment of the price, the seller will resell the
goods to some other person. In such cases, the seller is said to have reserved his right of resale.
And he may resell the goods on buyer’s default
It may be noted that in such cases, the seller is not required to give notice of resale. He is
entitled to recover damages from the original buyer even if no notice of resale is given.

Q. 7 Define lifting or piercing of corporate veil. under which circumstances the veil can
be lifted ?
Ans. Meaning:
“Lifting the veil” means looking behind the company as a legal person,
i.e., disregarding the corporate entity and paying regard, to the realities behind the legal façade.
Where the Courts ignore the company and concern themselves directly with the members or
managers, the corporate veil may be said to have been lifted.
The following are the cases where company law disregards the principle of corporate
personality or the principle that the company is a legal entity distinct and separate from its
shareholders or members:
1. To determine the character of the company
i.e. to findout whether co-enemy or friend: In the law relating to trading with the enemy where the
test of control is adopted. A company may be characterised as an enemy company, if its affairs
are under the control of people of an enemy country. For this purpose, the Court may examine
the character of the persons who are really at the helm of affairs of the company.(Daimler
Co. Ltd. vs. Continental Tyre & Rubber Co)

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 2. To protect revenue/tax:
In certain matters concerning the law of taxes, duties and stamps particularly where question of
the controlling interest is in issue. [S. Berendsen Ltd. vs. Commissioner of Inland Revenue]

3. To avoid a legal obligation:

Where it was found that the sole purpose for the formation of the company was to use it as a
device to reduce the amount to be paid by way of bonus to workmen, the Supreme Court upheld
the piercing of the veil to look at the real transaction (The Workmen Employed in Associated
Rubber Industries Limited, Bhavnagar vs. The Associated Rubber Industries Ltd., Bhavnagar and
another).

4. Formation of subsidiaries to act as agents:

A company may sometimes be regarded as an agent or trustee of its members, or of another
company, and may therefore be deemed to have lost its individuality in favour of its principal.
(Merchandise Transport Limited vs. British Transport Commission)

5. Company formed for fraud/improper conduct or to defeat law:

Where the device of incorporation is adopted for some illegal or improper purpose, e.g., to defeat
or circumvent law, to de- fraud creditors or to avoid legal obligations. [Gilford Motor Co. vs. Horne]

Q. 8 How companies are classified on the basis of liability?

Ans. (a) Company limited by shares:
Section 2(22) of the Companies Act, 2013, defines that when the liability of the members of a
company is limited by its memorandum of association to the amount (if any) unpaid on the shares
held by them, it is known as a company limited by shares.
(b) Company limited by guarantee:
Section 2(21) of the Companies Act, 2013 defines it as the company having the liability of its
members limited by the memorandum to such amount as the members may respectively
undertake by the memorandum to contribute to the assets of the company in the event of its
being wound up.
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 (c) Unlimited company:
Section 2(92) of the Companies Act, 2013 defines unlimited company as a company not having any
limit on the liability of its members. In such a company, the liability of a member ceases when he
ceases to be a member.
The liability of each member extends to the whole amount of the company’s debts and liabilities
but he will be entitled to claim contribution from other members. The official liquidator may
call the members for their contribution towards the liabilities and debts of the company,
which can be unlimited.

Q. 9 Write a short note on One Person Company?

Ans. Section 2(62) of the Companies Act, 2013 defines one person company (OPC) as a company
which has only one as a member. It encourages entrepreneurship and corporatization of business.
According to section 3(1)(c) of the Companies Act, 2013, OPC is a private limited company
with the minimum paid up share capital as may be prescribed and has at least one member.
OPC (One Person Company) - significant features
 Only one person as member.
 Minimum paid up capital no limit prescribed.
Eligibility :
(a) Only a natural person who is an Indian citizen and resident in India whether resident in India
or otherwise and person who has stayed in India for a period of not less than 182 120 days
during the immediately preceding financial year.
 Shall be eligible to incorporate a OPC;
 Shall be a nominee for the sole member of a OPC.
(b) No minor shall become member of nominee of the OPC or can hold share with beneficial
interest.
Restriction :
(i) Such Company cannot be incorporated or converted into a company under section 8 of the
Act. Though it may be converted to private or public companies in certain cases.

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 (ii) Such Company cannot carry out Non-Banking Financial Investment activities including
investment in securities of any- body corporate.
(iii) No person shall be eligible to incorporate more than one OPC or become nominee in more than
one such company.
(iv) OPC cannot convert voluntarily into any kind of company unless two years have expired from
the date of incorporation, except where the paid up share capital is increased beyond fifty
lakh rupees or its average annual turnover during the relevant period exceeds two crore
rupees.
Memorandum of OPC
(a) The memorandum of OPC shall indicate the name of the other person, who shall, in the event
of the subscriber’s death or his incapacity to contract, become the member of the company.
(b) The other person whose name is given in the memorandum shall give his prior written consent
and the same shall be filed with Registrar of companies at the time of incorporation.
(c) Such other person may be given the right to withdraw his consent.
(d) The member of OPC may at any time change the name of such other person by giving notice
to the company and the company shall intimate the same to the Registrar.
(e) Any such change in the name of the person shall not be deemed to be an alteration of the
memorandum.

Q.10 Define Private limited company?

Ans. Private Company [Section 2(68)]:
“Private company” means a company having a minimum paid-up share capital as may be
prescribed, and which by its articles,—
(i) Restricts the rights to transfer its shares;
(ii) except in case of One Person Company, limits the number of its members to two hundred:
Provided that where two or more persons hold one or more shares in a company jointly, they
shall be treated as a single member:
Provided further that—
(A) persons who are in the employment of the company; and
(B) persons who, having been formerly in the employment of the company, were members of

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 the company while in that employment and have continued to be members after the
employment ceased,
Shall not be included in the number of members; and
(iii) prohibits any invitation to the public to subscribe for any securities of the company

Q.11 What are the features of a limited company?

Ans. Private company - significant points
 No minimum paid-up capital requirement.
 Minimum number of members – 2 (except if private company is an OPC, where it will be 1).
 Maximum number of members – 200, excluding present employee-cum- members and erstwhile
employee-cum-members.
 Right to transfer shares restricted
 Prohibition on invitation to subscribe to securities of the company.
 Small company is a private company.
 OPC can be formed only as a private company

Q12. Define Small Company?

Ans. Small Company: Small company given under the section 2(85) of the Companies Act,
2013 which means a company, other than a public company -
(i) Paid-up share capital of which does not exceed four crore rupees or such higher
amount as may be prescribed
(ii) Turnover of which as per its last profit and loss account does not exceed fourty crore rupees
or such higher amount as may be prescribed.
Exceptions: This section shall not apply to:
(A) a holding company or a subsidiary company;
(B) a company registered under section 8; or
(C) a company or body corporate governed by any special Act.

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Q.13 Define Public company and its features?
Ans. Public company [Section 2(71)]:
“Public company” means a company which—
(a) is not a private company; and
(b) has a minimum paid-up share capital, as may be prescribed:
Provided that a company which is a subsidiary of a company not being a private company shall
be deemed to be public company for the purposes of this Act even where such subsidiary
company continues to be a private company in its articles;
Public company – significant points
 It is not a private company (Articles do not have the restricting clauses).
 Shares are freely transferable.
 No minimum paid up capital requirement.
 Minimum number of members - 7.
 Maximum numbers of members - No limit.
 Subsidiary of a public company is deemed to be a public company.
According to section 3(1)(a), a company may be formed for any lawful purpose by seven or more
persons, where the company to be formed is to be a public company.

Q.14 How company is classified on the basis of control?

Ans. Holding and subsidiary companies —
A company is a holding company in relation to one or more other companies, means
a company of which such companies are subsidiary companies.
[Section 2(46)].
section 2(87) defines “ subsidiary company” in relation to any other company (that is
to say the holding company), means a company in which the holding company—

(i) controls the composition of the Board of Directors; or

(ii) exercises or controls more than one-half of the total share capital either at
its own or together with one or more of its subsidiary companies:
For the purposes of this section —
(i) a company shall be deemed to be a subsidiary company of the holding company
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 even if the control referred to in sub- clause (i) or sub-clause (ii) is of another
subsidiary company of the holding company;
(ii) The composition of a company’s Board of Directors shall be deemed to
be controlled by another company if that other company can appoint or
remove all or a majority of the directors, by exercise of some power
exercisable by it at its discretion

Associate company [Section 2(6)] —

 In relation to another company, means a company in which that other
company has a significant influence,
 but which is not a subsidiary company of the company having such influence
and includes a joint venture company.

Q.15 Define government company and foreign company?

Ans. Government company [Section 2(45)] —
Government Company means any company in which not less than 51%of the paid-up
share capital is held by-
(i) the Central Government, or
(ii) by any State Government or Governments, or
(iii) partly by the Central Government and partly by one or more State Governments and the
section includes a company which is a subsidiary company of such a Government company

Foreign Company [Section 2(42)] —

It means any company or body corporate incorporated outside India which -
(i) has a place of business in India whether by itself or through an agent, physically or through
electronic mode; and
(ii) conducts any business activity in India in any other manner

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Q.16 Write a short note on Section 8 company?
Ans. Formation ( section 8 ) —
Section 8 companies are companies which are formed to promote the charitable objects of
commerce, art, science, sports, education, research, social welfare, religion, charity,
protection of environment etc.
Such company intends to apply its profit in
 promoting its objects and
 prohibiting the payment of any dividend to its members.
Examples of section 8 companies are FICCI, ASSOCHAM, National Sports Club of India, CII etc.

License —
(i) Section 8 allows the Central Government to register such person or association of persons as
a company with limited liability without the addition of words ‘Limited’ or ‘Private limited’ to
its name, by issuing licence.
(ii) On registration the company shall enjoy same privileges and obligations as of a limited
company.

Revocation of license —
The Central Government may , after giving written notice and opportunity of being heard, by
order revoke the licence of the company
 Where the company contravenes any of the requirements or the conditions of this sections or
 where the affairs of the company are conducted fraudulently, or
 violative of the objects of the company or
 prejudicial to public interest.
On revocation the Registrar shall put ‘Limited’ or ‘Private Limited’ against the company’s
name in the register.

Order of the government —

Where a licence is revoked, the Central Government may order that the company should be
amalgamated with another Sec. 8 company or the company be woundup.
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 Penalty/ punishment in contravention —
For company : If a company makes any default in complying with any of the requirements
laid down in this section, the company shall, without prejudice to any other action under the
provisions of this section, be punishable with fine which shall not be less than ten lakh
rupees but which may extend to one crore rupees
Directors and every officer of the company : who is in default shall be punishable with
 imprisonment for a term which may extend to three years or with fine varying from
twenty-five thousand rupees to twenty-five lakh rupees, or with both and where it is proved
that the affairs of the company were conducted fraudulently, every officer in default shall be
liable for action under section 447 which deals with Fraud.

Q. 17 Explain the features of Sec. 8 company?

Ans. Section 8 Company Significant Feature —
 Formed for the promotion of commerce, art, science, religion, charity, protection environment,
sports, etc.
 Requirement of minimum share capital does not apply.
 Uses its profits for the promotion of the objective for which formed.
 Does not declare dividend to members.
 Operates under a special licence from Central Government.
 Need not use the word Ltd./ Pvt. Ltd. in its name and adopt a more suitable name such as club,
chambers of commerce etc.
 Licence revoked if condition contravened.
 On revocation, Central Government may direct it to.
(a) Converts its status and change its name. (b) Wind – up
(c) Amalgamate with another company having similar object.
 Can call its general meeting by giving a clear 14 days notice instead of 21 days.
 Requirement of minimum number of directors, independent directors etc. does not apply.
 Need not constitute Nomination and Remuneration Committee and Shareholders Relationship
Committee.
 A partnership firm can be a member of Section 8 company.
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Q.18 Explain the procedure to incorporate a company?
Ans. Section 7 of the Companies Act, 2013 provides for the procedure to be followed for
incorporation of a company.
Filing of the documents and information with the registrar:
For the registration of the company following documents and information are required to be filed
with the registrar within whose jurisdiction the registered office of the company is proposed to
be situated-
(A) The memorandum and articles of the company duly signed by all the subscribers to the
memorandum
(B) a declaration by person who is engaged in the formation of the company (an advocate, a
chartered accountant, cost accountant or company secretary in practice), and by a person
named in the articles (director, manager or secretary of the company), that all the
requirements of this Act and the rules made there under in respect of registration and
matters precedent or incidental thereto have been complied with.
(C) a declaration from each of the subscribers to the memorandum and from persons named
as the first directors, if any, in the articles stating that -
 he is not convicted of any offence in connection with the promotion, formation or
management of any company, or
 he has not been found guilty of any fraud or misfeasance or of any breach of duty to
any company under this Act or any previous company law during the last five years,
 and that all the documents filed with the Registrar for registration of the company
contain information that is correct and complete and true to the best of his knowledge and
belief;
(D) the address for correspondence till its registered office is established;
(E) the particulars (names, including surnames or family names, residential address, nationality) of
every subscriber to the memorandum along with proof of identity, and in the case of a
subscriber being a body corporate, such particulars as may be prescribed.
(F) the particulars (names, including surnames or family names, the Director Identification
Number, residential address, nationality) of the persons mentioned in the articles as the
subscribers to the Memorandum and such other particulars including proof of identity as
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 may be prescribed; and
(G) the particulars of the interests of the persons mentioned in the articles as the first
directors of the company in other firms or bodies corporate along with their consent to act as
directors of the company in such form and manner as may be prescribed.
 The Registrar shall issue a certificate of Registration shall allot to the company a
corporate identity number, which shall be a distinct identity for the company and
which shall also be included in the certificate

Q.19 What is the effect of Registration of a company?

Ans. Section 9 of the Companies Act, 2013 provides for the effect of registration of a
company which provides that,
 From the date of incorporation (mentioned in the certificate of incorporation), the
subscribers to the memorandum and all other persons, who may from time to time become
members of the company, shall be a body corporate by the name contained in the
memorandum.
Such a registered company shall be capable of exercising all the functions of an incorporated
company under this Act and having perpetual succession with power to acquire, hold and dispose
of property, both movable and immovable, tangible and intangible, to contract and to sue and be
sued, by the said name. [State Trading Corporation of India vs. Commercial Tax Officer].
[Spencer & Co. Ltd. Madras vs. CWT Madras]. [Hari Nagar Sugar Mills Ltd. vs. S.S. Jhunjhunwala]

Effect of memorandum and articles —

 As per section 10 of the Companies Act, 2013, where the memorandum and articles when
registered,
 Shall bind the company and the members thereof to the same extent.
 As if they respectively had been signed by the company and by each member, and
 An agreement to observe all the provisions of the memorandum and of the articles.
 All monies payable by any member to the company under the memorandum or articles shall be
a debt due from him to the company.

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Q. 20 What are the types of capital?
Ans. (a) Nominal or Authorised or Registered capital: This form of capital has been
defined in section 2(8) of the Companies Act, 2013. “Authorised capital” or “Nominal capital”
means such capital as is authorised by the memorandum of a company to be the maximum
amount of share capital of the company.
(b) Issued capital: Section 2(50) of the Companies Act, 2013 defines “issued capital” which means
such capital as the company issues from time to time for subscription of authorised capital
which is offered by the company for subscription and includes the shares allotted for
consideration other than cash.
(c) Subscribed capital: Section 2(86) of the Companies Act, 2013 defines “subscribed capital” as
such part of the capital which is for the time being subscribed by the members of a company.
(d) Called-up capital: Section 2(15) of the Companies Act, 2013 defines “calledup capital” as such
part of the capital, which has- been called for payment. It is the total amount called up on the
shares issued.
(e) Paid-up capital is the total amount paid or credited as paid up on shares issued. It is equal to
called up capital less calls in arrears.

Q. 21 Write a short note on Memorandum of Association?

Ans. The Memorandum of Association of company is in fact its charter; it defines its
constitution and the scope of the powers of the company with which it has been established
under the Act. It is the very foundation on which the whole edifice of the company is built.

Object of registering a memorandum of association:

 It contains the object for which the company is formed and therefore identifies the possible
scope of its operations beyond which its actions cannot go.
 It enables shareholders, creditors and all those who deal withcompany to know what its
powers are and what activities it can engage in.
 A memorandum is a public document under Section 399 of the Companies Act, 2013.
Consequently, every person entering into a contract with the company is presumed to have
the knowledge of the conditions contained therein.
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  The shareholders must know the purposes for which his money can be used by the
company and what risks he is taking in making the investment.
 The memorandum must be printed, divided into paragraphs, numbered consecutively, and
signed by at least seven persons (two in the case of a private company and one in the case of
One Person Company) in the presence of at least one witness, who will attest the signatures.
The particulars about the signatories to the memorandum as well as the witness, as to their
address, description, occupation etc., must also be entered.
As per Section 4, Memorandum of a company shall be drawn up in such form as is given in
Tables A, B, C, D and E in Schedule I of the Companies Act, 2013.
Table A is a form Table B is a form Table C is a form Table D is a form Table E is a form
for memorandum for memorandum for memorandum for memorandum for memorandum
of association of of association of of association of of association of of association of
a company limited a company limited a company limited an unlimited an unlimited
by shares. by guarantee and by guarantee and company. company and
not having a having a share having share
share capital. capital. capital.

Q. 22 What are the contents of Memorandum of Association?

Ans. Content of the memorandum:
(a) the name of the company (Name Clause)
 with the last word “Limited” in the case of a public limitedcompany, or
 the last words “Private Limited” in the case of a private limited company. This clause is
not applicable on the companies formed under section 8 of the Act.
 a Government company’s name must end with the word“Limited”.
 In the case of One Person Company, the words “One Person Company”, should be included
below its name.
(b) the State in which the registered office of the company (Registered Office clause) is to be
situated;
(c) the objects for which the company is proposed to be incorporated and any matter considered
necessary in furtherance thereof (Object clause);
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 (d) the liability of members of the company (Liability clause), whether limited or unlimited, and also
state, —
 in the case of a company limited by shares, that the liability of its members is limited
to the amount unpaid, if any, on the shares held by them; and
 in the case of a company limited by guarantee, the amount up to which each member
undertakes to contribute—
(1) to the assets of the company in the event of its being wound-up while he is a member
or within one year after he ceases to be a member, for payment of the debts and
liabilities of the company
(2) to the costs, charges and expenses of winding- up and for adjustment of the
rights of the contributories among them-selves;
 the amount of authorized capital (Capital Clause)
 divided into share of fixed amounts and
 the number of shares with the subscribers to the memorandum have agreed to take,
indicated opposite their names, whichshall not be less than one share.
 A company having share capital need not have thisclause.
(e) the desire of the subscribers to be formed into a company. The Memorandum shall conclude
with the association clause. Every subscriber to the Memorandum shall take at least one
share, and shall write against his name, the number of shares taken by him. The above
clauses of the Memorandum are called compulsory clauses or “Conditions.”

Q.23 Explain the doctrine of Ultra Vires

Ans. The meaning of the term ultra vires is simply “ beyond (their) powers”. The legal
phrase “ultra vires” is applicable only to acts done in excess of the legal powers of the doers.
This presupposes that the powers are in their nature limited. To an ordinary citizen, the law
permits whatever does the law not expressly forbid.
It is a fundamental rule of Company Law that the objects of a company as stated in its
memorandum can be departed from only to the extent permitted by the Act - thus far and no
further [Ashbury Railway Company Ltd. vs. Riche].
Since the memorandum is a “ public document”, it is open to public inspection. Therefore, when
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 one deals with a company one is deemed to know about the powers of the company. If in spite of
this you enter into a transaction which is ultra vires the company, you cannot enforce it against
the company.

Effect of the Doctrine of Ultra Vires

(a) In consequence, any act done or a contract made by the company which is beyond the powers
not only of the directors but also of the company is wholly void and inoperative in law and is
therefore not binding on the company.
(b) An act which is ultra vires the company being void, cannot be ratified even by the unanimous
consent of all the shareholders.
(c) Sometimes, act which is ultra vires regularized by ratifying it subsequently. For instance, if
the act is ultra vires the power of the directors, the shareholders can ratify it; if it is
ultra vires the articles of the company, it can be ratified by altering the articles by a
special resolution at a general meeting ; if the act is within the power of the company but is
done irregularly, shareholder can validate it.
(d) An ultra vires contract can never be made binding on the company. It cannot become
“Intravires” by reasons of estoppel, acquiescence, Iapse of time, delay or ratification.
The impact of the doctrine of ultra vires is that a company can neither be sued on
an ultra vires transaction, nor can it sue on it.

Q.24 Differentiate between Memorandum of Association and Articles of Association?

Ans. The following are the key differences between the Memorandum of Association vs.
Articles of Association:
1. Objectives: Memorandum of Association defines and de- limits the objectives of the company
whereas the Articles of association lays down the rules and regulations for the internal
management of the company. Articles determine how the objectives of the company are to be
achieved.
2. Relationship: Memorandum defines the relationship of the company with the outside world
and Articles define the relationship between the company and its members.
3. Alteration: Memorandum of association can be altered only under certain circumstances and in

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 the manner provided for in the Act. In most cases permission of the Regional Director or the
Tribunal is required. The articles can be altered simply by passing a special resolution.
4. Ultra Vires: Acts done by the company beyond the scope of the memorandum are ultra-vires
and void. These cannot be ratified even by the unanimous consent of all the shareholders.
The acts ultra-vires the articles can be ratified by a special resolution of the shareholders,
provided they are not beyond the provisions of the memorandum.

Q.25 Write a short note on Articles of Association?

Ans. The articles of association of a company are its rules and regulations, which are
framed to manage its internal affairs. The articles of association are in fact the byelaws of the
company according to which director and other officers are required to perform their functions
as regards the management of the company, its accounts and audit.
Just as the memorandum contains the fundamental conditions upon which the company
is allowed to be incorporated, so also the articles are the internal regulations of the company
(Guiness vs. Land Corporation of Ireland).
Section 5 of the Companies Act, 2013 seeks to provide the contents and model of
articles of association. The section lays the following law -
1. Contains regulations: The articles of a company shall contain the regulations for management
of the company.
2. Inclusion of matters: The articles shall also contain such matters, as are prescribed under
the rules and may also include such additional matters as may be considered necessary for its
management.
3. Contain provisions for entrenchment: Article of Association contains provisions for
entrenchment for giving an effect that the specified provisions of AOA may be altered only if
conditions or procedures as are more restrictive are met or complied with.
4. Manner of inclusion of the entrenchment provision: The provisions for entrenchment shall
only be made
 Either on formation of a company, or
 By an amendment in the articles agreed to by all the members of the company in the case
of a public company.
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 5. Notice to the registrar of the entrenchment provision:
Where the articles contain provisions for entrenchment , the company shall give notice to the
Registrar of such provisions.
6. Forms of articles: The articles of a company shall be in respective forms specified in Tables,
F, G, H, I and J in Schedule I as may be applicable to such company.
7. Model articles: A company may adopt all or any of the regulations contained in the model
articles applicable to such company.

Q.26 Write a short note on Doctrine of Constructive notice?

Ans. The Memorandum and Articles of association of a company when registered with
Registrar of Companies, become public documents, and they are available for inspection to any
person, on the payment of a nominal fees. Section 399 confers this right of inspection to all.
It is, therefore, the duty of every person dealing with a company to inspect its documents and
make sure that his contract is in conformity with their provisions.
But whether a person reads them or not, it will be presumed that he knows the contents of the
documents. This kind of presumed/implied notice is called constructive notice.

By constructive notice is meant:

Whether a person reads the documents or not, he is presumed not only to have read and
obtain knowledge of the contents of the documents but also understood them in their true
perspective, and
Every person dealing with the company not only has the constructive notice of the memorandum
and articles, but also of all the other related documents, such as Special Resolutions etc., which
are required to be registered with the Registrar.

Effect: Thus, if a person enters into a contract which is beyond the powers of the company as
defined in the memorandum, or outside the authority of directors as per memorandum or articles,
he cannot acquire any rights under the contract against the company.

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Q. 27 Explain Doctrine of Indoor Management?
According to the “Doctrine of indoor management” the outsiders, dealing with the company
though are supposed to have satisfied themselves regarding the competence of the company to enter
into the proposed contracts are also entitled to assume that as far as the internal compliance to
procedures and regulations by the company is concerned, everything has been done properly.
They are bound to examine the registered documents of the company and ensure that the
proposed dealing is not inconsistent therewith, but they are not bound to do more.
They are fully entitled to presume regularity and compliance by the company with the internal
procedures as required by the Memorandum and the Articles.
This doctrine is a limitation of the doctrine of “constructive notice” and popularly known as the
rule laid down in the celebrated case of Royal British Bank v. Turquand. Thus, the doctrine of
indoor management aims to protect outsiders against the company.

Q. 28 Exception Doctrine of Indoor Management?

Ans. The doctrine of Indoor Management or Turquand Rule has limitations of its own. It is
inapplicable to the following cases:
(a) Actual or constructive knowledge of irregularity: The rule does not protect any person
when the person dealing with the whether actual or constructive, of the irregularity.
In Howard vs. Patent Ivory Manufacturing Co. where the directors could not defend
the issue of debentures to themselves because they should have known that the extent
to which they were lending money to the company required the assent of the general meeting
which they had not obtained.
Likewise, in Morris v Kansseen, a director could not defend an allotment of shares to him as
he participated in the meeting, which made the allotment. His appointment as a director also
fell through because none of the directors appointed him was validly in office.
(b) Suspicion of Irregularity: The doctrine in no way, rewards those who behave negligently.
Where the person dealing with the company is put upon an inquiry, for example, where the
transaction is unusual or not in the ordinary course of business, It is the duty of the
outsider to make the necessary enquiry.
The protection of the “Turquand Rule” is also not available where the circumstances

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 surrounding the contract are suspicious and therefore invite inquiry.
Suspicion should arise, for example, from the fact that an officer is purporting to act in
matter, which is apparently outside the scope of the authority.
Where the plantiff accepted a transfer of a company’s property from its accountant, the
transfer was held void . The plaintiff could not have supposed, in absence of a power of
attorney that the accountant had authority to effect transfer of the company’s property.
(Anand Bihari Lal Vs. Dinshaw & Co.)
(c) Forgery: The doctrine of indoor management applies only to irregularities which might
otherwise affect a transaction but it cannot apply to forgery which must be regarded as
nullity. Forgery may in circumstances exclude the ‘Turquand Rule’.
The only clear illustration is found in the Ruben v Great Fingall Consolidated. In this case the
plaintiff was the transferee of a share certificate issued under the seal of the defendant’s
company. The company’s secretary, who had affixed the seal of the company and forged the
signature of the two directors, issued the certificate.
The plaintiff contended that whether the signature were genuine or forged was a part of
the internal management, and therefore, the company should be estopped from denying
genuineness of the document. But it was held, that the rule has never been extended to cover
such a complete forgery.

Q.29 Explain the case of Royal British Bank v. Turquand?

Ans. Facts of the Case:
Mr. Turquand was the official manager (liquidator) of the insolvent Cameron’s Coalbrook Steam,
Coal and Swansea and Loughor Railway Company. It was incorporated under the Joint Stock
Companies Act, 1844. The company had given a bond for £ 2,000 to the Royal British Bank, which
secured the company’s drawings on its current account. The bond was under the company’s seal,
signed by two directors and the secretary. When the company was sued, it alleged that under its
registered deed of settlement (the articles of association), directors only had power to borrow up
to an amount authorized by a company resolution. A resolution had been passed but not specifying
how much the directors could borrow.
Held, it was decided that the bond was valid, so the Royal British Bank could enforce the terms .

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 He said the bank was deemed to be aware that the directors could borrow only up to the amount
resolutions allowed. Articles of association were registered with Companies House, so there was
constructive notice. But the bank could not be deemed to know which ordinary resolutions
passed, because these were not registrable. The bond was valid because there was no
requirement to look into the company’s internal workings. This is the indoor management rule, that
the company’s indoor affairs are the company’s problem.

Q. 30 Define the following :

Ans. Dormant Company Sec. 455 —
Where a company is formed and registered under this Act for a future project or to hold an
asset or intellectual property and has no significant accounting transaction, such a company or
an inactive company may make an application to the Registrar in such manner as may be
prescribed for obtaining the status of a dormant company.
“Inactive company” means a company which has not been carrying on any business or operation,
or has not made any significant accounting transaction during the last two financial years, or
has not filed financial statements and annual returns during the last two financial years.

Listed & Unlisted Company ( on the basis of access to capital ) —

Listed company: As per the definition given in the section 2(52) of the Companies Act, 2013, it is
a company which has any of its securities listed on any recognized stock exchange.
Provided that such class of companies, which have listed or intend to list such class of securities,
as may be prescribed in consultation with the Securities and Exchange Board, shall not be
considered as listed companies.
Unlisted company means company other than listed company.

Nidhi Companies —
 Company which has been incorporated as a nidhi
 with the object of cultivating the habit of thrift (cost cutting) and savings amongst its
members,
 receiving deposits from, and lending to, its members only for their mutual benefit and
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 which complies with such rules as are prescribed by the Central Government for
regulation of such class of companies. [Section 406 of the Companies Act, 2013

Public Financial Institution (PFI)—

By virtue of Section 2(72) of the Companies Act, 2013, the following institutions are
to be regarded as public financial institutions:

(i) the Life Insurance Corporation of India, established under the Life Insurance Corporation Act,
1956;
(ii) the Infrastructure Development Finance Company Limited,
(iii) specified company referred to in the Unit Trust of India (Transfer of Undertaking and Repeal)
Act, 2002;
(iv) institutions notified by the Central Government under section4A(2) of the Companies Act,
1956 so repealed under section 465 of this Act;
(v) such other institution as may be notified by the Central Governmentin consultation with the
Reserve Bank of India:

Conditions for an institution to be notified as PFI: No institution shall be so notified unless —

(i) it has been established or constituted by or under any Central or State Act other than this
Act or the previous Companies Law; or
(ii) not less than fifty-one per cent of the paid up share capital is held or controlled by
 the Central Government or
 by any State Government or Governments or
 partly by the Central Government and partly by one or more State Governments.

Equity share capital —

According to explanation to section 43:
‘‘Equity share capital’’, with reference to any company limited by shares, means all share
capital which is not preference share capital;

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Preference Share capital —
‘‘Preference share capital’’, with reference to any company limited by shares, means
that part of the issued share capital of the company which carries or would carry a
preferential right with respect to—
(a) payment of dividend,
either as a fixed amount or an amount calculated at a fixed rate,
which may either be free of or subject to income-tax; and
(b) in the case of a winding up or repayment of capital, repayment of the amount of the
share capital paid-up or deemed to have been paid-up,
whether or not, there is a preferential right to the payment of any fixed premium or
premium on any fixed scale, specified in the memorandum or articles of the company;
Capital shall be deemed to be preference capital, despite that it is entitled to either or
both of the following rights, namely: —
(a) That in respect of dividends,
in addition to the preferential rights to the amounts specified as above,
it has a right to participate, whether fully or to a limited extent, with capital not entitled to
the preferential right aforesaid;
(b) That in respect of capital,
in addition to the preferential right to the repayment, on a winding up, of the amounts
specified above,
it has a right to participate, whether fully or to a limited extent, with capital not entitled to
that preferential right in any surplus which may remain after the entire capital has been
repaid.
Exception: In case of private company – Section 43 shall not apply where memorandum or
articles of association of the private company so provides.

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