Indian Legal Environment

LEGAL ASPECTS OF BUSINESS
Prof.(CMDE) P. K. Goel
Law of Contract
“The law of contract is intended to
ensure that what a man has been led
to expect shall come to pass; that
what has been promised to him shall
be performed”
- Sir William Anson
12/08/21 Prof.(CMDE) P. K. Goel 2
What is a Contract?
“Every agreement and promise
enforceable at law is a contract”
-Sir Federick Pollock
“An agreement creating and defining
obligations between the parties”
-Sir William Anson
“An Agreement enforceable by law is a
contract”
- Sec.2(h) of the Indian Contract Act,1872
Contract
Agreement Enforceability of an agreement
Offer (or proposal)
Acceptance of Legal obligation arising

offer (or proposal out of an agreement
Distinction between an Agreement and a Contract
An Agreement differs from a contract in the following respects:
Basis of distinction An Agreement A Contract
1) What constitute Offer and its acceptance Agreement and its
constitute an agreement enforceability constitute a
contract
2) Creating of An Agreement may or A Contract necessarily
legal obligation may not create a legal creates a legal obligation.
obligation.
3) One in other Every Agreement need All Contacts are necessarily
not necessarily be a agreements.
contract
4) Binding Agreement is not Contact is concluded and
concluded or binding binding on the concerned
12/08/21
contracts parties.Prof.(CMDE) P. K. Goel 5
What is an Agreement?
“Every Promise and every set of

Promises, forming the consideration for
each other, is an Agreement”
-Sec. 2(e) of the Act
a) Offer
b) Acceptance

Characteristics of an Agreement
- Plurality of Persons
- Consensus – ad – idem

What is a Promise?
“Proposal when accepted, becomes a
promise.”
-Section 2 (b)

“The law of contract is not the whole law of
agreements, nor is it the whole law of
obligations. It is the law of those
agreements which create obligations, and
those obligations which have their source
in agreements.”
-Salmond
Essential elements of a valid contract
1. Agreement i.e. Offer & Acceptance.
2. Intention to create legal relations.
3. Lawful consideration
4. Competence of parties
5. Free Consent
- Coercion - Undue Influence
- Fraud - Misrepresentation
12/08/21
- Mistake Prof.(CMDE) P. K. Goel 10
Essential elements of a valid contract
6. Lawful object
7. Writing & Registration
8. Certainty
9. Possibility of Performance
10.Not Expressly declared void.

Classification of contracts
1. On the basis of enforceability
• Valid
• Void
• Voidable
• Unenforceable
• Illegal
2. On the basis of mode of creation
• Express
• Implied
• Constructive or Quasi
Classification of contracts………..
3. On the basis of the extent of execution
• Executed
• Executory
4. On the basis of form of the contract

• Formal
• Simple

What is an Offer (PROPOSAL)
“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 proposal”
Sec 2(a) of the Act
Essentials of a Proposal
1. It must be an EXPRESSION OF
WILLINGNESS to do or to abstain from
doing some thing.
2. The expression must be TO ANOTHER
PERSON.
3. This must be made WITH A VIEW TO
OBTAINING THE ASSENT OF THE
OTHER PERSON.
Legal Rules Regarding a Valid Offer
1. Express or Implied
2. Legal consequences, Legal Relations.
3. Certain.
4. Invitation to offer is no offer.
5. Specific or general
6. Communicated to the offeree
7. Non-compliance of the term-would amount to
acceptance-not valid
8. Subject to any terms and conditions.
Legal Rules Reg. A Valid Acceptance
1. Acceptance must be given only by the
person to whom the offer is made.
2. Acceptance must be absolute &
unqualified.
3. Acceptance must be expressed in some
usual & reasonable manner, unless the
proposal prescribes the manner in which it
is to be accepted.
Legal Rules Reg. A Valid Acceptance…
4. Acceptance must be communicated by
the acceptor.
5. Acceptance must succeed the offer.
6. Acceptance must be given within a
reasonable time and before the offer
lapses and/or is revoked.
7. Rejected offers can be accepted only, if
renewed.
Consideration
DEFINITION:
“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 act or abstinence or promise
is called consideration for the promise”
Sec 2(a)

Consideration……..
Consideration is the “Price for which a
promise is bought”
-Sir F. Pollock

Essentials of a valid consideration
1. Consideration must move at the desire of the
promisor.
2. Consideration may move from the promisee or
any other person.
3. Consideration must be legal
4. It may be past, present or future.
5. It must be ‘Something of value’.
6. Consideration may be a promise to do
something or abstain from doing something.
No Consideration Necessary
1. Made on account of natural love & affection.
2. To compensate for past voluntary service.
3. Agreement to pay a time barred debt.
4. Contracts of agency.
5. Completed gifts.
6. Remission of the promisee of performance
of the promise.
7. Guarantee
Capacity of Parties
MEANING
“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”
Minor’s Agreement
1. Absolutely Void
2. No Ratification
3. No Restitution
4. No Estoppels
5. Minor Beneficiary
6. Minor’s Liability for Necessities
7. Minor Promisee
Minor’s Agreement………..
8. Minor Agent
9. Minor Partner
10.Surety for a Minor
11.Minor as a member of a company
12.A minor cannot be declared as an
insolvent
13.Minor’s Liability for Tort.
Persons of Unsound Mind
“A Person is said to be of sound mind
for the purpose of making a contract, if
at the time when he makes it, he is
capable of understanding it, and of
forming a rational judgment as to its
effect upon his interests.”
Disqualified Person
1. Alien Enemy
2. Foreign Sovereigns & ambassadors
3. Convict
4. Company or corporation
5. Insolvent
-Sec. 13
Free Consent
DEFINITION:
“Two or more persons are said to
consent when they agree upon the
same thing in the same sense”.

Free Consent
Consent is said to be ‘Free’ when it is
not caused by:
1) Coercion
2) Undue Influence
3) Fraud
4) Misrepresentation
5) Mistake
Coercion
“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”
Undue Influence
“A contract is said to be induced by
undue influence where,
1) 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
2) He uses the position to obtain an
unfair advantage over the other”
Fraud
“Fraud means & includes any of the following
acts committed by the party to a contract, or
with his connivance, or by his agent, with intent
to deceive or to induce another party there to
or his agent, to enter into the contract:
a) A suggestion as to a fact of that which is
not true by one who does not believe it to
be true
Fraud
a) A suggestion as to a fact of that which is not
true by one who does not believe it to be true.
b) An active concealment of a fact by one having
knowledge or belief of the fact.
c) A promise made without any intention of
performing it.
d) Any other act fitted to deceive.
e) Any such act or omission as the law
specifically declares to be fraudulent.”
Prof.(CMDE) P. K. Goel
12/08/21 33
Misrepresentation
Misrepresentation means & Includes:
a) The positive assertion, in a manner
not warranted by the information to
the person making it, of that which is
not true, though he believes it to be
true; or
b) 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
12/08/21
him, or Prof.(CMDE) P. K. Goel 35
c) 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.

Mistake
MEANING
Mistake may be defined as an erroneous
belief concerning something
Kinds of mistake
1. Mistake of law
• Foreign
• Indian
2. Mistake of fact
• Bilateral
12/08/21 • Unilateral Prof.(CMDE) P. K. Goel 37
Legality of object & consideration
Consideration & objects are unlawful
IF
1) It is forbidden by law
2) It is of such a nature that, if permitted, it
would defeat the provisions of any law.
3) It is fraudulent
4) It involves or implies injury to the person
or property of another
5) The court regards it as immoral
6) The court regards it as ‘opposed to public
policy’.
Expressly declared void agreements
Agreement
1) In restraint of marriage
2) In restraint of trade
3) In restraint of legal proceedings
4) The meaning of which is uncertain
5) By way of wager
6) Contingents on impossible events
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7) To do impossible acts” Prof.(CMDE) P. K. Goel 39
Contingent Contracts
“A contingent contract is a contract to
do or not to do something, if some
event, collateral to such contract does
or does not happen”

PERFORMANCE OF CONTRACT
WHO CAN DEMAND PERFORMANCE?
ONLY THE PROMISEE

By whom contracts must be performed
1. By the promisor himself
2. By the agent
3. By the legal representatives
4. Performance by a third person

Discharge of a contract
Modes of discharge
1. By performance – actual or attempted.
2. By mutual consent or agreement.
3. By subsequent or supervening
impossibility or illegality.
4. By lapse of time
5. By operation of law
6. By breach of contract
Quasi – Contract
Quasi Contractual obligations
1. Claim for necessaries supplied to a
person incapable of contracting or on
his account.
2. Reimbursement of person paying
money due by another, in payment of
which he is interested.
Quasi Contractual obligations
3. Obligations of person enjoying benefit
of non-gratuitous act.
4. Responsibility of finder of goods.
5. Liability of person to whom money is
paid, or thing delivered by mistake or
under co-ercion.
Remedies for breach of contract
1. Rescission of the contract.
2. Suit for damages
3. Suit upon quantum – Meruit
4. Suit for specific performance of the
contract
5. Suit for an injunction.
Indemnity
DEFINITION:
“A contract by which one party promises to
save the other from loss caused to him by
the conduct of the promisor himself or by
the conduct of any other person, is called
a contract of indemnity”.
Guarantee
DEFINITION:
“A contract of guarantee is a contract
to perform the promise, or discharge
the liability of the third person in case
of his default”.
Distinction between Indemnity & Guarantee
Indemnity Guarantee
 Liability of the  Liability of the surety is
Indemnifier is secondary. Primary Liability
Primary is of Principal Debtor
 Indemnifier acts  Surety gives guarantee at
independently the request of the debtor
 Two parties –  3 Parties – Creditor,

Indemnifier and Principal Debtor and
Indemnity holder Surety.
Indemnity Guarantee
 In most cases, liability of the  There is an existing
indemnifier arises only on the legal debt/duty, the
happening of the performance of which is
contingency. guaranteed by the
surety.
 The Indemnifier cannot sue  Can proceed against the
the third party for loss in his Principal Debtor in his
own name. Can only bring own right.
the suit in the name of the
indemnified unless there is an
assignment in his favour. Prof.(CMDE) P. K. Goel
12/08/21 50
Indemnity Guarantee
 For the reimbursement of  Security of a debt or good
loss. The liability of the conduct of an employee.
indemnifier arises only on There is usually an existing
the happening of a debt or duty the
contingency. performance of which is
guaranteed by the surety.
 Only one contract between  3 Contracts = A & B
the indemnifier and the = B&C
indemnified = A&C

Kinds of Guarantee
a) Specific
b) Continuing Guarantee

Discharge of Surety from Liability
1. Notice of Revocation
2. Death of Surety
3. Variance in terms of contract
4. Release or discharge of Principal Debtor.
5. Arrangement by Creditor with Principal
Debtor without surety’s consent.
6. Creditor’s act or omission impairing surety’s
eventual remedy.
7. Loss of security.
8. Invalidation of the contract of Guarantee.
Bailment
DEFINITION:
“A Bailment is the delivery of goods by
one person to another for some purpose,
upon a contract that they shall, when the
purpose is accomplished, be returned or
otherwise disposed of according to the
directions of the person delivering them”.
Essential features of Bailment
1. Delivery of movable goods
2. Goods are delivered for some
purpose.
3. Condition of delivery – on
accomplishment of purpose goods
are to be returned.
Duties of Bailee
1. To take reasonable care of goods
delivered to him.
2. Not to make unauthorized use of goods
entrusted to him.
3. Not to mix goods bailed with his own
goods
4. To Return the goods.
5. To deliver any accretion to the goods.
Duties of Bailor
1. To disclose faults in goods bailed.
2. To repay necessary expenses in
case of gratuitous bailment.
3. To repay any extraordinary
expenses in case of non-gratuitous
bailment.
4. To indemnify bailee.
12/08/21
5. To receive back the goods.Prof.(CMDE) P. K. Goel 57
Rights of Bailee
1. Enforcement of bailor’s duties.
2. To deliver goods to one of several
joint bailors.
3. To deliver goods in good faith, to
bailor without title.
4. Lien.
Rights of Bailor
1. Enforcement of bailee’s duties.
2. To terminate bailment if the bailee
uses the goods wrongfully.
3. To demand return of goods at any
time incase of Gratuitous Bailment.

Agency
DEFINITION:
“An AGENT is a person employed to do any
act for another or to represent another in
dealing with third persons. The person for
whom such act is done, or who is represented,
is called the PRINCIPAL”
Sec 2(a)

Creation of Agency
•Agency by Express Agreement
•Agency by Implied Agreement
•Agency by Ratification
•Agency by Operation of Law

Duties of Agent
 To follow Principal’s directions or customs.
 To carry out the work with reasonable care, skill and
diligence.
 To render accounts
 To communicate with Principal in case of difficulty.
 Not to deal on his own account.
 Not to make any profit out of his agency except his
remuneration.
 On termination of agency by Principal’s death or Insanity to
protect and preserve the interest of the Principal.
12/08/21 Not to delegate authority. Prof.(CMDE) P. K. Goel 62
Rights of Agent
 To receive remuneration
 Retainer
 Lien - particular
 To be indemnified against consequences of Lawful
acts
 To be indemnified against consequences of acts
done in goods faith
 To compensation
 Stoppage of goods in transit.
Duties of Principal
 To indemnify agents against consequences of
all lawful acts.
 To indemnify agents against consequences of
acts done in good faith
 To indemnify against the injury caused by
Principal’s neglect.
 To pay the agent for commission or other
remuneration agreed.
Rights of Principal
 To recover damages
 To obtain an account of secret profits and
recover them and resist a claim for
remuneration.
 To resist against agent’s claim for
indemnity against liability incurred.
Termination of Agency
By Act of Parties By Operation of Law
Performance of the Contract
Expiry of the time
Agreement
Death of either party
Revocation by Insanity of either party
the Principal
Destruction of the subject matter
Revocation by Principal becoming an alien enemy

the Agent Dissolution of Co.
Termination of agents authority
Contract of sale of Goods
DEFINITION:
“A Contract whereby the seller transfers or
agrees to transfer the property in goods to
the buyer for a price.”
Sec 4(1) of the Sale of Goods Act

Essential Characteristics of a contract
of Sale of Goods
1. Two Parties
2. Transfer of Property
3. Goods
4. Price
5. Includes both a ‘Sale’ and ‘an Agreement to
Sell’
6. No Formalities to be observed
Distinction between ‘Sale’ and
‘Agreement to Sell’
1. Transfer of property (ownership)
2. Risk of loss
3. Consequences of Breach
4. Right of Resale
5. Insolvency of buyer before he pays for
goods
6. Insolvency of seller if the buyer has already
paid the price.
Condition
DEFINITION:
“A Condition is a stipulation essential to
the main purpose of the contract, the
breach of which gives the aggrieved party
a right to repudiate the contract itself.”
Sec 12(2)
Warranty
DEFINITION:
“A warranty is a stipulation collateral to the
main purpose of the contract, the breach
of the which gives the aggrieved party a
right to sue for damages only, and not to
avoid the contract itself.”
Implied Conditions
 As to title
 In a sale by description
 In a sale by sample
 In a sale by sample as well as by description
 As to fitness or quality
 As to merchantability
 As to wholesomeness
Implied Warranties
 Of quiet possession
 Of freedom from encumbrances
 Of disclosing the dangerous nature of
goods to the ignorant buyer.

Exception to the Doctrine of Caveat emptor
 In case of misrepresentation by seller
 In case of concealment of latent defects by
seller.
 In case of sale by description.
 In case of sale by sample.
 In case of sale by description by sample.
 Fitness for a particular purpose
 Merchantable quality.
Transfer of Property
 Risk ‘Prima Face’ passes with
property
 Action Against third parties
 Suit for price
 Insolvency of the seller or the buyer.
Rules regarding transfer of property
1. In Specific or Ascertained Goods
 When goods are in a deliverable state
 When goods have to be put in a deliverable
state
 When goods have to be measured etc. to
ascertain price
 When goods are delivered on approval
2. In Unascertained goods & future goods
Meaning of unpaid seller
DEFINITION:
The seller of goods is deemed to be ‘UNPAID
SELLER (a) When the whole of the price has not
been paid or tendered; OR (b) Where a bill of
exchange or other negotiable instrument has been
received as a conditional payment, I.e. subject to the
realization thereof, and the same has been
dishonored
Characteristics of an unpaid seller
 He must sell goods on cash terms and
not on credit
 He must be unpaid either wholly or
partly
 He must not refuse to accept payment
when tendered.
Rights of an unpaid seller
Against the Goods Against the Buyer personally
Where the property Where the property
in the goods has in the goods has
passed [Sec. 46(1)] Not passed
[Sec. 46(2)]
Lien Stoppage Re-sale
(Sec. 47 in transit (Sec.54) With holding Stoppage
to 49 (Sec. 50 delivery in transit
to 52
Suit for price Suit for Repudiation Suit for

(Sec. 55) damages Of contract interest
(Sec. 56) (Sec. 60) (Sec. 61)
Negotiable Instrument
DEFINITION:
“A Negotiable instrument means a promissory note,
bill of exchange or cheque payable either to order or
to bearer”
-Sec. 13
“ A Negotiable instrument is one the property in

which is acquired by every person who takes it
BONAFIDE and for value, notwithstanding any defect
of title in the person from whom he took it.”
-Judge Wills
Essential Elements of
a Negotiable Instrument
 In writing
 Signed by the Maker/Drawer
 Promise or order to pay
 Promise/order must be unconditional
 Payment in Money
 For a certain sum
 Payable at a time certain to arrive
 Drawee must be named or described with
12/08/21
reasonable certainty. Prof.(CMDE) P. K. Goel
81
Promissory Note
Meaning
“A Promissory note is an instrument in writing
(not being a bank note or currency note)
containing an unconditional undertaking,
signed by the maker, to pay a certain sum of
money, or to the order of, a certain person, or
to the bearer of the instrument.
Bill of Exchange
Meaning
“A Bill of exchange is an instrument in writing
containing an unconditional order signed by the
maker, directing a certain person to pay a
certain sum of money only to, or to the order of,
a certain person or to the bearer of the
instrument.”
Cheque
Meaning
“A Cheque is a bill of exchange drawn on a

specified banker and not expressed to be
payable otherwise than on demand and it
includes the electronic image of a truncated
cheque and a cheque in the electronic form”
Cheque – Electronic Form
Meaning
‘A cheque in the electronic form’ means a cheque
which contains the exact mirror image of a paper
cheque, and is generated, written and signed in a
secure system ensuring the minimum safety standards
with the use of digital signature (with or without
biometrics signature) and asymmetric crypto system.
Truncated Cheque
Meaning
‘A truncated cheque’ means a cheque which is
truncated during the course of a clearing cycle, either
by the clearing house or by the bank, whether paying
or receiving payment, immediately on generation of an
electronic image for transmission, substituting the
further physical movement of the cheque in writing.
Distinction between Bill & Promissory Note
Note Bill
 Two parties – Maker  3 Parties –Drawer Drawee &
(Dr) & Payee (Cr) Payee. Two can be OK
 Cannot be made  The drawer and payee or
payable to the maker drawee and payee –same
 Unconditional promise  Unconditional order to the

by the maker to pay drawee to pay according to the
drawer’s directions.

Distinction between Bill & Promissory Note…
Note Bill
 Presented for payment  Payable after sight must be
w/o any prior accepted by the drawee or
acceptance by the some one else on his behalf
maker before it can be presented.
 The liability of maker is  Liability of the drawer is
primary & absolute secondary & conditional
 Maker stands in  Maker/drawer of an accepted
immediate relation with bill in immediate relation with
the payee the acceptor & not the payee.

Distinction between Bill & Promissory Note…
Note Bill
 No need of protest  Foreign bills must be
protested for dishonor where
law requires it
 No notice is necessary  Notice of dishonor by the
holder to the drawer &
intermediate endorsers

Distinction between A cheque & B/E
Cheque Bill of Exchange
 Drawn on a Banker  May be drawn on any
person including a banker
 Payable on demand  Payable on demand or
the expiry of certain
period after date of sight.
 Payable to bearer on  Such a B/E is void and
demand-valid illegal
 Does not require  Such acceptance is
acceptance by the drawee necessary

Distinction between A cheque & B/E…….
Cheque Bill of Exchange
 Does not require any stamp  Proper stamp is
necessary
 No days of grace  Three days of grace on
‘time bills’
 Can be crossed  Can not be crossed
 Payment can be  No
countermanded by the drawer
 No system of noting/protest  Such a thing is
required
Holder
“The holder of a negotiable instrument
means any person entitled to the
possession of the instrument in his own
name and to receive or recover the
amount due thereon from the parties liable
thereto.”
-Sec.8
Holder in due course
1. He must be a holder.
2. He must be a holder for valuable
consideration.
3. He must have become the holder of the N/I
before its maturity.
4. He must take the N/I complete and regular on
the face of it.
5. He must have become holder in good faith.
Privileges of Holder in due course
 He gets a better title than that of the transferor.
 Privilege in case of inchoate stamped instruments.
 Liability of prior parties
 Privilege in case of fictitious bill.
 Privilege when an instrument delivered conditionally
is negotiated.
 Estoppel against denying original validity of
instrument.
 Estoppel against denying capacity of payee to
indorse.
Negotiation
DEFINITION
“When a promissory note, bill of exchange
or cheque is transferred to any person, so
as to constitute that person the holder
thereof, the instrument is said to be
negotiated.”
Not Negotiable
MEANING
“A person taking a cheque crossed
generally or specially, bearing in either
case the words ‘Not Negotiable’, shall not
have, and shall not be capable of giving, a
better title to the cheque than which the
12/08/21
person from whom he took it had.”
Prof.(CMDE) P. K. Goel 96
Bouncing of Cheques
 Cheque should have been dishonored due to
‘insufficiency of funds.’
 Cheque presented within its validity.
 For the discharge of legally enforceable debt or
other liability.
 Notice within 30 days of dishonor.
 Failed to make the payment within 15 days of the
receipt of notice.
 A written complaint to a M.M. or 1st Class J.M. within
one month of the date when the cause of action
12/08/21
arose. Prof.(CMDE) P. K. Goel
97

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LEGAL ASPECTS OF BUSINESS

Agreement Enforceability of an agreement

Offer (or proposal)

Acceptance of Legal obligation arising

“Every Promise and every set of

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4. On the basis of form of the contract

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ONLY THE PROMISEE

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 Two parties –  3 Parties – Creditor,

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Revocation by Principal becoming an alien enemy

12/08/21 Prof.(CMDE) P. K. Goel 67

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Suit for price Suit for Repudiation Suit for

“ A Negotiable instrument is one the property in

“A Cheque is a bill of exchange drawn on a

 Unconditional promise  Unconditional order to the

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12/08/21 Prof.(CMDE) P. K. Goel 88

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