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Published by: sbikmm on Mar 04, 2012
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Contract - Elements of a Contract
Contract: the elements of a contract
The first step in a contract question is always to make sure that acontract actually exists. There are certain elements that
bepresent for a legally binding contract to be in place.The first two are the most obvious:
: an expression of willingness to contract on a specific setof terms, made by the
with the intention that, if the offeris accepted, he or she will be bound by a contract.
: an expression of absolute and unconditionalagreement to all the terms set out in the offer. It can be oral or inwriting. The acceptance must exactly mirror the original offermade.
is not the same as an acceptance. A counter-offerextinguishes the original offer: you can’t make a counter-offer andthen decide to accept the original offer! But…
request for information
is not a counter-offer. If you ask theofferor for information or clarification about the offer, thatdoesn’t extinguish the offer; you’re still free to accept it if youwant.It is very important to distinguish an offer from an
invitation to treat
that is, an invitation for
other people
to submit offers. Some everydaysituations which we might think are offers are in fact invitations totreat:
Goods displayed in a shop window or on a shelf .
When a book is placed in a shop window priced at£7.99, the bookshop owner has made an invitation totreat.
When I pick up that book and take it to the till,
to buy the book for £7.99.
When the person at the till takes my money, theshop
my offer, and a contract comes intobeing.
Adverts basically work in the same way as the scenarioabove. Advertising something is like putting it in a shopwindow.
Auctions :
The original advertising of the auction is just an invitation to treat.
When I make a bid, I am making an offer.
When the hammer falls, the winning ‘offer’ has been accepted.The seller now has a legally binding contract with the winningbidder (so long as there is no reserve price that hasn’t beenreached)N.B: an offer can be revoked at any time before it is accepted, so longas you inform the person you made the offer to that the offer no longer
: each party to the contract must receive somethingof value.This is best illustrated by an example: suppose I promise to give you mywatch, but you don’t give me anything in return. If I break my promiseand keep my watch, you can’t then go to court and make me give it toyou. The contract isnt legally binding: you didnt give meany
for my promise.So put simply, consideration is
the price paid for the other’s promise
.There are four legal maxims that apply to consideration:
Consideration must move
from the promisor
Consideration need not move to the promisee;
Past consideration is not good consideration;
The consideration given must be
, but it need notbe adequate.The detail isn’t necessary here, but there is a separate note on them if you’re interested.
Intention to create legal relations
: if my brother offers me a liftto London, and I say I’ll contribute to the cost of the petrol andthen don’t, there isn’t necessarily a binding contract that he cansue me under. If the arrangement is an informal, social one, thenmy offer to pay for petrol probably wasn’t made with the intentionof being legally bound (see the definition of ‘offer’ above).In general, arrangements of a social nature are
not to belegally binding, whilst commercial arrangements are
to beintended as binding contracts. Of course, these presumptions can alwaysbe rebutted in court by producing evidence to the contrary.
Writs are extraordinary legal remedies offered to individuals who do notobtain adequate protection under ordinary laws. Articles 32 and 226 of the Constitution of India empower individuals, whose rights have beenviolated, to seek legal cover through writs. Article 32 is intended todispute the violation of a fundamental right only in the Supreme Court.Article 226 supports enforcement of any right, including a fundamentalright, at a High Court.
Types of Writs and their Legal Implications
The Constitution of India recognizes five forms of writ petitions, includingthe writ of:
Habeas Corpus
This is filed to seek release of an individual from anunlawful detention; wherein the person is confined by the Police or evena private person without legal justification. The writ o
requires the concerned authority to produce the confinedindividual before the court and explain the grounds for detention. If the justification is deemed inadequate, the court orders the detained to bereleased. A
habeas corpus
writ may be filed by the prisoner any other person on his/her behalf.
This writ is issued by the Supreme Court or a High Courtwhen a government, court, or public authority fails to do a public duty.The writ may also be filed to stop the mentioned parties from doing aparticular act that may be detrimental to the general public. It must benoted that a writ of mandamus or command may not be issued againstthe Indian President or Governor.
This is issued by a superior court to a subordinate court toprevent it from usurping a jurisdiction in which it is not legally vested. Awrit of probation is typically issued before a case goes to trial or duringthe pendency of its proceeding, but before the final order has been made.
This issued by a superior court to a subordinate one when averdict has been established on the basis of wrong jurisdiction. Thedifference between the writs of prohibition and certiorari is that the former is issued at an earlier stage of the trial, while the latter is issued after a judgment has been passed.
Quo Warranto
‘Quo Warranto’ implies “What is your authority.” This writis issued when a public office is held by someone who is not qualified for the same. A writ issued by the court in this case seeks to investigate thegrounds on which the person is holding the post. If the reasons areascertained to be invalid, the individual may be restrained from takingdecisions in the office. The court may also declare the office to be vacant.

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