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MB0051

MB0051

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Published by Siddhartha Gupta

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Published by: Siddhartha Gupta on Jul 09, 2012
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12/22/2012

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1 “All agreements are not contracts, but all contracts are agreements”. Comment.
It is a valid and true statement. Before we can critically examine the statement, it is necessary tounderstand the meaning of agreement and contract. According to section 2(a) "every promise onevery set of promises forming the consideration for each other an agreement.It is fact an agreement is a proposal and its acceptance, by which two or more person or partiespromises to do abstain from doing an act. But a contract according to section 2(h) of the IndianContract Act, "An agreement enforceable by law is a contract. It is clear these definitions that thethere elements of a contract ore(a) Agreement Contractual Obligation(b) Enforceability by Law.For Example: X invites his friend to tea and the latter accepts the invitation. This is a socialagreement not a contract because it does not imply any legal obligation. We can say that (a) All contracts are agreements, (b) But all agreements are not contracts. (A) AllContracts are AgreementsFor a Contract to be there an agreement is essential; without an agreement, there can be no contract. As the saying goes, "where there is smoke, there is fire; for without fire, there can be no smoke". Itcould will be said, "where there is contract, there is agreement without an agreement there can be nocontract". Just as a fire gives birth to smoke, in the same way, an agreement gives birth to a contract. Another essential element of a contract is the legal obligation for the parties to the contract, there aremany agreements that do not entail any legal obligations. As such, these agreements cannot be calledcontracts.
For Example:
  A gives his car to B for repair and B asks for Rs. 200 for the repair works. A agrees to pay the priceand B agrees to repair the car. The agreement imposes an obligation on both. The third element of acontract is that the agreement must be enforceable by Law. If one party fails to keep his promise, theother has the right to go the court and force the defaulter to keep his promises. There are otherelements are:1. Offer and acceptance,2. Legal obligation,
 
3. Lawful consideration,4. Valid object,5. Agreement not being declared void by Law,6. Free consent,7. Agreement being written and registered,8. Capacity to contract,9. Possibility of performance from what has been discussed. It is clear that all contracts areagreements.
 All Agreements are not Contracts
 
:
  An agreement is termed a contract only when it is enforceable by law. All agreements are notnecessarily legally enforceable. It can rightly be said that an agreement has a much wider scope thana contract. For example that agreements are not legally binding are an invitation to dinner or to gofor a walk and its acceptance. These are agreements not contracts. An agreement does not necessarily imply a legal obligation on the parties to the agreement. It isimport here to clarify what exactly is an obligation. Obligation is a legal tie which imposes upon aperson or persons the necessity of doing or abstaining from doing definite act or acts. An agreement need not necessarily be within the framework of law and be legally enforceable. If it is,then it is a contract. A promises B to do physical harm to C whom, the latter does not like and Bpromises to pay A Rs. 1000 to do that, it cannot be termed as a contract because such an act would be against the law. Any agreement of which the object or consideration is unlawful is void and cannot be called a contract.It would be clear from what has been said so far that an agreement has a much wider scope than acontract. An Agreement implies fulfilling some agreed condition. It does not necessarily imply thatthe stipulated conditions conform to the law and are enforceable by it. It may be said that anagreement is the genus of which contract is the species. It also makes it clear that all agreements arenot contracts but all contracts are agreements.
2. What are the essentials of a contract of sale under the sale of Goods Act, 1930?
Sec.4 defines a contract of sale as 'a contract whereby the seller transfers or agrees to transfer theproperty in goods to the buyer for a price'. From the definition, the following essentials of the contractemerge:1.
There must be at least two parties.
A sale has to be bilateral because the property in goods has
 
to pass from one person to another. The seller and the buyer must be different persons. A personcannot buy his own goods. However, a part-owner may sell to another part-owner.
Examples:
A partnership firm was dissolved and the surplus assets, including some goods, weredivided among the partners in specie. The sales-tax officer sought to tax this transaction. Held, thistransaction did not amount to sale. The partners were themselves the joint owners of the goods andthey could not be both sellers and buyers. Moreover, no money consideration was promised or paid byany partner to the firm as consideration for the goods allotted to him.2.
Transfer or agreement to transfer the ownership of goods.
In a contract of sale, it is theownership that is transferred (in the case of sale), or agreed to be transferred (in the case of agreement to sell), as against transfer of mere possession or limited interest (as in the case of bailment or pledge).3.
The subject matter of the contract must necessarily be goods.
The sale of immovableproperty is not covered under Sale of Goods Act. The expression 'goods' is defined in Sec.2(7).4.
Price is the consideration of the contract of sale.
The consideration in a contract of sale hasnecessarily to be 'money', (i.e., the legal tender money). If for instance, goods are offered as theconsideration for goods, it will not amount to sale. It will be called a 'barter'.
3. Describe the main features of Consumer Protection Act 1986.
In 1986, the consumer protection act bill was forwarded in the Lok Sabha by Mr. H.K.L Bhagat. Themain aim of the bill was to make provisions for the establishment of consumer protection councils atthe districts, states and national levels. But, in order, to get benefited with this act, as a consumer,you first need to understand who a consumer is.
Who is a consumer?
Generally, when you purchase something you become a buyer or a
consumer
. But, according to theconsumer protection act, you can only be termed a consumer when you buy goods or services for thepurpose of consumption. It is important to mention here, that, if you purchase any goods or servicesfor resale you cannot be termed a consumer. For the sake of your understanding let us consider anexample. Suppose, if you purchase a four wheeler motor car for doing some businesses like sendingchildren to school and in turn charge some monthly fees for giving the service then you will not be
 
turned as a consumer. Why? Because you have purchased the motor car for doing business. In
 
contrast to this, if you purchase the four wheeler motor car for your self use or for your family and not
 
for doing any business then you will legally be termed a consumer.
Features of consumer protection act
In India, the consumer protection act of 1986 was passed to protect the interest of consumersthroughout the country. Here, I am going to discuss some of the main
aims of the consumerprotection act of 1986
.1.
 
Formation of consumer protection councils at the district, state and national levels. Thesebodies will carry out the function of protecting consumer rights.
 
2.
 
Besides, there are other rights which are conserved for the consumers. For instance,stopping the sale of those products and services which are harmful to the life, health andproperty of the consumers in general.

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