Professional Documents
Culture Documents
MM Law 6103-Q (JJ)
MM Law 6103-Q (JJ)
2.A agrees to B to discover treasure by magic. The act in itself is ----------- to be performed from
the very beginning.
difficult
possible
impossible
oral
in writing
oral or in writing
4.Agreement is a wider term than contract. yes
a legal right
a legal obligation
legal right & obligation
unenforceable
enforceable
9. "A offers to sell his Toyota car to B for Ks.10,000,000 on acceptance of A’s offer by B, there is a
promise by A to sell the car and there is a promise by B to purchase the car there are two promises. It is
--------- ."
Bilateral
11.The seller is --------- to reveal the defects of his goods to the buyer subject to certain
conditions.
under duty
under no duty
12. If a person makes a representation believing what he says is true he commits ---------- .
innocent misrepresentation
fraudulent misrepresentation
13. The liability of the finder of goods belonging to someone else is that of a ----------- .
bailee
bailor
guarantor
14."In case of breach of contract , the injured party may sue on --------- ."
compensation
quantum meruit
Nominal
Exemplary
Nomal
16. ----------- is usually granted in contracts relating to land.
Injunction
Specific performance
Compensation
17. ---------- will not be ordered where one of the parties is a minor.
Specific performance
Injunction
Compensation
Injunction
Specific performance
Compensation
19."In contract of guarantee, the person who gives guarantee is called ------------ ."
a surety
a bailor
a guarantor
20. ---------- is a person who is employed to bring his principal into contractual relations with
third parties.
An agent
A servant
A subodinate
21. Where only one party has to perform his duty or obligation it is ----------- .
bilateral contract
unilateral contract
promisor
promisee
.23. ----------- is used by a dominant party on a weaker one to get an unfair advantage in a
contract.
Undue influence
Coercion
Minor
Person attaining legal age
All
.25. The person making the proposal is called the " _______".
Promise
Promisor
Promisee
26." _________of the Contract Act,1872 provides two general modes of communication."
Section (2)
Section (3)
Section (4)
27. In Myanmer attaining the age of majority was provided in the _______of the Majority Act.
Section (2)
Section (3)
Section (4)
agreement
offer
promise
29. " Every agreement in restraint of the marriage of any person, other than a minor is
________."
valid
invalid
void
two rules
three rules
four rules
31. " _________ are not punitive or exemplary, they are compensation for loss suffered."
Damages
An Injunction
Specific Performance
32. " --------------- may be either an alien friend or a foreigner whose sovereign or State is at
peace with Myanmar, has usually contractual capacity of a Myanmar citizen."
An alien
An alien enemy
33.If a person makes a representation believing what he says is true he commits ---------------- .
innocent misrepresentation
fraudulent misrepresentation
34."The effect of -------------- is that the party misled by it can avoid the contract, but cannot sue
for damages in the normal circumstances."
innocent misrepresentation
fraudulent misrepresentation
35. " ----------------- means any wrong or damage done to another, either in his person, rights,
reputation or property."
Injury
Loss
Injury or loss
36. “Contract to do an act afterwards becoming impossible or unlawful”. Do you agree this
statement? Briefly discuss.
Duties of a Bailor
Section 150
“If the goods are bailed for hire, the bailor is responsible
for such damage, whether he was or was not aware of the
existence of such faults in the goods bailed.”
38."A owes B Ks-100,000 but the debt is barred by the Limitation Act. A signs a written
promise to pay B Ks-50,000 on account of the debt. Is it a contract? Explain."
39. What do you understand by “holding out”? And study the liability of pretended agent.
Explain the term agency by estoppels.
Agency by Estoppel
Merchantable
2. ------------------------- means goods identified and agreed upon at the time a contract of sale is
made.
Specific goods
A quality of goods
4. -------------- means and includes any of the following acts committed by a party to a contrct.
Fraud
5. ----------------------- is definded as "Two or more persons are said to consent when they agree
6. -------------------- of the Sale of Goodss Act 1930 defines the important terms for the purpose
Section 2 Consent
8. ------------ are obligations which though not contracts strictly, give rise to relations which
c. Damages, injunction
10. -------------- under mistake of fact or mistake of law is called void agreement.
11. --------------- which form the consideration or part of the consideration for each other, is an
agreement.
12. ------------- must be communicated to the person who made the offer.
13. --------------- and acceptance are the two basic elements of contract.
15. ------------- must have an economic value in order for it to be valid ain a contractual context.
Consideration
16. ------------------ is an expression of willingness to contract on specified terms, made with the
An offer
3
17. ------- may be made expressly by words or by conduct.
An offer
18. -------------- must be distinguished from an invitation to treat, by which a person does not
A promise
19. ------------ is committed when a party, without lawful excuse, fails or refuses to perform what
is due from him under the contract, or performs defectively, or incapacitates himself from
performing.
A breach of contract
20. ------------- is the remedy by which one party the injured party is released from his obligation
A breach of contract
Impossibility
Damages
23. --------------- is clear and absolute refusal to perform, which includes conduct showing the
A breach of contract
4
24. --------------- is the remedy by which one party the injured party is released from his
A breach of contract
25. --------------, the terms of a contract may be inferred from the conduct of the parties or from
An express contract
26. ---------------- are strictly not contracts as there is no intention of parties to enter into a
contract.
Quasi contracts
27. ------------- is an expression of willingness to contract on specified terms, made with the
An offer
28. --------------- is a final and unqualified expression of assent to the terms of an offer.
A promise
29. ------------ is the remedy by which one party is released from his obligation to perform
Repudication
5
30. ---------------- is committed when a party, without lawful excuse, fails or refuses to perform
what is due from him under the contract, or performs defectively, or incapacitates himself
from performing.
A breach of contract
31. -------------- is clear and absolute refusal to perform, which includes conduct showing the
Termination
Damages
33. -------------- means the court may order payment for expenses necessarily incurred in
Indemnity
34. ------------------- arises when a promise is given in exchange for a promise in return.
Unilateral contract
An offer
6
37. ------------ must be distinguished from an invitation to treat, by which a person does not
A promise
Impossibility
Damages
40. ------------- is the remedy by which one party the injured party is released from his obligation
A breach of contract
An agreement
complete
42. -------------- must be communicated to the person who made the offer.
acceptance
oral
positive
7
45. ------------- are obligations which though not contracts technically give rise to relations
Quasi-contracts
An agreement
positive
48. -------------- will be inadequate where the plaintiff cannot get a satisfactory substitute.
Damages
49. ------------- will be refused if the plaintiff has acted unfairly or dishonestly.
specific performance.
50. ------------------ are obligations which though not contracts technically, give rise to relations
quasi-contract
51. --------------- is a person employed to do any act for another, or to represent another, or to
An "Agent"
Acceptance
8
53. ----------will be refused if the plintiff has acted unfairly or dishonestly.
specific performance
injunction
Contracts
56. ----------------- must be communicated to the person who made the offer.
acceptance
57. ----------------- are obligations which though not contracts technically give rise to relations
Quasi-contrcts
injunction
An agreement
60. ------------ which form the consideration or part of the consideration for each other, is an
agreement.
promise
9
61. ---------------- can be addressed to a single person, to a specified group of persons, or to the
world at large.
An advertisement
62. ___________ is a person employed to do any act for another , or to represent another, in
An "Agent"
formal
Acceptance
65. ---------- which from the consideration or part of the consideration for each other, is an
agreement.
promise
66. ------------ are the universally accepted process for making an agreement.
Unlawful contract
70. __________ is a person employed to do any act for another, or to represent another, in
An "Agent"
71. ------------- in restraint of trade are contrary to public policy and therefore void.
Agreements.
legal
void
void
75. An advertisement in a newspaper offering a reward for the finder of the lost dog amounts to a
------------.
general offer
11
76. A and B make a contact grounded on erroneous belief that a particular debt is barred
not voidable
77. Aung Aung " and "Bo Bo contract to marry with each other. Before the tim fixed for the
valid
78. Agreements by way of wager are ------------- and to suit shall be brought for recovering
void
79. All agreements are contracts if they are made by the --------- of parties.
free consent
80. A agrees to pay B Kyats 1,000000 if B will marry A's daughter C. C was dead at the time of
void
81. Acceptance of the proposal means the acceptance of ---------- the terms.
all
82. All aggreements are ------------ if they are made by competent to contract.
contracts
12
83. " Agreements , the meaning of which is not certain, or capable of being made certain, are
-----.
void
84. A agrees to pay B Kyas 1,00000 if B will marry A's daughter C. C was dead at the time of
valid
void
86. A patient in a lunatic asylum, who is at intervals of sound mind, may contract during those
intervals.
sound mind
87. An act done by a person in ignorance of offer does not amount to performance of the
proposal
88. An agreement which is enforceable by law at the option of one or more of the parties therto,
An agreement
void
13
91. A contract which ceases to be enforceable by law becomes ---------- when it
cease to be enforceable.
void
a promise
94. A agrees to sell to B " a hundred tons of oill." There is nothing whatever to show what kind
valid
95. "A person is said to be of sound mind for the purpose of making a contrct if , at the time
capable
executed
97. A sale is by description where the class or kind of goods to which the goods belong is ---------
in the contract.
specified
essential
14
99. A sale is an -------------- contract.
executed
100. A "sale" is a transfer of property in goods which exactly means ------------ from the seller to
certain conditions
102. A manyfacturer ----------- to a cosumer for loss and damages caused by his defective product
may be liable
103. "A person is said to be of sound mind for the purpose of making a contract if , at the time
capable
104. Agreements by way of wager are ---------- and to suit shall be brought for recovering
voidable
void
void
108. Aung Aung" and "Bo BO" contract to marry with each other. Before the time fixed for the
void
109. A contract may contain terms which are not ----------- stated but which are implied, either
esxpressly
110. A misrepresentation may be -------------- which made in the wholly innocent belief that is
was true.
innocent
111. All agreements are -------------- if they are made by competent to contract.
contracts
112. A contract is an agreement giving rise to ------------- which are enforced or recognised by
law.
promises
113. An acceptance may be revoked at any time before the communication of the acceptance is ----
agreement
115. Agreements by way of wager are ------------- and to suit shall be brought for recovering
void
116. A patient in a lunatic asylum, who is at intervals of sound mind, may contract during those
intervals.
unsound mind
117. A contracts to pay B a sum of money when B marries C. C dies without being married to B.
valid
not legal
119. An agreement which is enforceable by law at the optionof one or more of the parties thereto,
valid
120. A contract may contain terms which are not -------------- stated but which are implied, either
expressly
17
121. A particular type of contract is required by law ---------------.
oral or in writing
123. A misrepresentation may be-------------- which made in the wholly innocent belief that is was
true.
innocent
124. A contract may contain terms which are not ----------- stated but which are implied, either
expressly
125. A misrepresentation may be ------------- which is made knowingly, without belief in its truth
or recklessly.
fraudulent
both
127. A misrepresentation may be ---------------- which made by a person who had no reasonable
Fraudulent
18
128. A misrepresentation may be ------------- which made by a person who had no reasonable
Fraudulent
to be in writing
130. A particular type of contract must comply with the necessary formalities as to -----------, if
necessary.
void
contracts
136. Acceptance of the proposal means the acceptance of ------------ the terms.
137. A contrct of -------------- is a contract to perform the promise, or discharge the liability of a
138. An act done by a person in ignorance of --------------- does not amount to performance of the
139. A proposes by letter, to sell a house to B at a certain price. In this case, the communication
141. An advertisement in a newspaper offering a reward for the finder of the lost dog amounts to a
--------------.
142. An ---------------- is a person employed to do any act for another, or to represent another, in
144. A contract is an ---------- enforceable at law made between two or more persons by which
rights are acquired by one or more to acts or forberarances on the part of others.
145. An advertisement in a newspaper offering a reward for the finder of the lost dog amounts to a
----------------.
146. A and B make a contract grounded on erroneous belief that a particular debt is barred by the
147. Acceptance of the proposal means the acceptance of --------- the terms.
148. A court may restrain a party from committing a breach of contract by ------------.
injunction
149. A ---------------- is a false statement of fact made by one party to another, which induces the
Misrepresentation
21
150. Any person ----------------- its possession as against every one except the true owner.
is entitled to
151. An --------------- contract is a contract where the essential elements to create a valid contract
are met, but there is some legal defense to the enforcement of the contract.
enfroceable
is stated to be void
promise
section 2 (g)
155. An offer must be distinguished from an ----------- to treat, by which a person does not make
invitation
156. A contract may be discharged if an unforeseen event occurs which make performance of the
contract impossible, illegal or essentially different from what was contemplated. it is ----------
frustration
157. A sells his car to B. A has a right to recover the price of the car from B. This right is a -------.
right is rem
22
158. Agreement is a -------------.
Contract
159. All illegal agreements are void; but all void agreement and void contract is the same.
False
161. A person who is usually of sound mind, but occasionally of unsound mind, ---------- make a
may not
162. A , B and C are under a joint peomise to pay D Ks 3,000 . C is unable to pay anything A ------
163. A -------------- is a contract to perform the promise, or discharge the liablity of a third person
Contract of Guarantee
contract
165. A --------------- is a false statement of fact made by one party to another, which induces the
misrepresentation
23
166. An agreement enforceable by law --------- -----------.
a valid contract
righs in personam
An invitation to offer
In writing
170. A contract that has been performed by both sifes is an ------------- contract.
executed
171. A void agreement is void a b initio but a void contract is not void ab initio.
False
True
173. A contract needs to be written, registered and signed by the parties and witnessedif any other
True
24
174. A proposal is revoked by the communication of notice or revocation ------------
by the acceptor
175. A person to whom money has been paid, or anything delivered by mistake or under coercion
agreement
176. An agent ------------ against the consequences of all lawful acts done by such agent in the
condutct
178. An informal exchange of promises can be as binding and legally valid as a written contract.
Yes
179. A court may restrian a party from committing a breach of contract by------------.
injunction
180. An agreement without consideration is void but there are ---------- exceptions to this rule.
three
181. Agreements in restraint of trade are contrary to public policy and therefore -------------.
void
25
182. An agreements to do an at impossible in itself is----------.
void
void
184. An --------- contract is an agrement between parties that has been inferred from the conduct of
the parties.
express
185. A sells his car to B. A has a right to recover the price of the car from B. This right is a --------.
right is rem
186. A person who is usally of sound mind , but occasionally of unsound mind, ______ make a
may not
187. An order for ----------- will compel the addressee to fulfill the terms of a contract.
specific performance
188. A sells his car to B. A has a right to recover the price of the car from B. This right is a --------
-.
right is rem
An invitation to offer
26
190. According to enforceablity, the contracts may be classified as -------------.
voidable contracts
191. Agreements in restraint of trade are contrary to public policy and therefore -----------.
void
section 2 (g)
Acceptance of a proposal
194. A ---------- is a false statement of fact made by one party to another, which induces the other
misreprestation
195. A void agreement is void ab inito but a void contract is not void ab initio.
False
196. An advertisement in a newspaper offering a reward for the finder of the lost dog amount to a
-------.
general offer
197. An agreement which is enforceable by law at the option of one of the parties thereto, but not
a voidable contract
27
198. A ------------ contract is a contract that has no legal effects.
void
199. A contract that has not been performed by both sides is an ------------ contract.
executed
In writing
201. An agent --------- against the consequences of all lawful acts done by such agent in the
promise
203. A proposal is revoked by the communication of notice of revocation ---------- to the other
party.
by the proposer
voidable contracts
205. Acceptance -------------- communicated to the person who made the offer.
must be
28
206. An offer must be distinguished from awn ----------- to treat, by which a person does not
inviatation
may be revoked
208. An informal exchange of promises can be as binding and legally valid as a written contract.
Yes
209. A --------- is a false statement of fact made by one party to another, which induces the other
misrepresentation
void
211. A court may restrain a party from committing a breach of contract by ----------.
injunction
void
213. A revocation of an offer is ----------- if it states a fixed time for its acceptance.
Effective
29
214. A contract that has been performed by both sides is an ----------- contract.
executed
216. A contract that has not been performed by both sides is an ------------ contract.
executed
217. A proposal is revoked by the communication of notice of revocation ----------- to the other
party.
by the acceptor
218. A contract needs to be writen , registered and signed by the parties and witnessedif any other
True
219. An ------------ contract is a contract where the essential elements to create a valid contract are
met, but there is some legal defense to the enforcement of the contract.
enfoceable
220. A contract needs to be written, registered and signed by the parties and witnessedif any other
True
30
221. Are the universally accepted process for making an agreement.
mutual adjustment
223. An --------------- contract is an agreement between parties that has been inferred from the
express
224. A person who is usually of sound mind, but occasionally of unsound mind, ----------- make a
may not
promise
is illegal now
227. A agrees to sell to B" a hundred tons of Oil". There is nothing whatever to show what kind of
proposal
228. A ----------- contact is a contract where one or both of the parties have the option to avoid
voidable
31
229. An agreement restraint of trade is valid under section 27 if relates to -----------.
mutual adjustment
230. All illegal agreements are void; but all void agreements are not illegal.
True
231. Any person --------- its possession as against every one except the true owner.
is entitled to
233. A contract ------------ in writing nor is it subject to any other requirement as to form.
need be concluded
effective
235. A revocation of an offer is ------------ if the offer has awcted in reliance on the offer.
effective
236. A breach of contract is not technically a failure to perform the contract in accordance with the
strict term.
Yes
32
237. A person who is interested in the payment of money which another is bound by
law to pay , and who therefore pays it, ________ entitled to be reimbursed by the other.
is
238. According to _________ of the Contract Act, all agreements are contracts if they are made by
the free consent of parties competent to contract, for a lawful consideration and with a lawful
section 10
239. B accepts A's proposal by a lett er sent by post. The communication of the acceptance is ----
------------- .
complete
240. B revokes his acceptance by telegram. B's revocation is -------------- as against B when the
241. B revokes his acceptance by telegram. B's revocation is ---------- as against B when the
242. B revokes his acceptance by telegram. B's revocation is ------------ as against B when the
complete
33
243. B accepts A's proposal by a letter sent by post. The communication of the acceptance is ---
----.
complete
244. B accepts A's proposal by a letter sent by poset. The communication of the acceptance is
as against A
245. B accepts A's proposal by a letter sent by post. The communication of the acceptance is
as against A
246. B accepts A's proposal by a letter sent by post. The commuication of the acceptance is
as against A
247. Condiction is stipulation which is ------------ to the main purpose of the contract.
essential
248. Certain agreements which have been ------------ illegal or void by the law.
specific
True
promise
254. Compensation ---------- for any remote and indirect loss or damage sustained by reason of the
breach.
is not to be given
Yes
communicated
257. Every person is competent to contract who is of the age of ------------- according to Myanmar
law.
a. 16 b. 17 c. 18
35
258. "Every agreement by which any one is restrained from exercising lawful profession,
void
259. Every promise and every set of promises, forming the consideration for each other, is an -----
-----. proposal
260. Every promise and every set of promises, forming the consideration for each other, in an -----
-.
262. "Every ---------------in restraint of the marriage of any person, other than a minor, is void."
contract
263. Every promise or every set of promise froming the ---------- for each other is an
"aggreement".
Myanmar law.
a. 16 b. 17 c. 18
267. Every promise and every set of promises, forming the consideration for each other, is ---------
-.
an agreement
268. Equity courts were developed in England to settle disputes where an award of money
damages at law would not be a proper remedy or where fairness required the application of --
----------.
equity
must be conditional
270. Every promise and every set of promises, froming the condisderation for each other, is an ----
----------------.
agreement
belief
272. Every promise and evey set of promises, forming the consideration for each other, is an -------
. Agreement
37
273. Every agreement in restriant of the marriage of any person, other than a minor, ------
--.
is void
274. Every agreement in restriant of the marriage of any person , other than a minor , ------------.
is void
275. Every promise or set of promises forming the consideration for each other ----------.
agreement
must be conditional
277. Every person is competent to contract ----------- from contracting by any law to which he is
subject.
278. Equity courts were developed in England to settle disputes where an award of money
damages at law would not be a proper remedy or where fairness required the application of --
-----.
equity
279. Every agreement by which any one is restrained from exercising a lawful profession , trade or
void
38
280. Every person shall be deemed to have attained his majority when he shall have
eighteen years
281. Fraud exists when it is shown that a false representation has been made Knowingly.
True.
282. For a person to be bound to a contract, he must seriously --------------- to create legal
obligations.
a. intend b.consider
283. "Goods" means every kind of ------------------ other than actionable claims and money.
moveable
284. Generally, a contract is an ----------- between two or more persons to do a particular act or
three
two
287. In order to become an ----------, there must be communication of proposal and acceptance.
an agreement
39
288. In the case of an alternative promise, one branch of which is legal and the other illegal, the
can be enforce
289. In order to be a valid contrct, the agreement must not be expressly declared to be -----------.
void
290. It is --------------- when the goods themselves are delivered to the buyer on the key of the
actual
291. If the goods are rejected by the buyer and the carrier or other bailee continues in possession
is not deemed
292. In the case of contract for sale by sample there is --------------- condition that the bulk shall
an implied
293. In a sale, since the ownership passed from the seller to the buyer, -------------- bers the risk of
loss or deterioration.
buyer
294. In case of conflict between the express and implied warranties, the express term shall prevail
as bailee for the seller, and after the sale he agree to hold them as bailee for the buyer.
constructive
296. In the cse of a contract for sale of a specified article under its patent or other trade name,
no implied condition
297. If the buyer or his agent in that behalf obtains of the goods ------------ their arrival at the
before
298. If the property in goods ------------ to the buyer, the unpaid seller has in addition to his other
299. If the date of delivery of goods is at the seller's option then he -------------- sufficient notice to
the buyer of his intention to deliver on a given date during the currency of the option so as to
must give
300. In respect of communication there is an important point which is "when does the action of ----
---------be completed."
Communication
41
301. Intention to deceive's is essential in fraud, while that is not necessary in --------------.
misre presentation
302. In -------------- there should be an intention on the part of the parties to the agreement to
303. In a contract for the sale of goods, it is ------------------- that the goods will be of a certain
quality and , if sold for a particular purpose, will be fit for the purpose.
an express term
indeminity
indemnity
damages
indemnity
308. In a contract for the sale of goods, it is -------------- that the goods will be of a certain quality
and , if sold for a particular purpose, will be fit for that purpose.
an express term
42
309. In negligent cases the injured party may claim -------------.
damages
is legal obligation
312. In order to become an -----------, there must be communication of proposal and acceptance.
313. If both of the contractiong parties have not yet performed what with agreed to do under the
314. If both of the contracting parties have performed what with agreed to do under the contract,
316. In a general offer, there need be no acceptance of the offer other than the performance of the
unenforceable
43
318. In a -------------, a court may award monetary damages to a plaintiff for providing
quasi-contracts
319. In writing if so required by law that statement ----------------- to from a valid contract.
is necessary element
unenforceable
321. If the proposer ------------- any specific method,the acceptor has to follow usual and
reasonable mode.
322. If the proposor prescibes that the acceptance must be made through the medium of post
323 In a general offer, there need be no acceptance of the offer other than the preformance of the
324. If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it the
need be performed
44
325. If the proposer ----------- any specific method, the acceptor has to follow usual and
reasonable mode.
326. In a case of alternative promise s, one branch of which is legal and the other illegal, the legal
can be
enforceable
327. If the proposor prescribes that the acceptance must be made through the medium of post
328. In writing if so required by law that statement ----------- to form a valid contract.
is necessary element
acceptance
330. In a case of alternative promises, one branch of which is legal and the other illegal, the legal
can be
acceptance
45
332. MaungBa , a tradesman, leaves goods at U Mya's houxe by mistake. But treats the goods
is
333. Ma Maagress to sell to Ko Ko "a hundred tons of oil". There is noting whatever to show what
void
334. Mere silence is not -------------- unless there is - (1) a duty to speack or (2) unless it is
equivalent to speech
undue influence
335. Many terms which are ------------- in law have been put into statutory form.
336. Many social arrangements do not amount to ------------- because they are not intended to be
legally binding.
consideration
337. Many domestic arrangements, such as between husband and wife, or between parent and
child, lack force because ---------- did not intend them to have legal consequences.
the parties
338. MaungBa , a tradesman, leaves goods at U Myaa's house by mistake. But treats the goods as
is
46
339. Once ----------- has been accepted, the parties have an agreement.
An offer
340. Proposal or acceptance is made otherwise than in words, the promise is said to be ----------.
implied promise
341. Proposal and acceptance are the two basic elements of a ------------.
contract
342. Proposal and acceptance are the two basic elements of a -----------.
promice
343. Proposal or acceptance is made otherwise than in words, the promise is said to be -------.
344. Proposal or acceptance is made otherwise than in words, the promise is said to be -------------
-.
345. Promises bind the representatives of the promisors in case of the death of such promisors
befroe -------------.
346. Promises which from the consideration or part thereof, for each other -----------.
agreements
47
347. Promises which from the consideration or part of the consideration for each other are called
----------------.
reciprocal promises
free
free
350. Parties determine it ------- of a contract, subject to the requirements of good faith and the
mandatory rules.
value
352. Promises which form the consideration or part of the consideration for each other are called --
----------.
reciprocal promises
353. Parties determine its ---------- of a contrct, subject to the requirements of good faith and the
mandatory rules.
value
357. Rights and liabilities of finder of good s are subject to the same responsibility as a ---------.
358. Specific performance can be granted only when the damages are ------------.
359. Such agreements are ---------------- which do not give rise to legal consequences.
social agreement
can be enforceable
361. Substanital failure to perform is any defect in -------------- must attain a certain minimum
misrepresentation
401. Section 2 (b) defines promise in these words: "When the person to whom the proposal is
is said to be proposal
49
402. Smuggling or murdering a person, ------- --------- at law.
can be enforceable
362. Such agreements are --------- which do not give rise to legal consequences.
social agreements
363. The goods which are identified only ------------ the formation of the contract of sale, are
after
364. The performance of a contract of sale may be defind as the performance of the ---------------
R.S
365. The goods which are not in existance at the time of contract of sale.
future
366. The unpaid seller of goods, having a lien thereon, -------------- his lien by reason only that he
367. The law relating to the sale of goods was originally a part of the ----------- in 1930.
368. The unpaid seller's right of lie or stoppage in transit it ------------- by any sale or other
disposition of the goods which the buyer may made, unless the seller has assented therto.
no affected
50
369. The delivery of goods to a wharfinger for sale cutody is ------------ delivery of the goods.
sufficient
370. The seller -------------- only to deficiency and express incurred on re-sale.
is entitled
371. The term may be definded as a representation made by the seller which purpose of the buyer.
non-fulfillment
372. The sale is --------------- when the auctioneer announce its completion by the fall of the
complete
373. The seller is bound to ------------- the exact quantity of goods sale.
deliver
money consideration.
legal
promisor
51
377. Torts or civil wrongs obligations ---------- ----- in nature, but are enforeceable in a court of
law.
378. The Latin maxim of ---------------- means that a specific person and not against the world at
large.
Rigt in person
legal
380. The buyer may insist on ------------- of the entire quality at a time and is not bound to accept
delivery
agreement
valid
promisee
Promisor
52
385. There are multiple remedies available once----------------- has been proved.
misrepresentation
Contract
not legal
aggreement
391. There are multiple remedies available once ------------ has been proved.
misrepresentation
Contract
393. To be a -------------, there must be a valid communication of offer and a valid communcation
of acceptance.
valid contract
53
394. Torts or civil wrongs obligations --------- ----- in nature, but are enforceable in a court of
law.
395. There are multiple remedies available once ---------------- has been proved.
misrepresentation
Contract
5 conditions
399. The meaning of the agreement must b certain or capable of being made certain. Otherwise
capable of performance
Agreement
54
402. The terms of the agreemtn should be ----- -----------.
capable of performance
403. Torts or civil wrongs obligations -------------- in nature, but are enforceable in a court of law.
404. The Latin maxim of ------------ means that a specific person and not aginst the world at large.
Rithts in personam
405. The ---------------- of an agent is to use all reasonable diligence in communicating with his
principal.
a. duty b. right
409. The parents of the minor may not attest a contract and the ------------ only may attest on
411. The Parties to a contract must either perform, or offer to perform, their respective ------------.
412. To form a ------------ , the first essential element is a proposal which is made by one person
416. The fundamental basis of contract law is the ------ of the contractiog parties.
a. agreement b. consideration
417. The rule of law is that where an offer is required by statute to be in writing, also the
acceptance must be -------- in order for the offer to become a contract binding on both
parties.
418. The ------------- to enter into a contract can also be considered one of the principles of
contract law.
56
a. quality b. quantity c. capacity
419. The principal revoking the agent's authority is the way in which an agency ------------.
can terminate
421. "The performance of ------------- may be made in any mannaer, or at any time, which the
any promise
422. The damages which can be taken ------------ which can recover only in case of a breach of
promise of marrigae.
423. The person in respect of whose default the grantee is given is called the -----------.
principal debtor
424. The promise must be supported by bargain for --------------- that is legally sufficient.
consideration
425. The ---------- contracts can include contracts under seal, recognizances, negotiable
Formal
specific performance
an offer
an invitation to offer
431. The damages which can be taken ----------- which can recover only in case of a breach of
promise of marriage.
432. The person in respect of whose default the grantee is given is called the ---------.
principal debtor
433. The general rule is that a postal acceptance ------------ when the letter of acceptance is
poseted.
takes effect
specific performance
435. The court does not grant ------------- unless it can give full relief to both parties.
injunction
promisee
58
437. The promise must be supported by bargain for ------------- that legally sufficient.
conideration
promisee
legal
440. The principal revoking the agent's authority is the way in which an agency -------.
is void
specific performance
442. The court does not grant ---------- unless it can give full relief to both parties.
injuction
443. "The performance of ----------- may be made in any manner, or at any time, which the
any promise
False
445. The ------------ contract can include contracts under seal, recognizances , negotiable
formal
59
446. The acceptance must be absolute and ----- ---------.
unqualified
447. Unless a different intention appears from the terms of the contract, stipulation as to time of
448. Under the Sale of Goods Act, the contract of sale of goods means -------------- where by the
seller actually transfers or agrees to transfer the property in goods to the buyer for a price.
a contract
449. Under the Indian Contract Act, 1872 , void agreement and void contract is the same.
False
451. Under the Indian Contract Act, 1872, void agreement and void contract is the same.
False
453. Under the indian Contract Act, 1872 void agreement and void contract is the same.
False
454. Under the Indian Contract Act, 1872, void agreement and void contract is the same.
False
no contract
458. Where the buyer wrongfully neglect or refuses to accept and pay for the good, the seller ------
maysue
no contract
460. When consent to an agreement was caused by --------------, the agreement is a contract
fraud
461. When the goods are brought by description from seller who deal in goods of that description,
implied condition
462. When the whole of the price has not been paid or tendered; the seller of goods is deemed to
be an -----------------.
Unpaid Seller
463. Where the carrier or other bailee wrongfully refuse to deliver the goods to the buyer or his
is not deemed
61
464. Warranty is a stipulation which is only --- ------------ to the main purpose of the contract.
subidiary
465. Where the carrier or other bailee wrondfully refuse to deliver the goods to the buyer or his
is not deemed
466. When consent to any agreement was caused by ------------, the agreement is a contract
468. Where damages are deemed inadequate , the court may make an order for ----------- which
compensation.
469. Where a contract is broken, the injured party can take actions for the injury sustained by the -
-------------- of contract.
breach
Damages
471. When, at the desire of the promisor, the promise or any other person has done or abstained
no contract
62
473. When one person signed to anoter his willingness to do or to obstain 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
no contract
474. When consent to an agreement is caused by fraud, the agreement ------------ at the option of
is a contract voidable
475. When, at the desire of the promisor, the promisee or any other person has done or abstained
476. Where both the parties are under mistake as to matter of fact, the contract under section 20 is
---------.
voidable
477. When consent to an agreement is caused by fraud, the agreement ------------ at the option of
is a void contract
478. Where damages are deemed inadequate, the court may make an order for --------- which will
compensation
1
6103
1. Certain agreements have been ----------- declared illegal or void by the law.
impliedly
3. A agrees to B to discover treasure by magic. The act in itself is ----------- to be performed from the
very beginning.
impossible
6. "In so for as proposal or acceptance is made otherwise than in words, the promise is said to be -----
------ ."
express
8. "A says to B "will you purchase my car for Ks.20,000,000?” B says to A “Yes”. It is ---------- ."
a promise
12. "A offers to sell his Toyota car to B for Ks.10,000,000 on acceptance of A’s offer by B, there is a
promise by A to sell the car and there is a promise by B to purchase the car there are two promises. It
is --------- ."
12. "A offers to sell his Toyota car to B for Ks.10,000,000 on acceptance of A’s offer by B, there is a
promise by A to sell the car and there is a promise by B to purchase the car there are two promises. It
is --------- ."
unilateral
13. "If a minor has obtained any benefit, he --------- be asked to repay."
can
14. If a person makes a representation believing what he says is true he commits ---------- .
innocent misrepresentation
contract of agency
16. The liability of the finder of goods belonging to someone else is that of a ----------- .
bailee
17. ---------- will not be ordered where one of the parties is a minor.
Specific performance
19. ---------- is a person who is employed to bring his principal into contractual relations with third
parties.
An agent
20. An invitation by a company to the public to subscribe for its shares is ---------- .
offer
24. ----------- is used by a dominant party on a weaker one to get an unfair advantage in a contract.
Coercion
25. "A person usually of unsound mind, but occasionally of sound mind can make contract when he
is of ---------- ."
sound mind
26. " The definitions and terms relating to contract were provided as interpretative clause in the
Contract Act, ________."
1872
28. Acceptance must be communicated to the person who made the ______.
offer
30. In Myanmer attaining the age of majority was provided in the _______of the Majority Act.
Section (3)
31. " Every agreement in restraint of the marriage of any person, other than a minor is ________."
void
3
32. " _________ are not punitive or exemplary, they are compensation for loss suffered."
Specific Performance
33. " --------------- may be either an alien friend or a foreigner whose sovereign or State is at peace
with Myanmar, has usually contractual capacity of a Myanmar citizen."
34. "Ambassadors enjoy a privilege in that they ------------- in courts, unless they voluntarily submit
to the jurisdiction of the courts."
cannot be sued
37. Summarize the rules laid down in the Contract Act as to the appropriation of payment
made by the debtor.
The rules as to appropriation of payments are laid down under Section 56 to 61.
(1) Where debt to be discharged is indicated.[S.59]
(2) Where such debt is not indicated [S.60]
(3) Where neither party appropriated.[S.61]
Application of payment where:-
(1) 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 payment is to
be applied to the discharge of some particular debt, the
payment, if accepted, must be applied accordingly.”
(2) Debt to 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, whether its recovery is or is not barred by the law in
force for the time being as to the limitation of suits.”
38. What do you understand by “holding out”? And study the liability of pretended agent. Explain
the term agency by estoppels.
A person untruly representing himself to be the
authorized agent of another, and thereby inducing a third
person to deal with him as such agent, is liable, if his
alleged employer does not ratify his acts, to make
compensation to the other inspect to any loss or damage
which he has incurred by so dealing.
4
1. According to Salmond a contract is an agreement creating and defining --------- between the
parties.
obligation
5. A stops a taxi by waving his hand and takes his seat. There is an ----------- that A will pay the
prescribed fare.
implied contract
11. D agrees to buy V’s cycle by promising to pay cash on 14th June. V agrees to deliver the cycle
on 20th June.
An executed contract
13. A person who signs an instrument is bound by its terms even if he --------- it.
has not read
18. "In contract of guarantee, the person who gives guarantee is called ------------ ."
a guarantor
23. At the inception of agreement there must be a ________ made by one person to another.
5
proposal
24. Acceptance must be communicated to the person who made the ______.
offer
27. When the state of war makes the contract itself ________.
29. " By substitution of new contract in place of the old one, this is called "________"."
novation
31. In a -------------- there must be mutuality in the sense that the gain of one party should be loss to
the other on the happening of an uncertain event which is the subject matter of the contract.
wagering contract
33. If a person makes a representation believing what he says is true he commits ---------------- .
innocent misrepresentation
34. "The effect of -------------- is that the party misled by it can avoid the contract, but cannot sue for
damages in the normal circumstances."
innocent misrepresentation
35. Generally the injured party can only avoid the contract and cannot get damages for ------------ .
innocent misrepresentation
36. “Contract to do an act afterwards becoming impossible or unlawful”. Do you agree this
statement? Briefly discuss.
Contingent contract is defined in Section 31 as "a contract to do or not to do something if some
event, collateral to such contract, does or does not happen".
37. “Agreements the meaning of which is not certain or capable of being made certain are void”.
Briefly discuss.
"Agreements, the meaning of which is not certain, or capable of being made certain, are void".
Illustration
(a)A agrees to sell to B "a hundred tons of oil". There is nothing whatever to show what kind of oil
was intended. The agreement is void for uncertainty.
38. What are the damages for breach of contract? Explain the measure of damages.
Where there is a breach of contract, the usual remedy
6
4. A agreed to pay Ks.15 lakh to B for ultra-modern decoration of his drawing room. The agreement
is void because the meaning of the term “ ultra-modern” is ----------- .
not certain
11. The seller is --------- to reveal the defects of his goods to the buyer subject to certain conditions.
under duty
12. If a person makes a representation believing what he says is true he commits ---------- .
innocent misrepresentation
15. When one of the two joint tenants paid the whole rents to landlord he is entitled to get
compensation from his co-tenant. It is ---------- .
contract of agency
16. X promises to paint a picture for Y. X must personally --------- the promise.
perform
26. " _________of the Contract Act,1872 provides two general modes of communication."
Section (3)
29. "Mg Mg contracts to sell 800 bales of cotton for Ks. 200,000, if the ship by which they are
coming returns safely. This is a ---------------- ."
contingent contract
37. “Agreements the meaning of which is not certain or capable of being made certain are void”.
Briefly discuss.
38. What are the importance of time and place of performing the contract?
(1) Time for performance where on time is specified
Section 47
Time is specified and application to be made, “when a promise is to be performed on a certain day,
and the promisor has undertaken to perform it at any time during the usual hours of business on such
day and at the place at which the promise ought to be performed.”
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 house of business.”
Section 49
“When a promise is to be performed without application
by the promisee, and no place is fixed for the performance of
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 place.”
39. "A owes B Ks-100,000 but the debt is barred by the Limitation Act. A signs a written promise to
pay B Ks-50,000 on account of the debt. Is it a contract? Explain."
Given the problem, "A owes B Ks-100,000 but the debt is barred by the Limitation Act. A signs a
written promise to pay B Ks-50,000 on account of the debt. Is it a contract?
A signed to pay B Ks-50,000 on account of the debt. So, it is a contract.
According to Section 126 defines
A "Contract of Guarantee" is a contract to perform the
promise, or discharge the liability of a third person in case
of his default.
The person who gives the guarantee is called the
"surety". The person in respect of whose default the grantee
is given is called the "principal debtor", and the person in to
whom the grantee is given is called the "creditor". A
guarantee may be either oral or written.”
4. A ---------- contract is a one sided contract in which only one party has to perform his promise or
obligation party has to perform his promise or obligation to do or forbear.
bilateral
5. If the price is paid by the buyerand the goods are delivered by the seller at the same time.
Consideration is --------- by both parties.
executed
9. "If unlawful part in an agreement can be severed from the other lawful part of an agreement,
lawful part is ---------- ."
valid
10. There are some contracts into which a -------------- cannot enter without its seal.
company
11.What are the main points to become a valid “proposal” or “offer”. Explain with example.
The main points to become a valid “proposal” or “offer” are (1) A proposal is not a mere declaration
or intention to
make an offer but it is offer that is made with the idea the
person to whom the offer has been made will act in response
to his offer: there must be request to accept his offer.
Example
If 'A' says in conversation with 'B' that he would sell
his house will not amount to an "offer" or "proposal".
(2) A proposal must be made with an intention to create
legal relation.
Example
To offer a friend a meal is not to create legal relation.
Example
An advertisement in a newspaper offering a reward for
the finder of the lost dog amounts to a general offer.
Sometimes a proposal takes the form of continuous offer, which is called 'standing offer'. A proposal
takes the form of continuous offer is called 'standing offer'.
An invitation to traders to make tenders, display of goods for sale in shop windows, and advertising
auction sales are instances of invitation to the other to make offer to buy or sell as the case may be.
Thus, for example, a book seller's catalogue with prices stated against the names of the books
is an invitation to the purchasers. The purchasers are to make an offer and it is for the book seller to
accept it or not.
39. What is the definition of bailment and describe the duties of a bailor?
Section 148
“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. The person delivering the goods is called the "bailor". The
person to whom they are delivered is called the bailee .”
Duties of a Bailor
Section 150
Bailor Duty to disclose
“The bailor is bound to disclose to the bailee faul ts in the good bailed, of which the bailor is aware,
and which materially interfere with the use of them, or expose the bailee to extra ordinary risks; and
10
if he does not make such disclosure, he is responsible for damage arising to the bailee directly from
such faults.”
“If the goods are bailed for hire, the bailor is responsible for such damage, whether he was or was
not aware of the existence of such faults in the goods bailed.”
13. "A contracts to buy a car from B by paying cash, B instantly delivers his car."
An executory contract
14. A ---------- contract is a one sided contract in which only one party has to perform his promise or
obligation party has to perform his promise or obligation to do or forbear.
bilateral
16. "A offers to sell his Toyota car to B for Ks.10,000,000 on acceptance of A’s offer by B, there is a
promise by A to sell the car and there is a promise by B to purchase the car there are two promises. It
is --------- ."
bilateral
28. "A person is of unsound mind if at the time when he makes the contract, he is -------------- it and
of forming rational judgment as to its effect upon his interests."
capable of understanding
32. There are some contracts into which a -------------- cannot enter without its seal.
34. Generally the injured party can only avoid the contract and cannot get damages for ------------ .
innocent misrepresentation
35. " ----------------- means any wrong or damage done to another, either in his person, rights,
reputation or property."
Injury or loss
Under section 2(h) of the Contract Act 1872 provides that "A Contract is an agreement enforceable
by law".
Section 10 of the said Act adds further qualification to the agreement as follows:-
"All agreements are contracts if they are made by the free consent of parties competent to contract,
for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
Nothing here in contained shall affect any law in force in the Republic of the Union of
Myanmar, by which any contract is required to be made in writing or in the presence of witnesses, or
any law relating to the registration of documents.”
1. A and B agree to go to a movie on coming Sunday. A does not inform on resulting in loss of B’s
time.
It is social agreement.
34. The assured must disclose to the insurer all ------------ facts and whatever he states must be
correct and truthful.
material
37. What are the main points to become a valid “proposal” or “offer”. Explain with example.
The main points to become a valid “proposal” or “offer” are (1) A proposal is not a mere declaration
or intention to
make an offer but it is offer that is made with the idea the person to whom the offer has been made
will act in response
to his offer: there must be request to accept his offer.
Example
If 'A' says in conversation with 'B' that he would sell his house will not amount to an "offer" or
"proposal".
(2) A proposal must be made with an intention to create legal relation.
Example
To offer a friend a meal is not to create legal relation.
(3) The terms of a proposal or an offer must be certain.
(4)A proposal (offer) may be general or specific.
Example
An advertisement in a newspaper offering a reward for the finder of the lost dog amounts to a general
offer.
(5)Every offer must be communicated.
(6)Where an offer is uncommunicated there can be no contract.
Sometimes a proposal takes the form of continuous offer, which is called 'standing offer'. A proposal
takes the
form of continuous offer is called 'standing offer'.
An invitation to traders to make tenders, display of goods for sale in shop windows, and advertising
auction sales are instances of invitation to the other to make offer to buy or sell as the case may be.
Thus, for example, a book seller's catalogue with prices stated against the names of the books is an
invitation to the
purchasers. The purchasers are to make an offer and it is for the book seller to accept it or not.
20. "In case of breach of contract , the injured party may --------- the contract"
12
rescind
21. "In case of breach of contract , the injured party may sue on --------- ."
quantum meruit
11. "In so for as the proposal or acceptance of any promise is made in words, the promise is said to
be ---------- ."
express
39. " What is the liability of person to whom money is paid, or thing delivered, by mistake or
under coercion?"
The fifth and the last kind of quasi -contract mentioned in Section 72 of the Act is that “a person to
whom money has been paid, or anything delivered by mistake or under coercion must repay or return
it.”
(a) A and B jointly owe 100 kyats to C. A alone pays the amount to C, and B, not knowing this fact,
pays 100 kyats over again to C. C is bound to repay the amount to B.
(b) A railway company refuses to deliver up certain goods to the consignee except upon the payment
of an illegal charge for carriage. This consignee pays the sum charged in order to obtain the goods.
He is entitled to recover so much of the charge as was illegal excessive.
19. X promises to paint a picture for Y. X must personally --------- the promise.
perform
24. The person making the proposal is called the " _______".
Promisor
33. "An ------------- contract too has no legal effect as between the immediate parties to the contract,
but has the further effect of tainting the collateral contracts also with illegality."
An illegal contract
36. Explain the term “consideration”. Discuss about the terms “the executor consideration
Consideration
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 to abstain from” and “the executed
consideration”.
doing, something ,such act or abstinence or promise is called a "consideration" for the promise.
[Section 2 (d)]
Section 2 (d) of the Contract Act defines the term “Consideration” as "when, at the desire of the
promisor, the promisee or any other person has done or abstained from doing, or does or abstain
from doing, or promises to do or abstain from doing, something, such act or abstinence or promise is
called a consideration for the promise"
20. When one of the two joint tenants paid the whole rents to landlord he is entitled to get
compensation from his co-tenant. It is ---------- .
quasi contract
promisor
30. " Every agreement in restraint of the marriage of any person, other than a minor is ________."
invalid
1. "A person is of unsound mind if at the time when he makes the contract, he is -------------- it and of
forming rational judgment as to its effect upon his interests."
incapable of understanding
34. In a -------------- there must be mutuality in the sense that the gain of one party should be loss to
the other on the happening of an uncertain event which is the subject matter of the contract.
wagering contract
35. " ----------------- means any wrong or damage done to another, either in his person, rights,
reputation or property."
Injury
36. What are the main points to become a valid “proposal” or “offer”. Explain with example.
the main points to become a valid “proposal” or “offer"
(1) A proposal is not a mere declaration or intention to make an offer but it is offer that is made with
the idea the person to whom the offer has been made will act in response to his offer: there must be
request to accept his offer.
Example
If 'A' says in conversation with 'B' that he would sell his house will not amount to an "offer" or
"proposal".
(2) A proposal must be made with an intention to create legal relation.
Example
To offer a friend a meal is not to create legal relation.
(3) The terms of a proposal or an offer must be certain.
(4)A proposal (offer) may be general or specific.
Example
An advertisement in a newspaper offering a reward for the finder of the lost dog amounts to a general
offer.
(5)Every offer must be communicated.
(6)Where an offer is uncommunicated there can be no contract.
Sometimes a proposal takes the form of continuous offer, which is called 'standing offer'. A proposal
takes the form of continuous offer is called 'standing offer'.
An invitation to traders to make tenders, display of goods for sale in shop windows, and advertising
auction sales are instances of invitation to the other to make offer to buy or sell as the case may be.
Thus, for example, a book seller's catalogue with prices stated against the names of the books is an
invitation to the purchasers. The purchasers are to make an offer and it is for the book seller to accept
it or not.
19. The liability of the finder of goods belonging to someone else is that of a ----------- .
bailee
invitation to offer
25. An agreement between _______or more persons whereby one of them engages to do a thing or
not to do a thing for the other or others.
two
5. Lawful consideration
The agreement must be supported by consideration on both sides. The consideration must be real and
lawful. [eg. Immoral, opposed to public policy]
6 Lawful object
The object of the agreement must be lawful. [ Not to harm body or property, Not fraudulent object, Not to
threaten purpose of law, Not to be interest of public, agreement to do a criminal act]
7. Agreements not declared illegal or void
There are certain agreements which have been expressly declared illegal or void by the law. [ eg.
Agreement without consideration, agreement in restraint of marriage, wagering contract]
8. Certainty of meaning
The meaning of the agreement must be certain or capable of being made certain. Otherwise the
agreement will not be enforceable at law. [A agreed to pay $ 100,000 to B for ultra-modern decoration of
his drawing room. The agreement is void because the meaning of the term “ ultra – modern” is not
certain.]
9. Possibility of performance
The terms of the agreement should be capable of performance. An agreement to do an act impossible in
itself cannot be enforced. [eg. A agrees to B to discover treasure by magic]
10.SUPPLY OF NECESSARIES
According to Section 68 a minor is liable to pay out of his property for ‘necessaries’ supplied to him or to
anyone whom he is legally bound to support.The significance of this is that it does not arise out of a
contract as much so as it arises out of a contract.the minor is not personally liable and ‘necessaries’
include food,clothing as well as education,They also include watch bicycle etc.
Meaning of "person enjoy the benefit" was illustration in The Official Receiver Yangon vs. M.M. Mulla,
a receiver is not the agent or representative of any party to the suit and hold the benefit of the party
ultimately successful in the suit. He can not therefore be said to be a person who had benefited by the
repairs to the party, belonging to another person.
Ma Ngwe Shin and One Vs. Gaung Boke (a) Maung Laung Kyamar and one1955 B. L.R (H.C) 283
16.Liability of Person to Whom Money is paid, or Thing delivered, by Mistake or Under Coercion
The fifth and the last kind of quasi-contract mentioned in Section 72 of the Act is that “a person to whom
money has been paid, or anything delivered by mistake or under coercion must repay or return it.”
Remedies for Breach of Contract
• Suit for Damages (loss or damage suffered by breach of contract)
• Kinds – Ordinary or General Damages (damages which arise on a breach; parties know it at the time of
entering into contract; eg. Difference in contract price and market price) – Special Damages (breach of
contract under some special circumstances)
17.DAMAGES
Damages are a monetary compensation allowed to the injured party by the court for the loss or injury
suffered by him by the breech of the contract.
The objective of awarding damages for the breech of contract is to put the injured party in the same
position as if he had not been injured.
This is called the doctrine of restitution.The fundamental basis is awarding damages for the pecuniary
loss.
18.Kinds – Exemplary Damages (shows the Court’s strong disapproval of the conduct of the defendant in
committing the wrong; eg. Refusal to honor a cheque in spite of having funds) –
Nominal Damages (breach involved is of technical nature, so some nominal damages may be awarded) –
Remote Damages (not to be given for any remote and indirect loss or damage sustained by reason of the
breach)
Damages for breach by either party may be liquidated in the agreement but only at an amount that is
reasonable in light of the anticipated or actual harm caused by the breach.
“Liquidated damages”, in its true sense, means compensation in terms of money for the loss suffered by
one party due to the breach of contract by the other side.
Damages
The term ‘liquidated damages' should not be misunderstood with the term ‘penalty'. Penalty is awarded
by a competent Court, in case one of the parties takes action against the other.
First, that in usual course of things the profit of the mill would cease for want of the shelf. But this would
not be the normal occurrence, for the plaintiffs might well have had a spare shelf in reserve. Secondly,
that the special circumstances were so fully disclosed that the inevitable loss of profit was made apparent
to the defendant. Therefore, the defendant was not liable for loss of profit during the period of delay.
In special circumstances, outside Ordinary course of things, notice of special circumstances is important.
The tailor is not entitled to damages for the loss of profits nor for his expenses incidental to the journey to
that place and back, as such damages could not have been in the contemplation of the parties when they
made the contract, nor can they be said to have naturally arisen in the usual course of things from the
breach.
It was held that the company was liable. The company's agent had knowledge of the special
circumstances, that the goods were to be exhibited at the Newcastle show, and so should have
contemplated that a delay in delivery might result in this loss.
24.Remoteness of Damage
The remoteness of Damage means that there must be a causal link between the breach and the losses
sustained.
It will not be presumed that the defendant (who breached the contract) will be liable for all losses arising
out of the breach. The losses must be arisen direct from the breach. Losses not direct consequences of the
breach must be being regarded as “too remote”.
25.Maung Gat Chaw and one vs. Daw Shwe Hman 1961
It was held that although the appellants had, by their failure to convey the goods to Ela committed a
breach of contract, the respondent by her refusal to take over the goods and sell them away had omitted to
take as possible means to mitigate the loss as enjoined in the explanation to Section 73 of the Contract
Act for estimating the loss of damage arising from a breach of contract and that therefore she is not
entitled to the damage claimed.
26.Compensation for Failure to discharge the Obligation Resembling those created by Contract
Section 73 (3) provides for breach of quasi contracts provides that:-“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.”
29."Quantum Meruit”
means as much as he has earned. Where one person has expressly or impliedly requested another to
render him a service specifying any remuneration, but the circumstances of the request imply that the
service is to be paid for, there is implied promise to pay "quantum meruit" that is so much as the party
doing the service deserves.
30.SPECIFIC PERFORMANCE
In certain cases of breach of contract damages are not an adequate remedy. The court may, in such cases,
direct the party in breach to carry out his promise according to terms of the contract.
This is a direction by the court for specific performance of the contract at the suit of the party not in
breach
31.INJUNCTION
When a party is in breech of a negative term of contract the court may,by issuing an order,restrain him by
doing what he promised him not to do. Such an order of the court is called injunction.
Court refuses grant of injunction
[1] whereby a promisor undertakes not to do something
[2] which is negative in substance though not in form
35.Essentials of bailment
There are two persons namely Bailor and Bailee.Bailor means the person delivering the goods, Bailee
means the person to whom the goods are delivered.
Their must be delivery of goods .
The goods must be in deliverable condition.
Only the goods are delivered but not the ownership of goods, their must be purpose.
Bailey can use the goods.
Goods must be returned or disposed off after the purpose is accomplished.
Rights of bailee
Delivery of goods to one of several joint bailor of goods. (Sec 165).
Delivery of goods to bailor without title. (Sec 166).
Right to apply to court to stop delivery. (Sec 167)
Right to action against trespassers. (Sec 180)
Bailee’ s lien.
Under section 2 (a) of the Contract Act 1872, a Proposal is an act 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.
A mere statement of intention or offer will not constitute a proposal through acted upon by the party to
whom it was made.
Therefore we can explain a proposal as definite statement of intention by one person signifying his
willingness to do or to abstain from doing something with the expectation that the person doing to whom
such intention is conveyed will do or abstain from doing some other thing in return.
40. U Mg Mg, being entitled to an estate for the life of U Aung Aung, agrees to sell it to U Phyu. U
Aung Aung was dead at the time of the agreement, but both parties were ignorant of the fact. Is the
agreement is void or valid?
According to the given problem, U Mg Mg, being entitled to an estate for the life of U Aung Aung, agrees
to sell it to U Phyu. U Aung Aung was dead at the time of the agreement, but both parties were ignorant
of the fact. The agreement is void.
To be referred to the case of Daw Ohn Sein and three others vs. U Ba Tint, a sale of land was made
believing by both parties that the land was owned by the vendor. In fact it was owned by the vendor. It
was held that the contract was void ab initio since there was mutual mistake and therefore the vendor
cannot claim for the agree sum.
That's why, according to the given case, the agreement is void.
41. Mg Mg sells, by auction, to U Phyu a horse which Mg Mg knows to be unsound. Mg Mg says
nothing to U Phyu about the horse's unsoundness. Is this fraud or not in Mg Mg ?
According to the given problem, Mg Mg sells, by auction, to U Phyu a horse which Mg Mg knows to be
unsound. Mg Mg says nothing to U Phyu about the horse's unsoundness. This is not fraud in Mg Mg. The
definition of fraud in Section 17 of the Contract Act 1872 requires: (1) either an intent to deceive or to
induce another to enter into a contract by a false suggestion knowing it to be false or, (2) the active
concealment of a fact by one having knowledge or belief of the fact which is his duty to disclose.
Fraud is committed whether one man causes another to act on a false belief by a representation which he
does not himself believe to be true. In fraud, malice is one factor to be considered.
48. U Mg Mg, being entitled to an estate for the life of U Aung Aung, agrees to sell it to U Phyu. U
Aung Aung was dead at the time of the agreement, but both parties were ignorant of the fact. Is the
agreement is void or valid?
The agreement is void because of Section 20 of the Contract Act. Illustration (c) reads as follows:
(c) A being entitled to an estate for the life of B, agrees to sell it to C. B was dead at the time of the
agreement, but both parties were ignorant of the fact. The agreement is void.
Under section 2 (a) of the Contract Act 1872, a Proposal is an act 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.
A mere statement of intention or offer will not constitute a proposal through acted upon by the party to
whom it was made.
Therefore we can explain a proposal as definite statement of intention by one person signifying his
willingness to do or to abstain from doing something with the expectation that the person doing to whom
such intention is conveyed will do or abstain from doing some other thing in return.
50. What is the meaning of coercion?
Under section 15 of the Contract Act 1872, a “Coercion” is the committing, or threatening to commit, any
act forbidden by the 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.”
52. U Mg Mg, being entitled to an estate for the life of U Aung Aung, agrees to sell it to U Phyu. U
Aung Aung was dead at the time of the agreement, but both parties were ignorant of the fact. Is the
agreement is void or valid?
According to the given problem, U Mg Mg, being entitled to an estate for the life of U Aung Aung, agrees
to sell it to U Phyu. U Aung Aung was dead at the time of the agreement, but both parties were ignorant
of the fact. The agreement is void.
To be referred to the case of Daw OhnSein and three others vs. U Ba Tint, a sale of land was made
believing by both parties that the land was owned by the vendor. In fact it was owned by the vendor. It
was held that the contract was void ab initio since there was mutual mistake and therefore the vendor
cannot claim for the agree sum.
53.That's why, according to the given case, the agreement is void.. Mg Mg sells, by auction, to U
Phyu a horse which Mg Mg knows to be unsound. Mg Mg says nothing to U Phyu about the horse's
unsoundness. Is this fraud or not in Mg Mg ?
According to the given problem, MgMg sells, by auction, to U Phyu a horse which Mg Mg knows to be
unsound. Mg Mg says nothing to U Phyu about the horse's unsoundness. This is not fraud in Mg Mg. The
definition of fraud in Section 17 of the Contract Act 1872 requires: (1) either an intent to deceive or to
induce another to enter into a contract by a false suggestion knowing it to be false or, (2) the active
concealment of a fact by one having knowledge or belief of the fact which is his duty to disclose.
Fraud is committed whether one man causes another to act on a false belief by a representation which he
does not himself believe to be true. In fraud, malice is one factor to be considered.
A proposal is not a mere declaration or intention to make an offer. There must be request to accept his
offer.
Every offer must be communicated. Unless the acceptor has the knowledge of the offer, there can be no
acceptance and consequently no contract.
A contract is said to have been 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 uses that
position to obtain an unfair advantage over the other.
Thus, sub section (1) gives the element of undue influence as:
(1) one of the parties must be in a position to dominate the will of the other and,
Undue influence is ordinarily presumed in relationship, such as-(a) parent and child
But the relation of master and servant, creditor and debtor, husband and
“Coercion” is the committing, or threatening to commit, any act forbidden by the 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.”
To establish coercion, there must be-
(1) an act or threat to commit an act forbidden by the Penal Code (or)
(3) threat to unlawfully detain any property and it must be proved that the
58.. Mg Mg finds Phyu Phyu's purse and gives it to her. Phyu Phyu's promises to give Mg Mg Kyats
5000. Is this a contract or not?
Mg Mg finds Phyu Phyu's purse and gives it to her. Phyu Phyu's promises to give Mg Mg Kyats 5000.
This is a contract.
Short questions
59. Define the term promise.
In Section 2(b) of Contract Act, when the person to whom the proposal is made signifies his assent
thereto, the proposal is said to be 'accepted' A proposal, when accepted.( As to when communication of
acceptance becomes complete) becomes a "promise".
A proposal when accepted becomes a promise. Section 2(b)] The person making the proposal is
called the "promisor" and the person accepting the proposal is called the " promisee". A proposal
becomes a promise when the proposal accepted by the person whom it is made. This acceptance
Section 37
"The Parties to a contrcat must either perform, or offer to perform, their respective promises, unless
such performance is dispensed with or excused under the provisions of this Act, or of any other
law."
A person may be disqualified from contracting by his or her own law to which he or she is subject.
For example , in England, a married woman cannot enter into contract without the authority of her
husband.
4. Define the term "price". What are the different modes of determination of price?
The Price
In respectt of sale, the first rule is that no sale can take place without a price. The price of goods is
the important element of a valid sale. There can be no valid sale of goods without the price. The term
price is defined in seciton 2(10) of the Sale of Goods Act, which reads as under: The price means
the money consideration for a sale of goods. In other words, the money. The money here means the
Section 21
"A contrct is not voidable because it was caused by a mistake as to any law in force in the Union of
Myanmar, but a mistake as to a law not in force in the Union of Myanmar has the same effect as a
The rules as to appropriation of payments are laid down under Section 56 to 61.
Section 25(2)
when it is a promise to compensate wholly or in part a person who has already volunatarily done
something for the promisor, of something which the promisor was legally compellable to do ".
Section 2(b) of the Contract Act 1872 defines acceptance as that "when the person to whom
the proposal is made signifies his assent thereto, the proposal is said to be accepted ". A proposal, when
Section 28
"Every agreements by which any party thereto is restricted absolutely from enforcing his right under
or in respect of any contract, by the usual legal procedings in the ordinary tribunals, or which limits the time
within which he may thus enforces his rights, is void to that extent."
Promises bind the representatives of the promisors in case of the death of such promisors before
Illustration
(a) A promises to feliver good to B on a certain day on payment of Ks1,000. A dies before the
day described. A's representatives are bound to deliver the goods to B, and B is bound to pay the Ks 1,000 to
A's representatives.
But when personal skill qualification is involved in the performance of the contract, the contractual
In every breach of contract the injured party is entitled to damages. Damages are given by way of
restitution and compensation only, but not as a punishment, the agreed party can , therfore , recover the
12. Do you agree " an agreement without consideration is void " ? Explain with example.
Section 25(2)
When it is a promise to compensate wholly or in part a person who has already voluntraily done
something for the promisor , of something which the promisor was legally compellable to do"
4
Under section 2 (a) of the Contract Act 1872, a Proposal is an act when one person signifies to
another his willingness to do or to abstain from doing anything, with a viewe to obtaining the assent
A mere statement of intention or offer will not constitute a proposal through acted upon by
the party to whom it was made. Therefore we can explain a proposal as definite statement of
intention by one person signifying his willingness to do or to abstain from doing something with the
expectation that the person doing to whom such intention is conveyed will do or abstain from doing
Now we come to another important element in the formation of a contract namely " Consideration".
A promise without consideration is sid to be nudum pactunl and is not enforceable by law.
Executory Consideration
The Consideration is said to be executory when it is a promise given for a promise. An executory
consideration is a promise made by one prty in return for a promise made by the other. Thus, whene
an act which is completely performed by the one side upon the promise of the other side such
(1) the positive assertion, in a manner not warranted by information of the person making it, of that
(2) any breach of duty which, without an intent not deceive, gains an advantage to the person
5
committing it, or any one claiming under him, by misleading another to his prejudice or to the
(3) causing, however innocently, a party to a agreement to make a mistake as to the substance of the
16. How many kinds of requirements are there for quantum meruit ? Express.
It means that the rights and liabilities to an implied (quasi) contract are the same as if they entered
into contract themselves. The principle of Quantum meruit is closely associated with the law relating to
quasi-contract. Where a building contractor does "extra work" over and above the work mentioned in the
contract, he would be entitled to be paid at the maket rate for such extra work.
17. How many types of promise are there ? Define the term implied promised.
There are two type of promise, they are Express and Implied Promise.
implied promised
In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be
implied. [Section 9]
The rules as to appropriation of payments are laid down under Section 56 to 61.
19. How many kinds of requirements are there for quantum meruit ? Express.
It means that the rights and liabilities to an implied (quasi) contract are the same as if they entered
into contract themselves. The principle of Quantum meruit is closely associated with the law relating to
quasi-contract. Where a building contractor does "extra work" over and above the work mentioned in the
contract, he would be entitled to be paid at the market rate for such extra work.
20. How many types of promise are there ? Define the term implied promised.
There are two type of promise, they are Express and implied promise.
implied promised
In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be
implied. [Section 9]
21. "Ni Ni " agrees to buy a picture by a dead printer and tow rare China vases, and "Phyu Phyu" also
No, "Ni Ni" may not compel "B". A dead painter promises to paint a picture for Ni Ni by a certain
representative or by Ni Ni.
For Phyu Phyu , Promises bind the representatives of the promisors in case of the death of such
promisors before performance, unless a contrary intention appears from the contract. So, "Ni Ni"
22. Mg Mg finds Phyu Phyu's purse and gives it to her. Phyu Phyu's promises to give Mg Mg Kyats
23. " Maung Maung" contract to to take in cargo for Aung Aung at a foreign port. Maung Maung's
Government afterwards declares war against the country in which the port is situated. The contract
valid
nothing to U Phyu about the horse's unsoundness. Is this fraud or not in Mg Mg?
25. Maung Maung contracts to pay Aung Aung a sum of money when Aung Aung marries Phyu Phyu.
Phyu Phyu dies without being married to Aung Aung. Is the contract become void or valid?
The contract is become void. The law relating to void agreements prescribed in the Contract Act is in
A person may be disqualified from contracting by his or her own law to which he or she is
subject. For example, in England, a married woman cannot enter into contract without the authority
of her husband.
26. Maung Maung without Mi Mi's authority leads Mi Mi's money to Thu Thu. Afterwards Mi Mi
accepts intersts on the money from Thu Thu. Can Mi Mi's conduct implies a reatification of the
loan" ?.
Yes, Mi Mi's conduct can implies a reatification of the loan, Section 199, "A person reatifying any
unauthoried act done on his behalf ratifies the whole of the transaction of which such act formed a
part."
27. U Ba promises to deliver good to U Mya on a certain day on payment of Ks 1,00000. U Ba dies
before the day described. U Ba's representatives are bound to deliver the good to U Mya, and Does
U Mya bound to pay the Ks 1,00000 to U Ba's representatives. Because Promises bind the
representatives of the promisors in case of the death of such promisors before performance, unless a
28. U Maung Maung supplies the wife and children of U Aung Aung, a lunatic, with necessaries
suitable to their condition in life. Can U Maung Muang entitle to be reimburesed from U Aung's
property?
Yes, U Maung Maung can entile to be reimbursed form U Aung's property. Because , U Maung
Maung supplies the wirfe and children of U Aung Aung, a lunatic, with necessaries suitable to their
condition in life U Maung Maung is entitled to be reimbursed from U Aung Aung's property.
Reimbursement of person paying money due by another in payment of which he is interested. Thus,
29. Under Section 2(h) of Contract Act, 1872 how many distinct parts are required ? Express.
Under section 2(h) of the Contract Act 1872 provides that " A Contract is an agreement enforceable
by law " . equences of all lawful acts done by such agent in the exercise of the authority conferred upon him.
"All agreements are contracts if they are made by the free consent of parties competent to contract,
for a lawful consideration and with a lawful object, and are not hereby expressly declared to be
9
void. Noting here in contained shall affect any law in force in the Republic of the Union of Myanmar,
by which any contract is required to be made in writing or in the presence of witnesses, or any law
30. U Phyu accepts U Ni's proposal by a letter sent by post. Is the communication of the acceptance
complete or not ?
These are the goods which are not in existence at the time of contract of sale. The seller acquires
such goods after the making of the contract of sale. Thus, the future goods are those which are to be
acquired or produced by the seller after the contract of sale is made [Section 2(6)]. A contract for the
sale of future goods operates as an 'agreement to sell', not sale [section. 6 3].
The seller of goods is deemed to be an "unpaid seller" within the meaning of this Act:
(a) When the whole of the price has not been paid or tendered;
(b) when a bill of exchnge 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.
An acceptance may be revoked at any time before the communication of the acceptance is complete
The unpaid seller may exercise his right of stoppage in transit either by taking actual
possession of the goods, or by giving notice of his claim to the carrier or other bailee in whole
possession the goods or to his principal. In the latter case the notice, to be effectual, shall be given at
10
such time and in such circumstances that the principle, by the exercise of reasonable dilligence,
may communication it to the servant or agent in time to prevent a delivery to the buyer.
When notice of stoppage in transit is given by the seller to the carrier or other bailee in
possession of the goods, he shall re-dilvered the goods to , or according to the directions of , the
Subject to the provisions of this Act, when the buyer of goods becomes insolvent, the unpaid seller
who has parted with the possession of the goods as long as they are in course of transit, and may
Subject to the provisions of this Act and of any law for the time begin in force, notwithstanding that
the property in the goods may has passed to the buyer, the unpaid seller of goods, as such, has by
implication of law.
(a) a lien on the goods for the price while he is in possession of them;
(b) in case of the insolvency of the buyer a right of stopping the goos in transit after he has parted
These are the goods which are also not in existence at the time of contract of sale. The contingent
goods are a type of future goods. In this case, the acquisition of the goods by the seller depends upon
the uncertain contingencies, i.e, upon uncertain events which may not happen.
Section 16
"(1) A contrct is said to have been induced by "undue influence" where the relations subsisting
11
between the parties are such that one of the parties is in a position to dominate the will of the other ans
Thus, sub section (1) gives the element of undue influence as:
(1) one of the parties must be in a position to dominate the will of the other and,
But the relation of master and servant, creditor and debtor, husband and wife does not itself raise a
An agreement which is enforceable by law at the option of one or more of the parties thereto, but not
"A Contract is an agreement enforce able by law". Section 10 of the said Act adds further
"All agreements are contracts if they are made by the free consent of parties competent to
contract for a lawful consideration and with a lawful object, and are not hereby expressly declared to
be void. Nothing here in contained shall affect any law in force in the Republic of the Union of
Myanmar, by which any contract is required to be made in writing or in the presence of witnesses, or
(1) the positive assertion, in a manner not warranted by information of the person making it, of that
Section 37
"The Parties to contract must either perform, or offer to perform, their respective promises, unless
such performance is dispensed with or excused under the provisions of this Act, or of any other
law."
There are the basic factors which are essentials to constitute a valid contrct, such as;-
1. Agreement
6. Where writting , attestation or registration is necessary, shall be made in accordance with Law.
Section 2 (d) of the Contract Act defines the term"Consideration" as"when , at the desire of the
promisor, the promisee or any other person has done or obstained from doing, or does or obstain from doing,
or promises to do or abstain from doing something, such act or abstinence or promise is called a considration
45. What do you understand by the term the mistake of fact ? Express with conditions.
Agreement is void where both parties are under mistake as to matter of fact esenential to the
agreement.
Explanation;
An erroneous opinion as to the value of the thing which forms the subject-matter of the agreement is
A person may be disqualified from contracting by his or herown law to which he or she is subject.
For example, in England, a married woman cannot enter into contract without the authority of her husband.
The proposor cannot impose upon the acceptor the penalty that in the event of his silence, he would
" Omission" would include such conduct or forbearance on one's part that the other peron takes it as
48. What do you understand by the term the thing must be done lawfully ?
There are three conditions to establish a right of action under this section , such as:-
(ii) The perfson who did it must not have intend to act gratuitosly: and,
(iii) The person for whom the act is done must enjoy the benefit of it.
"Where a person lawfully does anything for another person, or delivers anything to him, not
intending to do so gratuitosly , and such other person enjoys the benefit there of , the latter is bound to make
compensation to the former in respect of , or to restore , the thing so done or delivered ."
According to the Section 168 of the Contract Act, a person who finds goods belong to another and
take them into his custody is entitled to retain the goods against the owner until, he receives such
compensation for trouble and expenses voluntarily incurred by him to perserve the goods and find out the
He can, however sue the owner where the owner has offred a specific reward for return of the goods lost and
Moreover, he is entitled to its possession as against everyone except the true owner.
6103 Short Question
1. Define the term promise.
A proposal when accepted becomes a promise.[Section
1. 2(b)]
The person making the proposal is called the
"promisor" and the person accepting the proposal is called
the "promised".
A proposal is revoked:-
(1) by the communication of notice of revocation by the
proposerto the other party;
Section 21
“A contract is not voidable because it was caused by a
mistake as to any law in force in the Union of Myanmar, but
a mistake as to a law not in force in the Union of Myanmar
has the same effect as a mistake of fact”.(mistake of foreign
law)
Illustration
A and B make a contact grounded on erroneous belief
that a particular debt is barred by the law of limitation, the
contract is not voidable.
Section 16
A contract is said to have been 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 uses that position to obtain an
unfair advantage over the other.
(a)where he holds a real or apparent authority over the
other, or where he stands in a fiduciary relation to the other,
or
(b)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.”
Section 29
"Agreements, the meaning of which is not certain, or
capable of being made certain, are void".
Illustration
(a)A agrees to sell to B "a hundred tons of oil". There is
nothing whatever to show what kind of oil was intended. The
agreement is void for uncertainty.
(h)Agreement
(i)Void agreement
(j)Contract
(k)Voidable agreement
(1) Damage
(2) Malice
(3) Intention
(4) Motive
(6) Engravings
(7) Photograph
(8) Cinematograph
(9) Plate
(10) Lecture
65. What are the necessary points to take action for libel?
Anything communicated in a form of a permanent character
and visible tothe eye is libel, such as books, newspapers, pictures,
waxwork effigy orstatues, mark or sign exposed to view. Moreover,
broadcasting, both radioand television and theatrical performances
which are treated aspublication in permanent form, i.e. as libel. To take action for
libel, the following points must be proved.
(1) The statement is false.
(2) It is written
(3) It is defamatory
(4) It is published.
66.How many kinds of defaation? Express.
69. Express the meaning of Latin Maxim “volenti non fit injuria” with case.
70. Describe the meaning of Latin Maxim “resispa loquitur” with case.
The maxim Resipsaloquitur means "the thing speaks for
itself".
Byrne V. Boadle (1863) 2 H. &. C. 722.Byrne (P) was
struck by a barrel falling from a window as he walked past
Boadle’s (D) flour shop and sustained serious personal injuries. A
witness testified that he saw the barrelfall from Boadle’s window
but had not seen the cause. Byrne did not present any other
evidence of negligence by Boadle or his employees. Boadle
moved for a non-suit on the grounds that Byrne had presented no
evidence of negligence. The court granted the motion and plaintiff
obtained a rule nisi. The Court of Exchequer found in favor of
Byrne and reversed. Boadle appealed.
Liability for negligence can lie solely on account of the type
of accident that occurred, without direct evidence of negligence. Stone V.Bolton
(1949) 2 All.E.R. 851.On 9 August 1947,
during a game of cricket against the Cheetham 2nd XI at
Cheetham Cricket Ground in Manchester, a batsman from the
visiting team hit the ball for six. The ballflew out of the ground,
hitting the claimant, Miss Stone, who was standing outside her
house in Cheetham Hill Road, approximately 100 yards (91 m)
from the batsman. The club had been playing cricket at the ground
since 1864, before the road was built in 1910.
However, the court held that an accident of this sort called
for an explanation, and that the defendants were aware of the
potential risk. On that basis, applying the legal maxim of resipsa
loquitur, the defendants were found negligent. The defendants
appealed to the House of Lords. The House of Lords found that
there was no negligence, although most considered it a close call
based on whether the reasonable person would foresee this as
anything more than an extremely remote risk. Stansbie v. Troman [1948] 2 K.B.
48, 51-52, a decorator
failed to secure a household he was decorating, resulting in a
burglary while he was absent; it was found he owed a duty to the
house hold owner to adequately secure the premises in his
absence. Austin V. Great Western Railway (1867) 2.Q.B.442.A
travelling case, decided in 1867, the defendant company was held
liable in respect of injuries caused to a child over the age of three
years while travelling with its mother, who had omitted to take a
ticket for it. The defendant company appealed on the ground that
the plaintiff was not lawfully a passenger, it being alleged that
there had been concealment equivalent to fraud.
1. Explain the terms "promise" and "consideration" with cases. Your answer must be no less than
250 words.(Contract-Chapter 1)
Promise
A proposal when accepted becomes a promise.[Section 2(b)]
The person making the proposal is called the "promisor" and the person accepting the proposal is
called the "promised".
Express and Implied Promise
(i)Express Promise
In so far as the proposal or acceptance of any promise is made in words, is said to be express.
[Section 9]
(ii)Implied Promise
In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be
implied.[Section 9]
Consideration
Section 2 (d) of the Contract Act defines the term “Consideration” as "when, at the desire of the
promisor, the promisee or any other person has done or abstained from doing, or does or abstain
from doing, or promises to do or abstain from doing, something, such act or abstinence or promise is
called a consideration for the promise"
In Daw Po and other vs. U Po Hmyin and others 1940 R.L.R 239 case, it was held that a
stranger to a contract can sue upon it (a) where a party to the contract agrees with the stranger to pay
him direct or becomes estopped from denying his liability to pay him personally, (b) where the
contract creates a trust in his favour.
Then in the later case" Burma (Government Security) Insurance Co.Ltd. vs. Daw Saw Hla"
1953 B.L.R.H.C 350, it was held that there is nothing in the Contract Act which prevents the
recognition of a right in a third party to enforce a contract made by other which contains a provision
for his benefit.
A Consideration may be Past, Present and Future.
(a)Past Consideration
(b)Present Consideration
(c)Future Consideration
1. U Hla supplies the wife and children of U Mya, a lunatic, with necessaries suitable to their
lives, the children are minors. Is U Hla entitled to be reimbursed for such supplies? If so, from
whom and out of what? You must write it between 100-200 words. (Contract-Chapter 5)
U Hla supplies the wife and children of U Mya, a lunatic, with necessaries suitable to their lives, the
children are minors. U Hla is entitled to be reimbursed for such supplies.
Given the problem, according to Section 68, contract Act, If a person, incapable of entering into a
contract, or any one whom he is legally bound to support, is supplied by another person with
necessaries suited his condition in life, the person who furnished such supplies is entitled to
reimbursed from the property of such incapable person.
So, U Hla is entitled to be reimbursed for such supplies.
Example
(a) A supplies B, a lunatic, with necessaries suitable to his condition in life. A is entitled to be
reimbursed from B's property.
(b) A supplies the wife and children of B, a lunatic, with necessaries suitable to their condition in life
A is entitled to be reimbursed from B's property.
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1. Describe about the completion of communication. Your discussion must be no more than 400
words. (Contract-Chapter 2)
In respect of communication there is an important point which is “ when does the action of
communication be completed”.
Completion of Communication of Proposal is complete when it comes to the knowledge of the
person to whom it is made. Section 4
e.g ( 1 ) A proposes by letter to sell a house to B at a certain price. In this case, the communication of
the proposal is complete when B receives the letter ( A’s letter ).
Completion of Communication of an acceptance is completed; (i) as against the proposor, when it is
put in a course of transmission to him, so as to be out of the power of the acceptor.(ii) as against the
acceptor when it come to the knowledge of the proposer. Section 4
Example
( 2 ) In the case of the example ( 1 ) B accepts A’s proposal by a letter sent by post. The
communication of the acceptance is complete;
(a) As against A, when the letter is posted;
Example
In the above example (1) A revokes his proposal by telegram. The revocation is complete as against
A when the telegram is dispatched. It is complete as against B when B receives it. B revokes his
acceptance by telegram. B’s revocation is complete as against B when the telegram is dispatched,
and as against A when it reaches him.
Revocation of Proposal- A proposal may be revoked at any time before the communication of its
acceptance is complete as against the proposer, but not afterwards. Section 5
Revocation of Acceptance- An acceptance may be revoked at any time before the communication of
the acceptance is complete as against the acceptor, but not afterwards. Section 5
Illustration- 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 post his
letter of acceptance, but not afterwards. B may revoke his acceptance at any time before or at the
moment when the letter communicating it reaches A, but not afterwards.
1. Explain the terms "promise" and "consideration" with cases. Your answer must be no less than
250 words.(Contract-Chapter 1)
Promise
A proposal when accepted becomes a promise.[Section 2(b)]
The person making the proposal is called the
"promisor" and the person accepting the proposal is called the "promised".
Express and Implied Promise
(i)Express Promise
In so far as the proposal or acceptance of any promise
is made in words, is said to be express. [Section 9]
(ii)Implied Promise
In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be
implied.[Section 9]
Consideration
Section 2 (d) of the Contract Act defines the term “Consideration” as "when, at the desire of the
promisor, the promisee or any other person has done or abstained from doing, or does or abstain
from doing, or promises to do or abstain from doing, something, such act or abstinence or promise is
called a consideration for the promise"
In Daw Po and other vs. U Po Hmyin and others 1940 R.L.R 239 case, it was held that a stranger to a
contract can sue upon it (a) where a party to the contract agrees with the stranger to pay him
direct or becomes estopped from denying his liability to pay him personally, (b) where the contract
creates a trust in his favour.
Then in the later case" Burma (Government Security) Insurance Co.Ltd. vs. Daw Saw Hla"
1953 B.L.R.H.C 350, it was held that there is nothing in the Contract Act which prevents the
recognition of a right in a third party to enforce a contract made by other which contains a provision
for his benefit.
(a)Past Consideration
(b)Present Consideration
(c)Future Consideration
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1. Describe about the completion of communication. Your discussion must be no more than 400
words. (Contract-Chapter 2)
In respect of communication there is an important point which is “when does the action of
communication be completed.”
1. What are the main points to become a valid 'proposal' or 'offer'? Explain with examples.
You must answer it between 300-350 words. (Contract- Chapter 1)
Definition of Proposal
Under section 2 (a) of the Contract Act 1872, a Proposal is an act 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.
The Salient Points of a valid "Proposal" or "Offer"
(1) A proposal is not a mere declaration or intention to make an offer but it is offer that is made with
the idea the person to whom the offer has been made will act in response to his offer: there must be
request to accept his offer.
Example
If 'A' says in conversation with 'B' that he would sell his house will not amount to an "offer" or
"proposal".
(2) A proposal must be made with an intention to create legal relation.
Example
To offer a friend a meal is not to create legal relation.
(3) The terms of a proposal or an offer must be certain.
(4)A proposal (offer) may be general or specific.
Example
An advertisement in a newspaper offering a reward for the finder of the lost dog amounts to a general
offer.
(5)Every offer must be communicated.
(6)Where an offer is uncommunicated there can be no contract.
Sometimes a proposal takes the form of continuous offer, which is called 'standing offer'. A proposal
takes the form of continuous offer is called 'standing offer'.
An invitation to traders to make tenders, display of goods for sale in shop windows, and advertising
auction sales are instances of invitation to the other to make offer to buy or sell as the case may be.
Thus, for example, a book seller's catalogue with prices stated against the names of the books is an
invitation to the purchasers. The purchasers are to make an offer and it is for the book seller to accept
it or not.
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1. What is meant by "undue influence" as mentioned in the Contract Act? Explain briefly. You must
write it between 300-500 words. (Contract-Chapter 3)
Undue Influence- Section 16 -A contract is said to have been 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 uses that position to obtain an unfair advantage over the other.
(a) Where he holds a real or apparent authority over the other, or where he stands in a fiduciary
relation to the other, or
(b) 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.”
This Sub-Section 2 shows the different forms of influence. Undue influence is ordinarily presumed
in relationship, such as-
(a) Parent and child
(b) Guardian and ward
(c) Trustee and beneficiary
(d) Solicitor and client
(e) Doctor and patient
(f) Spiritual adviser and disciple
Illustration-(1) A having advanced money to his son, B, during has 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. (2) 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. (3) A applies to a banker for a loan at a
time when there is stringency in the 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.
It was also held that since there was no position of influence, it was necessary to consider whether
undue influence was used or not.
Section 16- (1) Where a person, who is in a position to dominate the will of another, enters into a
contract with him, in the transaction appears, on the face of it on the evidence adduced, to be
unconscionable, the burden of proving the said contract was not induced by undue influence shall lie
upon the person in a position to dominate the will of the other. Nothing in this sub-section shall
affect the provisions of section 111 of the Evidence Act.
Illustration- 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.
Section 19- “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.”
1. State briefly the provisions of the Contract Act as regards the time, place and manner of
performance. You must write it between 300-500 words. (Contract-Chapter 4)
There are six different rules applicable to the law as to time, place and manner of performance. These
are: -
(1) Time for performance where on time is specified
Section 47
Time is specified and application to be made, “when a promise is to be performed on a certain day,
and the promisor has undertaken to perform it at any time during the usual hours of business on such
day and at the place at which the promise ought to be performed.”
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 house of business.”
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Section 49
“When a promise is to be performed without application by the promisee, and no place is fixed for
the performance of 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 place.”
(2) Performance in manner or at time prescribed by Promisee
Section 50
“The performance of any promise may be made in any manner, or at any time, which the promisee
prescribes or sanctions.”
(3). When time is to the essence of contract
Section 55(First paragraph)
“When a party the a contract promises to do a certain thing at or before a specified time, or certain
things at or before specified times, 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 avoidable at the option of the
promisee, if the intention of the parties was that time should be of the essence of the contract.”
(4).When time is not essential
Section 55 (Second paragraph)
“If it was not the intention of the parties that time should be of the 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.”
(5). Effect of Acceptance of performance at time other than that agreed upon
Section 55 (Third paragraph)
“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 that agreed,
the promisee cannot claim compensation for any loss occasioned by the nonperformance of the
promise at the time agreed, unless, at the time of such acceptance he gives notice to the promisor of
his intention to do so.”
1. What are the kinds of agreement expressly declared to be void? Specify it of 300 words or less.
(Contract-Chapter 3)
In order to be a valid contract, the agreement must not be expressly declared to be void. There are
fourteen kinds of agreement which the Contract Act has expressly declared to be void. They are;-
(1)Agreements made by incompetent persons: [Section 11]
(2) Agreements made under mutual mistake as to a matter of fact [Section 20] or Law[Section 21]
(3) Agreements of which consideration or object is unlawful, [Section 23]
(4) Agreements of which consideration or object is unlawful in part[Section 24]
(5) Agreements without consideration [Section 25]
(6) Agreements in restraint of marriage [Section 26]
(7) Agreements in restraint of trade [Section 27]
(8) Agreements in restraint of legal proceedings [Section 28]
(9) Agreements the meaning of which is uncertain or not capable of being made certain [Section 29]
(10) Agreements by way of wager [Section 30]
(11) Agreements contingent on an event happening, and the event becomes impossible [Sections 32 ,
36]
(12) Where the agreement is to do an act which subsequently becomes impossible or unlawful
[Section 56]
(13) Agreement to do an act afterwards becoming Impossible or Unlawful. [Section 56]
(14) Where persons reciprocally promise firstly, to do something which are legal, and secondly,
under specified circumstances, to do certain other things which are illegal,
the second set of promises is a void agreement [Section 57]
Contracts which require being in writing under section 25 are-
(1) Contract out of natural love and affection [Section25(1)]
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1. What is meant by "undue influence" as mentioned in the Contract Act? Explain briefly. You must
write it between 300-500 words. (Contract-Chapter 3)
Section 16
A contract is said to have been 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 uses
that position to obtain an unfair advantage over the other.
(a)where he holds a real or apparent authority over the other, or where he stands in a fiduciary
relation to the other, or (b)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.”
This Sub-Section 2 shows the different forms of influence.
Undue influence is ordinarily presumed in relationship, such as-
(a) parent and child
(b)guardian and ward
(c)trustee and beneficiary
(d)solicitor and client
(e)doctor and patient
(f)spiritual adviser and disciple
It was held that even though the deceased U Ah Choine was ill, it could not be considered to
be influenced by his wife and sons since he was to be able to bring himself up until to be a rich man.
It was also held that since there was no position of influence, it was necessary to consider
whether undue influence was used or not.
Section 16
(1)" Where a person, who is in a position to dominate the will of another, enters into a contract with
him, in the transaction appears, on the face of it on the evidence adduced, to be unconscionable, the
burden of proving the said contract was not induced by undue influence shall lie upon the person in a
position to dominate the will of the other.”
Nothing in this sub-section shall affect the provisions of section 111 of the Evidence Act.
Section 19
"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."
1. Summarise the rules laid down in the Contract Act as to the appropriation of payment made by
debtor. Your answer must be no less than 250 words. (Contract-Chapter 4)
Rules as to Appropriation of Payments
The rules as to appropriation of payments are laid down under Section 56 to 61.
(1) Where debt to be discharged is indicated.[S.59]
(2) Where such debt is not indicated [S.60]
(3) Where neither party appropriated.[S.61]
Application of payment where:-
(1) 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 payment is to be applied to the discharge of
some particular debt, the payment, if accepted, must be applied accordingly.”
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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, whether its recovery is or is not barred by the law in
force for the time being as to the limitation of suits.”
(4) Neither party appropriate
Section 61
“Where neither party 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 of limitation of suits. If the debts are of
equal standing, the payment shall be applied in discharge of each proportionately.”
1. (a)Define consent.
(b)When is consent said to be free?
(c)Define coercion with illustration. Your answer must be no less than 250 words.
(Contract-Chapter 3)
(a) Consent
Section 13
“Consent” is defined as “Two or more persons are said to consent when they agree upon the same
thing in the same sense”.
(b) Free Consent Section 14
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1. Discuss the statement "lawful consideration and lawful objects". Your discussion must be
no more than 300 words. (Contract-Chapter 3)
The next ingredient of a valid contract is that its consideration and object must be Lawful.
Section 23
Lawful considerations and objects are shown as follows:-
The consideration or objects of an agreement is
Lawful, unless-
(a) it is forbidden by law (or)
(b) it is of such a nature that, if permitted, it would defeat the provisions of any law (or)
(b) it is fraudulent (or)
(c) it involves or implies injury to the person or property of another (or)
(d) the court regards it as immoral, or opposed to public policy.
Section 57
“Where persons reciprocally promise, firstly, 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 contract, but the second is a
void agreement.”
Illustration
A and B agree that A "shall sell B a house for kyats 100,000, but that, if B uses it as a gambling
house, he shall pay A Kyats 50,000 for it.
The first set of reciprocal promises, namely, to sell the house and to pay Kyats 100,000 for it, is a
contract. The second set is for an unlawful object namely, that B may use the house as a gambling
house, and is a void agreement.
Section 58
“In the case of an alternative promise, one branch of which is legal and the other illegal, the legal
branch alone can be enforced.”
Illustration
A and B agree that A shall pay B Kyats 100,000 for which B shall afterwards deliver to A either rice
or smuggled opium. This is a valid contract to deliver rice and void agreement as to the opium.
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1. Enumerate the modes under which a contract is discharged. Explain briefly. You must write
it between 300-500 words.
(Contract-Chapter 4)
There are Eleven ways in which a contract may be discharged under the Contract Act. Such as-
(1) Discharge by performance [S.37]
(2) Dispensed with or excused by any law [S.37]
(3) By refusing tender of performance [S.38]
(4) Discharge by breach [S.39]
(5) By impossibility or unlawfulness of the act to be performed [S.56]
(6) By novation, rescission or alteration of contract [S.62]
(7) By waiver [S.63]
(8) By Accord and satisfaction
(9) By rescission of a voidable contract. [S.64]
(10) By neglect of promisee to afford promisor, reasonable facilities for performance
(11) By operation of law
Discharge by Performance
If both of the contracting parties have performed what with agreed to do under the contract, the
contract is discharged.
Dispensed with or Excused by any Law
Where the performance of the contract is dispensed with or excused by any law other than the
Contract Act, the contract is discharged. [S.37]
Thus insolvency of a party to a contract discharges the contract. E.g An insolvent is released from
paying his debt.
By Refusing Tender of Performance
Refusal to accept an offer of performance discharges the party making the offer from liability under
the contract. [S.38]
Discharge by Breach
When one party to a contract commits a breach of that contract by refusing to perform, or by
disabling himself from performing his promise in its entirely, and the other party accepts the breach
the contract is discharged. [S. 39]
By Impossibility or Unlawfulness of the act to be
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Performed
A contract may be discharged by impossibility. Impossibility which arises from the non-existence of
the subject matter at the time of the contract is also void because both the parties to an agreement are
under mistakes as to a matter of fact essential to the agreement. [S.56]
By Novation, Rescission or Alternation of Contract
Section 62 deals with the effect of rescission or alternation of a contract which says:-
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.
By Waiver
A contract may be discharged by way of "waiver". Section 63 deals with this principle as such;-
Every promise may-
(i) dispense with or,
(ii) remit, wholly or in part, the performance of the promise made to him, or may
(iii) extend the time for such performance, or may.
(iv) accept instead of it any satisfaction which he thinks fit.
By "Accord and Satisfaction"
When one of the parties to a contract in order to obtain release agrees to do something other
than what he was bound to do by the contract, and when he has discharged the obligation, and has
been set free, the contract is said to have been discharged by accord and satisfaction. The new
agreement is the accord, and the performance is the satisfaction.
By Rescission of a Voidable Contract
Section 64
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 promisor. The party rescinding avoidable
contract shall, if he has received any benefit there from another party to such contract, restore such
benefit, so far as may be, to the person from whom it was received.
By Neglect of Promisee to Afford Promisor Reasonable Facilities for Performance
Section 67 Provides that:-
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.
By Operation of Law
This may occur in there ways under the following circumstances:-
(i) By merger-acceptance of a higher security in place of a lower. If a higher security is accepted is
place of the law, the lower security is said to be merged or extinguished in the higher security.
(ii) By alternation of a written contract [S.62]
(iii) By insolvency or bankruptcy. Insolvency of a party to a
1. U Hla supplies the wife and children of U Mya, a lunatic, with necessaries suitable to their
lives, the children are minors. Is U Hla entitled to be reimbursed for such supplies? If so, from
whom and out of what? You must write it between 100-200 words. (Contract-Chapter 5)
U Hla supplies the wife and children of U Mya, a lunatic, with necessaries suitable to their lives, the
children are minors. They are incapable of entering into a contract. Therefore, U Hla is entitled to be
reimbursed from U Mya property.
Given the problem, according to Section 68, contract Act, If a person, incapable of entering into a
contract, or any one whom he is legally bound to support, is supplied by another person with
necessaries suited his condition in life, the person who furnished such supplies is entitled to
reimbursed from the property of such incapable person.
So, U Hla is entitled to be reimbursed for such supplies.
Example
(a) A supplies B, a lunatic, with necessaries suitable to his condition in life. A is entitled to be
reimbursed from B's property.
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(b) A supplies the wife and children of B, a lunatic, with necessaries suitable to their condition in life
A is entitled to be reimbursed from B's property.
1. What are the remedies for breach of contract? Explain. You must write it between 300-500
words. (Contract-Chapter 6)
There are mainly three kinds of remedies for breach of contract, namely:-
(i) Damages
(ii) A degree for specific performance, or
(iii) An injunction
(1) Damages
In every breach of contract the injured party is entitled to damages. Damages are given by way of
restitution and compensation only, but not as a punishment, the agreed party can, therefore, recover
the actual loss caused to him.
The damages which can be taken are not exemplary damages which can recover only in case of a
breach of promise of marriage. The law as to damages for the breach of contract and the measure of
damages are laid down in Sections 73 to 75 of the Contract Act, 1872.
(2) Specific Performance
Specific performance is an order of the Court ordering the breached party to perform the contract.
The law regarding the specific performance and injunction are regulated by sections 12 to 30 of the
Specific Relief Act. Specific performance can be granted only when the damages are-
(1) an inadequate remedy, or
(2)when the court can supervise the execution of the
contract, or
(3) when the contract is certain, fair and just.
For example
"A" agrees to buy a picture by a dead painter and two rare China vases, and "B" also agree to sell
them. "A" may compel "B" specifically to perform the contract for there is no standard ascertaining
the actual damage which would be caused by B’s non- performance.
"A" a singer, contract with B, the manager of a theatre, to sing at his theater for one year, and to
abstain from singing at other theatres during this period. Although “A” made absent herself, “B”
cannot compel "A" to sing at his theatre, but he may sue her for an injunction restraining her from
singing at other theatres.
Thus, personal contracts are contracts which have to be performed by a person himself, but no one
else, cannot be specifically enforced.
(3) Injunction
Injunction is used as a means of enforcing a contract or a promise to forbear, where a contract is
about to be broken by a party to the contract. Injunctions are of two kinds, namely, temporary or
perpetual.
(i) Temporary injunctions (ii) A perpetual injunction are governed by Sections 54 to 57 of the
Specific Relief Act.
1. State briefly the rules governing the measure of damages. Your discussion must be no more
than 300 words. (Contract-Chapter 6)
Where there is a breach of contract, the usual remedy is to sue for damages. In a claim for damages,
two issues arise:
(1) Measure of damages, and
(2) Remoteness of damages
(i) Measure of Damages
The measure of damages for breach of contract is governed by the principles laid down in Section 73
of the Contract Act that “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
caused to him thereby..”
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Section 73
"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 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.”
In the case of of Handley vs. Baxendale1 The plaintiff’s mill had ceased working because of
the broken crankshaft. The plaintiffs engaged the defendant carriers to transport the shaft to the
manufacturers. The defendants were negligent in their delivery of the shaft beyond a reasonable time,
as a result the operation of the mill being shut down for longer period than would have been
necessary had there been no delay. In a suit, the plaintiffs claimed for their increased loss of profits
caused by the delay.
(ii) Remoteness of Damage
The losses must be arisen direct for the breach. Losses not direct consequences of the breach must be
being regarded as “too remote”.
In measuring remoteness of damages, there are two limbs;-
(1)Damage arising naturally, i.e., from such breach of contract itself.
(2)Losses which is special and abnormal.
1. What are the rights and liabilities of finder of goods? Your answer must be no more than 250
words. (Contract-Chapter 5)
A person who finds goods belonging to another and take them into his custody is subject to
the same responsibility as a bailee.
Right of Finder of Goods
According to the Section 168 of the Contract Act, a person who finds goods belonging to
another and take them into his custody is entitled to retain the goods against the owner until, he
receives such compensation for trouble and expenses voluntarily incurred by him to preserve the
goods and find out the owner, but he has no right to sue.
He can, however sue the owner where the owner has offered a specific reward for return of the goods
lost and may retain the goods until he receives it.
Moreover, he is entitled to its possession as against every one except the true owner.
Liabilities of Finder of Goods
Liabilities of Finder of Goods mean that he is subject to the responsibility of a bailee to take due care
of the goods and to try and find out the owner.
1. Enumerate the modes under which a contract is discharged. Explain briefly. You must write it
between 300-500 words.
(Contract-Chapter 4)
1. Explain the agent's duties with illustrations. You must write it between 300-500 words.(Contract-
Chapter 7)
An agent is bound to conduct the business of his principal according to the directions given by the
principal, or in the absence of any such directions, according to the custom which prevails in doing
business of the same kind at the place where the agent conducts such business. When the agent acts
otherwise, if any loss be sustained he must make it good to his principal and, if any profit occurs, he
must account for it. [S.211]
An agent is bound to conduct the business of the agency with as much skill as is generally possessed
by persons engaged in similar business, unless the principal has notice of his want of skill. The agent
is always bound to act with reasonable diligence, and to use such skill as the possesses; and to make
compensation to his principal in respect of the direct consequences of his own neglect, want of skill
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or misconduct, but not in respect of loss or damage which are indirectly or remotely caused by such
neglect, want of skill or misconduct. [S.212]
An agent is bound to render proper accounts to his principal on demand. [S.213]
It is the duty of an agent, in cases of difficulty, to use all reasonable diligence in communicating with
his principal, and in seeking to obtain his instructions. [S.214]
If an agent deals on his own account in the business of the agency, without first obtaining the consent
of his principal and acquainting him with all material circumstances which have come to his own
knowledge on the subject, the principal may repudiate the transaction, if the case shows either that
any material fact has been dishonestly concealed from him by the agent, or that the dealings of the
agent have been disadvantageous to him.[S.215]
A directs B to sell A's estate. B on locking over the estate before selling it, finds a mine on the estate
which is unknown to A. B informs A that he wishes to buy the estate for himself, but conceals the
discovery of the mine. A allows B to buy in ignorance of existence of the mine. A, on discovering
that B knew of the mine at
the time he bought the estate, may either repudiate or adopt the sale at his option.
If an agent, without the knowledge of his principal, deals in the business of the agency on his own
account instead of on account of his principal, the principal is
entitled to claim from the agent any benefit which may have resulted to him from the transaction.
[216]
Illustration
A directs B, his agent, to buy a certain house for him.B tells A it cannot be bought, and buys the
house for himself: A may, on discovering that B has bought the house,compel him to sell it to A at
the price he gave for it.
1. Enumerate the agent's rights and explain briefly. Your discussion must be no more than 500
words. (Contract-Chapter 7)
Right to retain
An agent may retain, out of any sums received on account of the principal in the business of the
agency, all moneys due to himself in respect of advances made or expense properly incurred by him
in conducting such business, and also such remuneration as may be payable to him for acting as
agent. [S.217]
Subject to such deductions, the agent is bound to pay to his principal all sums received on his
account. [S.218]
In the absence of any special contract, payment for the performance of any act is not due to
the agent until the completion of such act; but an agent may detain moneys received by him on
account of goods sold, although the whole of the goods consigned to him for sale may not have been
sold, or although the sale may not be actually complete. [S.219]
In the absence of any contract to the contrary an agent is entitled to retain goods, papers and
other property, whether movable or immovable, of the principal received by him, until the amount
due to himself for commission, disbursements and services in respect of the same has been paid or
accounted for to him. [S.221]
Right to remuneration
An agent is entitled to his commission only when he has carried out the object of agency, unless, of
course, there is contract to the contrary. For his remuneration he may detain money received by him
on account of goods sold, although the whole of the goods consigned to him for sale may not have
been sold, or although the sale may not be actually complete [S.219]
But an agent who is guilty of misconduct in the business of the agency is not entitled to any
remuneration in respect of that part of the business which he has misconduct. [S.220]
Right to lien
In the absence of any contract to the contrary, an agent is entitled to retain goods, papers and other
property, whether movable or immovable, of the principal received by him, until the amount due to
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himself for commission, disbursements and services in respect of the same has been paid or
accounted for to him [S.221]
Right to indemnity
An agent has a right to be indemnified against the following two consequences „
(1) Consequences of all lawful acts done by such agent in the exercise of the authority conferred
upon him . [S.222]
(2) Consequences of the acts done in goods faith during the course of the agency, when such acts an
injury to the rights of third person. [S.223]
Right to compensation
An agent is entitled to compensation for any loss or injury caused to him by the principal's neglect or
want of skill. But he cannot claim compensation if the injury resulted from his own negligence or
acquiescence after knowledge of the risk of the agency, for the agent is presumed to undertake
ordinary consequences of the risk incidental to the nature of the agency. [S.225]
1. Discuss the following statements. (a) Acts when can be ratified. (b)Acts when cannot be
ratified. Your dicussion must be no more than 300 words. (Contract-Chapter 7)
(i) Acts which can be ratified
Section 196
“Where acts are done by one person on behalf of another, but without his knowledge or authority, he
may elect to ratify of to disown such acts. If he ratify them, the same effects will follows as if they
had been performed by his authority.”
Section 197 of the Act states that “Ratification may be expressed or may be implied in the conduct of
the person on whose behalf the acts are done.”
Illustration
(b) A without B's authority lends B's money to C. Afterwards B accepts interests on the money from
C. B's conduct implies a ratification of the loan.
Section 199
“A person ratifying any unauthorized act done on his behalf ratifies the whole of the transaction of
which such act formed a part.”
(ii) Acts which cannot be ratified
The following two cases will not be allowed to ratified.
(1) No valid ratification can be made by a person whose knowledge of the facts of the case is
materially defective. [S.198]
(2) An act done by one person behalf of another without such other person's authority, which, if done
with authority, would have the effect of subjecting a third person to damages or of termination any
right or interest of a third person, cannot by ratification, be made to have such effect.[S.200]
Illustration
(b) A holds a lease from B, terminable on three months notice. C, an unauthorized person, gives
notice of termination to A. The notice cannot be ratified by B, so as to be binding on A.
1. Explain about contract of agency. State your discussion in 500 words or more. (Contract-
Chapter 7)
Appointment of Agents
Section 182
"Agent" and "Principal"
“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 so represented, is called the
“principal”.”
"Principal" is the person who employs another person to do an act for him, or to represent for him, in
dealing with third persons.
Section 183
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“Any person who is of the age of majority according to the law to which he is subject, and who is of
sound mind, may employ an agent.”
Section 184
“As between the principal and third person any person may become an agent, but no person who is
not the age of majority and of sound mind can become an agent so to be responsible to his principal.”
Therefore a minor or a person of unsound mind is possible to be appointed as an agent, but he is not
responsible to his principal.
In the Contract concerning Agency consideration is not necessary [S.185]
(2)Authority of Agent
Section 186
The authority of agent may be express or implied.
Section 187
“An authority is said to be express when it is given by words spoken or written. An authority is said
to be implied when it is to be inferred from the circumstances of the case; and things spoken or
written, or the ordinary course of dealing, may be accounted circumstances of the case.”
Section 188
“An agent having an authority to carry on a business has authority to do every lawful thing necessary
for the purpose, or usually done in the course of conducting such business.”
Section 189
“An agent has authority, in an emergency, to do all such acts for purpose of protecting his principal
from loss as would be done by a person of ordinary prudence, in his own case, under similar
circumstances.”
Sub-Agents
(a) Delegation by agent
Section 190
"An agent cannot lawfully employ another to employ another to perform acts which he has expressly
or impliedly undertaken to perform personally, unless by the ordinary
custom of trade a sub-agent may, or, from the nature of the agency, a sub-agent must, be employed."
(c) Representation of principal by sub-agent
Section 192
“Where a sub-agent is properly appointed, the principal is, so far as regards third persons,
represented by the sub-agent, and is bound by and is responsible for his acts as if he were an agent
originally appointed by the principal.”
Section 193
Where an agent, without having authority to do so, has appointed a person to act as a sub-agent, the
principal is not represent by or responsible for the acts of the person so employed, nor is that person
responsible to the principal.
(c) Substituted agent
Section 194
“Where an agent, holding an expresses or implied authority to name another person to act for the
principal in the business of the agency, has named another person accordingly, such person is not a
sub-agent, but an agent of the principal for such part of the business of the agency as is entrusted to
him.”
“The bailee, in the absence of any special contract, is not responsible for the loss, destruction or
deterioration of the thing bailed if he is taken the amount of care of it described in section 151.”
Section 160
“It is the duty of bailee to return, or deliver according to the bailor's directions, the goods bailed,
without demand, as soon as the time for which they were bailed has expired, or the purpose for
which they were bailed has been accomplished.”
Section 161
“If, by the default of the bailee, the goods are not returned, delivered or tendered at the proper time,
he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time.”
Section 163
“In the absence of any contract to the contrary, the bailee is bound to deliver to the bailor, or
according to his directions, any increase or profit which may have accrued from the goods bailed.”
Section 167
“If a person, other than the bailor, clamis goods bailed, he may apply to the Court to stop the delivery
of the goods to the bailor, and to decide the title to the goods.”
1. Discuss the following statements. (a)Acts when can be ratified. (b)Acts when cannot be ratified.
Your dicussion must be no more than 300 words. (Contract-Chapter 7)
1. What are the specific contracts? Explain contract of indemnity and contract of
guarantee.State your discussion in 200 or less. (Contract-Chapter 7)
Section 126 defines
A "Contract of Guarantee" is a contract to perform the promise, or discharge the liability of a third
person in case of his default.
The person who gives the guarantee is called the "surety". The person in respect of whose default the
grantee is given is called the "principal debtor", and the person in to whom the grantee is given is
called the "creditor". A guarantee may be either oral or written.”
Contract concerning Bailment
Section 148
“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. The person delivering the goods is called the "bailor". The
person to whom they are delivered is called the bailee .”
Explanation
If a person already in possession of the goods of another contracts to hold them as s bailee, he
thereby becomes the bailee, and the owner becomes the bailor, of such goods although they may not
have been delivered by way of bailment.
1. Give fine distinction between "tort" and "crime". State your discussion in 400 words or
more. (Tort-Chapter 1)
A tort is quite different from a crime.
The first difference can be seen in the nature of committing a wrongful act. A tort is an infringement
of legal rights of a person, which he has the right to enjoy them privately.
Whereas a crime is a breach of public rights and duties affect the community as a whole. In fact, the
function of criminal law is to protect the interests of the public at large or the state.
Secondly, the wrongdoer is to compensate the injured party, i.e., he has to pay damages for the injury
he has done. A crime is a wrong, the sanction of which involves punishment.
The courts in giving punishment used to give death penalty, imprisonment, pecuniary fines or
otherwise as the law permits. Thirdly, in tort, the action is brought by the injured party, whereas in
crime, proceedings are conducted by the State.
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Lastly, in tort, the courts in enforcing the rights claimed by the plaintiff usually do not consider the
intention of the wrongdoer. But, in crime, the Courts always consider the intention or mensrea of the
accused in the enforcement of punishment.
Very often, we can see that the same wrong is civil as well as criminal assault, libel, theft and
malicious injury to property, are wrongs of this kind. In such cases, the civil and criminal remedies
are not alternative, but concurrent, each being independent of the other. The wrongdoer may be
punished criminally or by a civil action.
Example:
If A steals B’s coat, there is (i) a crime of theft, and (ii)
trespass to goods
(a tort) and conversion (also a tort).
If X assault Y, there is both a crime and a tort.
Finally, in Tort, the Court would not take into consideration the intention ofthe wrongdoer,i.e.,
whether the wrong is done intentionally or not, ifthere is an invasion of a legal right, the Court
will give remedy to theinjured party.
In Crime to make wrongdoer responsible for the wrong committed by him, the Court will consider
the mensrea of the accused.
1. Explain about legal damage with cases. State your discussion in 500 words or more. (Tort-
Chapter 2)
It is not for every injury that a person may sustain in the course of everyday life that he or she can
recover compensation. It can only be recovered if that injury is due to the fault of somebody who
owes a duty to that person. Only when such damage is recognized as legal then the plaintiff will be
successful.
The real significance of legal damage is illustrated by two maxims;
(1) Injuria sine damno
(2) Damnum sine injuria
(1) "Injuria sine damno" (Wrong without damage)
In Ashby vs. White case (**MarzettiV.Williams, (1830) 1B &AD, 415) the defendant, a returning
officer, wrongfully refused to register a duty tendered vote of the plaintiff, a legally qualified voter,
and the candidate for whom, the vote was tendered was elected. So, there was no loss or damage
suffered by the plaintiff, by such rejection of the vote. But still, the Court held that an action lay. We
can see that in this case the returning officer had acted maliciously. But where a returning officer
although there was no practice of malice or improper motive on his part, honesty refused to receive
the vote of a person entitled to vote at an election, it was held that no action lay.
Thus in Marzetti v. Williams case (Ashby v. White (1708) 2Ld.Raym, 938,955) an action will lie
against a banker, having sufficient funds in his hands belonging to a customer, for refusing to honour
his Cheque; although the customer did not thereby sustain actual loss or damage. So if there be an
infringement of a legal right, without actual damage, the person whose right has been infringed can
bring a suit under the provisions of section (42) of the Specific Relief Act. Hence, whenever a person
sustained of a legal wrong, he may bring an action without being under necessity of proving special
damage.
In MaungThitsa (Appellant) v. Maung Nat (Respondent) case (MaungThit Sa V. Maung Nat, 1
B.L.T., 146), a leading case, the appellant and respondent were lessees of adjoining fisheries. The
respondent erected certain akese which had
the effect of obstructing the passage, of fish to the appellant's fishery. The plaintiff-appellant has
claimed Rs. 1,320 for damages. The appellant's suit was decreed in the trial Court, but was dismissed
in the Appellate Court on the ground of there being no proof of special damage. Held that, the
respondent had infringed the right of the appellant by obstructing the free passage of fish to his
fishery; where there has been an infringement of a legal right an action for damages will lie without
proof of special damage. The appeal was allowed.
(2) Damnum sine injuria (Damage without wrong)
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In Gloucester Grammar School Case, (*Per Hankford. J. in Gloueester Grammar School, (1410) Y.B. 11
Hen IV for.27 p1.21,22.) the plaintiff complained that he had to reduce his fees at his school because of
the competition of the defendant, who set up a rival school, was held to have no remedy. This is
because English Law has accepted fundamental doctrine of free competition. Competition or other
acts damaging a man in his business are tortious only if, the act causing damage is deemed unlawful
or wrongful.
In Mogul Steamship Co. case, there is apparent conflict of two rights that are equally
regarded by the law: the right of the plaintiffs to be protected in the legitimate exercise of their trade,
and the right of the defendants to carry on their business as seem best to them, provided they commit
no wrong to others.
The defendants are a number of ship-owners who formed themselves into a League or
Conference for the purpose of ultimately keeping in their own hands of the control of the carriage
from certain Chinese ports, and for the purpose of driving the plaintiffs and other competitors from
the field. The right of competition exists even when the means adopted are "unfair".
1. State the circumstances in which an agreement made without consideration is valid? Specify
it of 300 words or less. (Contract-Chapter 8)
In Myanmar, an agreement without consideration is void, but there are three exceptions to this rule.
They are laid down in Section 25 as follows -
“An agreement made without consideration is void unless;-
(1) It is expressed in writing and registered under the law for the time being in force for the
registration of documents, and is made on account of natural love and affection between parties
standing in a near relation to each other: or unless.
(2) It is a promise to compensate wholly or in part , a person who has already voluntarily done
something for the promisor, or something which the promisor was legally compellable to
do or unless.
(3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent
generally or specially authorized in the that behalf, to pay wholly or in part a debt ofwhich the
creditor might have enforced payment but for the limitation of suits.
Excepting these three cases, every agreement, in order to be enforceable by law, must
supported by consideration. The circumstances in which an agreement made without consideration is
valid are (1) Contract out of natural love and affection [S.25(1)]
(2) Promise to compensate for voluntary service and, [ S.25(2)]
(3) Promise to pay time-barred debt [S.25(3)]
Explanation (1)
Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually
made.
Explanation (2)
An agreement to which the consent of the promisor is freely given is not void merely because the
consideration is inadequate; but the inadequacy of the consideration may be taken into account by
the Court in determining the question whether the consent of the promisor was freely given.
1. What are the basic factors to constitute a tort ?Explain briefly. Your discussion must be no
more than 500 words. (Tort-Chapter 2)
(1) Damage
(2) Malice
(3) Intention
(4) Motive
Damage
In studying the law of tort, we should know the difference between the terms "damage" and
"damages"
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"Damage" means the loss or grief or harm suffered by the plaintiff. It can be seen clearly that "a
person who on purpose or carelessly injuries another contrary to law in his life, body, health,
freedom, property, or other right is liable to compensate that other for the resulting damage".
"Damages" on the other hand means such compensation awarded by the court for the pecuniary loss
suffered by the plaintiff.
An award of damages may serve to compensate the plaintiff and to deter the defendant and other
from similar conduct in the future.
Malice
It is the intentional doing of a wrongful act, without just cause or excuse. It is not an act dictated by
angry feelings of vindictive motive. If a man gives a perfect stranger a blow likely to produce death,
he does it intentionally and without just cause or excuse. If a man main cattle without knowing
whose they are or that if he poison a fishery, without knowing of the owner, he has done it of malice,
because it is a wrongful act and done intentionally. This implied malice which is malice in law is
also an express malice depending on the circumstances of the case.
Malice is of two kinds:
(1) Express Malice
(2) Implied Malice
(1) Defamation.
(2) Malicious Prosecution.
(3) Willful and Malicious damage to property.
(4) Slander of title
(5) Maintenance.
Intention
The third point to be considered as basic factor in tort is that of "Intention". There is the maxim
"Every man is presumed to intend and to know the natural and ordinary consequences of his acts".
So wrongful acts done intentionally to damage a particular person and which actually damaging him
is obviously actionable. A violation of a legal right committed knowingly is a cause of action.
Motive
The last factor to be considered in tort is motive. It means that which makes a person act in particular
way. It signifies the reason for conduct. Thus, motive can be properly used to describe the emotion
which prompts the defendant to commit the act; for example, rage, hatred or jealousy.
In the case of Mayor of Bradford v. Pickles, (1895) A.C., 587it has been decided that if a man has
the misfortune to lose his spring by his neighbour digging a well, he must dig his own well deeper.
What is the law regarding wagering contracts under the Contract Act? You must write it
between 200-400 words. (Contract-Chapter 8)
Section 30
Agreements by way of wager are void: and to suit shall be brought for recovering anything alleged to
be won on any wager, or entrusted to any person to abide the result of any game or other uncertain
event on which any wager is made".
This section shall not be deemed to render unlawful a subscription or contribution, or
agreement to subscribe or contribute, made or enter into for or toward any plate, price or sum of
money, of the value or amount of kyats 50000 or upwards, to be awarded to the winner or winners of
any horse race.
Nothing in this section shall be deemed to legalize any transaction connected with horse-
racing to which the provision of section 294 A of the Penal Code apply.
'Wager' is defined by Sir Willian Ansons as "a promise to give money or money's worth upon
the determination or ascertainment of an uncertain event.
As the effect on collateral agreement, it was held in the case of Khairthi vs. Lal Din (a)
Maung Ba Thein and two others1 that-
"An agreement to share in the prize before a winning Treble Tote ticket was purchased is a
collateral agreement to a wagering contract and there is no law which declares such collateral
agreement to be void".
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1. What are the remedies available for the person whose land is trespassed? State your discussion in
200 words or less. (Tort-Chapter 3)
Where a person has entered upon land under a license given by law subsequently abuses it, he
becomes a trespasser ab initio, his misconduct relating back so as to make is original entry tortuous.
In fact the term ab initio means from the very beginning. The rule applies only to acts done in
pursuance of an entry, authority, or licence given by the law, and not given by the property.
The doctrine of trespass ab initio enables this to be done in the important area of a man’s person,
goods and land against the abuse of official power.
The person whose land is trespassed upon may-
(1)bring an action for trespass against the trespasser.
(2) forcibly defend his possession against a trespasser.
(3) forcibly eject him.
1. Explain how action can be maintained for trespass by animals. Your discussion must be no
more than 400 words. (Tort-Chapter 3)
Liability is imposed on the keeper, i.e. the person who is head of the household of which a
minor owns the animal or has it is his possession. So, ordinary trespass can be committed by means
of animals.
Liability for animals also includes liability of a person in possession of livestock, which stray
on to another's land. "Livestock" means cattle, horses, mules, sheep, pigs, goats and poultry and also
deer not in the wild state.
There was a case of injury by horse. In that case, the defendant's horse injured the plaintiff's
mare by biting and kicking her through an iron fence, belonging to the defendant which separated the
defendant's landform the plaintiff's, it was held that there was a trespass by the act of the defendant's
horse for which the defendant was liable apart from any question of negligence.
In Maung Ngwe Sein vs. Mg Hla Pe Case4, a young colt belonging to the respondent
trespassed into the stables of a brood. A mare (young horse) in an advanced stage of pregnancy
belonging to the appellant, has been kicked several times on the stomach and with a result that it
brought about an abortion of seven months old foal (young-horse). The appellant won the case in the
Township Court, having K. 820 as damages although he claimedK.1000. The Respondent appealed
in the District Court, where the decree of the Township Court was set aside on the ground that there
was no proof of vicious nature of the colt. The appellant put up the case to the High Court, where the
judgment of the District Court was reversed on a clear ground that the owner of the cattle which stay
or trespass on to the property of another person is liable for the damage.
Animals suffering from a contagious disease are likely if they escape, to infect other animals
with which they may come into contact and their owner therefore, if he knows that they are so
diseased, is bound to keep them in at all hazards.
4 1959.B.L.R.37.(H.C)
1. Explain how the law protects the right of a trader to require a right to trademark. Your
discussion must be no more than 750 words. (Tort-Chapter 3)
The law protects a man's interest in earning his living. Hence it is the rightof every
trader to require a right to trade mark.
At Common Law, the use of trade name or mark which has beenadopted by making it, appear that
the goods sold under it are the goods ofthat other. In Myanmar, there is no system of registration of
Trade-
Marks, nor for a statutory title to a Trade-Mark.
So, the right of parties setting up claims to ownership of a trade-mark must be determined
inaccordance with the principles of Common Law. The right to Trade-Marks in Myanmar is
therefore dependent upon the general principles of Commercial Law.
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The fundamental rule is that, "one man has no right to put off hisgood for sale as the goods of a rival
trader.
The law restricts unfair competition inthe affairs of trade business. Thus whoever commits the tort of
"Passingoff" will be liable not only to pay damages, but also an injunction will be lieto prevent the
apprehended wrong.
"Passing off" may be committed in the following ways:
(1) Marketing a product as that of the plaintiff.
(2) Using plaintiff's name
(3) Using plaintiff's trade-name
(4)Using plaintiff's Trade-Mark.
(5)Imitating appearance of plaintiff's goods.
(6)Selling inferior goods of plaintiff, there by misleading purchasers.
(7)False advertising.
The term "Trade-Mark" is defined in Section 478 of the Penal Codeof Myanmar as follows:
A mark used for denoting that goods are the manufacture ormerchandise of a particular person is
called a Trade-Mark".
The period of limitation prescribed by Section 15 of the MyanmarMerchandise Act ,3 for
prosecuting an offender under the Penal Code forthe use of false Trade-Mark is three years from the
date of the commissionof the offence charged or one year from the date of discovery by
theprosecutor of the offence charged, whichever is less.
In the case of Aung Gwan Chawn of B.Y.C. Soap factory,in which the Court held that, although the
appellant plaintiff had used theSinger Machine Manufacturers V. Wilson, 1877. 3 App Case. 376
especially at P.391-2.per LordCairus L.C. (H.L).Trade-Mark in dispute which is "Bandoola" long
before the formation ofthe B.Y.C.
Company, but with his own consent, it has been permitted to beused by that company up to the time
of its dissolution without anyinterruption for (9) years. That simply amounts to waiver of such right
touse the Trade-Mark. Hence, B.Y.C. Company will be entitled to the right touse it as its own
property. In other words it will be taken as the property ofthe firm under section (14) of the
Partnership Act.
Secondly in the case of Johny Walker & Sons Ltd. vs. U ThanShwe5 in which case the Court
considered the point that whether anowner of a Trade-Mark in respect of a particular
commodity has a right toprohibit or prevent other persons from the use of such mark in
connectionwith goods of a totally different character.
The appellant is the owner of the Trade-Mark JOHNNIE WALKER(words) and the JONNIE
WALKER striding figure representations whichhave been used on bottles of whisky sole by him in
Myanmar. Therespondent used the words" Burmese JOHANNIE WALKER" with thestriding figure
of JOHNNIE WALKER, on his blood Tonic bottles. TheCourt found out that the goods are of
different in character and class.Hence the appeal was dismissed.
We must also note that the action maintainable even though no damage is proved, i.e. by way of –
(1) an injunction.
(2) either damages or an account of profits at the plaintiff's option.
The first remedy is often the most important to the plaintiff. If thedefendant's conduct is calculated to
divert customers even though no saleas occurred, an injunction will still lie to prevent the
apprehended wrong.
As to the second form of remedy, the plaintiff will recover damagesfor the loss of profit which he
has sustained in consequence of customer'sbeing diverted from him to the defendant. In addition he
may recover forloss of business reputation and good-will of the business.
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1. Explain how the law protects the right of a trader to require a right to trademark. Your discussion
must be no more than 750 words. (Tort-Chapter 3)
Briefly mention how torts can be classified and explain how "assault" and "battery" can be taken in
action for tort in relation to the invasion of interest in person. Your answer must be no less than 400
words. (Tort-Chapter 3)
Invasion of Interests in Person
(Trespass to the person)
(i)Battery
(ii)Assault
(iii)False imprisonment
Assault
There are obvious reasons why in dealing with security of the person, assault is an act of the
defendant which causes to the plaintiff reasonableapprehension of the infliction of a battery on him
by the defendant. So anassault may be defined as an attempted battery.
To throw water at a person is an assault but if any drops fall uponhim, it is battery.
To pull away a chair from a person as a practical joke is probably an assault, but when he falls to the
ground it becomes a battery.
Pointing a loaded pistol is an assault. But if the pistol is not loaded, it would be no assault.
To shake a fist under a person’s nose, or to curse him in athreatening manner, or to aim a
blow at him is an assault. So where thedefendant by his act intends to commit a battery and the
defendantapprehends it, there is an assault.
In fact, assault and battery are crimes as well as torts.In the case Sulaiman vs. The king1, it
was decided that if thecommon intention of the accused and his associates by committing an assault
was not to cause injury known to be likely to cause death, but tocause grievous hurt, thought the
combined effect of the injuries actuallycaused was likely to cause death, the accused is guilty of the
offence ofcausing grievous hurt and not of culpable homicide not amounting tomurder.
To provisions of sections 350 and 351, of the Penal Code of CriminalLaw of Myanmar
clearly shows, when and how such assault and battery (Criminal force) can be effected and
punishment for such crimes are laiddown in Section 352.
Battery
Battery is the intentional application of force to another person. He whoshoots and wounds another
unintentionally may be liable in trespass, though he commits no felony.
To throw water at a person is an assault but if any drops fall uponhim, it is battery.
To pull away a chair from a person as a practical joke is probably an assault, but when he
falls to the ground it becomes a battery.
There is no battery unless there is an act by the defendant and thatthere can be no battery
unless there contact with the plaintiff.Battery is a special kind of tort which protects not only the
interest infreedom from insult. Battery is actionable per se. i.e. without proof ofdamage. If such a tort
is proved, the injured party is entitled to damages.
1. Briefly mention how torts can be classified and explain how "assault" and "battery" can be
taken in action for tort in relation to the invasion of interest in person. Your answer must be no
less than 400 words. (Tort-Chapter 3)
Torts can be classified into three different categories.
a. Invasion of interests in person.
b. Invasion of interests in
c. Invasion of interests in reputation.
Invasion of Interests in Person
(i)Battery
(ii)Assault
(iii)False imprisonment
Assault
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There are obvious reasons why in dealing with security of the person, assault is an act of the
defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on him
by the defendant. So an assault may be defined as an attempted battery.
To throw water at a person is an assault but if any drops fall upon him, it is battery.
Battery
Battery is the intentional application of force to another person. He who shoots and wounds
another unintentionally may be liable in trespass, though he commits no felony.
To throw water at a person is an assault but if any drops fall upon him, it is battery.
False Imprisonment
A false imprisonment is complete deprivation of liberty for the time being without any lawful cause.
Invasion of Interests in Reputation
Every man has an absolute right to protect his reputation. It is a right inrem. The wrong of
defamation includes the publication of thought and ideas in terms of words, pictures, gestures, music
or statues. But, basically we see that there are only two kinds of defamation:-
(1) Libel
(2) Slander
Libel
Anything communicated in a form of a permanent character and visible to the eye is libel,
such as books, newspapers, pictures, waxwork effigy or statues, mark or sign exposed to view.
Moreover, broadcasting, both radio and television and theatrical performances which are treated as
publication in permanent form, i.e. as libel.
To take action for libel, the following points must be proved.
(1) The statement is false.
(2) It is written
(3) It is defamatory
(4) It is published.
False Statement
There is no responsibility for the plaintiff to establish the defendant's statement is untrue. What
plaintiff must prove is that the statement is defamatory to him ,i.e., he has to prove that the defendant
communicated to the third party (but not just to his wife) words which were likely to lower the
plaintiff in the estimation of right thinking people. Defamation of a person is taken to be false until it
is proved to be true. He also needs not prove any damage.
However if he wants to get heavy damages, he should only try to prove some loss occurred to
him.
Written
The term 'libel' actually indicates something printed or written, but also includes any
scandalous painting, waxwork effigy, or symbol. A gallows at the doorway of some person out of
hatred may be a libel upon him. In Jefferies vs. Duncombe case, the plaintiff recovered damages
against the defendant for keeping in front of the plaintiff's house, a lamp burning during the daytime,
there by intending to make out the dwelling house of the plaintiff as a bawdy house i.e. (brothel
house).
Defamatory
It is already pointed out that to be a defamatory the words must tend to lower the plaintiff’s
reputation in the estimation of right thinking members of the society.
Publication
Publication is the communication of the words to at least one person other than the person defamed.
Publication of the defamatory statement is an essential element of the cause of action.
Communication to the plaint if himself is not enough, for defamation is an injury to one's reputation
and reputation is what other people think of a man, and not his own opinion of himself; in other
words, you cannot publish a libel of a man to himself .It is the publication, not the composition of a
libel which is the actionable wrong. Therefore publication need not be intentional.
Newspaper Libel
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In often, there arises question in relation to charges which appears in newspaper against
public men. If such a thing happens, the proprietor, the editor, the printer and the publisher are liable
to be sued for defamation, either separately or jointly.
Slander
If a false and defamatory statement is conveyed by spoken words or gestures it is slander.
Just as in the case of a libel, it must be proved that the words complained of are:
(1)false
(2) defamatory
(3) publication
(4) special damage
Generally, slander is actionable only on proof of special damage. Hence we say that slander is not
actionable per se. The plaintiff must prove and plead that he has suffered special damage as the
natural and probable consequence of the publication of the defamatory statement.
Criminal Offences
Spoken words are actionable if they impute a crime. But there must be the direct imputation of the
offence, and must not be a mere suggestion or statement of suspicion.
Vulgar Abuse
Damages may be recovered for mere vulgar abuse, i.e. using verbal abuse, without proof of
special damage. There is a difference between an abusive language and that of insulting language
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1. What are the respective points to be proved to take an action for libel? Specify it of 200 words or
less. (Tort-Chapter 3)
To take action for libel, the following points must be proved.
(1) The statement is false.
(2) It is written
(3) It is defamatory
(4) It is published.
(1) False Statement
There is no responsibility for the plaintiff to establish the defendant's statement is untrue. What
plaintiff must prove is that the statement is defamatory to him.
(2) Written
The term 'libel' actually indicates something printed or written, but alsoincludes any
scandalous painting, waxwork effigy, or symbol. A gallows atthe doorway of some person out of
hatred may be a libel upon him. In Jefferies vs. Duncombe case, the plaintiff recovered damages
against the defendant for keeping in front of the plaintiff's house, a lampburning during the daytime,
there by intending to make out the dwellinghouseof the plaintiff as a bawdy house i.e. (brothel
house).
(3) Defamatory
It is already pointed out that to be a defamatory the words must tend tolower the plaintiff’s reputation
in the estimation of right thinking membersof the society
(4) Publication
Publication is the communication of the words to at least one person otherthan the person defamed.
Publication of the defamatory statement is anessential element of the cause of action.
1. Briefly mention how torts can be classified and explain how "assault" and "battery" can be taken
in action for tort in relation to the invasion of interest in person. Your answer must be no less than
400 words. (Tort-Chapter 3)
Invasion of Interests in Person
(Trespass to the person)
(i)Battery
(ii)Assault
(iii)False imprisonment
Assault
There are obvious reasons why in dealing with security of the person, assault is an act of the
defendant which causes to the plaintiff reasonable apprehension of the infliction of a battery on him
by the defendant. So an assault may be defined as an attempted battery.
To throw water at a person is an assault but if any drops fall upon him, it is battery.
To pull away a chair from a person as a practical joke is probably an assault, but when he
falls to the ground it becomes a battery.
Pointing a loaded pistol is an assault. But if the pistol is not loaded, it would be no assault.
To shake a fist under a person’s nose, or to curse him in threatening manner, or to aim a blow
at him is an assault. So where the defendant by his act intends to commit a battery and the defendant
apprehends it, there is an assault.
In fact, assault and battery are crimes as well as torts. In the case Suleiman vs. The king1, it
was decided that if the common intention of the accused and his associates by committing an assault
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was not to cause injury known to be likely to cause death, but to cause grievous hurt, thought the
combined effect of the injuries actually caused was likely to cause death, the accused is guilty of the
offence of causing grievous hurt and not of culpable homicide not amounting to murder.
To provisions of sections 350 and 351, of the Penal Code of Criminal Law of Myanmar
clearly shows, when and how such assault and battery (Criminal force) can be effected and
punishment for such crimes are laid down in Section 352.
Battery
Battery is the intentional application of force to another person. He who shoots and wounds another
unintentionally may be liable in trespass, though he commits no felony.
To throw water at a person is an assault but if any drops fall upon him, it is battery.
To pull away a chair from a person as a practical joke is probably an assault, but when he falls to the
ground it becomes a battery.
There is no battery unless there is an act by the defendant and that there can be no battery
unless there contact with the plaintiff. Battery is a special kind of tort which protects not only the
interest in freedom from insult. Battery is actionable per se. i.e. without proof of damage. If such a
tort is proved, the injured party is entitled to damages.
1. Explain how action can be maintained for trespass by animals. Your discussion must be no
more than 400 words. (Tort-Chapter 3)
Liability is imposed on the keeper, i.e. the person who is head of the household of which a minor
owns the animal or has it is his possession. So, ordinary trespass can be committed by means of
animals.
Liability for animals also includes liability of a person in possession of livestock, which stray
on to another's land. "Livestock" means cattle, horses, mules, sheep, pigs, goats and poultry and also
deer not in the wild state.
There was a case of injury by horse. In that case, the defendant's horse injured the plaintiff's
mare by biting and kicking her through an iron fence, belonging to the defendant which separated the
defendant's land from the plaintiff's, it was held that there was a trespass by the act of the defendant's
horse for which the defendant was liable apart from any question of negligence.
In Maung Ngwe Sein vs. Mg Hla Pe Case4, a young colt belonging to the respondent
trespassed into the stables of a brood. A mare (young horse) in an advanced stage of pregnancy
belonging to the appellant, has been kicked several times on the stomach and with a result that it
brought about an abortion of seven months old foal (young-horse). The appellant won the case in the
Township Court, having K. 820 as damages although he claimedK.1000. The Respondent appealed
in the District Court, where the decree of the Township Court was set aside on the ground that there
was no proofof vicious nature of the colt. The appellant put up the case to the High Court, where the
judgment of the District Court was reversed on a clear ground that the owner of the cattle which stay
or trespass on to the property of another person is liable for the damage. Animals suffering from a
contagious disease are likely if they escape, to infect other animals with which they may come into
contact and their owner therefore, if he knows that they are so diseased, is bound to keep them in at
all hazards.
1. Give brief statement on the standard of care. State yout discussion in 300 words or more.
(Tort-Chapter 4)
Standard of Care
As to the standard of care, the defendant owes a duty of care which an ordinary mean of
prudence should consider best.
There was also Maung Kyaw Dun vs. Ma Kyin & Marayanan Chetty Case,occurred in
Myanmar. The plaintiff failed in his action for claiming damages, for the injury done by the
defendant's elephant.
The facts of the case were that the plaintiff's elephant was kicked to deathby the defendant's
elephant. The inferior Court decided, he was not entitled to get2Standard of care* Mg Kyaw Dun v.
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Ma Kyin & Narayanan Chetty, 2 U.B.R., 570.damages. Thus this appeal follows. The Appellate
Court pointed out that, inclaiming damages, the plaintiff must prove the negligence of the defendant.
Inconsidering the essential factor, the Court pointed out that the plaintiff must provethat the
defendant knew that his elephant was dangerous. The Court held that thereis no breach of duty on the
part of the defendant andthe plaintiff failed.
In order to establish negligence as a cause of action under the law of torts, a plaintiff must
prove that:
1. The defendant has duties to exercise was negligent a reasonable care and skill.
2. The defendant had a duty to the plaintiff.
3. The defendant breached that duty by failing to conform to the required standardof conduct.
4. The defendant's negligent conduct was the cause of the harm to thePlaintiff.
5. The plaintiff was, in fact, harmed or damaged due to the failure ofperformance the duties.
The plaintiff must therefore prove on a balance of probabilities. There is aBacon's Maxim:
CausaCausans (the immediate cause) and CausaCausata(the cause of the thing causing is the cause of
the effect), which means "he does the firstwrong shall answer for all consequential damages" and
"the damages must be thelegal and natural consequence of the wrongful act". There are three kinds of
damage, namely, injury to the person, damage to property and pure financial loss. The mere fact that
the damage suffered was unlikely to occur does not relieve the defendant of liability if his conduct
was unreasonable.
There are two competing views as to the test of remoteness of consequence:
1. Consequences are too remote if a reasonable man would not have foreseen them.
2. The defendant will be liable for all the direct consequences of his act, suffered by the plaintiff
whether a reasonable man would have foreseen them or not.
1. What are the public nuisances in which an individual may have a right to take civil action?
Specify it of 500 words or less. (Tort-Chapter 5)
Section: 268 of the Penal Code of Myanmar, defines public nuisance as follows:
"A person is guilty of a public nuisance who does any act or is guilty of illegal omission
which causes any common injury, danger or annoyance to the public or to the people in general who
dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger
or annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or
advantage."
Section 133 to 144 of the Criminal Procedure Code of Myanmar6, therefore provide for the
actions to be taken by the judicial authorities to, remove such public nuisances.
If there be any kind of nuisance at a public place, which include also property belonging to
the State, camping grounds, and grounds left unoccupied for sanitary or recreative purposes, actions
can be taken by the State and in disobedience will be liable for penalties provided in the Penal Code.
i.e. Sec, 269-294 (A).
In order that an individual may have a right to take civil action, in respect of a public
nuisance:-
(1) The plaintiff must show that he has suffered a particular injury or damage beyond that which is
suffered by the public at large.
(2) Such injury must be direct. If a certain way is obstructed, but another is left open, then there will
be no cause of action.
(3) The injury must be of a substantial character.
Section 91 of the Civil Procedure Code of Myanmar provides for the suits relating to public matters,
especially with regard to public nuisance as follows:
"In the case of a public nuisance the Attorney-General, or two or more persons having
obtained the consent in writing of the Attorney-General: may institute a suit though no special
damage has been caused: for a declaration and injunction or for such other relief as may be
appropriate to the circumstances of the case.8
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In the case of Soltau v. De Held, the nuisance was that of the noise. The plaintiff resided in a
house next to a Roman Catholic Chapel of which the defendant was the priest and the Chapel bell
was rung at all hours of day and night. It was held that the ringing was a public nuisance, and the
plaintiff was held entitled to an injunction.
In another leading case of the Mortgage Bank of India vs. AhmedbhoyHabibbhoy, 10 the
plaintiffs were the owners of a building containing a large number of rooms which are supposed to
be rented. But, because the defendants who were the owners of an adjacent cotton mill have created
such a mill, certain rooms in the building remained unlit, because of the noise and smoke of the mill.
1. What are the differences between "libel and slander"? Specify it of 200 words or less. (Tort-
Chapter 3)
A libel is a written or a printed defamation. A slander is a spoken defamation.
(1) Libel is not merely a civil wrong, but also a criminaloffence for it tends to breach the
peace. Whereas slander is a civil wrongonly, although sometimes the words are
blasphemous, seditious or obscene,or which tends to commit a crime, or contempt of Court
will amount tocriminal liability.
(2) Libel is actionable per se. i.e. actionable without proof ofspecial damage, whereas
slander, subject to certain exceptions is onlyactionable only on proof of actual damage.
(3) Libel ျဖင့္လ်ွ င္ သူတစ္ပါး၏ အခြင့္အေရးကို ခ်ိဳးေဖာက္ျခင္းျဖစ္သျဖင့္ တရားစဲြအေရးယူအတြက္
အမွန္တကယ္ျဖစ္ေပၚေသာ နစ္နာမႈကို သက္ေသျပရန္မလိုေပ။
(4) In general, the original maker of a statement is not liablefor its republication by
another, but that other will responsible even thoughhe expressly states that he is merely
reproducing what he has been toldfrom a specified source.
1. Define "Negligence" and explain briefly the ingredients to constitute negligence. Your
answer must be no less than 200 words. (Tort-Chapter 4)
As to the standard of care, the defendant owes a duty of care which an ordinary mean of prudence should consider best.
There was also Maung Kyaw Dun vs. Ma Kyin & Marayanan Chetty Case,occurred in Myanmar. The plaintiff failed in
his action for claiming damages, for the injury done by the defendant's elephant.
The facts of the case were that the plaintiff's elephant was kicked to deathby the defendant's elephant. The
inferior Court decided, he was not entitled to get2Standard of care* Mg Kyaw Dun v. Ma Kyin & Narayanan Chetty,
U.B.R., 570.damages. Thus this appeal follows. The Appellate Court pointed out that, inclaiming damages, the plaintiff
must prove the negligence of the defendant. Inconsidering the essential factor, the Court pointed out that the plaintiff
must provethat the defendant knew that his elephant was dangerous. The Court held that thereis no breach of duty on the
part of the defendant andthe plaintiff failed.
In order to establish negligence as a cause of action under the law of torts, a plaintiff must prove that:
1. The defendant has duties to exercise was negligent a reasonable care and skill.
2. The defendant had a duty to the plaintiff.
3. The defendant breached that duty by failing to conform to the required standardof conduct.
4. The defendant's negligent conduct was the cause of the harm to thePlaintiff.
5. The plaintiff was, in fact, harmed or damaged due to the failure ofperformance the duties.
The plaintiff must therefore prove on a balance of probabilities. There is aBacon's Maxim: CausaCausans (the immediate
cause) and CausaCausata(the cause of the thing causing is the cause of the effect), which means "he does the firstwrong
shall answer for all consequential damages" and "the damages must be thelegal and natural consequence of the wrongful
act". There are three kinds of damage, namely, injury to the person, damage to property and pure financial loss. The mere
fact that the damage suffered was unlikely to occur does not relieve the defendant of liability if his conduct was
unreasonable.
There are two competing views as to the test of remoteness of consequence:
1. Consequences are too remote if a reasonable man would not have foreseen them.
2. The defendant will be liable for all the direct consequences of his act, suffered by the plaintiff whether a reasonable
man would have foreseen them or not.
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1. What is "Res ipsa loquitur"? Give your answer with leading cases. You must write it
between 200-400 words. (Tort-Chapter 4)
The maxim Resipsaloquitur means "the thing speaks for itself".
Byrne V. Boadle (1863) 2 H. &. C. 722.Byrne (P) was struck by a barrel falling from a window as he
walked past Boadle’s (D) flour shop and sustained serious personal injuries. A witness testified that
he saw the barrelfall from Boadle’s window but had not seen the cause. Byrne did not present any
other evidence of negligence by Boadle or his employees. Boadle moved for a non-suit on the
grounds that Byrne had presented no evidence of negligence. The court granted the motion and
plaintiff obtained a rule nisi. The Court of Exchequer found in favor of Byrne and reversed. Boadle
appealed.
Liability for negligence can lie solely on account of the type of accident that occurred, without direct
evidence of negligence.
Stone V.Bolton (1949) 2 All.E.R. 851.On 9 August 1947, during a game of cricket against the
Cheetham 2nd XI at Cheetham Cricket Ground in Manchester, a batsman from the visiting team hit
the ball for six. The ballflew out of the ground, hitting the claimant, Miss Stone, who was standing
outside her house in Cheetham Hill Road, approximately 100 yards (91 m) from the batsman. The
club had been playing cricket at the ground since 1864, before the road was built in 1910.
However, the court held that an accident of this sort called for an explanation, and that the
defendants were aware of the potential risk. On that basis, applying the legal maxim of resipsa
loquitur, the defendants were found negligent. The defendants appealed to the House of Lords. The
House of Lords found that there was no negligence, although most considered it a close call based on
whether the reasonable person would foresee this as anything more than an extremely remote risk.
Stansbie v. Troman [1948] 2 K.B. 48, 51-52, a decorator failed to secure a household he was
decorating, resulting in a burglary while he was absent; it was found he owed a duty to the house
hold owner to adequately secure the premises in his absence.
Austin V. Great Western Railway (1867) 2.Q.B.442.A travelling case, decided in 1867, the
defendant company was held liable in respect of injuries caused to a child over the age of three years
while travelling with its mother, who had omitted to take a ticket for it. The defendant company
appealed on the ground that the plaintiff was not lawfully a passenger, it being alleged that there had
been concealment equivalent to fraud.
1. Explain briefly "public nuisance" with relevant cases. Your discussion must be no more than 500
words. (Tort-Chapter 5)
Section: 268 of the Penal Code of Myanmar,5 defines public nuisance as follows:
"A person is guilty of a public nuisance who does any act or is guilty of illegal omission which
causes any common injury, danger or annoyance to the public or to the people in general who dwell
or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or
annoyance to persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or
advantage."
Section 133 to 144 of the Criminal Procedure Code of Myanmar6, therefore provide for the actions
to be taken by the judicial authorities to,remove such public nuisances.
If there be any kind of nuisance at a public place, which include also property belonging to the State,
camping grounds, and grounds left unoccupied for sanitary or recreative purposes, actions can be
taken by the State and in disobedience will be liable for penalties provided in the Penal Code. i.e.
Sec, 269-294 (A).
In order that an individual may have a right to take civil action, in respect of a public nuisance:-
(1) The plaintiff must show that he has suffered a particular injury or damage beyond that which is
suffered by the public at large.
(2) Such injury must be direct. If a certain way is obstructed, but another is left open, then there will
be no cause of action.
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Define "Negligence" and explain briefly the ingredients to constitute negligence. Your answer
must be no less than 200 words. (Tort-Chapter 4)
Actionable negligence consists of the neglect of the use of ordinary care or skill
towards a person or his property. Such are should be observed by a man of ordinary
prudence taking care.
In order to establish negligence as a cause of action under the law of torts, a plaintiff must prove that:
1. The defendant has duties to exercise was negligent a reasonable care and skill.
2. The defendant had a duty to the plaintiff.
3. The defendant breached that duty by failing to conform to the required standardof conduct.
4. The defendant's negligent conduct was the cause of the harm to thePlaintiff.
5. The plaintiff was, in fact, harmed or damaged due to the failure ofperformance the duties.
The plaintiff must therefore prove on a balance of probabilities. There is aBacon's Maxim: CausaCausans (the immediate
cause) and CausaCausata(the cause of the thing causing is the cause of the effect), which means "he does the firstwrong
shall answer for all consequential damages" and "the damages must be thelegal and natural consequence of the wrongful
act". There are three kinds of damage, namely, injury to the person, damage to property and pure financial loss. The mere
fact that the damage suffered was unlikely to occur does not relieve the defendant of liability if his conduct was
unreasonable.
There are two competing views as to the test of remoteness of consequence:
1. Consequences are too remote if a reasonable man would not have foreseen them.
2. The defendant will be liable for all the direct consequences of his act, suffered by the plaintiff whether a reasonable
man would have foreseen them or not.
1. How many vicarious liability defined under the following relationships?Write briefly. (a)
Principal and Agent (b)Company and Directors (c) Guardian and Ward. Specify it of 300
words or less. (Tort-Chapter 7)
Principal and Agent
(1)Those employed to perform services in connection with the affairs of the employer, and over
whom the employer has control in the performance of those services.
(2)Those who do work for another but who are not controlled by the employers in their conduct in
the performance of that work. Usually such work will be carried out in pursuance of a contract, and
such persons in tort are styled "Independent Contractor".
An employer may be vicarious liable for the torts committed by his servants, but he is not liable for
the acts of those who are his independent contractors.
Hence so as to make principal liable for the acts done by the agent two conditions must be fulfilled.
(1) The wrong done by the agent must be within the course of employment.
(2) If such a wrong is occurred by using the excuse authority empowered on the agent, and that such
an act has been subsequently ratified the employer.
Company and Directors
The principles of the law of agency apply to companies, which are consequently liable for the
wrongs done by their servants in their course of employment. Note only Directors are personally
liable for any tort committed by themselves, but also for the torts committed by others under their
direction or supervision.
Guardian and Ward
Guardians are not personally liable for the tortious acts done by their minors under their charge. But
they can sue for personal injuries done to the minors by the third parties on their behalf.
1. How many vicarious liability defined under the following relationships?Write briefly. (a) Principal
and Agent (b)Company and Directors (c) Guardian and Ward. Specify it of 300 words or less. (Tort-
Chapter 7)
(a) Principal and Agent
(1)Those employed to perform services in connection with the affairs of the employer, and over
whom the employer has control in the performance of those services.
(2)Those who do work for another but who are not controlled by the employers in their conduct in
the performance of that work. Usually such work will be carried out in pursuance of a contract, and
such persons in tort are styled "Independent Contractor".
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An employer may be vicarious liable for the torts committed by his servants, but he is not liable for
the acts of those who are his independent contractors.
Hence so as to make principal liable for the acts done by the agent two conditions must be fulfilled.
(1) The wrong done by the agent must be within the course of employment.
(2) If such a wrong is occurred by using the excuse authority empowered on the agent, and that such
an act has been subsequently ratified the employer.
(b) Company and Directors
The principles of the law of agency apply to companies, which are consequently liable for the
wrongs done by their servants in their course of employment. Note only Directors are personally
liable for any tort committed by themselves, but also for the torts committed by others under their
direction or supervision.
Guardian and Ward
Guardians are not personally liable for the tortious acts done by their minors under their charge. But
they can sue for personal injuries done to the minors by the third parties on their behalf.
What do you understand by the statement "who cannot sue"? Explain briefly. Your answer
must be no less than 300 words. (Tort-Chapter 6)
To deal with those persons who cannot sue, such persons may be mentioned as follows: -
(1) Convict
(2) Alien enemy
(3) Married women
(4) Corporation
(5) Child
(6) Bankrupt
Convict
One must aware of the fact that a convict when undergoing a sentence, cannot sue for an injury to his
property, or for recovery of debt.3 At Common Law, a convict has the right to sue for any personal
wrongs done to him, such as assaults, or slander.
Alien Enemy
An alien enemy cannot sue in his own right. An alien enemy is one whose State or sovereign is at
war with the sovereign of other, or one who, whatever his nationality is voluntarily resident or carries
on business in an enemy's country.
In England, an alien enemy, unless he resides in England by the licence of the Queen, cannot sue in
Queen's Courts. He can, however, be sued and can defend an action and, if the decision goes against
him, he will have the right to appeal.
In India, also alien enemies residing in India with the Government's permission, can use. In
Myanmar, under the provision of section 83 of the Code of Civil Procedure, such an alien enemy can
sue only with the permission given by the Head of the State .4
Married Women
In the eye of law, husband and wife are taken to be oneself. Thus neither spouse can sue for tort
against themselves.
In the olden days in England, a married woman could not sue for tort to her property, unless her
husband was joined as plaintiff, but at present the Law Reform Married Women and Tort-feasors Act
1935 and the Law Reform (Husband and Wife) Act 1962 put married women in almost exactly the
same position as their unmarried sisters.
Although, the wife cannot sue her husband for tort, she can sue husband relatives.
In Smith v. Moss Case,5 the husband after attending a party drove back to home, but dropped mother
first at her house and then to his home. In putting the car into the garage, which is next door to his
house, and with his negligence, accident has occurred and the wife was injured. For that she sued her
mother-in-law, for damages on the ground that the mother-in-law was the owner of the car and her
husband as the agent. The Court decreed her damages.
Corporation
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Although a corporation may sue for libel, it is affecting property of business, but not affecting
personal reputation. Therefore it cannot file a suit for libel charging the corporation with corruption,
because it is only the individuals who can be guilty of such an offence and not the corporation in its
corporate capacity.
Child
Whether a minor can sue in respect of a pre-natal injury to himself, there is a decision made in the
Irish Case.6 In that case the mother of that child was injured in a railway accident, and the child was
born deformed. The infant claimed £ 1,030 for damages, but the Court held that for such injury the
infant could not maintain an action .
Bankrupt
A right of action in respect of a tort which results in injuries mainly to the person of the bankrupt
does not pass to the trustee. But in case of right of action which results in injuries mainly to the estate
of the bankrupt passes to the trustee.
1. What are the particular relationship regarding vicarious liability? Discuss on relationship between
master and servant. Your discussion must be no more than 300 words. (Tort-Chapter 7)
The followings are the particular relationships of each other
(1) Master and Servant
(2) Employer and Independent Contractor
(3) Principal and Agent
(4) Company and Director
(5) Firms and Partner
(6) Guardian and Ward
Master and Servant
The doctrine of liability of the master for the acts of his servant is entirely based on the maxims:
(1) respondeat superior (let the principal be liable)
(2) quifacitperaliumfacitperse. (He who does an act through another is deemed in law to do it himself.)
The Master would be completely liable for the wrongs done by his servants or slaves; such idea was changed when that
idea of liability only where there has been command or consent on the part of the master of the servant's wrong.
A servant may be defined as any person employed by another to do work for him on the terms that he, the servant is to be
subject to the control and directions of his employer in respect of the manner in which his work is to be done .
As an example, in Daw Aye May's Case,13 while a workman was about to leave the premises of his employer after the
going for the stoppage of work, he died of the injury occurred by the falling of the bale of paper which was unloading in
that premise. The Court held that the death of the workman was occurred within the course of employment and the claim
for compensation was admitted. So under to the Workmen's Compensation Act, if personal injury is caused to a workman
by accident arising out of and in the course of employment his employer shall be held liable to pay compensation.
What do you understand by the statement "who cannot be sued"? Explain briefly. You must
write it between 400-700 words. (Tort-Chapter 6)
Now, in dealing with those persons who cannot be sued in tort, it may be mentioned as follows:-
(1) Sovereign
(2) Ambassadors
(3) Public Officials
(4) Infant and lunatic
(5) Married Women
(6) Corporation
Sovereign
There is an English maxim, that "the king can do no wrong”, so that the Crown or the sovereign is always exempted to be
sued in tort as well as in criminal matters.
But in the year 1947, when the Crown Proceedings Act came into force, this immunity in tort was put to an end. So that,
snow the Crown shall be liable in tort committed by itself or be liable for the torts committed by its servants.
Ambassadors
An ambassador who is acting as the Head of State to which he represents, enjoys diplomatic immunities, unless he
waives his privilege, he cannot be sued in tort. This privilege therefore prevails only to the extent of the term of his
employment. So, when his office has been terminated, he will become liable. This immunity extends also to his family
member as well as to the servants or suits.
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Public Officials
Public officials are not liable to be sued in tort in their representative character for torts committed by them or by their
subordinates.
Infants and Lunatics
Infants and lunatics are regarded as incapable of being reasoning properly. So they are usually exempted from, legal
liabilities. Generally, infancy is no bar to a suit for damages claiming against an infant. But when the intention,
knowledge, malice or some other condition of the state of mind of the wrong doer is essential, extreme youth may afford
a defense.
As regards the acts done by the lunatics, unsoundness of mind is not in itself a ground of exemption of liability in tort.
Married Women
At Common Law, a husband was liable to be joined with his wife in all actions for torts committed by her during the
subsistence of the marriage. This liability still exists in the Married Women's Property Act 1882.
This injustice has been abolished by the enactment of the 1935 Law Reform (Married Women and Tort-feasors Act).
Section 3 of this Act provides that the husband of married women is not, by reason only of his being her husband, 15
liable in respect of any such tort.
According to the Married Women's Property Act, 1882, when spouses embark litigation with each other in order to settle
disputes arising out of the property, particularly upon the breakup of their marriage, if necessary the husband may be
required to vacate or leave the matrimonial home. (Law Reform (Married Women and Tortfeasors) Act, 1935. )
Under our Myanmar Customary Law the property rights of a Myanmar Buddhist Couple is based on the
principle of tenants in Common and not that of joint tenants. Thus, when a spouse dies the other spouse inherits the
whole estate of the deceased spouse.19 They are not to be taken as partners when conducting business separately. But,
when certain loan has been taken for the benefit of the joint family business, the wife will be liable for the debt
contracted by her husband . (Married Women's Property Act, 1882. )
The wife cannot sue her husband for partition of property which they attain during the substance of their
marriage, i.e (LetthetPwa Property ), when their marriage tie still subsist.
1. How many vicarious liability defined under the following relationships? (a)Company and
Directors (b)Firm and Partners (c) Guardian and Ward . You must write it between 100-300 words.
(Tort-Chapter 7)
(a) Company and Directors
The principles of the law of agency apply to companies, which are consequently liable for the
wrongs done by their servants in their course of employment. Note only Directors are personally
liable for any tort committed by themselves, but also for the torts committed by others under their
direction or supervision.
A
The main points to become a valid 'proposal' or 'offer'
Example
If 'A' says in conversation with 'B' that he would sell
his house will not amount to an "offer" or "proposal".
Example
To offer a friend a meal is not to create legal relation.
Example
An advertisement in a newspaper offering a reward for
the finder of the lost dog amounts to a general offer.
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The rules as to appropriation of payments are laid down under Section 56 to 61.
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 payment is
to be applied to the discharge of some particular debt, the
payment, if accepted, must be applied accordingly.”
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, whether its recovery is or is not barred
by the law in force for the time being as to the limitation of
suits.”
Section 61
“Where neither party 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 of limitation of
suits. If the debts are of equal standing, the payment shall be
applied in discharge of each proportionately.”
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Remedies for Breach of Contract
There are mainly three kinds of remedies for breach of contract, namely:-
(i) Damages
(ii) A degree for specific performance, or
(iii) An injunction
(1) Damages
In every breach of contract the injured party is entitled
to damages. Damages are given by way of restitution and
compensation only, but not as a punishment , the agreed
party can, therefore, recover the actual loss caused to him.
The damages which can be taken are not exemplary
damages which can recover only in case of a breach of
promise of marriage. The law as to damages for the breach
of contract and the measure of damages are laid down in
Sections 73 to 75 of the Contract Act, 1872.
For example
"A" agrees to buy a picture by a dead painter and two
rare China vases, and "B" also agrees to sell them. "A" may
compel "B" specifically to perform the contract for there is
no standard ascertaining the actual damage which would be
caused by B’s non- performance.
(3) Injunction
Injunction is used as a means of enforcing a contract or
a promise to forbear, where a contract is about to be broken
by a party to the contract. Injunctions are of two kinds,
namely, temporary or perpetual.
A
Agent's Rights
Right to indemnity
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To constitute a tort there are three ingredients:
There must be an infringement of a legal right. As there are many legally protected
interests, anyone who infringes such a right
will be liable in an action for tort. The duty is concerned with theright under the law of tort and
to abstain from inflicting harm to other's person, property, reputation, etc.
'Wrong' means crooked or twisted conduct, as opposed to which is straight or right for
individuals who suffer personal injury, death or physical damage to or loss of property caused
by an act or omission which might be intentional, accidental or caused by negligence.
Therefore, for every wrongful act which the law recognizes as legal, an injured party may
have the right to compensate for the damage done to him.
It is not for every injury that a person may sustain in the course of everyday life that he or
she can recover compensation. It can only be recovered if that injury is due to the fault of
somebody who owes a duty to that person. 2 Only when such damage is recognized as legal
then the plaintiff will be successful.
In Ashby vs. White case 3 the defendant, a returning officer, wrongfully refused to
register a duty tendered vote of the plaintiff, a legally qualified voter, and the candidate for
whom, the vote was tendered was elected. So, there was no loss or damage suffered by the
plaintiff, by such rejection of the vote. But still, the Court held that an action lay. We can see
that in this case the returning officer had acted maliciously. But where a returning officer
although there was no practice of malice or improper motive on his part, honesty refused to
receive the vote of a person entitled to vote at an election, it was held that no action lay.
In Gloucester Grammar School Case, 12 the plaintiff complained that he had to reduce his
fees at his school because of the competition of the defendant, who set up a rival school, was
held to have no remedy. This is because English Law has accepted fundamental doctrine of free
competition. Competition or other acts damaging a man in his business are tortious only if, the
act causing damage is deemed unlawful or wrongful.
The defendants are a number of ship-owners who formed themselves into a League or
Conference for the purpose of ultimately keeping in their own hands of the control of the
carriage from certain Chinese ports, and for the purpose of driving the plaintiffs and other
competitors from the field. The right of competition exists even when the means adopted are
"unfair".
The third and the last ingredient of tort is that the plaintiff must have entitled to get a legal
remedy. In fact, the law of tort is to be a development of the maxim:
In the Irish case of Hegarty vs. Shine,22 the plaintiff was infected by her paramour with
a venereal disease, the existence of which he concealed. She sued him for assault, but her action
was dismissed, partly on the ground that mere concealment was not such a fraud as to vitiate
consent and party because extrupicausanonorituraction23 (public policy).
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In Cook v. Ward Case6, the plaintiff told some friends a ludicrous eventwhich is a humorous
story about himself, and the defendant published it inhis newspaper, simply for the purpose of
amusing his readers and believingthat the plaintiff would not object the defendant was held
liable.
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As to the standard of care, the defendant owes a duty of care which an ordinary mean of
prudence should consider best.
There was also Maung Kyaw Dun vs. Ma Kyin & Marayanan Chetty Case,occurred in
Myanmar. The plaintiff failed in his action for claiming damages, for the injury done by the
defendant's elephant.The facts of the case were that the plaintiff's elephant was kicked to
deathby the defendant's elephant. The inferior Court decided, he was not entitled to
get2Standard of care* Mg Kyaw Dun v. Ma Kyin & Narayanan Chetty, 2 U.B.R., 570.damages.
Thus this appeal follows. The Appellate Court pointed out that, inclaiming damages, the
plaintiff must prove the negligence of the defendant. Inconsidering the essential factor, the
Court pointed out that the plaintiff must provethat the defendant knew that his elephant was
dangerous. The Court held that thereis no breach of duty on the part of the defendant andthe
plaintiff failed.
In order to establish negligence as a cause of action under the law of torts, a plaintiff must
prove that:
1. The defendant has duties to exercise was negligent a reasonable care and skill.
3. The defendant breached that duty by failing to conform to the required standardof conduct.
4. The defendant's negligent conduct was the cause of the harm to thePlaintiff.
5. The plaintiff was, in fact, harmed or damaged due to the failure ofperformance the duties.
1. Consequences are too remote if a reasonable man would not have foreseen them.
2. The defendant will be liable for all the direct consequences of his act, suffered by the plaintiff
whether a reasonable man would have foreseen them or not.
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(a)Company and Directors
The principles of the law of agency apply to companies, which are consequently liable
for the wrongs done by their servants in their course of employment. Note only Directors are
personally liable for any tort committed by themselves, but also for the torts committed by
others under their direction or supervision.
Under Section 18 of Partnership Act (1932) each and every partner of the firm is the
agent of each other and is jointly and severally liable for the acts of the firm done by them.
Although they can make agreement in limiting their liabilities and rights, but they cannot escape
from giving compensation to the third party, arising out of the fraud of any partner.
Guardians are not personally liable for the tortious acts done by their minors under their
charge. But they can sue for personal injuries done to the minors by the third parties on their
behalf.
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Explain the terms "promise" and "consideration" with cases. Your answer must be no less than 250
words.(Contract-Chapter 1) experied Date
(a)What is meant by "fraud" as mentioned in the Contract Act?
(b)When does "silence" amount to fraud? State your discussion must be no more than 300 words. (Contract-
Chapter 3)
A
(a) Fraud
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 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;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
(1) a duty to speak or
(2) unless it is equivalent to speech.
Examples
A sells by auction to B a horse which is A knows to be unsound. A says nothing to B about the
horse's unsoundness.
This is not fraud in A.
(b) 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. Here, the relation between the parties is that A's duty to
tell B if the horse is unsound.
(b) Effect of misrepresentation
Section 19A
“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.”
Exception
If such consent was so caused by misrepresentation or by silence, fraudulent within the meaning
of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so
caused had the means of discovering the truth with ordinary diligence
Assignment No-2.
Your answer is correct. But, you don't need to answer about the effect of
misrepresentation.
A
There are Eleven ways in which a contract may be discharged under the Contract Act. Such as-
(1) Discharge by performance [S.37]
(2) Dispensed with or excused by any law [S.37]
(3) By refusing tender of performance [S.38]
(4) Discharge by breach [S.39]
(5) By impossibility or unlawfulness of the act to be performed [S.56]
(6) By novation, rescission or alteration of contract [S.62]
(7) By waiver [S.63]
(8) By Accord and satisfaction
(9) By rescission of a voidable contract. [S.64]
(10) By neglect of promisee to afford promisor, reasonable facilities for performance
(11) By operation of law
Discharge by Performance
If both of the contracting parties have performed what with agreed to do under the contract, the
contract is discharged.
Dispensed with or Excused by any Law
Where the performance of the contract is dispensed with or excused by any law other than the
Contract Act, the contract is discharged. [S.37]
Thus insolvency of a party to a contract discharges the contract. E.g An insolvent is released
from paying his debt.
By Refusing Tender of Performance
Refusal to accept an offer of performance discharges the party making the offer from liability
under the contract. [S.38]
Discharge by Breach
When one party to a contract commits a breach of that contract by refusing to perform, or by
disabling himself from performing his promise in its entirely, and the other party accepts the
breach the contract is discharged. [S. 39]
By Impossibility or Unlawfulness of the act to be
Performed
A contract may be discharged by impossibility. Impossibility which arises from the non-
existence of the subject matter at the time of the contract is also void because both the parties to
an agreement are under mistakes as to a matter of fact essential to the agreement. [S.56]
By Novation, Rescission or Alternation of Contract
Section 62 deals with the effect of rescission or alternation of a contract which says:-
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.
By Waiver
A contract may be discharged by way of "waiver". Section 63 deals with this principle as such;-
Every promise may-
(i) dispense with or,
(ii) remit, wholly or in part, the performance of the promise made to him, or may
(iii) extend the time for such performance, or may.
(iv) accept instead of it any satisfaction which he thinks fit.
By "Accord and Satisfaction"
When one of the parties to a contract in order to obtain release agrees to do something other
than what he was bound to do by the contract, and when he has discharged the obligation, and
has been set free, the contract is said to have been discharged by accord and satisfaction. The
new agreement is the accord, and the performance is the satisfaction.
By Rescission of a Voidable Contract
Section 64
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 promisor. The party rescinding
avoidable contract shall, if he has received any benefit there from another party to such contract,
restore such benefit, so far as may be, to the person from whom it was received.
By Neglect of Promisee to Afford Promisor Reasonable Facilities for Performance
Section 67 Provides that:-
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.
By Operation of Law
This may occur in there ways under the following circumstances:-
(i) By merger-acceptance of a higher security in place of a lower. If a higher security is accepted
is place of the law, the lower security is said to be merged or extinguished in the higher security.
(ii) By alternation of a written contract [S.62]
(iii) By insolvency or bankruptcy.
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Section 151
“In all cases of Bailment, the bailee is bound to take as much care of the goods bailed to him as
a man of ordinary prudence would under similar circumstances, take of his own goods of the
same bulk, quality and value as the goods bailed.”
Section 152
“The bailee, in the absence of any special contract, is not responsible for the loss, destruction or
deterioration of the thing bailed if he is taken the amount of care of it described in section 151.”
Section 160
“It is the duty of bailee to return, or deliver according to the bailor's directions, the goods bailed,
without demand, as soon as the time for which they were bailed has expired, or the purpose for
which they were bailed has been accomplished.”
Section 161
“If, by the default of the bailee, the goods are not returned, delivered or tendered at the proper
time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from
that time.”
Section 163
“In the absence of any contract to the contrary, the bailee is bound to deliver to the bailor, or
according to his directions, any increase or profit which may have accrued from the goods
bailed.”
Section 167
“If a person, other than the bailor, clamis goods bailed, he may apply to the Court to stop the
delivery of the goods to the bailor, and to decide the title to the goods.”
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It is not for every injury that a person may sustain in the course of everyday life that he or she
can recover compensation. It can only be recovered if that injury is due to the fault of somebody
who owes a duty to that person. Only when such damage is recognized as legal then the plaintiff
will be successful.
The real significance of legal damage is illustrated by two maxims;
(1) Injuria sine damno
(2) Damnum sine injuria
(1) "Injuria sine damno" (Wrong without damage)
In Ashby vs. White case (**MarzettiV.Williams, (1830) 1B &AD, 415) the defendant, a
returning officer, wrongfully refused to register a duty tendered vote of the plaintiff, a legally
qualified voter, and the candidate for whom, the vote was tendered was elected. So, there was
no loss or damage suffered by the plaintiff, by such rejection of the vote. But still, the Court
held that an action lay. We can see that in this case the returning officer had acted maliciously.
But where a returning officer although there was no practice of malice or improper motive on
his part, honesty refused to receive the vote of a person entitled to vote at an election, it was
held that no action lay.
Thus in Marzetti v. Williams case (Ashby v. White (1708) 2Ld.Raym, 938,955) an action
will lie against a banker, having sufficient funds in his hands belonging to a customer, for
refusing to honour his Cheque; although the customer did not thereby sustain actual loss or
damage. So if there be an infringement of a legal right, without actual damage, the person
whose right has been infringed can bring a suit under the provisions of section (42) of the
Specific Relief Act. Hence, whenever a person sustained of a legal wrong, he may bring an
action without being under necessity of proving special damage.
In MaungThitsa (Appellant) v. Maung Nat (Respondent) case (MaungThit Sa V. Maung Nat,
1 B.L.T., 146), a leading case, the appellant and respondent were lessees of adjoining fisheries.
The respondent erected certain akese which had
the effect of obstructing the passage, of fish to the appellant's fishery. The plaintiff-appellant
has claimed Rs. 1,320 for damages. The appellant's suit was decreed in the trial Court, but was
dismissed in the Appellate Court on the ground of there being no proof of special damage. Held
that, the respondent had infringed the right of the appellant by obstructing the free passage of
fish to his fishery; where there has been an infringement of a legal right an action for damages
will lie without proof of special damage. The appeal was allowed.
(2) Damnum sine injuria (Damage without wrong)
In Gloucester Grammar School Case, (*Per Hankford. J. in Gloueester Grammar School,
(1410) Y.B. 11 Hen IV for.27 p1.21,22.) the plaintiff complained that he had to reduce his fees
at his school because of the competition of the defendant, who set up a rival school, was held to
have no remedy. This is because English Law has accepted fundamental doctrine of free
competition. Competition or other acts damaging a man in his business are tortious only if, the
act causing damage is deemed unlawful or wrongful.
In Mogul Steamship Co. case, there is apparent conflict of two rights that are equally
regarded by the law: the right of the plaintiffs to be protected in the legitimate exercise of their
trade, and the right of the defendants to carry on their business as seem best to them, provided
they commit no wrong to others.
The defendants are a number of ship-owners who formed themselves into a League or
Conference for the purpose of ultimately keeping in their own hands of the control of the
carriage from certain Chinese ports, and for the purpose of driving the plaintiffs and other
competitors from the field. The right of competition exists even when the means adopted are
"unfair".
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The law protects a man's interest in earning his living. Hence it is the rightof every trader to
require a right to trade mark.
At Common Law, the use of trade name or mark which has beenadopted by making it, appear
that the goods sold under it are the goods ofthat other. In Myanmar, there is no system of
registration of Trade-
Marks, nor for a statutory title to a Trade-Mark.
So, the right of parties setting up claims to ownership of a trade-mark must be determined
inaccordance with the principles of Common Law. The right to Trade-Marks in Myanmar is
therefore dependent upon the general principles of Commercial Law.
The fundamental rule is that, "one man has no right to put off hisgood for sale as the goods of a
rival trader.
The law restricts unfair competition inthe affairs of trade business. Thus whoever commits the
tort of "Passingoff" will be liable not only to pay damages, but also an injunction will be lieto
prevent the apprehended wrong.
"Passing off" may be committed in the following ways:
(1) Marketing a product as that of the plaintiff.
(2) Using plaintiff's name
(3) Using plaintiff's trade-name
(4)Using plaintiff's Trade-Mark.
(5)Imitating appearance of plaintiff's goods.
(6)Selling inferior goods of plaintiff, there by misleading purchasers.
(7)False advertising.
The term "Trade-Mark" is defined in Section 478 of the Penal Codeof Myanmar as follows:
A mark used for denoting that goods are the manufacture ormerchandise of a particular person
is called a Trade-Mark".
The period of limitation prescribed by Section 15 of the MyanmarMerchandise Act ,3 for
prosecuting an offender under the Penal Code forthe use of false Trade-Mark is three years from
the date of the commissionof the offence charged or one year from the date of discovery by
theprosecutor of the offence charged, whichever is less.
In the case of Aung Gwan Chawn of B.Y.C. Soap factory,in which the Court held that, although
the appellant plaintiff had used theSinger Machine Manufacturers V. Wilson, 1877. 3 App Case.
376 especially at P.391-2.per LordCairus L.C. (H.L).Trade-Mark in dispute which is
"Bandoola" long before the formation ofthe B.Y.C.
Company, but with his own consent, it has been permitted to beused by that company up to the
time of its dissolution without anyinterruption for (9) years. That simply amounts to waiver of
such right touse the Trade-Mark. Hence, B.Y.C. Company will be entitled to the right touse it as
its own property. In other words it will be taken as the property ofthe firm under section (14) of
the Partnership Act.
Secondly in the case of Johny Walker & Sons Ltd. vs. U ThanShwe5 in which case the Court
considered the point that whether anowner of a Trade-Mark in respect of a particular
commodity has a right toprohibit or prevent other persons from the use of such mark in
connectionwith goods of a totally different character.
The appellant is the owner of the Trade-Mark JOHNNIE WALKER(words) and the JONNIE
WALKER striding figure representations whichhave been used on bottles of whisky sole by
him in Myanmar. Therespondent used the words" Burmese JOHANNIE WALKER" with
thestriding figure of JOHNNIE WALKER, on his blood Tonic bottles. TheCourt found out that
the goods are of different in character and class.Hence the appeal was dismissed.
We must also note that the action maintainable even though no damage is proved, i.e. by way of
–
(1) an injunction.
(2) either damages or an account of profits at the plaintiff's option.
The first remedy is often the most important to the plaintiff. If thedefendant's conduct is
calculated to divert customers even though no saleas occurred, an injunction will still lie to
prevent the apprehended wrong.
As to the second form of remedy, the plaintiff will recover damagesfor the loss of profit which
he has sustained in consequence of customer'sbeing diverted from him to the defendant. In
addition he may recover forloss of business reputation and good-will of the business.
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A
Actionable negligence consists of the neglect of the use of ordinary care or skill towards a
person or his property. Such are should be observed by a man of ordinary prudence taking care.
In order to establish negligence as a cause of action under the law of torts, a plaintiff
must prove that:
1. The defendant has duties to exercise was negligent a reasonable care and skill.
3. The defendant breached that duty by failing to conform to the required standardof conduct.
4. The defendant's negligent conduct was the cause of the harm to thePlaintiff.
5. The plaintiff was, in fact, harmed or damaged due to the failure ofperformance the duties.
The plaintiff must therefore prove on a balance of probabilities. There is aBacon's Maxim:
CausaCausans (the immediate cause) and CausaCausata(the cause of the thing causing is the
cause of the effect), which means "he does the firstwrong shall answer for all consequential
damages" and "the damages must be thelegal and natural consequence of the wrongful act".
There are three kinds of damage, namely, injury to the person, damage to property and pure
financial loss. The mere fact that the damage suffered was unlikely to occur does not relieve the
defendant of liability if his conduct was unreasonable.
1. Consequences are too remote if a reasonable man would not have foreseen them.
2. The defendant will be liable for all the direct consequences of his act, suffered by the plaintiff
whether a reasonable man would have foreseen them or not.
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A
It is not for every injury that a person may sustain in the course of everyday life that he or she
can recover compensation. It can only be recovered if that injury is due to the fault of somebody
who owes a duty to that person. Only when such damage is recognized as legal then the plaintiff
will be successful.
The real significance of legal damage is illustrated by two maxims;
(1) Injuria sine damno
(2) Damnum sine injuria
(1) "Injuria sine damno" (Wrong without damage)
In Ashby vs. White case (**MarzettiV.Williams, (1830) 1B &AD, 415) the defendant, a
returning officer, wrongfully refused to register a duty tendered vote of the plaintiff, a legally
qualified voter, and the candidate for whom, the vote was tendered was elected. So, there was
no loss or damage suffered by the plaintiff, by such rejection of the vote. But still, the Court
held that an action lay. We can see that in this case the returning officer had acted maliciously.
But where a returning officer although there was no practice of malice or improper motive on
his part, honesty refused to receive the vote of a person entitled to vote at an election, it was
held that no action lay.
Thus in Marzetti v. Williams case (Ashby v. White (1708) 2Ld.Raym, 938,955) an action
will lie against a banker, having sufficient funds in his hands belonging to a customer, for
refusing to honour his Cheque; although the customer did not thereby sustain actual loss or
damage. So if there be an infringement of a legal right, without actual damage, the person
whose right has been infringed can bring a suit under the provisions of section (42) of the
Specific Relief Act. Hence, whenever a person sustained of a legal wrong, he may bring an
action without being under necessity of proving special damage.
In MaungThitsa (Appellant) v. Maung Nat (Respondent) case (MaungThit Sa V. Maung Nat,
1 B.L.T., 146), a leading case, the appellant and respondent were lessees of adjoining fisheries.
The respondent erected certain akese which had
the effect of obstructing the passage, of fish to the appellant's fishery. The plaintiff-appellant
has claimed Rs. 1,320 for damages. The appellant's suit was decreed in the trial Court, but was
dismissed in the Appellate Court on the ground of there being no proof of special damage. Held
that, the respondent had infringed the right of the appellant by obstructing the free passage of
fish to his fishery; where there has been an infringement of a legal right an action for damages
will lie without proof of special damage. The appeal was allowed.
(2) Damnum sine injuria (Damage without wrong)
In Gloucester Grammar School Case, (*Per Hankford. J. in Gloueester Grammar School,
(1410) Y.B. 11 Hen IV for.27 p1.21,22.) the plaintiff complained that he had to reduce his fees
at his school because of the competition of the defendant, who set up a rival school, was held to
have no remedy. This is because English Law has accepted fundamental doctrine of free
competition. Competition or other acts damaging a man in his business are tortious only if, the
act causing damage is deemed unlawful or wrongful.
In Mogul Steamship Co. case, there is apparent conflict of two rights that are equally
regarded by the law: the right of the plaintiffs to be protected in the legitimate exercise of their
trade, and the right of the defendants to carry on their business as seem best to them, provided
they commit no wrong to others.
The defendants are a number of ship-owners who formed themselves into a League or
Conference for the purpose of ultimately keeping in their own hands of the control of the
carriage from certain Chinese ports, and for the purpose of driving the plaintiffs and other
competitors from the field. The right of competition exists even when the means adopted are
"unfair".
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A
The law protects a man's interest in earning his living. Hence it is the rightof every trader to
require a right to trade mark.
At Common Law, the use of trade name or mark which has beenadopted by making it, appear
that the goods sold under it are the goods ofthat other. In Myanmar, there is no system of
registration of Trade-
Marks, nor for a statutory title to a Trade-Mark.
So, the right of parties setting up claims to ownership of a trade-mark must be determined
inaccordance with the principles of Common Law. The right to Trade-Marks in Myanmar is
therefore dependent upon the general principles of Commercial Law.
The fundamental rule is that, "one man has no right to put off hisgood for sale as the goods of a
rival trader.
The law restricts unfair competition inthe affairs of trade business. Thus whoever commits the
tort of "Passingoff" will be liable not only to pay damages, but also an injunction will be lieto
prevent the apprehended wrong.
"Passing off" may be committed in the following ways:
(1) Marketing a product as that of the plaintiff.
(2) Using plaintiff's name
(3) Using plaintiff's trade-name
(4)Using plaintiff's Trade-Mark.
(5)Imitating appearance of plaintiff's goods.
(6)Selling inferior goods of plaintiff, there by misleading purchasers.
(7)False advertising.
The term "Trade-Mark" is defined in Section 478 of the Penal Codeof Myanmar as follows:
A mark used for denoting that goods are the manufacture ormerchandise of a particular person
is called a Trade-Mark".
The period of limitation prescribed by Section 15 of the MyanmarMerchandise Act ,3 for
prosecuting an offender under the Penal Code forthe use of false Trade-Mark is three years from
the date of the commissionof the offence charged or one year from the date of discovery by
theprosecutor of the offence charged, whichever is less.
In the case of Aung Gwan Chawn of B.Y.C. Soap factory,in which the Court held that, although
the appellant plaintiff had used theSinger Machine Manufacturers V. Wilson, 1877. 3 App Case.
376 especially at P.391-2.per LordCairus L.C. (H.L).Trade-Mark in dispute which is
"Bandoola" long before the formation ofthe B.Y.C.
Company, but with his own consent, it has been permitted to beused by that company up to the
time of its dissolution without anyinterruption for (9) years. That simply amounts to waiver of
such right touse the Trade-Mark. Hence, B.Y.C. Company will be entitled to the right touse it as
its own property. In other words it will be taken as the property ofthe firm under section (14) of
the Partnership Act.
Secondly in the case of Johny Walker & Sons Ltd. vs. U ThanShwe5 in which case the Court
considered the point that whether anowner of a Trade-Mark in respect of a particular
commodity has a right toprohibit or prevent other persons from the use of such mark in
connectionwith goods of a totally different character.
The appellant is the owner of the Trade-Mark JOHNNIE WALKER(words) and the JONNIE
WALKER striding figure representations whichhave been used on bottles of whisky sole by
him in Myanmar. Therespondent used the words" Burmese JOHANNIE WALKER" with
thestriding figure of JOHNNIE WALKER, on his blood Tonic bottles. TheCourt found out that
the goods are of different in character and class.Hence the appeal was dismissed.
We must also note that the action maintainable even though no damage is proved, i.e. by way of
–
(1) an injunction.
(2) either damages or an account of profits at the plaintiff's option.
The first remedy is often the most important to the plaintiff. If thedefendant's conduct is
calculated to divert customers even though no saleas occurred, an injunction will still lie to
prevent the apprehended wrong.
As to the second form of remedy, the plaintiff will recover damagesfor the loss of profit which
he has sustained in consequence of customer'sbeing diverted from him to the defendant. In
addition he may recover forloss of business reputation and good-will of the business.
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A
Actionable negligence consists of the neglect of the use of ordinary care or skill towards a
person or his property. Such are should be observed by a man of ordinary prudence taking care.
In order to establish negligence as a cause of action under the law of torts, a plaintiff
must prove that:
1. The defendant has duties to exercise was negligent a reasonable care and skill.
3. The defendant breached that duty by failing to conform to the required standardof conduct.
4. The defendant's negligent conduct was the cause of the harm to thePlaintiff.
5. The plaintiff was, in fact, harmed or damaged due to the failure ofperformance the duties.
The plaintiff must therefore prove on a balance of probabilities. There is aBacon's Maxim:
CausaCausans (the immediate cause) and CausaCausata(the cause of the thing causing is the
cause of the effect), which means "he does the firstwrong shall answer for all consequential
damages" and "the damages must be thelegal and natural consequence of the wrongful act".
There are three kinds of damage, namely, injury to the person, damage to property and pure
financial loss. The mere fact that the damage suffered was unlikely to occur does not relieve the
defendant of liability if his conduct was unreasonable.
1. Consequences are too remote if a reasonable man would not have foreseen them.
2. The defendant will be liable for all the direct consequences of his act, suffered by the plaintiff
whether a reasonable man would have foreseen them or not.
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A
Now, in dealing with those persons who cannot be sued in tort, it may be mentioned as follows:-
(1) Sovereign
(2) Ambassadors
(3) Public Officials
(4) Infant and lunatic
(5) Married Women
(6) Corporation
Sovereign
There is an English maxim, that "the king can do no wrong”, so that the Crown or the sovereign
is always exempted to be sued in tort as well as in criminal matters.
But in the year 1947, when the Crown Proceedings Act came into force, this immunity in tort
was put to an end. So that, snow the Crown shall be liable in tort committed by itself or be liable
for the torts committed by its servants.
Ambassadors
An ambassador who is acting as the Head of State to which he represents, enjoys diplomatic
immunities, unless he waives his privilege, he cannot be sued in tort. This privilege therefore
prevails only to the extent of the term of his employment. So, when his office has been
terminated, he will become liable. This immunity extends also to his family member as well as
to the servants or suits.
Public Officials
Public officials are not liable to be sued in tort in their representative character for torts
committed by them or by their subordinates.
Infants and Lunatics
Infants and lunatics are regarded as incapable of being reasoning properly. So they are usually
exempted from, legal liabilities. Generally, infancy is no bar to a suit for damages claiming
against an infant. But when the intention, knowledge, malice or some other condition of the
state of mind of the wrong doer is essential, extreme youth may afford a defense.
As regards the acts done by the lunatics, unsoundness of mind is not in itself a ground of
exemption of liability in tort.
Married Women
At Common Law, a husband was liable to be joined with his wife in all actions for torts
committed by her during the subsistence of the marriage. This liability still exists in the Married
Women's Property Act 1882.
This injustice has been abolished by the enactment of the 1935 Law Reform (Married Women
and Tort-feasors Act). Section 3 of this Act provides that the husband of married women is not,
by reason only of his being her husband, 15 liable in respect of any such tort.
According to the Married Women's Property Act, 1882, when spouses embark litigation with
each other in order to settle disputes arising out of the property, particularly upon the breakup of
their marriage, if necessary the husband may be required to vacate or leave the matrimonial
home. (Law Reform (Married Women and Tortfeasors) Act, 1935. )
Under our Myanmar Customary Law the property rights of a Myanmar Buddhist Couple is
based on the principle of tenants in Common and not that of joint tenants. Thus, when a spouse
dies the other spouse inherits the whole estate of the deceased spouse.19 They are not to be
taken as partners when conducting business separately. But, when certain loan has been taken
for the benefit of the joint family business, the wife will be liable for the debt contracted by her
husband . (Married Women's Property Act, 1882. )
The wife cannot sue her husband for partition of property which they attain during the
substance of their marriage, i.e (LetthetPwa Property ), when their marriage tie still subsist.
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1
Chapter 1
1.6 Promise 19
1.7 Consideration 21
Key Terms 23
Questions 24
2
Chapter 1
ပဋိညာဉ်၏သဘောသောဝ
ပဋိညာဉ်တစ်ခုနှင့်ပတ်သက်၍စကားရပ်များ၏အဓိပ္ပယ်ဘော်ပပချက်
(a)Offer ကမ်းလှမ်းချက်
(c)Acceptance လက်ခံပခင်း။
(d) Promiseကတိ။
(e)Promisor ကတိပပုသူ။
(f)Promiseeကတိရသူ။
(g)Considerationအဘပးအယူ(သို ့)ကတိနှင့်ညီညွတ်သည့်
အေိုးစားနား။
(h)Agreementသဘောတူညီချက်။
(j)Contract ပဋိညာဉ်။
(k)Voidable agreementပျက်ပပယ်နိုင်ခွင့်ရှိဘသာပဋိညာဉ်။
3
Section 2
ည် ရ ွ ယ ်
Proposal စကားကမ်းလှမ်းချက်
[ Section 2 (a)]
လူတစ်ဦးတစ်ဘယာက်ကအပခားလူတစ်ဦးတစ်ဘယာက်အားမိမိပပုလုပ်လုိ
ရရှိလိုသည့် ရည်ရွယခ
် ျက်ပေင့် ဘပပာဆိုပါကထိုသူက စကားကမ်းလှမ်း
ချက်ပပုသည် မည်၏။
(ပုေ်မ ၂-က)
4
Promise ကတိ
"promise".
[Section 2(b)]
ကတိပပုသူနှင့် ကတိရသူ
Consideration အေိုးစားနား
Agreement
သဘောတူညီချက်
(c)]
Reciprocal promises
အပပန်အလှန်ကတိပပုချက်များ
Void Agreement
ပျက်ပပယ်ဘသာသဘောတူညီချက်
void.
[ Section 2 (g)]
contract.ပဋိညာဉ်
[Section 2 (h) ]
၂
void agreement.
7
[Section 2 (i)]
မပပုဘစနိုင်လျှင် ထိပ
ု ဋိညာဉ်ကိုပဋိညာဉ်ပပုသူနှစ်ဦးနှစ်ေက် အနက် တစ်ေက်
ပျက်ပပယ်နိုင်ခွင့် ရှိဘသာပဋိညာဉ်ပေစ်၏။[ပုေ်မ-၂(ဈ)]
[Section 2 (j)]
ပဋိညာဉ်တစ်ခုသည်ဥပဘေအရအတည်ပပုနိုင်ပခင်းမှ ရပ်စဲသွားဘသာ
abstinence.
8
လူတစ်ဦးတစ်ဘယာက်ကအပခားလူတစ်ဦးတစ်ဘယာက်အားမိမိပပုလုပ်လုိ
သည် မည်၏။
(ပုေ်မ ၂-က)
make an offer but it is offer that is made with the idea the
person to whom the offer has been made will act in response
အပခားသူတစ်ဦးအားမိမိပပုလုပ်လုသ
ိ ည့် (သို ့မဟုတ)် မပပုလုပ်လုသ
ိ ည့်
မိမိဆန္ဒကိုဘပပာကကားရုံနှင့်မပပီးေဲမိမိ၏ကမ်းလှမ်းချက်ကိုအပခားတစ်ေက်မှ
လက်ခံရန် ဘတာင်းခံချက်လည်းပါရှိရမည်။
Example
ဘအကေီအားမိမိပိုင်ဆိုင်သည့်အိမ်ကိုဘရာင်းလိဘ
ု ကကာင်းဘပပာရုံပေင့်ကမ်း
လှမ်းချက်မဘပမာက်၊ ေီကိုဝယ်ဘစလိုဘသာဆန္ဒဘတာင်းခံမှုဘပါ်လွင်ဘစရမည်။
legal relation.
9
Example
ဘမာင်ပေူကဘမာင်မဲအားထမင်းစားေိတ်ရာတွင် ဘမာင်မဲမလာဘရာက်
*
သပေင့် ဘမာင်ပေူကဘမာင်မဲအား တရားမစွဲဆိုနိုင်ဘပ။ ဥပဘေအရ အဘနှာင်
ကမ်းလှမ်းချက်သည်တိကျမှုရှိရမည်။
ကမ်းလှမ်းချက်သည်ဘယေုယျသို ့မဟုတသ
် းီ ပခားပေစ်ရမည်။
Example
ကမ်းလှမ်:ချက်ကိုအပခားတစ်ေက်မှသိဘစရန် ဆက်သွယ်ဘပပာကကားမှု
ပပီးဘပမာက်မသ
ှ ာလျှင် ကမ်းလှမ်းချက်အထဘပမာက်သည်။
contract.
*
KalaiHaldar V, Sheikh, W.R, 217.
10
ဆက်သွယ်ချက်မရှိဘသာကမ်းလှမ်းချက်သည် ပဋိညာဉ်မပေစ်ဘပ။
ချက် ဟု ဘ ခါ်သည် ။
ကမ်းလှမ်းချက်ကိုေတ
ိ ်ဘခါ်ပခင်းမှာသတင်းစာတွင်ပါရှိဘသာတင်ေါဘခါ်ပခ
တစ်ေက်အားေိတ်ဘခါ်ပခင်းသာပေစ်သည်။ တင်ေါသွင်းသူကသာလျှင်
သာလျှင်လက်ခံနိုင်၏။
ဆိုငမ
် ျားတွင်ချိတ်ဆွဲထားဘသာ ပစ္စည်းများတွင် တန်ေိုးကို
ကမ်းလှမ်းချက်သာပေစ်၍ဆိုငရ
် ှင်ကယင်းကမ်းလှမ်းချက်ကိုလက်ခံလုမ
ိ ှသာဘရာ
င်းချမည်ပေစ်ပပီးလက်မခံလုက
ိ ဘရာင်းချရန် ပငင်းပယ်နိုင်သည်။
ကမ်းလှမ်းချက်ကိုလက်ခံပခင်း၏အဓိပ္ပယ်
promise.
(a)oral
(b)written and
(c)conduct
12
အထိမ်းအမှတ်ဆိုသည်မှာနှုတ်ပေင့်ပေစ်ဘစ၊စာပေင့်ပေစ်ဘစ၊အမူအရာပေင့်ပေ
စ်ဘစလက်ခံဘကကာင်းပပသရန်ပေစ်သည်။
တရားဝင်လက်ခံပခင်းပေစ်ဘပမာက်ရန်အတွက်
ဘအာက်ပါစည်းကမ်းချက်များပေင့်ညီညွတ်ရမည်။ (ပုေ်မ ၂)
[Section 7(1)]
လက်ခံမှသာလျှင် လက်ခံချက်ဘပမာက်သည်။
to pay £100000.
th
Held: no contract was existed. By his letter of June 8 the
plaintiff had rejected the original offer and he was no longer able
13
acceptance.
*
အမှုတစ်မှုတွင် ဘအက ၄င်းပိုင်ဘပမကို ၁၀၀၀၀၀ ဘပါင်ပေင့်
ဝယ်ပါမည်ဟုဘပပာသည့အ
် ခါဘအက မဘရာင်းဟုပငင်းသည်။ ဘအ၏မူလ
ကမ်းလှမ်းချက်ကိုေီကပငင်းပပီး၍ဘအကအသစ်တစ်ေန်ကမ်းလှမ်းပခင်းမရှိေဲေီ
ကလက်မခံနိုင်ဘပ။
proposal.
*
Hyde V Wrench, 5, Beav, 334
SasoonEzekial Solomon v. Burma Wharf and WarchouseCo.Ltd., 11 B.L.R. 364.
14
ချက်မျှသာပေစ်သည်။
reasonable mode.
လက်ခံရမည်။ ထိသ
ု ုိ ့ပပဋ္ဌာန်းထားပခင်း မရှိမှသာလျှင် လုပ်ရးို လုပ်စဉ်
သင့်ဘတာ်ဘသာ နည်းလမ်းအတိုင်းလက်ခံနိုင်သည်။
Example
စာပေင့်ပပန်ကကားပါဟုဘပပာဆိုရာတွင်စာပေင့်လက်ခဘ
ံ ကကာင်းဘရးသားမှလ
က်ခပံ ခင်းဘပမာက်၏။နှုတ်ပေင့်ဘပပာကကားပခင်း၊ဘကကးနန်းပေင့်ပပန်ကကားပခင်းသည်
လက်ခံပခင်းမဘပမာက်ဘပ။
to have accepted.
15
အဘပါ်မဘပးနိုင်။
က် ရ ှ ိ ရ မည် ။
လက်ခံ၍မရဘပ။
mime for that price." No answer was given to that letter, but the
Felthouse and his nephew, and the horse did not belong to
ဝယ်မည်။ ေီထမ
ံ ှ မည်သုိ ့မျှ အဘကကာင်းမပပန်ကပမင်းစီကို
ဘရာင်းချလိက
ု ်သည့အ
် ခါ ဘအကေီကတရားစွဲသည်။ ထိအ
ု မှုတွင်
၏ကမ်းလှမ်းချက်ကိုေီကလက်ခရ
ံ ာမဘရာက်ဟုဆုံးပေတ်သည်။
က် ခ ံ ပ ခင် း ပေစ် သ ည် ။
ရာပပဿနာပေစ် သ ည် ။
Felthouse v. Bindley, H.C.B (N.S); 869
17
အမှုတစ်မှုတွင်သဘေောစီးခရီးသည်တွင် သဘေောကုမ္ပ ီ၏
သက်ဘသခံပစ္စည်းမှာသဘေောကုမ္ပ ီကထုတ်ဘပးဘသာသဘေောလက်မှတ်တစ်ခု
သည့အ
် ပပင် ယင်းစာလုးံ များအဘပါ်တွင်လည်း ကနလ ့် နပေတ်
့် လျက်မှင်နီပေင့်
ရိုက်နှိပ်ထားသည့်အပပင်မှင်နီပေင့်ကနလ ့် နပေတ်
့် မျဉ်းသားထားချက်တို ့ဘကကာင့်ခ
ရီးသည်အဘနပေင့် စည်းကမ်းချက်မန
ှ ်းမသိသည့အ
် တွက် ယင်းစည်း
ကမ်းချက်များအတိုင်း လိက
ု ်နာရန် တာဝန်မရှိဘပ။
Richardson v. Rountree, (1894) A.C., 217
18
directed and caught influenza and sued the Co. for the promised
reward.
company.
19
ညွှန်းအတိုင်းဘသာက်ပါကတုတ်ဘကွးဘရာဂါမှကာကွယ်သည်။အကယ်၍ဘဆးဘ
ောက်ပပီးတုတ်ဘကွးပေစ်ကဘပါင်၁၀၀ဘလျာ်မည်ဟုပါရှိသည်။စီကဘကကာ်ပငာအ
တိုင်းဘဆးကိုဘသာက်ဘသာ်လည်းတုတ်ဘကွးပေစ်သပေင့်ဘလျာ်ဘကကးဘတာင်းသည့်
အခါစီ၏ဘဆာင်ရွက်မှုသည်ကုမ္ပ ီ၏ ကမ်းလှမ်းချက်ကိုလက်ခံပခင်းဘပမာက်
(a)Word of mouth.
(b)Written and
ကမ်းလှမ်းချက်ပါစည်းကမ်းများကို လက်ခံသူကမသိ
2(b)]
Carlill v. Carbolic Smoke Ball Co., (1893) 1 Q.B. 256
20
the "promised".
အတိအလင်းကတိနှင့် သဘောသက်ဘရာက်ဘသာကတိ
[ပုေ်မ ၉]
(ii)Implied Promiseသဘောသက်ဘရာက်ဘသာကတိ
implied.[Section 9]
21
ပုေ်မ ၂(ဃ)
In Daw Po and other vs. U Po Hmyin and others 1940 R.L.R 239
case, it was held that a stranger to a contract can sue upon it (a)
where a party to the contract agrees with the stranger to pay him
**
အမှုတစ်မှုတွင် ဦးေိုးမျှင်နှင့် ဘေါ်ကံပေူပိုင် လယ်များကို ၁၉၃၃/၃၄
တရားစွဲရာတရားရုံးကလက်ခံလုက
ိ ်၏။ အေယ်ဘကကာင့်ဆိုဘသာ်မူလ
ဘေါ်ပိုသည်ယင်းပဋိညာဉ်ကိုအမှီပပု၍ပဋိညာဉ်အကျိုးသက်ဘရာက်သူပေစ်သပေင့်
တရားစွဲဆိုနုင
ိ ်ခွင့်ရှိသည်ဟုဆုံးပေတ်ခဲ့သည်။
Insurance Co.Ltd. vs. Daw Saw Hla" 1953 B.L.R.H.C 350, it was
held that there is nothing in the Contract Act which prevents the
**
Daw Po & others v. U Po Hmyin& another, 1940 R.L.R, 237
*
The Burma (Government Security) Insurance Co. Ltd. v. Daw Saw Hla, 1953 B.L.R (H.C) 350
23
(a)Past Consideration
အတိ တ ် အဘပးအယူ
(b)Present Consideration
(c)Future Consideration
အနာဂတ် အဘပးအယူ
Key Terms
Contract=ပဋိ ည ာဉ်
Agreement=သဘောတူ ည ီ ခ ျက်
Promise=ကတိ
Promissor=ကတိ ပ ပုသူ
Promisee=ကတိ ရ သူ
Acceptance=လက် ခ ံ ပ ခင် း
Consideration=အေိ ု း စားနား
24
Questions
cases.(Assignment)
(Short Question)
(Short Question)
(Short Question)
1
Chapter-2
Communication
2.1 Communication 3
Key Terms 14
Questions 15
2
Chapter-2
Communication
accepter.
acceptance.
2.1 Communication
as:-
၁၉၇၂
၂-
'accepted'.
၂-
[Section (3)]
5
(ii) omission
to the other
၏ပ ြောဆိ ု ရ န်
၏ဆန္ဒ သိ ု ့မဟု တ ်
ပန ြင် း ကိ ု မ ဆိ ု လ ိ ု ။
completed.”
8
[Section 4]
acceptor,
9
Example
acceptance is complete:-
၂
10
to his knowledge.[Section 4 ]
၂
11
Example
receives it.
၂
12
Illustration
afterwards.
not afterwards.
14
A proposal is revoked:-
before acceptance.
(ဂ
15
Key Terms
Communication=
Revocation =
Completion=
Omission=
Conduct =
Oral =
Forebearance =
Questions
(Assignment)
(Short Question)
(Short Question)
(Short Question)
16
(Short Question)
Chapter 3
3.3 Consent 12
Key Terms 40
Exercise Questions 41
2
Chapter 3
1. Agreement
5. Void agreement
with Law
-၂(ဇ)
( )
a valid contract:-
4
To form a Contract:-
( )
( ၂- )
( ၂- )
“promise”.
၂( )]
6
-၂(ဂ)]
elements of a contract.
capacity as follows:-
( )
which he is subject.
before”.
8
( )
eighteen.
( )
may be majority after attaining 21 years of age. The ward may not
the minor may not attest and the guardian only may contract on
(၂ )
9
Section 12
( ၂)
of sound mind.
10
unsound mind.
Illustration
ဂ ဂ
( )
of unsound mind.
11
( )
For example:
its memorandum
*
Michelle v.Sultan of Johore, (1894) 1 Q.B., 149.
12
Mohammedan Law.
3.3 Consent
Section 13
consent when they agree upon the same thing in the same
sense”.
13
( )
( )
( ၅)
ဇ ( ၆)
( ၇)
( )
22.
( ၂ ၂ ၂၂)
(a)Coercion
14
Section 15
( ) ( )
*
( )
( )
( )
Explanation
*
Ma Ain Yu v. Miss A.G.D. Netto, 1952, B.L.R. (S.C) 65.
15
Contract Act.
Illustration
( ) ( )
( ) ( )
16
(b)Undue Influence
Section 16
ဇ ( ၆)
or
( ) ဇ
( )
17
( )
( )
influence.
as-
Illustration
influence.
( ) ( ) ( )
( ) ဇ
( ) ( ) ဇ
ဂ ( )
( ) ဇ
19
( )
( ) ဇ
by undue influence.
( )
( )
ဇ ဇ
*
- ( ) ( ) - ၉၆၂ ( ) -၂ ၂
21
ဇ ဇ
Section 16
other.”
Illustration
( ) ( )
( ) ( )
ဇ ( )
Section 19
( )
23
or, if the party who was entitled to avoid it has received any
( ) ( ) (၂)
(c) Fraud
Section 17
( )
fraud
24
( - ၇)
( )
to be fraudulent.
( )
( - ၇)
25
( )
Examples
( )
( )
( ) ( ) ( )
( ) ( )
( )
26
( )
(d) Misrepresentation
Section 18
( )]
( )
( )
27
Effect of misrepresentation
Section 19A
caused.”
( ၉)
Exception
၉- )
(e) Mistake
(i)Mistake of Fact
( ၂ )
Explanation
(ii)Mistake of Law
Section 21
law)
( ၂ )
Illustration
( ) ( )
fifteenth day after the Haj, but the defendants had on belief
finding out the mistake the plaintiffs sued the defendants for
၉၂- ဂ
( )
ဂ ( ) aj ( ၅)
ဂ
31
၏ ယုံ
th
It was held that the agreement was one for the 10
August 1892, that the mistake was not mutual, but on the
ratification."
၉၂- ဂ ( )
Section 23
follows:-
32
( )
၂ )
Lawful, unless-
of another (or)
policy.
33
( )
Section 57
void agreement.”
Illustration
( ) ၏ ( )
( )
၅ /
Section 58
which is legal and the other illegal, the legal branch alone
can be enforced.”
Illustration
( ) ( ) ( )
( )
( )
( ၂ ၂ ၂၂)
( ၂ )
in part[Section 24]
( )
( ၂ )
( ၂၅
( ၂၆)
( ၂၇)
( ၂ )
37
( )
( ၂၉)
( )
( ၂ ၆)
( ၅၆)
( )
( ၅၆)
( ၅၇)
25 are-
[Section25(1)]
[Section 25(2)]
Section 25
( )
( ၂၅)
Section 25(2)
compellable to do"
40
Section 25(3)
arbitration ."
(၂)
Key Terms
Valid contract=
Agreement=
Free consent=
Coercion=
Undue influence= ဇ
Age of majority=
Unsound mind=
Disqualification=
42
Consideration=
Lawful consideration=
Unlawful consideration=
Lawful object=
Void agreements=
Immoral agreement=
Questions
(Assignment)
(a)Define consent.
Act?
objects” (Assignment)
void? (Assignment)
(Assignment)
(Short Question)
Chapter 4
Performance of Contract
Performed 28
4.7.7 By Waiver 30
Key Terms 34
Questions 35
3
Chapter 4
Performance of Contract
ပဋိညာဉ်များကို ဆောင်ရွက်ခြင်း
ပဋိညာဉ်ြျုပ်ေိုသူများ၏ တာဝန်
Section 37
မခပုလျှင် ပဋိညာဉ်ြျုပ်ေိုသမ
ူ ျားသည် ၄င်းတို ့ခပုလုပ်ထားဆသာ ကတိများ
(ပုေ်မ ၃၇)
ကတိခပုသူ ဆသေုံးခြင်း
ဆသေုံးသွားလျှင် ၄င်း၏ကိုယစ
် ားလှယ်က ဆောင်ရွက်ရမည်။ (ပုေ်မ ၃၇)
Illustration
ကုနဆ
် ပးအပ်ရန်နှင့် (ဘီ) က ကုန်ဖိုးဆငွဆပးဆြျရန် ကတိခပုကကသည်။
ဆငွဆပးဆြျရမည်။
၏အကျိုးသက်ဆရာက်မ။ှု
Section 38
the promisee, and the offer has not been accepted, the
conditions:-
ပဋိညာဉ်တွင်ပကဝင်သူတစ်ဦးကကတိတစ်ရပ်လံးု ကိုဆောင်ရွက်ရန်
ခငင်းေိုခြင်း၏အကျိုးသက်ဆရာက်မှု။
continuance.”
(ပုေ်မ ၃၉)
7
Illustration
ေက်လက်တည်ဆစလိုဆကကာင်း ခပသခြင်းခဖစ်သည်။
ပဋိညာဉ်ကို ဆောင်ရွက်ရမည့်သူများ။
“If it appears from the name of the case that it was the
ကတိခပုသူ ကိုယတ
် ိုင်ဆောင်ရွက်ရန် ပဋိညာဉ်တွင် ပကဝင်သမ
ူ ျားက ရည်ရွယ်
တွဲဘက်တာဝန်များကို ေက်ြံခြင်း
Section 42
such persons during their joint lives, and after the death of
Section 43
(ပုေ်မ ၄၃)
Illustration
ဥပမာ။ ။ (ဆအ) (ဘီ) (စီ) တို ့ သုံးဦးပူးတွဲ၍ (ေီ) ထံမှ ဆငွ ၃၀၀ဝဝဝိ/-
joint promisor who has been made of pay the whole amount. It
says:-
(ပုေ်မ ၄၃)
Illustration
ဆတာင်းေိုနုင
ိ ်သည်။
တွဲဘက်ရပိုင်ြွင့်များကို ေက်ြံခြင်း
Section 45
and them, with them during their joint lines and after the
jointly.”
သူများကတွဲ၍ ဆတာင်းြံပိုင်ြွင့်ရှိသည်။
12
Illustration
during C's life, and after the death of C with the r epresentative
of B and C jointly.
ဥပမာ။ ။ (ဆအ) နှင့် (ဘီ) တို ့ထံမှ (စီ) က ဆငွ ၅၀၀ဝဝဝိ/- ဆြျးယူ
ထားလျှင် (ဆအ) နှင့် (ဘီ) တို ့ တွဲဘက်၍ (စီ) ထံမှ ဆြျးဆငွကို ဆတာင်းြံ
ေို၍မရနိုင်။
13
သက်၍ နည်းဥပဆေဆခြာက်ြရ
ု ှိသည်။
Section 47
Illustration
st
A promise to deliver goods at B's warehouse on the 1 of
after the usual hour for closing it and they are not received. A
အဆရာက် ကုနမ
် ျားပို ့ဆပးရန် ကတိခပုသည်။ (ဘီ) ၏ ဂိုဆေကင်ပိတ်ြျိန်လွန်မှ (ဆအ)
Section 48
apply for performance at 'a proper place' and within the usual
house of business.”
Section 49
ကတိရသူက ဆတာင်းေိုရန်မလိဘ
ု ဲ ဆောင်ရွက်ရမည့် ကတိတစ်ြုကို
Illustration
ထိဆ
ု နရာအဆရာက် (ဆအ) က ေန်အိတ်များ ပို ့ဆပးရမည်။
(Section 50)
sanctions.”
16
သည့န
် ည်းလမ်း သို ့မဟုတ် အြျိန်ကာလအတိုင်း ဆောင်ရွက်ရမည်။(ပုေ်မ ၅၀)
Illustration
ဥပမာများ။
ဆောင်ရွက်ပပီး ခဖစ်သည်။
puts into the post a letter containing the note duly addressed
to A.
က လိုလား သည့အ
် တိုင်း (ဘီ) ကထိုစာကို စာတိုက်တွင် ထည့်လက
ို ်ြျိန်တွင်
(ဘီ) ၏ တာဝန်ပပီးေုံးသည်။
17
ပဋိညာဉ်တွင် ပကဝင်သတ
ူ ို ့က အြျိန်သည် ထိပ
ု ဋိညာဉ်တွင် အဓိက
ထိပ
ု ဋိညာဉ်တွင် မဆောင်ရွက် ရဆသးဆသာ အပိုင်းသည် ကတိရသူ၏
“If it was not the intention of the parties that time should
failure.”
ပဋိညာဉ်တွင် ပကဝင်သတ
ူ ို ့က အြျိန်သည် ပဋိညာဉ်တွင် အဓိကခဖစ်
do so.”
အြျိန်မှလဲ၍
ွ အခြားအြျိန်တွင် ဆောင်ရွက်ခြင်းကိုကတိရသူကလက်ြံ လိက
ု ်ပက
19
အြျိန်က ဆလျာ်ဆကကးရလိဆ
ု ကကာင်း ကတိခပုသူကို အသိဆပးရမည်။ (ပုေ်မ ၅၅)
Section 51
Section 53
တစ်ဖက်ထမ
ံ ှ ဆလျာ်ဆကကး ဆတာင်းေိုနုင
ိ ်ြွင့်ရှိသည်။(ပုေ်မ ၅၃)
Section 54
that its performance cannot be claimed till the other has been
the contract.”
21
ခြင် း
Section 58
is legal and the other illegal, the legal branch alone can be
enforced.”
တစ်မျိုးကိုလက်မြံလုလ
ိ ျှင် အခြားတစ်မျိုးကို ဆရွးြျယ်ြွင့်ရှိဆသာ
Illustration
ဆခမာက်လျက် ဘိန်းခဖူဆပးရန်အပိုင်းမှာပျက်ခပယ်သည်။
အထိခပဌာန်းထားသည်။
ပမီစားကမည်သည်ဆ ကးဆငွအတွက်ခဖစ်ဆကကာင်းညွှန်ကကားဆသာအြက
ပမီစားကမည်သည့်ဆ ကးဆငွအတွက်ဆပးေပ်ဆကကာင်းမညွှန်ကကားဆသာအြက
Section 59
ထိဆ
ု ပးေပ် ဆငွသည် သီးခြားဆ ကးဆငွ တစ်ရပ်အတွက် ဆပးေပ်ဆကကာင်း
အသိဆပးလျှင် ထိဆ
ု ပး ဆငွကို လက်ြံလုက
ိ ်ပကက ဆဖာ်ခပပကသီးခြားဆ ကးဆငွ
အြက
Section 60
any lawful debt actually due and payable to him from the
မခပုသည့အ
် ခပင် မည်သည့်ဆ ကးကိုဆပးေပ်ဆကကာင်း ညွှန်ခပသည့် အခြား
ပတ်ဝန်းကျင်အဆကကာင်းအြျက် မရှလ
ိ ျှင် ပမီရှင်ကကာလစည်းကမ်းသတ်
Section 61
ြုနှိမ်ရမည်။
25
ပဋိညာဉ်တာဝန်ပပီးေုံးဆစနိုင်ဆသာနည်းလမ်းများ
ဆစနိုင် သည်။
ပဋိညာဉ်အတိုင်းဆောင်ရွက်ခြင်းခဖင့် ပဋိညာဉ်တာဝန်ပပီးေုံးဆစခြင်း
ဥပဆေတစ်ရပ်ရပ်ကြွင့်လွှတ်ခြင်း
ဆောင်ရွက်ရန်တစ်ဘက်မက
ှ မ်းလှမ်းြျက်ကိုခငင်းပယ်ခြင်း
ြျိုးဆဖာက်ခြင်းခဖင့်ပဋိညာဉ်တာဝန်ပပီးေုံးဆစခြင်း
performed [S.56]
အစားထိုးခြင်း၊ ဖျက်သမ
ိ ်းခြင်း၊ (သို ့မဟုတ)် ဆခပာင်းလည်းခပင်ေင်ခြင်း
ဆောင်ရွက်ခြင်းမှကင်းလွတ်ြွင့်ခပုခြင်း
သဆဘာကိုက်ညီမှုရယူ၍ဆကျနပ်ဆအာင်ဆောင်ရွက်ခြင်း
ပျက်ခပယ်ဆစနိုင်သည့်ပဋိညာဉ်ကိုဖျက်သိမ်းခြင်း
တရားဥပဆေ၏ဆောင်ရွက်ြျက်ခဖင့်ြျုပ်ပငိမ်းခြင်း
ပဋိညာဉ်အတိုင်းဆောင်ရွက်ခြင်းခဖင့် ပဋိညာဉ်တာဝန်ပပီးေုံးဆစခြင်း
discharged.
(ပုေ်မ ၃၇)
27
ဥပဆေတစ်ရပ်ရပ်ကြွင့်လွှတ်ခြင်း
ဥပဆေက ြွင့်လွှတ်သည်။
ဆောင်ရွက်ရန်တစ်ဘက်မက
ှ မ်းလှမ်းြျက်ကိုခငင်းပယ်ခြင်း
party making the offer from liability under the contract. [S.38]
ြျုပ်ပငိမ်းသည်။
28
ြျိုးဆဖာက်ခြင်းခဖင့်ပဋိညာဉ်တာဝန်ပပီးေုံးဆစခြင်း
Performed
ပဋိညာဉ်ြျုပ်ေိုသတ
ူ ို ့က မူလပဋိညာဉ်ဆနရာတွင် အသစ်တစ်ြု
မူလပဋိညာဉ် ြျုပ်ပငိမ်းသည်။
(ပုေ်မ ၆၂)
Illustration
4.7.7 By Waiver
fit.
သဆဘာကိုက်ညီမှုရယူ၍ဆကျနပ်ဆအာင်ဆောင်ရွက်ခြင်း
obligation, and has been set free, the contract is said to have
satisfaction.
အခြားတစ်ဘက်နင
ှ ့် သဆဘာကိုက်ညီြျက်ရယူပပီး ၄င်းကတိအတိုင်း ဆောင်ရွက်
သည်။
ပျက်ခပယ်ဆစနိုင်သည့်ပဋိညာဉ်ကိုဖျက်သိမ်းခြင်း
Section 64
rescinds it, the other party thereto need not perform any
received.
ပဋိညာဉ်ကို ဖျက်သမ
ိ ်းဆသာအြက အခြားတစ်ဖက်က ပဋိညာဉ်ပက မည်သည့်
ရွ က ် ရ န် ပ ျက် က ွ က ် ခ ြင် း
ဆောင်ရွက်နိုင်ဆစရန် ထိက
ု ်သင့်ဆသာ အကူအညီလယ
ွ ်ကူမှုများကို ဆပက့ေခြင်း
(ပုေ်မ ၆၇)
Illustration
requires repair.
တရားဥပဆေ၏ဆောင်ရွက်ြျက်ခဖင့်ြျုပ်ပငိမ်းခြင်း
circumstances:-
34
ပဋိညာဉ်ကို ြျုပ်ပငိမ်းဆစနိုင်သည်။
higher security.
လူမွဲအခဖစ်ဆကကညာခြင်းပုေ်မ ၃၇ တွင်ကကည့်ပက
Key Terms
Questions
(Assignment)
3. Enumerate the modes under which a contract is discharged.
(Short Question)
1
CHAPTER 5
Act 7
Key Terms 14
Questions 14
2
CHAPTER 5
၆၈ ၇၃ ၊
law makes out a contract for them, and such a contract is termed
။ ၄ ၊ "
3
၁
၄
။" " ။
act.
၁
Quasi Contract
4
၊ ၊
Section 68
၊
*
။( ၆၈)
*
Maung Ba Tha, Ma Sein Yin v. Daw Set, 1947 R. L . R. 491
5
Illustrations
property.
(၁)
(၂) ၄
which another is bound by law to pay, and who therefore pays it,
၂။
၄
6
။( ၆၉)
Illustration
။ ။ ။
considered.
7
certain payment.
payment and,
(3) A payment must have been made by the person who has
(၁) ။
(၂) ။
(၃)
။ ။
Act
follow:-
gratuitously, and such other person enjoys the benefit there of,
8
။ (
၇ )
Illustration
(၁)
။ ၄
to act gratuitously.
(၂)
။
9
(ii) The person who did it must not have intended to act
gratuitously: and,
(iii) The person for whom the act is done must enjoy the
benefit of it.
(၁) ။
(၂)
။ ။
*
(၃)
bailee.
*
၂- ၊ ၁၉၆၇ ၊ ၊ ၊ - ၁၆
10
ယာယီ
who finds goods belonging to another and take them into his
incurred by him to preserve the goods and find out the owner,
(၁)
offered a specific reward for return of the goods lost and may
(၂)
။ ( ၇၁)
(၃)
(၁)
။ ( ၁၅၁)
(၂) ။ ( ၇၁)
၊ ၊
၄ ၊ ။( ၇၂)
Illustration
12
(a) A and B jointly owe 100 kyats to C. A alone pays the amount
to C, and B, not knowing this fact, pays 100 kyats over again to
(၁) ၂ ၁ /-
။ ၁ /-
။ ၁ /-
illegal excessive.
(၂)
၁ /-
၁ /-
။ ၁ /-
၁ /-
။
13
provides that:-
has been incurred and has not been discharged, any person
၇၃ ။
*
။( ၇၃ )
does "extra work" over and above the work mentioned in the
*
Maung Gat Chaw and one v. Daw Shwe Hman, 1961 B.L.R. (H.C.) 21
14
Key Terms
Quasi contract
Reimbursement
Bona fide
Quantum Meruit
Questions
(Assignment)
entitled to be reimbursed for such supplies? If so, from whom and out
(Short Question)
CHAPTER 6
Breach of Contract 15
Compensation 19
Key terms 20
Questions 21
2
CHAPTER 6
followed. The injured party can take actions for the injury
be;-
ယ္
contract.
contract, namely:-
(i) Damages
(iii) An injunction
4
ဓိက
( )
( )
( )
(1) Damages
( )
5
are-
contract, or
6
( )
( )
( )
( )
For example
rare China vases, and "B" also agree to sell them. "A" may
( ) ( )
( ) ( )
specifically enforced.
(3) Injunction
8
( ) ယာယီ ( )
arise:
Act that “When a contract has been broken, the party who
Section 73
။ ( )]
breach.”
( )]
1
In the case of of Handley vs. Baxendale The
1
Hadley v Baxendale [1854] EWHC J70.
11
delay.
**
1
In the case of Madras Railway Co. vs. Govinda Rau
**
Hadley v Baxendale [1854] EWHC J70.
Hadley
Baxendale
1
1898, 172ILR 20-21 Mad 478.xxii.
12
back.
*
2
1876 I.Q.B.D 274
13
impson ew Castle
ew Castle
The losses must be arisen direct for the breach. Losses not
“too remote”.
( ) ။၄င္းတို ့မှာ
contract itself.
For example
mill during the time that delivery of it was delayed, but not
the loss sustained through the loss of the gover nment it was
delayed, but not the loss sustained through the loss of the
Explanation
Contract
may either:-
16
(ii) ignore the repudiation and wait until the time for
performance arrive.
entitled to damages
ယ္
Stipulated For
Section 74
have been caused thereby, to receive from the party who has
the amount so named or, as the case may be, the penalty
stipulated for.”
( )
Explanation (1)
"Penalty"and"LiquidatedDamages"
penalty.
liquidated damages.
liquidated damages.
19
Compensation
Section 75
( )
Illustration
to sing at his theatre for two nights every week during the
next two months, and B engages to pay her 10000 kyats for
( ) ( )
( )
( ) ( )
( ) ( ) ( )
Key Terms
Damage
Damages
Specific Contract
Injunction
Compensation
Remedy
Remoteness of damage
Specific contract
21
Questions
(Assignment)
(Assignment)
(Assignment)
CHAPTER 7
Specific Contracts
Guarantee 2
7.1.4.1 Sub-Agents 17
7.1.4.2 Ratification 20
7.1.4.3Termination of Agency 23
Key Terms 43
Questions 43
2
CHAPTER 7
Specific Contracts
ခြင္ း နြ င ့ ္ ပ တ္ သ က္ ေ သာ
indemnity”
ေယာက္ ခပုမူ ြ ်က္ ေ ကာင့ ္ ခ ဖစ္ ေ စ ကတိ ရ သူ အ ားဆု ံ း ရှု ံ း မှု မခဖစ္ ေ စရ
Illustration
of his default.
၄ ၊
4
၁၂၆
၍ ၊
၍ ၊
၍ ။
၊ ၍ ။
Section 148
the bailee .”
၍ ။
၍ ။
Explanation
way of bailment.
။
6
Section 150
“If the goods are bailed for hire, the bailor is responsible
Section 158
Repayment of Bailor
them by the bailee for the bailer, and the bailee is to receive
bailment.”
Section 153
bailor if the bailee does any act with regard to the goods
Section 151
own goods of the same bulk, quality and value as the goods
bailed.”
Section 152
။ ၁၅၂
9
Section 160
soon as the time for which they were bailed has expired, or
accomplished.”
။ ၁၆
Section 161
Section 163
၌ ၊
၄
10
၊ ၊
၊၄
။ ၁၆၃
Section 167
။ ၁၆၇
Section 170
Section 171
effect.”
၊ ၊
။ ၁၇၁
12
Appointment of Agents
Section 182
။ ၁၈၂
third persons.
။ ၁၈၂
13
Section 183
။ ၁၈၃
Section 184
။ ၁၈၄
။ ။
။ ၊
။
14
၊ ။
necessary [S.185]
၁၈၅
(2)Authority of Agent
Section 186
၊ ၍
။ ၁၈၆
Section 187
၍ ၊
၍ ၊
။
15
။ ၁၈၇
Illustration
။ ၄ ၍
၍ ။
။
16
Section 188
business.”
။ ၁၈၈
Illustration
။ ။
Section 189
။ ၁၈၉
Illustration
။ ။
7.1.4.1 Sub-Agents
Section 190
၊ ၍
၁၉၀
Section 192
principal.”
။
19
။ ၁၉၂
Section 193
။ ၁၉၃
Section 194
entrusted to him.”
၁၉၄
7.1.4.2 Ratification
Section 196
his authority.”
21
*
။ ၁၉၆
။ ၁၉၇
Illustration
။ ။
*
၂၊
၁၉၆၇ ၊ ၊ ၁၂၆။
22
Section 199
formed a part.”
။( ၁၉၉)
[S.198]
effect.[S.200]
၊
23
။ ၂၀၀
Illustration
be binding on A.
။ ။ ၍
။ ၍ ။
7.1.4.3Termination of Agency
၄ ၊
၊ ၊
၂၀၂
။ ၂၀၃
။ ၂၀၄
Section 206
to the principal, (as the case may be) for any previous
cause.”
၊ ၊
။ ၂ ၆
26
Section 208
၄ ။ ၂၀၈
the place where the agent conducts such business. When the
။ ။ ၂၁၁
27
၍ ။ ၊
၂၁၂
on demand. [S.213]
*
။ ၂၁၃
*
၊
၁၉၆၄ ၊ ၊ ၈၆၉။
28
၊ ၄
။ ၂၁၄
the case shows either that any material fact has been
him.[S.215]
၊
29
။ ၂၁၅
option.
။ ။ ၄
entitled to claim from the agent any benefit which may have
၂၁၆
Illustration
။ ။ ၄
၍ ၄ ။
။
31
။ ၂၁၇
။( ၂၁၈)
whole of the goods consigned to him for sale may not have
complete. [S.219]
။ ၄
။ ၂၁၉
၄ ၊
၊ ၊
33
။ ၂၂၁
may not have been sold, or although the sale may not be
။ ၄
။ ၂၁၉
[S.220]
34
၂၂၀
၄ ၊
၊ ၊
၂၂၁
35
။ ၂၂၂
Illustration
။ ။
။
36
။ ၂၂၃
Illustration
directions.
။ ။
37
၍ ။
၊ ၍
၊ ၍
၂၂၅
38
Illustration
make compensation to B.
။ ။
၄ ။
as follows:-
(2) Where the agent does not disclose the name of his
principal;
၁။ ၊
၊ ။
၂။
၃။ ၄
။ ၂၃၀
[S.232]
41
။ ၂၃၂
။ ၂၃၅
။ ၂၃၇
43
Key Terms
Contract of indemnity
Contract of Guarantee
Bailment
Bailor
Bailee
Liability
Sub-agent
Ratification
Termination
Revocation
Remuneration
Estoppels
Questions
Chapter 8
Void Agreements
Key Terms 21
Questions 21
2
Chapter 8
Void Agrements
။ ၁၁
။[ ၂၀-၂၁-၂၂]
၂၃]
။[ ၂၄]
3
but there are three exceptions to this rule.They are laid down
in Section 25 as follows -
။ ၃ ။ ၂၅
do or unless.
၊ ၀ ၊ ။
ofwhich the creditor might have enforced payment but for the
limitation of suits.
၊ ၀
[S.25(1)]
၊ ။
[ S.25(2)]
Explanation (1)
Explanation (2)
Section 26
။ ၂၆
Section 27
၊ ၀ ၊
။ ၂၇
၊ ၄ ၂၇
Exception 1
ood ill
၄ ၀
၊၄ ၊
၀ ။
Section 28
၊ ၊
၀
9
။ ၂၈
Exception (1)
two or more persons agree that any dispute which may arise
၊ ၊
၀ ၀
Exception (2)
၄
11
၂၈ ။
၊ ၀
Section 29
။ ၂၉
12
Illustration
၀
13
void.
၊၄
void.
၄ ။
၅၀၀၀ -
၁၀၀၀၀ - ၊
Section 30
။ ၃၀
race.
၅၀၀၀ - ၊ ၅၀၀၀ -
၂၉၄ ါ
ir illiam Anson ။
16
case of Khairthi vs. Lal Din (a) Maung Ba Thein and two
1
others that-
၄ ၀ ၃
၆၁၉၉၃ ၊ ၄
၃ ၀ ၀
ollateral Agreement ၀ ။
1
1954 B.L.R (H.C) 49
17
olleteral vent
၃၁
Illustration
၁၀၀၀၀ - ၊ ၄
Section 32
unless and until that event has happened. If the event becomes
၊၄ ။ ၃၂
18
Section 36
၊ ၊ ။ ၃၆
Illustration
၁၀၀၀ - ။ ၄
။
19
agreement is void.
၁၀၀၀၀ - ။
။၄ ။
Section 56
Illustration
(a)"A" and "B" contract to marry with each other. Before the
time fixed for the marriage, A goes mad. The contract becomes
void.
war is declared.
။ ၊
၊ ။
Things Illegal
Section 57
agreement.
Key Terms
Frustration=
oid agreement
agering contract
Uncertain agreement
uantum eriut
Questions
(Short Question)
(Short Question)
Question)
Law of Contract
1
The Contract Act, 1872
• Totally 11 chapters
• (a) General principals of the Law of Contract.
• (b) Special kinds of contracts
2
• The general principals of the Law of Contract
are contained in Sections 1 to 75 of the
Contract Act.
These principles apply to all kinds of contracts
irrespective of their nature.
3
• Offer + acceptance = Promise
• +
• consideration
• =
• Agreement
• +
• enforceability By Law
• = Contract
4
Section 2(h) of the Contract Act, 1872 defines a
contract as an agreement enforceable by law.
Contract = agreement + enforceability
7
Agreements to do an unlawful, immoral or illegal
act,
For example,
an agreement to bet (Wagering agreement) (S. 30),
an agreement in restraint of trade (S. 27),
8
an agreement to do an impossible act (S. 56).
Some obligations are
9
Rights in personam # Rights in rem
11
1. Agreement.
2. Intention to create legal relationship.
3. Free and genuine consent.
4. Parties competent to contract.
5. Lawful consideration.
6. Lawful object.
7. Agreements not declared void or illegal.
8. Certainty of meaning.
9. Possibility of performance.
10. Necessary Legal Formalities.
12
1 - Agreement
To constitute a contract there must be an agreement.
An agreement is composed of
two elements = offer and acceptance
6 - Lawful object
The object of the agreement must be lawful. [ Not to harm
body or property, Not fraudulent object, Not to threaten
purpose of law, Not to be interest of public, agreement to do a
criminal act]
18
Valid contract = An agreement which has all the
essential elements of a contract is called a valid
contract.
Void contract Section 2(g) = A void contract is a
contract which ceases to be enforceable by law.
(opposed to Public Policy, incompetent parties)
An agreement to carry out an illegal act is an example
of a void agreement. For example, a contract between
drug dealers and buyers
void means that a contract does not exist at all.
Neither party can go to court to enforce the contract.
22
METHOD OF CLASSIFYING CONTRACTS
Section 9 Mode of Formation
An express contract
The terms of a contract may be stated in words
(written or spoken).
It is important that the acceptance must be clear,
heard and understood by the offeror.
An implied contract
The terms of a contract may be inferred from the
conduct of the parties or from the circumstances
of the case.
Mode of Performance
Consequently, contracts are: (1) executed, and (2)
executory or (1) unilateral, and (2) bilateral. 23
Method of classifying contracts is in terms of the extent
to which they have been performed.
25
Quasi contracts are strictly not contracts as there is
no intention of parties to enter into a contract.
Example:
If A leaves his goods at B’s shop by mistake, then it
is for B to return the goods or to compensate the price.
28
Kinds of Quasi contract
Sec. 68 Supply of Necessaries
Sec. 69 Reimbursement of money due
Sec. 70 Obligation to pay for benefit out of non –
gratuitous act
Sec. 71 Responsibility of Finder of Goods
Sec.72 Person receiving goods are money by mistake
29
Misrepresentation Section 18
Innocent misrepresentation
If a person makes a representation believing what
he says is true he commits innocent
misrepresentation.
The party misled by it can avoid the contract, but
cannot sue for damages in the normal
circumstances.
30
But in the following cases, damages are obtainable:
From a promoter or director who makes innocent
misrepresentation in a company prospectus inviting
the public to subscribe for the shares in the
company.
Fraudulent misrepresentation
Fraud is an untrue statement made knowingly or
without belief in its truth or recklessly, carelessly,
whether it be true or false with the intent to
deceive.
31
But It is immaterial whether the representation
takes effect by false statement or with
concealment.
The party defrauded can avoid the contract and also
claim damages.
Mere silence as to facts likely to affect the
willingness of a person to enter into a contract is
not fraud, unless silence is in itself equivalent to
speech, or where it is the duty of the person
keeping silent to speak as in the cases of contracts
uberrimae fidei - (contracts requiring utmost good
faith).
32
CONTINGENT CONTRACT Section 31
A contingent contract = a contract to do or not to do
something, if some event collateral to such contract,
does or does not happen.
The event is uncertain.
Valid
34
Promisor – Refuse – Promise – wholly
35
Discharge of a contract
Section 31
39
1
Chapter 1
Law of Tort
Key Terms 15
Questions 16
2
Chapter 1
Law of Tort
တရားမနစ်နာမှု
Introduction
monetary compensation.
But the Law recognizes certain legal rights and legal wrongs
which are capable of being taken action before the Courts of Law.
done, the injured party will not be able to get redress if the law does
မှားယွင်းမှုဖေု ေ
ု ်ပေီး) ဥေ ေကအဆိုေါမှားယွင်းမှုသည် ဥေ ေနှင့် ညီသကဲ့သုိ ့
အ္ဂ ိေတ
် ို ့၏ တရားမ နစ်နာမှုဥေ ေေင်ဖြစ်သည်။ တရားမနစ်နာမှုဥေ ေသည်
တရားမဆိုငရ
် ာ နစ်နာမှု ဖြစ်သည်။ တရားမဆိုငရ
် ာမှားယွင်းမှုသည်
တရားမနစ်နာမှု၏အဓိေ္ပာယ်
Tort has been made to define tort but not in success. Dr. Ba
law jurisdiction.
ရသင့် သာအြွင့်အ ရးကို ြျိုး ြာက်မှု သို ့မဟုတ် ငွ၊ ကျန်းမာ ရး ၊သို ့မဟုတ်
ကုစားနိုင်သည်။
တရားမဆိုငရ
် ာသို ့မဟုတ် ေု္္ဂ က
ိ ဆိုင်ရာမှားယွင်းမှုဖြစ်သည်။
7
ဓ ့ထံးု တမ်းဆိုငရ
် ာ ဥေ ေဖြစ်ပေီး အ္ဂ ိေ်ရးို ရာဥေ ေမှ
ပြိမ်း ဖြာက်မစ
ှု သာ အ ဖြအ နများနှင့် သက်ဆိုင်သည်။
classified as a tort,
တရားမ ကကာင်းဆိုငရ
် ာ ထိြိုက်မှုများအား းုံ သည် တရားမနစ်နာမှု
တရားစွဲဆိုမမ
ှု ှာ သင့် တာ် သာ ကုစားမှုမရှိ ျှင် တရားမနစ်နာမှုဟု
အမျိုးအစားမြွဲဖြားြဲ့ ေ။
(2) In tort, the duties are created by operation of law, but the
ဖေုသူများ၏ သ ောတူညြ
ီ ျက်ထားရှိသည်အ
့ ျာက် တာဝန်ကို
သတ်မှတ်ထားသည်။
9
(3) In tort, the duties are fixed by law. The aim of contract is
towards specific person orpersons. On the other hand, in tort the duty
ေဋိညာဉ်၏ ရည်ရွယ်ြျက်သည်
ေါ်တွင်ကျ ရာက်သည်။
(4) It is often the case however that the same wrong is both a
reasonable care to his patient, andat the same time his conduct will
(5) Some people therefore refer tort as the law of damages. But
တရားမနစ်နာမှုမဟုတ် ေ။
course was notfulfilled; and in tort, because no one has the right to
ေဋိညာဉ်တွင် ထိက
ု ်သင့် သာအ ဖြအ နတွင်
န္ိုအတိင
ု ်းရှိရန်ဆို သာကတိကို မ ဆာင် ရွက်နိုငဖ် ြင်းဖြစ်သည်။
တရားမနစ်နာမှုတွင် မည်သမ
ူ ျှတမှုရှိ ကကာင်း ုံ ာက် သာ အ ထာက်
အြွင့်အ ရးမရှိ ေ။
Example (2):
11
injuries the passenger, A, the latter will have a cause of action for (i)
ဥေမာ
နိုငသ
် ည်။ ( အ) က (ေီ) မာင်းနှင် သာ အငှားကားကိုငှားသည်။ (ေီ) က
တရားစွဲဆိုရန် အ ကကာင်းရှိသည်။
တရားမနစ်နာမှုနှင့် ဖေစ်မှုဖြားနားြျက်များ။
ကျူး န
ွ ်သည့်သောဝကို ဖမင်နိုင်သည်။ တရားမနစ်နာမှုသည်
12
ေု္္ဂ က
ိ အြွင့်အ ရးကို ြံစားြွင့်ရှိ သာ သူတစ် ယာက်၏
ဖေစ်မှုတွင် အများဖေည်သန
ူ ှင့် သက်ဆိုင် သာအြွင့်အ ရးတစ်ရေ်ကို
i.e., he has to pay damages for the injury he has done. A crime is a
တရားမနစ်နာမှုတွင် အမှားဖေုသူကနစ်နာဖြင်းြံရသူအား
ျာ် ကကး ေးရသည်။ ဖေစ်မှု တွင် နိုင်ငံက ူ ့အြွဲ ့အစည်းတစ်ရေ် ံးု အတွက်
ဖေစ်ေဏ် ေးသည်။
တရားမနစ်နာမှုတွင် နစ်နာသူကတရား အ
ို ဖြစ် တရားစွဲဆိုသည်။
အပမဲတမ်းထည်သ
့ င
ွ ်းစဉ်းစားသည်။
Very often, we can see that the same wrong is civil as well as
wrongs of this kind. In such cases, the civil and criminal remedies
action.
14
တစ်ြုနှင့် တစ်ြု တ
ွ ် ေ်သည်။ အမှားဖေုသူကိုဖေစ်မှုဆိုင်ရာ အရ
Example:
trespass to goods
Finally, in Tort, the Court would not take into consideration the
accused.
ရည်ရွယ်ြျက်ကို ထည့သ
် င
ွ ်း မစဉ်းစားေဲ မှားယွင်းမှုကိုရည်ရွယ်ြျက်နင
ှ ့်
Key terms
Tort= တရားမနစ်နာမှု
Remedy= ကုစားြွင့်
Invasion= နစ်နာမှု
Wrongdoer= အမှားဖေုသူ
Concurrent= အပေိုင်ဖြစ် သာ
Punishment= ဖေစ်ေဏ်
Theft= ြိုးမှု
Exercise Questions
Chapter 2
2.4.1. Damage 13
2.4.2 Malice 14
2.4.3. Intention 17
2.4.4 Motive 18
Key Terms 19
Questions 20
2
Chapter 2
တရားမနစ်နာမှုဖြစ်ရန် လိအ
ု ပ်ချက်များ
အအာက်ပါ အဓိကလိအ
ု ပ်ချက်သံးု ချက်နင
ှ ့် ဖပည့်စုံမှသာလျှင် တရားမ
နစ်နာမှု ဖြစ်သည်။
ဥပအေကတားဖမစ်ထားအသာအမှားကိုတရားပပိုင်ကဖပုလုပ်ရမည်။
နစ်နာအစ ရမည်။
တရားဥပအေအရကုစားခွင့်ရှိရမည်။
ဥပအေကတားဖမစ်ထားအသာအမှားဖပုလုပ်မှု
will be liable in an action for tort. The duty is concerned with the
3
right under the law of tort and to abstain from inflicting harm to
တစ်ရပ် ချိုးအြာက်ခရ
ံ လျှင် ချိုးအြာက်သူအား တရားမနစ်နာမှုဥပအေနှင့်အညီ
negligence.
အသဆုံးမှုနှင့် ကိုယခ
် န္ဓာပျက်ဆီးမှု သို ့မဟုတ် ပစ္စည်းဆုံးရှုံးမှုဖြစ်အစအသာ အဖပုအမူ
ဖြစ်အစဖခင်း ဖြစ်သည်။
4
as legal, an injured party may have the right to compensate for the
ထို ့အ ကာင့်ဥပအေကအသိအမှတ်ဖပုထားအသာမှားယွင်းစွာအဆာင်ရွက်မတ
ှု ိုင်း
အတွက်ထခ
ိ ိုက်နစ်နာသူ၏ဆုံးရှုံးမှုအတွက်အလျာ်အ ကးရရန်အခွင့်အအရးရှိသည်။
ဥပအေကအသိအမှတ်ဖပုထားအသာနစ်နာဖခင်း
It is not for every injury that a person may sustain in the course
အလျာ်အ ကးရရှိနိုင်မည်မဟုတအ
် ပ။ လူတစ်အယာက်၏ တာဝန်ပျက်ကွက်မှုအ ကာင့်
ဖြစ်အပါ်အသာနစ်နာဆုံးရှုံးမှုကို ဖပန်လည်ရရှိနိုင်ရမ
ုံ ျှသာဖြစ်သည်။ နစ်နာမှုသည်
တရားလို၏တရားစွဲဆို မှုအအာင်ဖမင်မည်။
maxims;
5
တရားဥပအေအ ကာင်းဆိုငရ
် ာနစ်နာမှုကိုအအာက်ပါအဆာင်ပုေ်နှစ်ခုဖြင့်
ခွဲဖခားသတ်မှတ်ထားသည်။
ချိုးအြာက်မ။ှု
တရားဥပအေအရချိုးအြာက်မမ
ှု ပါအသာနစ်နာမှု။
ချိုးအြာက်မ။ှု
3
In Ashby vs. White case the defendant, a returning officer,
legally qualified voter, and the candidate for whom, the vote was
the plaintiff, by such rejection of the vote. But still, the Court held
that an action lay. We can see that in this case the returning officer
*
အမှုတစ်ခုတွင် ဥပအေအရ အရည်အချင်းနှင့်ဖပည့်စုံသူမဲဆန္ဒရှင် တစ်ဦးအား
မဲအပးခွင့်မဖပုသဖြင့် မဲရအ
ုံ ရာရှိအား မဲဆန္ဒရှင်က တရားစွဲဆိုသည်။ ယင်းမဲဆန္ဒရှင်
မဲထည့်လုသ
ိ ူမှာ အနိုင်ရရှိသဖြင့် မဲဆန္ဒရှင်တွင် နစ်နာဖခင်းမရှိအသာ်လည်း
for refusing to honour his Cheque; although the customer did not
of a legal right, without actual damage, the person whose right has
been infringed can bring a suit under the provisions of section (42)
ထုတ်ရန်အ တွက်ချက်လက်မှတ်တစ်အစာင်အရးအပးလိက
ု ်ရာ ဘဏ်မန်အနဂျာက
*
Ashby v. White (1708) 2Ld.Raym, 938,955
**
MarzettiV.Williams, (1830) 1B &AD, 415
7
ဆိုခင
ွ ့်ရှိသည်။
appellant's suit was decreed in the trial Court, but was dismissed in
damage. Held that, the respondent had infringed the right of the
will lie without proof of special damage. The appeal was allowed.
*
အမှုတစ်ခု တွင်အယူခံတရားလိုနှင့်တရားပပိုင်တို ့သည်တစ်ဆက်
အစသည့် ဝါးများစိုက်ထသ
ူ ည့် အတွက် အယူခံတရားလို၏ ငါးအင်းအတွင်းသို ့
အယူခံတရားလိုအားအနိုင်အပးခဲ့အသာ်လည်းပထမအယူခံရးုံ က
*
MaungThit Sa V. Maung Nat, 1 B.L.T., 146
8
ပယ်ြျက်ခ့သ
ဲ ည်။ အယူခံတရားလိုက အအာက်ဖမန်မာနိုင်ငံတရားရုံးချုပ်သို ့
တရားစွဲဆိုနုင
ိ ်သည်ဟု ဆုံးဖြတ်ခဲ့သည်။
တရားဥပအေအရချိုးအြာက်မမ
ှု ပါအသာနစ်နာမှု။
12
In Gloucester Grammar School Case, the plaintiff
complained that he had to reduce his fees at his school because of the
damaging a man in his business are tortious only if, the act causing
ယင်းအကျာင်းနှင့်အနီးတွင်
*
Per Hankford. J. in Gloueester Grammar School, (1410) Y.B. 11 Hen IV for.27 p1.21,22.
9
တရားပပိုင်ကအနာက်ထပ်အကျာင်းတစ်အကျာင်းြွင့်လှစ်ရာ အနာက်ြင
ွ ့်အသာ
တရားစွဲဆိုနုင
ိ ်မည်။ သာမန် အားဖြင့်မူ တရားမစွဲဆိုနိုင်ဟုဆုံးဖြတ်ခဲ့သည်။
rights that are equally regarded by the law: the right of the plaintiffs
ကုနသ
် ယ
ွ မ
် ှုနှင့် ပတ်သက်အသာတရားဝင် ကျင့်သုံးမှုတွင် အကာအကွယ်အပးထား
10
keeping in their own hands of the control of the carriage from certain
Chinese ports, and for the purpose of driving the plaintiffs and other
အဆုံးစွန်အထိ ထိမ်းသိမ်းရန်ရည်ရွယခ
် ျက်နှင့် ထို ့ဖပင်တရားလိုများနှင့် အဖခား
ကိုြွဲ ့စည်းလိက
ု ်သည်။ ၎င်းယှဉ်ပပိုင်မှုမှာ မျှတမှုမရှိဟု ချမှတ်ခဲ့လျှင်အတာင်မှ
ယှဉ်ပပိုင်မှုအခွင့်အအရးမှာ လူတိုင်းတွင်ရှိသည်။
ဥပမာ။
**
အမှုတစ်ခုတွင်လည်း (အအ)၊ (ဘီ) ၊ (စီ) နှင့် (ေီ) တို ့သည် သအဘောပိုင်ရှင်
**
Mogul Steamship Co.V. Mc. Gregor, Gaw& Co.(1892), A.C., 25
11
တရားဥပအေအရကုစားခွင့်
The third and the last ingredient of tort is that the plaintiff
must have entitled to get a legal remedy. In fact, the law of tort is to
်နှစ်ပုေ်ရှိသည်။
remedy.
2
တရား၀င်အခွင့်အအရးရှိလျှင် တရား၀င်ကုစားမှုမှာ ရှိစပမဲဖြစ်သည်။
1
Legal remedy
12
which he concealed. She sued him for assault, but her action was
dismissed, partly on the ground that mere concealment was not such
ဆုံးဖြတ်သည်။
(1) Damage
2
Ubi jus ibiremedium (When there's a legal right, there's a legal remedy.)
3
There's no wrong without a remedy.
*
HegartyV.Shine (1878), 4 L.R., Ir., 288.
13
နစ်နာမှု
(2) Malice
မသမာစိတ်
(3) Intention
ရည်ရွယ်ချက်
(4) Motive
အစ့အဆာ်စိတ်
2.4.1. Damage
နစ်နာမှု
စအသာ အဝါဟာရများ၏ကွာဖခားချက်ကိုသိသင့်ပါသည်။
ထိသ
ု ၏
ူ အသက်၊ခန္ဓာကိုယ်၊ ကျမ်းမာအရး၊ လွတ်လပ်မှု၊ ပစ္စည်းသို ့မဟုတ်
awarded by the court for the pecuniary loss suffered by the plaintiff.
deter the defendant and other from similar conduct in the future.
တရားရုံးက ဆုံးဖြတ်အပးသည့အ
် လျာ်အ ကး သို ့မဟုတန
် စ်နာအ ကးဖြစ်သည်။
ထိန
ု စ်နာအ ကး အတွက် ဆုံးဖြတ်ချက်သည် တရားလိုကို အပးအလျာ်ရန်ဖြစ်ပပီး
မျိုးမဖြစ်အစရန်ဖြစ်သည်။
2.4.2 Malice
မသမာစိတ်
man main cattle without knowing whose they are or that if he poison
မဟုတအ
် သာ်လည်း ဥပအေကတားဖမစ်ထားသည့် အဖပုအမူကိုဖပုမူဖခင်း
မည်သမ
ူ ည်ဝါဟူ၍ မသိရှိဘဲ နွားကိုရက်စက်စွာဓားဖြင့် ခုတ်ဖခင်းသို ့မဟုတ်
6
Ill-will
16
နစ်နာမှုဖြစ်အပါ်မည်ကို သိလျက်နင
ှ ့် အမှားဖပုလုပ်ဖခင်းသည် တရားဥပအေ
ထိသ
ု ဖူ ပုလုပသ
် ည့် တရားဥပအေကို ချိုးအြာက်ဖခင်းဖပုသည့် အအ ကာင်းဖခင်းရာတို ့မှ
မသမာစိတ်နှစ်မျိုးနှစ်စားရှိသည်။
(1) Defamation.
အသအရြျက်မှု။
ရန်ပငိုးထား၍ တရားစွဲဆိုမှု
1
Express malice, actual malice or malice in fact.
17
(5) Maintenance.
စားစရိတ်အတာင်းဆိုဖခင်း
2.4.3. Intention
ရည်ရွယ်ချက်။
အခွင့အ
် အရး တစ်ရပ်ကိုသိလျှက်နင
ှ ့် ချိုးအြာက်မသ
ှု ည် အအရးယူရ ဖခင်းအအ ကာင်း
တရားဖြစ်သည်။
18
2.4.4 Motive
အစ့အဆာ်မှု
အသုံးဖပုအလ့ရှိသည်။
has been decided that if a man has the misfortune to lose his spring
by his neighbour digging a well, he must dig his own well deeper.
*
အမှုတစ်ခုတွင် (အအ) သည် မိမိပိုင်ဖခံအဖမအပါ်တွင် အရတွင်းတူးရာ
*
Mayor of Bradford V.Pickles, (1895) A.C., 587
19
ဖခံချင်းကပ်လျက်ရိအ
ှ သာ (ဘီ) ၏အကျိုးကို ထိခိုက်နစ်နာအစရန် အစ့အဆာ်မှုဖြင့်
Key Terms
အသိအမှတ်ဖပုထားအသာ အခွင့်အအရး
Ub jus ibiremedium=တရား၀င်အခွင့်အအရးရှိလျှင်တရား၀င်ကုစားမှု
Necessity=လိအ
ု ပ်ချက်
Motive=အစ့အဆာ်စိတ်
20
Malice=မသမာစိတ်
Intention=ရည်ရွယ်ချက်
Forbidden by law=ဥပအေကတားဖမစ်ထားအသာ
Exercise Questions
explanation. (Assignment)
(Assignment)
Chapter 3
Classification of Torts
3.1.1 Assault 5
3.1.2 Battery 8
3.2.1.3.1. Remedies 15
3.2.1.7.1 Remedies 24
2
3.2.1.7.2 Defences 24
3.2.1.7.2.1. Prescription 26
3.2.1.7.2.4. Distress 29
3.2.1.7.2.6 Self-defence 31
3.3.2 Copyright 36
3.4.1 Libel 49
3.4.1.2 Written 52
3.4.1.3Defamatory 53
3.4.1.4 Death 53
3.4.1.5 Publication 54
3.4.2 Slander 63
Woman or Girl 67
Key Terms 74
Questions 75
4
Chapter 3
Classification of Torts
တရားမနစ်နာမှုအမျိုးအစားများ
တရားမနစ်နာမှုကိုအမျိုးအစားသုံးမျိုးခွဲခခားနိုင်သည်
လူခန္ဓာကိုယ်ကိုနစ်နာစစခခင်း
b. Invasion of interests in
ပစ္စည်းဥစ္စာကိုနစ်နာစစခခင်း
သူတစ်ပါး၏ဂုဏ်သတင်းနာမကိုထိပါးပပစ်မှားပြင်း
(i)Batteryနာကျင်စစမှု
(ii)Assaultလက်စရာက်မှု
(iii)False imprisonmentမှားယွင်းအကျဉ်းချခခင်း
5
လက်စရာက်မသ
ှု ည်လတ
ူ စ်စယာက်၏လုခံ ခုံမှုနှင့် ပတ်သက်စသာစ ကာင့်
ထိအ
ု ခပုအမူ သည် တရားပပိုင်ကသူ ့အစပါ်နာကျင်ထခ
ိ ိုက်စစမှုနှင့် သင့်စတာ်စသာ
uponhim, it is battery.
စခမာက်လက
ို ်သည်။ အခခားသူအား စရမပက်မဘ
ိ ဲစရများ ြိတ်စင်သွားခခင်းသည်
စရပက်မလ
ိ ျှင် နာကျင်စစမှု ခြစ်သည်။
battery.
6
အခခားသူအားကျီစယ်သည့်သစဘာခြင့်၎င်းထိင
ု ်မည့်ကုလားထိုင်ကို
စနာက်မဆ
ှ ွဲလိုက်သည့်အတွက်အခခားသူ၏ကိုယန
် ှင့် ကမ်းခပင်မထိစသးသည့အ
် ချိန်
တွင်လက်စရာက်မခှု ြစ်၍အခခားသူ၏ကိုယခ
် န္ဓာနှင့် ကမ်းခပင်ထသ
ိ ာွ းသည့အ
် ချိန်သ
ည်နာကျင်စစမှုစခမာက်သည့်အချိန်ခြစ်သည်။
စသနတ်နှင့်ပစ်မည်စခပာ၍ပစ်ရန်ချိန်ရွယ်ခခင်းသည်လက်စရာက်မခှု ြစ်သည်။
အကယ်၍စသနတ်ကိုပစ်ရန်ချိန်ရွယ်ခခင်းမရှိလျှင်
လက်စရာက်မစ
ှု ရာက်မည်မဟုတ်စပ။
လက်စရာက်မန
ှု ှင့် နာကျင်စစမှုမှာတရားမနစ်နာမှုခြစ်သကဲ့သို ့
အခါ ထိအ
ု ရာသည် လက်စရာက်မခှု ြစ်သည်။
7
amounting tomurder.
စူလုင
ိ ်မင်နှင့် ဘုရင်အမှုတွင် ခပစ်မှုကျူးလွန်သ၏
ူ ရည်ရွယ်ချက်နှင့် ၎င်း၏
လက်စရာက်မက
ှု ို ကျူးလွန်ခခင်းတွင် ပူးစပါင်းပါ င်မှုသည် စသစစစလာက်စသာ
and battery (Criminal force) can be effected and punishment for such
1
1941 RLR 258.
8
ခပစ်ေဏ်များကို စြာ်ခပထားသည်။
3.1.2 Battery
နာကျင်စစမှု
နာကျင်စစမှုသည်အခခားသူတစ်စယာက်ကို ကံရွယ်၍ခပုလုပ်စသာအင်အား
uponhim, it is battery.
စခမာက်လက
ို ်သည်။ အခခားသူအားစရမပက်မိဘဲစရများ ြိတ်စင်သွားခခင်းသည်
battery.
အခခားသူအားကျီစယ်သည့်သစဘာခြင့် ၎င်းထိင
ု ်မည့်ကုလားထိုင်ကို စနာက်
မှ ဆွဲလက
ို ်သည့်အတွက် အခခားသူ၏ကိုယ်ခန္ဓာနှင့် ကမ်းခပင်မထိစသးသည့်
entitled to damages.
အထူးအမျိုးအစားခြစ်ပပီး ထိန
ု စ်နာမှုမှလွတ်လပ်စသာ အကျိုးစကျးဇူးကို
တရားစွဲဆိုနုင
ိ ်သည်။ တရားမနစ်နာမှုကိုသက်စသခပခဲ့လျှင် ထိခိုက်မှုအတွက်
စလျာ်စ ကးရစစသည်။
10
မှာယွင်းအကျဉ်းချခခင်း
မှားယွင်း၍အကျဉ်းချခခင်းဆိုသည်မှာဥပစေနှင့်ညီစသာ အစ ကာင်းခပချက်
ကာမူထုသ
ိ ၏
ူ လွတ်လပ်ခွင့်ကို တားဆီး ခခင်း ခြစ်သည်။
ပစ္စည်းဥစ္စာကိုနစ်နာစစခခင်း
ပစ္စည်းလည်းပါသည်။
စရွ စခပာင်
့ းပစ္စည်းကိုစကျာ်နင်းမှု
ways: -
ပစ္စည်းစကျာ်နင်းမှု
စခပာင်းလည်းခခင်းဆိုင်ရာစကျာ်နင်းမှု
စရွှေ စခပာင်
့ းနိုင်စသာပစ္စည်းလက်စရာက်ရလိုမှုအတွက်စကျာ်နင်းမှု
ပစ္စည်းစကျာ်နင်းမှု
Act 1932. Section 27, themaxim Nemo dat quod non habetwhich
says that no one can give a bettertitle than he himself possesses. But
there is an exception, such as, where aperson who takes in good faith
ကုနပ
် စ္စည်းစကျာ်နင်းမှုသည် ကုန်စည်စရာင်းချစရးအက်ဥပစေပုေ်မ၂၇ကို
ရည်ညွှေန်း၍ ထိပ
ု စ္စည်းများ၏ပိုင်ဆိုင်မှုနှင့် ပတ်သက်၍မှားယွင်းစသာစနှာက်ယှက်
မှုခြစ်သည်။ မည်သမ
ူ ျှသက
ူ ိုယ်တိုင်ပိုင်ဆိုင်မှုထက်ပို၍ စကာင်းစသာပိုင်ဆိုင်မှု
သစဘာရိုးခြင့် စဆာင်ယူလျှင်စကာင်းမွန်စသာပိုင်ဆိုင်မှုရသင့်သည်။
12
စခပာင်းလဲခခင်းဆိုင်ရာစကျာ်နင်းမှု
လူတစ်စယာက်၏ကုန်စည်များနှင့်ပတ်သက်၍ခပုလုပ်စသာအခပုအမူကဲ့သို ့
သတ်မှတ်သည်။စခပာင်းလဲခခင်းဆိုငရ
် ာစကျာ်နင်းမှုတွင်အချက်နစ
ှ ်ချက်ရိသ
ှ ည်။
ကုနစ
် ည်များကိုရထိက
ု ်စသာသူ၏အခွင့အ
် စရးနှင့မ
် ညီညွတ်စသာ
ကုနစ
် ည်နှင့်ပတ်သက်သည့်အခပုအမူ
ချက်ရိခှ ခင်း။
စခပာင်းလဲခခင်းဆိုငရ
် ာစကျာ်နင်းမှုကို စအာက်ပါနည်းများခြင့် စကျာ်နင်း
မှုခပုနိုင်သည်။
ကုနပ
် စ္စည်းများကို လက် ယ်ရယူခခင်း
13
it.
ခပုလုပ်ခခင်း
ပစ္စည်းအားလုံးလက် ယ်မရှိစသာ်လည်းတရားလိုပိုင်ပစ္စည်းများကို
စရွှေ စခပာင်
့ းနိုင်စသာပစ္စည်းလက်စရာက်ရလိမ
ု ှုအတွက်စကျာ်နင်းမှု
စရွှေ စခပာင်
့ းနိုင်စသာပစ္စည်းလက်စရာက်ရလိုမှုအတွက်စကျာ်နင်းမှုသည်
ဆိုငရ
် ာ စရွှေ စခပာင်
့ းပစ္စည်းအမျိုးမျိုး ခပန်လည်ရရှိရန်အတွက် တည်ရှိစနစသာ
စသာ အခွင့်အစရးမရှိဘဲထိန်းသိမ်းထားနိုင်သည်။
14
before the demand, unless he provesthat he did not loss them through
his negligence.
ထိတ
ု ရားစွဲဆိုမအ
ှု မျိုးအစားသည် ထိပ
ု စ္စည်းများကို လက် ယ်ရရှိထားစသာ
သူတစ်စယာက်ထမ
ံ ှ မှားယွင်းစွာ ထိန်းသိမ်းထားခဲ့စသာ ကုန်ပစ္စည်းများသီးခခား
စပးရမည့စ
် လျာ်စ ကးအတွက်လည်း ခြစ်သည်။ တရားပပိုင်သည် စတာင်းဆိုမှု
ဆုံးရှုံးရခခင်းမဟုတစ
် ကာင်း သက်စသမခပနိုင်လျှင် တရားပပိုင်တွင် စရွှေ စခပာင်
့ း
နိုင်စသာပစ္စည်းလက်စရာက်ရလိုမှုအတွက်စကျာ်နင်းမှု စ ကာင့တ
် ာ န်ရှိသည်။
15
3.2.1.3.1. Remedies
ကုစားခွငမ
့် ျား
If the plaintiff succeeds in his case he may take one of the three
forms ofjudgments.
တရားလိုသည်သ၏
ူ အမှုတွင်စအာင်ခမင်ခဲ့လျှင် စအာက်ပါစီရင်ချက်ပုံစံများ
မှ တစ်ခုကိုကုစားခွင့်ရယူနင
ို ်သည်။
ကုနစ
် ည်များ ခပန်လည်ရရှိမှုအတွက် သို ့မဟုတ် ခနမ့် ှန်တန်ြိုးကို
ထိန်းသိမ်းမှုအတွက်
ကုနပ
် စ္စည်းပျက်စီးမှုဆိုငရ
် ာစလျာ်စ ကးအတွက်ခပန်လည်ရရှိရန်
စလထုစကျာ်နင်းမှု
land bring with them the ownership and possession of the column of
the space above the surface of such land. In fact, the owner of the
land has in private law the right to sue for his own purpose, to the
16
accepted view that the invasion of the air-space above a man's land
could not be trespass, unless there was some actual contact with the
land itself.
ရှိစသာ စလထုကိုပိုင်ဆိုငမ
် ှုနှင့် လက် ယ်ရှိမှုရှိသည်။ အမှန်မှာစခမယာပိုင်ရှင်သည်
ပုဂ္ဂလက
ိ ဆိုင်ရာ ဥပစေ အရ သူ၏ကိုယပ
် ိုင်ရည်ရွယ်ချက်အတွက်၊ အခခားအရာ
ဟုမဆိုနုင
ိ ်စပ။
their own property, which projected into the air-space above the
plaintiff's shop, was trespass over the air-space. Legal rights should
damage.In respect of aero planes and other aircraft this matter is now
2
1946. K. B 374.
17
အထက်ရိှ စလထုထတ
ဲ ွင် စဆာင်ရွက်ခဲ့ ကခခင်းသည် စလထုစကျာ်နင်း
နှင့်လည်းသက်ဆိုင်သည်။
the air shall be punishable with imprisonment for a term which may
extend to six months, or with fine which may extend to one thousand
အခပုအမူခြင့်စလယာဉ်တစ်စင်းစင်းသည် ဥပစေကိုမလိက
ု ်နာဘဲ ပျံသန်းလျှင်
ပူးတဲပိုင်ရှင်များ၏စကျာ်နင်းမှု
trespassfor acts done by one inconsistent with the rights of the other.
ကိုတရားစွဲနိုင်သည်။
3
In GopeeKishen vs. Hem Chhunder's Case , the Court has
ပိုငဆ
် ိုငသ
် ည့် စခမစပါ်တွင် အစဆာက်အဦးတစ်ခ ုစဆာက်လပ
ု ်ခခင်းအတွက်
တရားရုံးကတား ရမ်းထုတ်၍တားခမစ်ခဲ့ရသည်။
3
1870,13. W.R 322.
20
တိရ စ္ဆာန်စကျာ်နင်းမှု
animals.
အတွက်တာ န်ရှိသည်။
means cattle,horses, mules, sheep, pigs, goats and poultry and also
the defendant's landfrom the plaintiff's, it was held that there was a
အမှုတစ်ခုတွင်တရားခံ၏ခမင်းတစ်စကာင်က
ခမင်းမတွင် ေဏ်ရာများရရှသ
ိ ာွ းသခြင့် တရားခံတွင် တာ န်ရှိစ ကာင်း
တရားရုံးကဆုံးခြတ်ခဲ့သည်။
4
In Maung Ngwe Sein vs. Mg Hla Pe Case , a young colt
the appellant, has been kickedseveral times on the stomach and with
4
1959.B.L.R.37.(H.C)
22
Township Court was set aside on the ground that there was no
proofof vicious nature of the colt. The appellant put up the case to
escape,to infect other animals with which they may come into
ခမန်မာနိုင်ငံတွင်ခြစ်ပွားခဲ့စသာအမှုတစ်ခုတွင်ဆိတ်တစ်စကာင်သည်သတ
ူ စ်
ဆိတပ
် ိုင်ရှင်၏စပါ့စလျာ့မှုမရှိစသာစ ကာင့် စလျာ်စ ကးမစပးထိက
ု ်ဟုဆုံးခြတ်ခါ
စလျာ်စ ကးစပးစစဟူ၍ဆုံးခြတ်ခဲ့သည်။
23
မူလအစကနဦးကပင်စကျာ်နင်းမှု
ထိသ
ု သ
ူ ည်မူလကတည်းက စကျာ်နင်းမှုခပုသူခြစ်သည်။ သူ၏ယခင်က
In fact the term ab initio means from the very beginning. The
ဆိုလသ
ို ည်။ ထိစ
ု ည်းမျဉ်းကို ဥပစေကစပးထားစသာ င်စရာက်ခင
ွ ့် ခွင့်ခပုမိန ့်
များနှင့သ
် ာလျှငသ
် က်ဆိုငသ
် ည်။ ပစ္စည်းမှစပးအပ်ထားခခင်းမဟုတစ
် ပ။
important area of a man’s person, goods and land against the abuse
of official power.
24
မူလကတည်းကစကျာ်နင်းမှုမူသစဘာတရားသည်တရား င်လပ
ု ်ပိုင်ခွင့်ကို
ဆနက ့် ျင်အလွသ
ဲ ံးု စားခပုစသာ လူ၊စခမ၊ကုန်စည်တို ့၏ အစရးပါစသာ စနရာများ
တွင် ခပုလုပ်ခဲ့ခခင်းခြစ်သည်။
3.2.1.7.1 Remedies
ကုစားမှုများ
စကျာ်နင်းသူ၏အစပါ်တွင် တရားစွဲဆိုအစရးယူနိုင်သည်။
စကျာ်နင်းသူကို အတင်းအဓမ္မနှင်ထတ
ု ်နိုင်သည်
3.2.1.7.2 Defences
ကာကွယခ
် ုခံမှုများ
အချက်များခြစ်သည်။
25
(1) Prescription
ခွင့်ခပုချက်ရရှိခခင်း
(4) Distress
စ ကးပမီရရန်ရှိ၍ ပစ္စည်းြမ်းဆီးသိမ်းယူခခင်း။
လိအ
ု ပ်သည့်အတွက် ၀င်စရာက်ခခင်း။
(6) Self-defence
မိမိကိုယ်ကက
ို ာကွယ်ရန်အတွက် ၀င်စရာက်ခခင်း။
အိမ်စခမယာအတွင်းသို ့ ခပန်လည်၀င်စရာက်ခခင်း
မိမိပိုင်ပစ္စည်းကို၀င်စရာက်ယူခခင်း
စိတ်ပငိုခငင်စနှာက်ယှက်မက
ှု ို ြယ်ရှားခခင်း
26
3.2.1.7.2.1. Prescription
It is also with the same case, where there is aright of way given to
the defendant.
1
Prescription
27
ထိအ
ု ရာကို စရှာင်ရှားရန် စကျာ်နင်းမှုလအ
ို ပ်သည်။ ကာလစည်းကမ်းသပ်
ထိပ
ု စ္စည်းပိုင်ဆိုင်မှုနှင့်ပတ်သက်၍ တရားစွဲရမည်။အလားတူပင် တရားပပိုင်
ကိုလည်း လမ်းအသုံးခပုခခင်းဆိုငရ
် ာ အခွင့်အစရးစပးထားသည်။
ခွင့်ခပုချက်နင
ှ ့်အမိန ့်
ထိအ
ု ရာနှင့် ဆက်စပ်စနစသာ အခခားအခပုအမူကိုခပုလုပ်ရန် ဥပစေနှင့်အညီ
but only makes an action lawful which without it, would havebeen
လျှင် ဥပစေနှင့်မညီခြစ်လမ
ိ ့်မည်။ လူတစ်စယာက်သည် ပိုင်ဆိုင်သူ၏
ခွင့်ခပုချက်ခြင့်စခမစပါ်တွင်ရှိလျှင်စကျာ်နင်းမှုခပုသည်မမည်။ ကိစ္စရပ်အားလုံးသည်
လက်ရှိရည်ရွယ်ချက်များအတွက်ခြစ်သည်။
goods orpersons၊ are frequently prevented from being if such acts are
င်စရာက်ခင
ွ ရ
့် ှိသည်။ ရဲအရာရှိတစ်စယာက်သည် အများခပည်သဆ
ူ ိုငရ
် ာ
အိမ်တစ်အိမ်ကို ထိအ
ု ိမ်၏တံခါးမှ ဆူပူမှုကိုစုံစမ်းရန်အလို ့ငှာ ညည့န
် က်
အချိန် င်စရာက်ခ့လ
ဲ ျှင်စကျာ်နင်းမှုမမည်။ ခခံပိုင်ရှင်ကစီမံခနခ့် ွဲရန်ခနထ ့် ားသူသည်
က ရမ်းခြင့် ပမီစားကိုြမ်းရန်)
3.2.1.7.2.4. Distress
စ ကးပမီရရန်ရှိ၍ ပစ္စည်းြမ်းဆီးသိမ်းယူခခင်း
recovery of rent.Thus if the rent has not been paid, the landlord may
become illegal.
သည်တရားမ င်စပ။
လိအ
ု ပ်သည့်အတွက် ၀င်စရာက်ခခင်း။
One may lawfully protect one's person and property (and that
3.2.1.7.2.6 Self-defence
မိမိကိုယ်ကိုကာကွယ်ရန်အတွက် ၀င်စရာက်ခခင်း
င်စရာက်ခ့လ
ဲ ျှင် စကျာ်နင်းမှုအတွက် မည်သမ
ူ ျှတာ န်မရှိစပ။
အိမ်စခမယာအတွင်းသို ့ ခပန်လည်၀င်စရာက်ခခင်း
မရှိစပ။
မိမိပိုင်ပစ္စည်းကို၀င်စရာက်ယူခခင်း
for the purpose ofrecaption. But if such goods are on the land of
မိမိပိုငဥ
် ပစာစပါ်တွင်ကို တစ်ပါးသူ၏ပစ္စည်းကို ယူထားလျှင်
စိတ်ပငိုခငင်စနှာက်ယှက်မက
ှု ို ြယ်ရှားခခင်း
interfered withhis own trees or plants. He may also have the right to
ထိသ
ု သ
ူ ည် အလင်းစရာင် သို ့မဟုတ် စမ်းစချာင်း၏စီးဆင်းမှုကဲ့သို ့
အခွင့ရ
် ှိသည်။ မှတ်သားရမည်မှာ စိတ်ပငိုခငင်စနှာက်ယှက်မက
ှု ို ြယ်ရှားခခင်းမှာ
မလိအ
ု ပ်စသာြျက်ဆီးခခင်းကို မလုပ်ရစပ။
34
ကိုင်တွယ်၍မရစသာ ပစ္စည်းများကိုနစ်နာမှုများ
private persons, such asmarkets and ferries. Clearly, the law to these
မှတ်ပုံတင်ထားစသာ ကုနအ
် မှတ်တံဆိပမ
် ျားနှင့် အမျိုးမျိုးစသာ မဲဆန္ဒစပးပိုင်ခွင့်
အထူးအခွင့်အစရးများကို ပုဂ္ဂလက
ိ လူများကိုအပ်နှင်းထားသည်။ ရှင်းလင်းစွာ
ဥပစေခြစ်သည်။
မှတ်ပုံတင်မူပိုင်ခွင့်
must have indented ordiscovered some new and useful art, machine,
andDesigns Act 19452. The term limited in every patent for the
မှတ်ပုံတင်မူပိုင်ခွင့်ဆိုသည်မှာအချုပ်အချာအာဏာပိုင်များကစပးထားစသာ
အထူးအခွင့်အစရးကို တိထင
ွ ်သအ
ူ ားကနသ့် တ်ထားစသာ
အချိန်အတွင်းလုခံ ခုံမှုစပးထားပပီးတီထင
ွ ်မှုတစ်ခုကို ခပုလုပ်ရန်၊အသုံးခပုရန်၊
အနုပညာ၊စက်ပစ္စည်း၊ ထုတ်လပ
ု ်မှုများ၊ သို ့မဟုတအ
် ချို ့စသာ၊ အသစ်ခြစ်စသာ၊
ခပည်စထာင်စုသမ္မတခမန်မာနိုင်ငံတွင်တီထွင်မှုမူပိုင်ခွင့်နှင့်ပတ်သက်စသာအ
Actခပဋ္ဌာန်းစပးထားသည်။တီထွင်မမ
ှု ူပိုင်ခွင့်အတွက်စပးထားစသာအချိန်ကာလမှ
36
နှစ်ခြစ်သည်။
ခပုလုပ်လျှင်တီထွင်မှု မူပိုင်ခွင့်ကခ
ို ျိုးစြာက်နုိင်သည်။
ပစ္စည်းတစ်ခုခုကိုစကျာ်နင်းသည့အ
် ခါတိုင်းတွင်
3.3.2 Copyright
စာစပ၊အနုပညာ၊မူပိုင်ခွင့်
ရိုက်ကူးထုတ်လပ
ု ်ရန်ဥပစေနှင့အ
် ညီ သီးသနအ ့် ခွင့်အစရးခြစ်သည်။ စာစပ
ခပန်လည်ထုတ်လပ
ု ်ရန် သို ့မဟုတ် လူထုအ ကားသင်ခန်းစာပို ့ချသည့်အလုပ်
ပုံနှိပ်ထတ
ု ်စ ခခင်းမခပုရစသးလျှင် ထိအ
ု လုပ် သို ့မဟုတ် အစိတ်အပိုင်းတစ်ရပ်ကို
ပုံနှိပ်ထတ
ု ်စ ရန်စအာက်စြာ်ခပပါအခွင့အ
် စရးရှိသည်။
thework;
ထိအ
ု လုပ်၏ဘာသာခပန်ဆိုမှုကိုထုတ်လပ
ု ်ရန်၊ခပန်လည်ထုတ်လပ
ု ်ရန်၊စဆာင်ရွက်ရ
other nondramawork;
အခခားစသာခပဇာတ်အနုပညာလက်ရာများသို ့စခပာင်းလဲရန်။
38
အခခားနည်းလမ်းခြင့်ခပဇာတ်အခြစ်စဆာင်ရွက်ရန်။
အခခားစသာခပုလုပ်ရန်နှင့်အဆိုပါအနုပညာလက်ရာတစ်စုံတစ်ရာအတွက်အထက်
ပါအတိင
ု ်းလုပ်ပိုင်ခွင့်စပးထားသည်။ မူပိုင်ခွင့်ဆိုသည်မှာစာအုပ်၊ စဆာင်းပါး၊
ထုတလ
် ုပ်ရန် တစ်ခုတည်းစသာအခွင့်အစရးခြစ်သည်။ သို ့မဟုတအ
် စိတ်အပိုင်း
တစ်ခုခုခြစ်သည်။
isnecessary that –
39
ကာကွယ်ရန် ရည်ရွယ်ချက်ရိသ
ှ ည်။ စယဘုယျအားခြင့် စ ကာ်ခငာစာများနှင့် အမျိုး
1
အမည်ခွဲခခား စြာ်ခပသည့အ
် မှတ်အသား စက္က ူချပ် များ အတွက်မူပိုင်ခွင့်
2
မရှိစသာ်လည်း ကတ်တစလာက် များအတွက်မူ မူပိုင်ခွင့်ရှိသည်။
စာစပအနုပညာလက်ရာ
ခပဇာတ်
1
Label
2
Catalogues
40
အနုပညာ
ပန်းပုလက်ရာ
ဗိသုကာလက်ရာ
(6) Engravings
ပုံထွင်းပန်းခတ်ခခင်း
(7) Photograph
ဓာတ်ပုံပညာ
(8) Cinematograph
ရုပ်ရှင်
(9) Plate
စ ကးစသည်ဆိုင်းဘုတ်သို ့မဟုတပ
် ုံနှိပ်ရန်သတ္တ ုခပား
(10) Lecture
သင်ခန်းစာ
ကုနအ
် မှတ်တံဆိပ်
ကုနသ
် ယ
ွ ်မှု ခပုသူတိုင်းသည် ကုနအ
် မှတ်တံဆိပအ
် ခွင့်အစရးကို ရရှိနိုင်စသာ
အခွင့်စရး ခြစ်ပါသည်။
beenadopted by making it, appear that the goods sold under it are the
Trade-
အဂ်လပ
ိ ်ရးို ရာဥပစေအရ ကုန်စည်အမည် သို ့မဟုတ် ကုန်အမှတ်တံဆိပ်
အသုံးခပုမှုကို ကုနအ
် မှတ်တံဆိပခ် ပုလုပ်ပပီးကုန်အမှတ်တံဆိပ်ခြင့် ကုနစ
် ည်ကို
သည့စ
် နစ် မရှိစသးစပ။ကုန်အမှတ်တံဆိပန
် ှင့် ပတ်သက်ပပီးပိုင်ဆိုင်မှုဆိုင်ရာ
ခပဌာန်းထားစသာဥပစေလည်းမရှိစသးစပ။
ကုနအ
် မှတ်တံဆိပစ
် တာင်ဆိုရန် စဆာင်ရွက်စသာအမှုသည်များကို အလိပပ်
တံဆိပဆ
် ိုင်ရာ အခွင့်အစရးသည်စဆာင်ရွက်မှုမှာ ကူးသန်းစရာင်း ယ်စရးဆိုင်ရာ
အစထွစထွစည်းမျဉ်းများအစပါ်တွင်တည်မှီစနသည်။
The fundamental rule is that, "one man has no right to put off
အစခခခံကျစသာစည်းမျဉ်းတစ်ခုမှာလူတစ်စယာက်သည်သူ၏ကုန်စည်များ
ကိုစရာင်းချရန်အတွက်အပပိုင်အဆိုငခ် ြစ်စသာအခခားကုနသ
် ည်၏ကုနစ
် ည်ကဲ့သို ့
အတုခပုလုပ်စရာင်းချရန် လုပ်ရန်အခွင့်အစရးမရှိစပ။
liable not only to pay damages, but also an injunction will be lieto
ဥပစေက ကုနသ
် ယ
ွ ်မှုစီးပွားစရးလုပ်ငန်းများ၏ ကိစ္စရပ်များတွင်
ကုနအ
် မှတ်တံဆိပအ
် တုခပုလုပ်ခခင်းကိုစအာက်ပါနည်းများခြင့်လည်းကျူးလွန်နိုင်
သည်။
တရားလိုကဲ့သို ့ ကုနစ
် ည်ကိုစရာင်းချခခင်း
43
တရားလို၏နာမည်ကိုအသုံးခပုခခင်း
တရားလို၏ကုနစ
် ည်အမည်ကိုအသုံးခပုခခင်း
တရားလို၏ကုနအ
် မှတ်တံဆိပက
် ိုအသုံးခပုခခင်း
တရားလို၏ကုနစ
် ည်များကိုအတုခပုလုပ်ခခင်း
တရားလိုထက်အရည်အစသွးနိမ့်စသာကုနစ
် ည်ကိုစရာင်းချခခင်း
(7)False advertising.
မှားယွင်းစသာစ ကာ်ခငာခခင်း
ကုနအ
် မှတ်တံဆိပစ
် ါဟာရကို ရာဇသတ်ကကီးဥပစေပုေ်မ ၄၇၈ တွင်
အဓိပ္ပာယ် ြွင့်ဆိုထားပါသည်။
တစ်ဦးတစ်စယာက်စသာသူ၏ ထုတ်လပ
ု ်ကုနစ
် ည်ခြစ်စ ကာင်းကို စသာ်
အသုံးခပုစသာ အမှတ်အသားကိုကုန်အမှတ်တံဆိပဟ
် ုစခါ်သည်။
Penal Code forthe use of false Trade-Mark is three years from the
date of the commissionof the offence charged or one year from the
is less.
စြာ်ခပထားသည်။ကုန်အမှတ်တံဆိပက
် ို မှားယွင်းစွာ အသုံးခပုမှုအတွက်
စ၍တစ်နှစ်ခြစ်သည်။
which the Court held that, although the appellant plaintiff had used
Company, but with his own consent, it has been permitted to beused
taken as the property ofthe firm under section (14) of the Partnership
Act.
ဤအမှုတွင်တရားရုံးက စအာက်ပါအတိင
ု ်း ဆုံးခြတ်ထားပါသည်။
အယူခံတရား လိသ
ု ည် အခငင်းပွားမှုတွင်ပါ င်စသာ ကုန်အမှတ်တံဆိပခ် ြစ်စသာ
ဗန္ဓုလတံဆိပက
် ို B Y C ကုမဏ
္ပ ီမြွဲ ့စည်းမီကပင် ကာရှည်စွာအသုံးခပုခဲ့သည်။
မရှိဘဲနှင့် ကုမဏ
္ပ ီ ြျက်သိမ်း သည့အ
် ချိန်အထိ ကုမဏ
္ပ ီကအသုံးခပုရန်
ကုနအ
် မှတ်တံဆိပက
် ိုကိုယ်ပိုင်ပစ္စည်းကဲ့သုိ ့ အသုံးခပုခွင့်ရှိလမ
ိ ့်မည်။ အစုစပ်
စဆာင်ရွက်နိုင်လမ
ိ ့်မည်။
5
1968 B.L.R C.C(73).
46
character.
စဂျာ်နီ ါကားနှငသ
့် ားများကုမ္ပဏီနှင့် ဦးသန်းစရွှေအမှုတွင် တရားရုံးက
ကုနစ
် ည်များနှင့်ဆက်စပ်စနစသာ ကုနအ
် မှတ် တံဆိပ် သုံးစွဲခခင်းမှ အခခား
WALKER, on his blood Tonic bottles. TheCourt found out that the
dismissed.
အယူခံကိုပလပ်လုက
ိ ်သည်။
တရားစွဲဆိုမက
ှု ို နစ်နာမှု သက်စသမခပနိုင်လျှင်စတာ်မှ
စအာက်ပါနည်းများခြင့် တရားစွဲဆိုနုင
ိ ်သည်။
(1) an injunction.
တား ရမ်း
apprehended wrong.
လမ်းလွစ
ဲ စရန် ခပုခဲ့လျှင် မှားယွင်းမှုကို တားခမစ်နိုင်စသာ တား ရမ်း
ထုတ်စပးရသည်။
business.
သူတစ်ပါး၏ဂုဏ်သတင်းနာမကိုထိပါးပပစ်မှားပြင်း
defamation:-
(1) Libel
49
စာခြင့်စရးသား၍သူတစ်ပါး၏ဂုဏ်သတင်းကို ညှိုးနွမ်းစအာင်ခပုခခင်း
(2) Slander
နှုတ်ခြင့်စရးသား၍သူတစ်ပါး၏ဂုဏ်သတင်းကို ညှိုးနွမ်းစအာင်ခပုခခင်း
3.4.1 Libel
စာခြင့်စရးသား၍သူတစ်ပါး၏ဂုဏ်သတင်းကို ညှိုးနွမ်းစအာင်ခပုခခင်း
သား၍သူတစ်ပါး၏ဂုဏ်သတင်းကို ညှိုးနွမ်းစအာင်ခပုခခင်း
စာခြင့်စရးသား၍သူတစ်ပါး၏ဂုဏ်သတင်းကို ညှိုးနွမ်းစအာင်ခပုခခင်းအတွက်
50
မှာယွင်းစသာစွတ်စွဲချက်
(2) It is written
စာခြင့်စရးသားထားရမည်။
(3) It is defamatory
သူတစ်ပါး၏ဂုဏ်သတင်းကိုညှိုးနွမ်းစစရမည်။
(4) It is published.
အများသိစစရန်စ ကခငာခခင်း
မှားယွင်းစသာ စွပ်စွဲချက်
defendant communicatedto the third party (but not just to his wife)
စရးသားစွပစ
် ွဲခခင်းခြစ်သည်ဟူ၍ အစထာက်အထား မခပနိုင်မခခင်း၊ စွပ်စွဲချက်
သည် မှာယွင်းမှန်းသိလျက်နင
ှ ့် စွပ်စွဲချက်တစ်ခုကို စရးသားထားစ ကာင်း
အတွက် မည်သတ
ူ စ်ဦး တစ်စယာက်ကမျှ စနာက်ထပ်စုံစမ်းစစ်စဆးရန်
မလိစ
ု တာ့စချ။ သို ့ခြစ်ခခင်းစ ကာင့် ထိအ
ု ချိန်မှစ၍ လူတိုင်းက တရားပပိုင်တွင်
အရာမစရာက်စပ။
52
3.4.1.2 Written
စာခြင့်စရးသားထားရခခင်း
3.4.1.3. Defamatory
သူတစ်ပါး၏ဂုဏ်သတင်းကိုညှိုးနွမ်းစစခခင်း
3.4.1.4 Death
စသဆုံးသူ၏ ဂုဏ်သစရကိုြျက်ခခင်း
cum persona" meaning; the right of action lies with the ofthe person.
ထိခိုက်နစ်နာမှုများတွင် ထိသ
ု က
ူ သာလျှင် အစရးယူစဆာင်ရွက်ခွငရ
့် ှိခခင်း
ခြစ်သည်။
3.4.1.5 Publication
အများသိစစရန်စ ကခငာခခင်း
think of a man, and not his own opinion ofhimself; in other words,
အများသိစစရန်ပုံနှိပ်ထုတ်စ ခခင်းဆိုသည်မှာ
စြာ်ခပချက်ကိုပံန
ု ှိပ် ထုတ်စ ခခင်းမှာ တရားစွဲဆိုရန်အတွက် အလို အပ်ဆုံးအချက
ခြစ်သည်။ တရားလိက
ု ိုယ်တိုင်သို ့ ဆက်သွယ်ခခင်းသည် မလုစ
ံ လာက်ဘဲ
ပုံနှိပ်ထတ
ု ်စ ခခင်းမခပုနိုင်။ အများသိစစရန်စာနှင့် ပုံနှိပ်ထုတ်စ ခခင်းတွင်
6
1901.2.K.B.1.
56
amusing his readers and believingthat the plaintiff would not object
ထည့သ
် င
ွ ်း စရးသား၍ ထုတ်စ လိုက်သည်။ တရားရုံးက တရားပပိုင်တွင်
*
Cook V. ward, (1830), 6 Bing, 409
57
following.
(3) He did not know and had no reason to suppose that it was likely
ကူး၍ ထည့သ
် င
ွ ်းရသည်။ တရားလိုက အသစရြျက်မှု ခြင့် တရားစွဲဆိုရာတွင်
ဆက်သွယ်စခပာဆိုရန် လိအ
ု ပ်သည့်အစလျာက် ၄င်း၏လုပ်ငန်းကို လုပ်ကိုင်
*
Boxsius V. Goblet Freres, (1894), 1 Q.B., 842.
58
သတင်းစာတွင်သူတစ်ပါး၏ဂုဏ်သတင်းကိုညိုှ းနွမ်းစအာင်စရးသားခခင်းမှ
အသစရြျက်မှုအတွက် သီးခခားစသာ်လည်းစကာင်း၊ပူးတွဲ၍စသာ်လည်းစကာင်း
တရားစွဲဆိုမနှင့်ဆိုင်သည်။
ထိစရာက်စသာကာကွယ်မှုတွင်
Code)
သင့်သည်ခြစ်လျှင်၊ ထိစ
ု ွပ်စွဲချက်သည် အသစရြျက်မခှု ြစ်သည်မမည်။
အများခပည်သအ
ူ ကျိုးအတွက် ဟုတ်မဟုတဆ
် ိုစသာအချက်မှာ အစ ကာင်းခခင်း
ရာခပဿနာ ခြစ်သည်၊
(2) Truth and good faith on the part of the person making the
အကျင့်စာရိတ္တသည် ထိသ
ု ၏
ူ အခပုအမူ၌ ထင်စပါ်စနသည်အထိ ထိသ
ု ၏
ူ
ခြစ်သည်မမည်။
60
အများခပည်သူ ့ခပဿနာဆိုငရ
် ာတစ်ဦးတစ်စယာက်စသာသူ၏အခပုအမူနှင့်
ထင်စပါ်စနသည်အထိ ထိသ
ု ၏
ူ အကျင့်စာရိတ္တနှင့်စပ်လျှဉ်း၍စသာ်လည်းစကာင်း၊
သည် အသစရြျက်မှုခြစ်သည်မမည်။
(3) Truth and good faith for the public good. (Exception 9 Section
( ခပစ်မှု၏ဆိုငရ
် ာဥပစေပုေ်မ ၄၉၉ ၏ချွင်းချက် ၉)
another, provided that the imputation is made in ood faith for the
sued theBama Khit Press proprietor U Ohn Khin and Five others for
Supreme Court.
*
အမှုတစ်ခုတွင် စလျှာက်ထားသူ ဦးစစာဟန်သည် ဗမာ့စခတ်သတင်း
သာရရှိခဲ့သည်။
မသိရှိခခင်း။
(2) that his ignorance was not due to any negligence on his
ownpart.
မဟုတ် ခခင်း။
63
(4) that he did not know, and had no ground for supposing that
excused fromliability.
3.4.2 Slander
နှုတ်ခြင့်စရးသား၍သူတစ်ပါး၏ဂုဏ်သတင်းကို ညှိုးနွမ်းစအာင်ခပုခခင်း
wordscomplained of are:
(1)false
မဟုတမ
် မှန်ခခင်း။
(2) defamatory
(3) publication
တရားလိုအစပါ်တွင် အထူးနစ်နာမှုရှိခခင်း
damage. Hence we say that slander is not actionable per se. The
plaintiff must prove and plead that he has suffered special damage as
defamatory statement.
စယဘုယျအားခြင့် နှုတ်ခြင့်စရးသား၍သူတစ်ပါး၏ဂုဏ်သတင်းကို
တရားစွဲဆိုနုင
ိ ်သည်။ ထို ့စ ကာင့် နှုတ်ခြင့်စရးသား၍သူတစ်ပါး၏ဂုဏ်သတင်းကို
ရမည်။
65
ခပစ်မှု
must be the direct imputation of the offence, and must not be a mere
ဆိုနုင
ိ ်သည်။ သို ့စသာ် ခပစ်မှုနှင့်ပတ်သက်၍ တိုက်ရက
ို ် ခပစ်မစ
ှု ွပ်စွဲ စခပာဆိုခခင်း
မည်မဟုတစ
် ပ။
8
In Ma Nu v. Ma New Case , Ma Nwe sued Ma Nu for
exclude from the society. The Court held that she is entitled to get
၁၀ ိ/-စပးစစဟု ဆုံးခြတ်ခဲ့သည်။
စွပ်စွဲခခင်းမျိုးခြစ်ရမည်။
accused Mg Pan Aung of stealing the palm leaf inscriptions from the
monastery. For that Mg Pan Aung sued for damages claiming his
right up to the highest Court of Judiciary i.e. High Court. The High
ကူးစက်တတ်စသာစရာဂါ
ယားယံသည့စ
် ရာဂါ အစရှိသည့် ကူးစက်ခပနပ့် ွားစစတတ်စသာ စရာဂါရှိသည်ဟု
the injured plaintiff can takean action without such special proof.
68
တရားလိုက အထူးသက်စသခပရန်မလိပ
ု ဲ တရားစွဲဆိုနုင
ိ ်သည်။
9
In Maung Nyo v. Ma Te Case , the Chief Court of Upper
habits, and for that false imputation itwas actionable with proof of
9
1915 L.B.R(1914-1916).p 98.
**
Nga Nyo V. Mi Ti, U. B. R. Vol. II, (1914-1916) p. 98.
69
10
In another case of Ma Pan Yi v. Mg Pan Aung , Ma Pan Yi
accused Mg Pan Aung of stealing the palm leaf and scriptions from
the monastery. For that Mg Pan Aung sued for damages claiming his
right up to the highest Court of Judiciary i.e. High Court. The High
သာမန်ဆဲစရးတိုင်းထွာခခင်း
10
U.B.R Civil vol. II. (1904-06) pd.
**
Ma Pan Yi V. Mg Pan Aung, U.B.R Civil vol. II. (1904-06) pd.
70
Tha Dunof a son of a pig, son of a bitch and so on. For those
Court. But the Court heldthat, such insulting words are normally
get damages.
*
အမှုတစ်ခုတွင် စမာင်စကျာ်က သာေွန်းအား အမိယုတ်သား၊
ဆုံးခြတ်ခဲ့သည်။
12
But in Parvathi vs. Mannar Case , the defendant used vulgar
words,
11
L.B.R. Vol. IV. (1907-1908), p.50.
*
Mg Kyaw V. Tha Dun L.B.R. Vol. IV. (1907-1908), p.50
12
(1884), 8 Mad., 175.
71
asserting that the plaintiff was not a legal wife of her husband and
that shepossessed a bad character and also that she has been always
၄င်း၏ခင်ပွန်း၏ တရား၀င်မယားမဟုတဘ
် ဲ အကျင့်စာရိတ္တပျက်ခပားသူခြစ်သခြင့်
တာ၀န်ရှိသည်ဟု ဆုံးခြတ်ခဲ့သည်။
အလှမ်းကွာစ းစသာနစ်နာမှု
defendant was held not liable, because damage was too remote.
**
Parvathi V. Mannar, (1884), 8 Mad., 175.
72
ဆုံးခြတ်သည်။
စနာက်တစ်ခုမှာ နှုတ်ခြင့်စခပာဆိုမစ
ှု ကာင့် ခြစ်စပါ်လာစသာ
စိတ်ပိုင်းဆိုင်ရာ စနှာက်ယှက်မမ
ှု ှ စပါ်စပါက်လာစသာ ြျားနာမှုသည်
တရားပပိုင်တွင် တာ န်ရှိသည်။
spoken defamation.
အသစရြျက်ခခင်း ခြစ်သည်။
73
(1) Libel is not merely a civil wrong, but also a criminaloffence for
သက်စသခပရန် မလိစ
ု ပ။
ပုံနှိပ်ထတ
ု ်စ မှု အတွက်တာ န်မရှိစပ။ သို ့စသာ် ထိအ
ု ခခားသူသည်
74
အတိအလင်းစြာ်ခပလျှင်ပင်တာ န်ရှိသည်။
Key Terms
Prima-facie=စွဲချက်တင်နိုင်စလာက်စအာင်
ခမင်သာစသာအစထာက်အထားရှိသည်။
Joint-tenants=ပူးတွဲပိုင်ဆိုင်စသာစခမငှားများ
Public interest=အများခပည်သအ
ူ ကျိုး
Bona fide=ရိုးစခြာင့်စသာသစဘာ
Passing off=ကုနအ
် မှတ်တံဆိပအ
် တုခပုလုပ်ခခင်း
Libel=စာခြင့်စရးသား၍သူတစ်ပါး၏ဂုဏ်သတင်းကို ညှိုးနွမ်းစအာင်ခပုခခင်း
Slander=နှုတ်ခြင့်စရးသား၍သူတစ်ပါး၏ဂုဏ်သတင်းကို ညှိုးနွမ်းစအာင်ခပုခခင်း
Trespass in detinue=
စရွှေ စခပာင်
့ းနိုင်စသာပစ္စည်းလက်စရာက်ရလိုမှုအတွက်စကျာ်နင်းမှု
Act of necessary=လိအ
ု ပ်သည့်အတွက် ၀င်စရာက်ခခင်း
Questions
1. Briefly mention how torts can be classified and explain how “assault”
and “battery” can be taken in action for tort in relation to the invasion of
interest in person. (Assingment)
2. Explain how action can be maintained for trespass by animals.
(Assingment)
3. What are the remedies available for the person whose land is
trespassed?
(Assingment)
4. Explain how the law protects the right of a trader to require a right to
trademark.Briefly. (Assingment)
5. What are the respective points to be proved to take an action for libel?
(Assingment)
6. Enumerate the importance of publication in an action for libel.
(Assingment)
7. Discuss the problems arising out of the charges which appear in
newspapers concerning libel. (Assingment)
8. What are the differences between “libel and slander”(Assingment)
9What are theinvasions of interests in person?(Short Question)
13. What are the defences to an action for trespass? (Short Question)
Question)
16. What are the necessary points to take action for libel? (Short
Question)
Chapter 4
Negligence
4.1Standard of Care 2
4.3 Volentinonfitinjuria 9
4.4 Resipsaloquitur 11
Key Terms 14
Exercise Questions 15
2
Chapter 4
Negligence
ပေါ့ဆမှု
taking care.
ထိြိုက်နစ်နာမြင်းမြစ်သည်။
ဂရုစိုက်မှုနှုန်းထား
best.
သူတစ်ဦးတစ်ပယာက်သည် ပေါ့ဆမှုအတွက်အမေစ်ရှိသည်မရှိသည်ကို
ဆုံးမြတ်ရာ၌ သာမန်အပမမာ်အမမင်ရှိသူ
3
တစ်ဦးဂရုတစိုက်လေ
ု ်ကိုင်ပဆာင်ရွက်မည့်နှုန်းထားမြင့်အကဲမြတ်ရပေမည်။1
in his action for claiming damages, for the injury done by the
defendant's elephant.
The facts of the case were that the plaintiff's elephant was
Thus this appeal follows. The Appellate Court pointed out that,
out that the plaintiff must provethat the defendant knew that his
မေသရန်လုသ
ိ ည်။ ယင်းအြျေက်ကိုရံးု ပတာ်က စဉ်းစားဆင်မြင်ရာ တွင်
အယူြံတရားလိုကိုယ်တိုင်ကအယူြံတရားပေိုင်သည် ၄င်းတွင်ရှိပသာ
ထွက်ဆိထ
ု ားသည်ကို ပတွ ရှ့ ိလိုက်ရသည့်အတွက် အယူြံတရားပေိုင်၏
ပေါ့ဆမှုပမမာက်ရန်တရားလိုသည်ပအာက်ေါြျေက်မျေားကိုသက်ပသမေရမည်။
5
တရားပေိုင်သည်သင့်ပလျော်ပသာသတိဝိရိယကျွမ်းကျေင်မှုမြင့်
ပဆာင်ရွက်ရန်တာဝန်ဝတ္တ ရားရှိသည်။
တာဝန်တ္တရားသည်တရားလိုအတွက်သာမြစ်သည်။
ေျေက်ကွက်သည်။
to thePlaintiff.
လိသ
ု ည်တိုက်ရက
ို ်နစ်နာသည်။
causing is the cause of the effect), which means "he does the
6
the person, damage to property and pure financial loss. The mere
fact that the damage suffered was unlikely to occur does not
အတွက် ထိသ
ု မူ ေုသည့်ေထမမှားယွင်းမှုမြစ်သည်။ထို ့ပနာက် ပလျော်ပ ကးသည်
ထိြိုကန
် စ်နာပစမြင်း၊ ေစ္စည်းကိုထြ
ိ ိုက် နစ်နာပစမြင်းနှင့်ပငွပ ကးဆုံးရှုံးမှု
of consequence:
မျေားရှိလျှင် တာဝန်ရှိသည်။
ပထာက်ကူပေါ့ဆမြင်း
ေါဝင်သည်။
accident and he jumped from the car. Thus, both did negligence
other danger.
ရထိက
ု ်ြင
ွ ့်ရှိသည်။
that mean persons who commit or were guilty of a tort, where the
သာမန်အားမြင့်တရားမနစ်နာမှုတွင်တရားလိုသည်ပထာက်ကူပေါ့ပလျော့
ပငွတွင် ကိုယြ
် န္ဓာကိုထိြိုက်မြင်းနှင့်အသက်ဆုံးရှုံးမြင်းတို ့ေါဝင်သည်။
4.3 Volentinonfitinjuria
သပဘာတူညီြျေက်အရထိြိုက်နစ်နာမြင်းမြစ်လျှင်အမေစ်မရှိ
သပဘာတူညီြျေက်အရ ထိြိက
ု ်နစ်နာမြင်းမြစ်လျှင် အမေစ်မရှိကို ဆိုလိုသည်၊
Plaintiff a lot of damage. She was said to have given clear consent
ကားကိုသလ
ိ ျေက်နှင့်တက်စီးသည်။ ကားသမားမူးမြင်းပ ကာင့် ကားတိုက်
သည်ပေါ့ပလျော့သည်။ တရားလိုသည်တရားလိုကားပမာင်းသမား၏ဇနီးထံမှ
ပလျောပ
် ကးရထိက
ု ်သည်ဟုဆုံးမြတ်လုက
ိ ်သည်။
11
4.4 Resipsaloquitur
ထင်ရှားပနပသာအြျေက်
itself".
မူလအားမြင့်ထင်ရှားပနပသာအြျေက်၊သူ ့အတိုင်းထင်ရှားပနသည့အ
် ြျေက်၊အထူး
သက်ပသထူရန်မလိထ
ု င်ရှားပနသည့အ
် ြျေက်မြစ်သည်။
but had not seen the cause. Byrne did not present any other
ဒုတယ
ိ အထေ်မေူတင်းပေါက်မှ ဂျေုံပသတ္တ ာတစ်လံးု လွင့်ထွက်လာသည်။ တရား
လိအ
ု ပေါ် ကျေပေီးဒဏ်ရာရပစသည်။ ဂျေုံပသတ္တ ာသည်ပေါ့ပလျော့မှု မရှိဘဲ
12
ဒုတိယထေ်မှ အလိအ
ု ပလျောက်ဒတ
ု ိယထေ်မှ မကျေနိုင်။ တရားလိုကတရားပေိုင်
ထင်ရှားပနသည်ဟုစီရင်ဆုံးမြတ်သည်။
visiting team hit the ball for six. The ballflew out of the ground,
hitting the claimant, Miss Stone, who was standing outside her
from the batsman. The club had been playing cricket at the ground
ကရကတ်အတွင်းမှ ပဘာလုံးပကျော်လန
ွ ်ပေီးမသွားရန် ကာကွယ်မှုမေုလုေ်
absence.
အိမ်ကိုမေင်ဆင်ပနပသာ ကန်ထရိုက်တာတစ်ဦးသည်အိမ်ရှင်မျေားမရှိြိုက်
ဟုဆုံးမြတ်သည်။
years while travelling with its mother, who had omitted to take a
ticket for it. The defendant company appealed on the ground that
လက်မှတ် ယူရသည့သ
် ံးု နှစ်ပကျော်ပကျော် ကပလးအတွက်လက်မှတ် မယူဘဲ
မီးရထားတက်စီးသည်။ တရားလိုမိြင်မှာမီရထားကုမ္ပဏီကိုလိမ်လည်ရန်
ကုမဏ
္ပ ီကိုတရားစွဲသည်။ မီးရထားကုမ္ပဏီအလုေ်သမားမျေားသည် ကပလးကို
မစစ်ပဆး၍ပေါ့ပလျော့သည်။ပလျော်ပ ကးပငွပေးရမည်ဟုဆုံးမြတ်သည်။
Key Terms
Causacausatas=
Eliminate= ြယ်ထုတ်သည်။
Compensation= ပလျော်ပ ကး
Responsibility= တာဝန်
Separately= သီးသန ့်
Intoxicate= မူးရစ်ပစသည်။
15
Burglary= ညဉ့်အြျေိန်ပြာက်ထွင်းမှု
Exercise Questions
cases.(Assignment)
Chapter 5
Nuisance
5.3 Remedies 10
Key Terms 11
Exercise Questions 11
2
Chapter 5
Nuisance
1
သူတစ်ပါးကိုန ှောက်ယှေက်ငြိုငြြ်နစမှု
အများငပည်သက
ူ ိုန ှောက်ယှေက်ငြိုငြြ်နစငြြ်း ှေြ့်
1
Nuisance
3
public right.
မည် ၏ ။
အငပစ် မ ှေ က ြ် း လွ တ ် ြ ွ ြ ် ့ ရ ှေ ိ သ ည် မ ဟု တ ် ။
အကယ်၍လူတစ်ဦးတစ်နယာက်တည်းက တရားစွဲဆိုလလ
ို ျှြ် ထိသ
ု က
ူ နအာက်ပါ
အြျက်များကိုငပဆို ုိြ်ရမည်။
at large.
မိမိအားသူတစ်ပါးထက်ထြ
ိ ိုက်နစ်နာမှုရှေိနကကာြ်း လူသွားလမ်းမကကီးကို
ပိတ်ပြ် တားဆီးသည့က
် ိစ္စမျိုးတွြ် လူအများနစ်နာသည် ထက်မိမိတွြ်
ပိုမိုနစ်နာမှုရှေိနကကာြ်း။
နစ်နာမှုသည်သယ
ွ ်ဝိုက်သည် နစ်နာမှုမျိုးမဟုတ်ေဲ၊ တိုက်ရက
ို ်နစ်နာမှု
နစ်နာမှုသည်ပျက်နပျာက်လွယ်နသာ နစ်နာမှုမျိုးမဟုတေ
် ဲ မယ်မယ်ရရ
နစ်နာမှု မျိုးငြစ်ရမည်။
6
7
Section 91 of the Civil Procedure Code of Myanmar
Catholic Chapel of which the defendant was the priest and the
7
Chapel bell was rung at all hours of day and night. It was held
that the ringing was a public nuisance, and the plaintiff was
ေုန်းကကီးငြစ်သည် ေုရားရှေြ
ိ ိုး နကျာြ်းမှေနြါြ်းနလာြ်းကိုနန ့နရာညပါ
အဆက်မငပတ် တီးသည့အ
် တွက် တရားစွဲဆိုငြြ်းငြစ်ရာ တရားရုံးက
ထက်ပိုမို၍ထိြိုက်နစသည့အ
် တွက် နြါြ်းနလာြ်းတီးငြြ်းကို ရပ်တနန့် စသည့်
*
Soutau V. De Held, 1851, 2 Sim N.S., 133.
8
**
အမှုတစ်ြုတွြ်လည်း တရားလိုသည် အိမ်ြန်းများကိုြှေားစားရန် အတွက်
စက်ရပ
ုံ ိုြ်ရှေြ်အား တရားစွဲဆိုရာ တရားလိုအားနစ်နာနကကးနပး၍
တရားရုံးကတားငမစ်မိန ့် ထုတ်ဆြ့န
် ပးြဲ့သည်။
တစ်ဦးတစ်နယာက်တည်းကိုန ှောက်ယှေက်ငြိုငြြ်နစငြြ်း
into another's land , for example, water, smoke, smell, fumes, gas ,
vegetation.
**
The Land Mortgage Bank of India V. AhmedbhoyHabibhoy and KesowramRamanand, 1883, 8
Bom., 35.
9
ရ စ္ဆာန်များသူတစ်ပါး၏၀ြ်းငြံအတွြ်းသို ့ငပနလ့် ြ
ွ ့်၀ြ်နရာက်ငြြ်းတို ့ငြစ်သည်။
4
In NgaMyatHmwe vs. Nga Yi &MiKywe Case, the
evidence as to the total destroy of that land was due to the lack
of water. But the Court held that the respondents have actually
က်နရသိုနလှောြ်ထားသည်ကိုအယူြံတရားငပိုြ်ကနရများနြာက်ပစ်သည့်
*
NgaMyat.HmweV.Nga Yi &MiKywe, 2 U.B.R., (1904-06), .9
10
၄ြ်း၏ စိုက်ပျိုးြြ်းများနသကုနန
် သာ နကကာြ့်နစ်နာနကကး ရရှေိရန်ငြစ်
သည်။အယူြံတရားလို၏စိုက်ပျိုးြြ်းသည် နရမရရှေိသငြြ့်နသကုန်သည်ဟု
နပးနစဟုဆုံးငြတ်ြဲ့သည်။
5.3 Remedies
ကု စ ားြွ ြ ် ့ မ ျား
ငြိုငြြ်နစသည့် အငပုအမူကိုြယ်ရှေားပစ်ငြြ်း၊
နစ်နာနကကးနပးနစငြြ်း ှေြ့်၊
(3) Injunction
တားငမစ်မိနထ့် တ
ု ်ငြြ်းတို ့ငြစ်သည်။
11
Key Terms
Private
Obstruction=အတားအဆီ း
Annoyance=စိ တ ် အ န ှေ ာ က် ယ ှေ က ် န ပးသည့ ် အ ရာ
Convenience=အဆြ် န ငပမှု
Remedies=ကု စ ားမှု
Injunction=တားငမစ် မ ိ န ့်
Guilty=အငပစ် ရ ှေ ိ န သာ
Questions
cases.(Assignment)
Chapter 6
Personal Disabilities
6.1.1 Convict 3
6.1.4 Corporation 7
6.1.5 Child 8
6.1.6 Bankrupt 9
6.2.1 Sovereign 10
6.2.2 Ambassadors 11
6.2.6 Corporation 16
Key Terms 18
Exercise Questions 19
2
Chapter 6
Personal Disabilities
တရားစွဲဆိုခြင်းမခြုနိုင်သူများ
များ ရှိကကသည်။
တရားနစ်နာမှုစွဲဆိုခြင်းမခြုနိုင်သူများ
ခြစ်ကက သည်။
(1) Convict
ခြစ်ဒဏ်ကျြံပနရပသာ အကျဉ်းသမား
3
ရန်သူနိုင်ငံခြားသား
အိမ်ပထာင်ရှင် အမျိုးသမီးများ
(4) Corporation
(5) Child
ကပလးသူ င ယ်
(6) Bankrupt
လူ မ ွ ဲ စ ာရင် း ြံ ထ ားသူ
6.1.1 Convict
ခြစ်ဒဏ်ကျြံပနရပသာ အကျဉ်းသမား
convict has the right to sue for any personal wrongs done to
ြံရြါက တရားစွဲဆိုနုင
ိ ်သည်။
4
ရန်သူနိုင်ငံခြားသား
country.
ပနထိုင်လျက်ရိသ
ှ ည်ကို ဆိုလသ
ို ည်။
and, if the decision goes against him, he will have the right
to appeal.
အဂဂလန်နိုင်ငံတွင် ရန်သန
ူ ိုင်ငံခြားသားများ တရားမနစ်နာမှု စွဲဆိုနုင
ိ ်
အိမ်ပထာင်ရှင် အမျိုးသမီးများ
themselves.
မခြုနိုင်ကကပြ။
not sue for tort to her property, unless her husband was
Although, the wife cannot sue her husband for tort, she
house and then to his home. In putting the car into the
ground that the mother-in-law was the owner of the car and
2
Common Law
3
Married Women's Property Act, 1882 &The Law Reform Married Women and Tortfeasors)
Act, 1935.
7
*
အမှုတစ်ြုတွင် လင်ခြစ်သူက ကားပမာင်း၍ ြါတီတစ်ြုမှ ခြန်လာရာ
မိြင် ခြစ်သူကိုအရင်လုက
ိ ်ြို ့ပြီး ကားကိုမိမိအိမ်နှင့် ကြ်လျက်ရှိကားရုံးတွင်းသို ့
သခြင့က
် ားပြါ်တွင် ြါ လာသူမယားမှာ ဒဏ်ရာရရှိသွားသည်။ ယင်းအတွက်
ြိုင်ရှင်တွင် တာ၀န်ရှိသည့အ
် တွက် ကားြိုင်ရှင်ထမ
ံ ှ ပလျာ်ပကကးရလိပ
ု ကကာင်း
6.1.4 Corporation
*
Smith V. Moss, 1940, 1 K.B., 424.
8
နိုင်ပြ။
6.1.5 Child
ကပလးသူ င ယ်
claimed £ 1,030 for damages, but the Court held that for
7
such injury the infant could not maintain an action .
ကပလးငယ်အပနခြင့် တရားစွဲဆိုြင
ွ ့် မရှိဟုဆုံးခြတ်ြဲ့သည်။ ကပလးပမွးြွား
ပြီးပနာက်မှ ခြစ်ြွားသည့က
် ိစ္စအတွက်ကိုမူ အနီးကြ်ဆုံးမိတ်ပဆွမှ တစ်ဆင့်
ကပလးငယ်ကိုယ်စားတရားစွဲဆိုနုင
ိ ်သည်။
**
Walker v. Great Northern Railway Co. of Ireland, 1890, 28, L.R. Ir. 69.
9
6.1.6 Bankrupt
လူ မ ွ ဲ စ ာရင် း ြံ ထ ားသူ
trustee.
ဆိုနုင
ိ ်ပြ။ ၄င်း၏ ြစ္စည်းနှင့်ြတ်သက်၍ နစ်နာမှုများအတွက် ပ ကးရှင်များ၏
စွဲဆိုနိုင်သည်။
တရားမနစ်နာမှုစွဲဆိုခြင်းမြံရနိုင်သူများ
(1) Sovereign
အြျုြ်အြျာနိုင်ငံအာဏာြိုင်
(2) Ambassadors
သံ တ မန် မ ျား
ခြည်သူ ့၀န်ထမ်းအရာရှိများ
(6) Corporation
6.2.1 Sovereign
အြျုြ်အြျာနိုင်ငံအာဏာြိုင်
*
အက်ဥြပဒအရ အြျို ့အြျက် အလက်များမှအြ နိုင်ငံအာဏာြိုင်များအား
တရားစွဲဆိုနုင
ိ ်သည်ဟု သတ်မှတ်ြဲ့သည်။
6.2.2 Ambassadors
သံ တ မန် မ ျား
*
The Crown Proceedings Act, 1947.
12
ခြည်သူ၀န်
့ ထမ်းအရာရှိများ
their subordinates.
မည်သတ
ူ စ်ဦးတစ်ပယာက်ကမျှ ၄င်းတို ့ပဆာင်ရွက်ပသာ အစိုးရလုြ်ငန်း
afford a defense.
13
tort.
with his wife in all actions for torts committed by her during
ခြုလုြ်ြဲ့ပသာ မှားယွင်းသည့က
် ိစ္စများအတွက် သူမ၏ပယာက်ျားနှင့် ြူးတွဲ၍
1
Law Reform (Married Women and Tortfeasors) Act, 1935.
15
မဟုတြ
် ါ က လင်မယားနှစ်ဦး ပြါင်းသင်းပနထိင
ု ်စဉ်အတွင်း
Thus, when a spouse dies the other spouse inherits the whol e
19
estate of the deceased spouse. They are not to be taken as
certain loan has been taken for the benefit of the joint family
ြစ္စည်းဆိုငရ
် ာ အြွင့်အပရးသည် ြူးတွဲြိုင်ဆိုင်သူများ မဟုတဘ
် ဲ
2
Married Women's Property Act, 1882.
16
ကွယ်လန
ွ ်သွားပသာ အိမ်ပထာင်ဘက်၏ အပမွြစ္စည်း အားလုံးကို
တာဝန်ရှိသည်။
still subsist.
6.2.6 Corporation
principal for the acts of its agents shall govern the liability
reasons, the Court held that the station master was acting
တင်ပဆာင်လာသည့အ
် တွက် တရားလိုအား ြမ်းဆီးသည်။ အမှန်စင်စစ်
ြရီးသည်ကက
ို ား ြမ်ဆီးနိုင်ြွင့်မရှိပြ။ ထို ့ပကကာင့် မီးရထားရုံြိုင်သည်
မြမ်းဆီးနိုင်သခြင့် ပလျာ်ပကကးပြးရပလသည်။
Key Terms
Convict=ခြစ်ဒဏ်ကျြံပနရပသာအကျဉ်းသား
Alien enemy=ရန်သူနိုင်ငံခြားသား
Bankrupt=လူမွဲစာရင်းြံယူထားပသာသူ
Ambassadors=သံတစ်မန်များ
Sovereign =အြျုြ်အြျာအာဏာြိုင်
Liability=တာဝန်ရှိမှု
Corruption=အဂတိလုက
ိ ်စားမှု
Terminate=ရြ်စဲသည်။အဆုံးသတ်သည်။
Litigation=တရားစွဲဆိုခြင်း
Matrimonial=ထိမ်းခမားလက်ထြ်ခြင်း နှင့်ဆိုငပ
် သာ၊ အိမ်ပထာင်ခြုခြင်း နှင့်
ဆိုငပ
် သာ
19
Questions
(Short Question)
(Short Question)
(Short Question)
1
Chapter 7
Vicarious Liability
Key Terms 11
Exercise Questions 12
2
Chapter 7
Vicarious Liability
1
သူတစ်ပါးအတွက် တာ၀န်ယူခြင်း
သူတစ်ပါး၏ လွှမ
ဲ ှားစွာဆောင်ရွက်ခြင်းဆ ကာင့်ခြစ်ဆစ၊ ဆောင်ရွက်ရန်ရှိ
အတည်ခပုခြင်းအားခြင့် တာ၀န်ရှိခြင်း
အထူးေက်ေံမမ
ှု ျားမှ ဆပါ်ဆပါက်သည့်ကိစ္စအတွက် တာ၀န်ရှိခြင်း
1
Vicarious Liability
3
4
အားဆပးကူညီခြင်းခြင့် တာ၀န်ရှိခြင်း
အတည်ခပုခြင်းအားခြင့် တာ၀န်ရှိခြင်း
its consequences.
ဆ ကာင်း ခပသနိုင်ရမည်။
principal.
မူလဆောင်ရွက်သသ
ူ ည် ဆောင်ရွက်စဉ်အြါက မိမိ၏အကကီးအကဲ
ကိုယ်စား ဆောင်ရွက်ခြင်းခြစ်ရမည်။
ratification
တရားမ၀င်ပျက်ခပယ်သည့် ဆောင်ရွက်ြျက်များကိုအတည်မခပုနိုင်
4
Liability by abetment
4
အထူးေက်ေံမမ
ှု ျားမှ ဆပါ်ဆပါက်သည့်ကိစ္စအတွက် တာ၀န်ရှိခြင်း
သည်။
သြင်နှင့်အဆစြံ
ပိုင်ရှင်နှင့်လွတ်လပ်သည့် ကန်ထရိုက်တာ
အကကီးအကဲနှင့်ကိုယ်စားလှယ်။
ကုမဏ
္ပ ီနှင့် ဒါရိုက်တာလူကကီးများ။
ကုနဘ
် က်လစ
ူ ုနှင့် ြက်စပ်လပ
ု ်ကိုင်သူများ။
အုပ်ထန
ိ ်းသူနှင့်အုပ်ထိန်းြံသူ။
5
သြင်နှင့်အဆစြံ
အကကီးအကဲသာလျှင် တာ၀န်ရှိပါဆစ
by his servants or slaves; such idea was changed when that idea of
များအတွက် အကကီးအကဲတွင်တာ၀န်ရှိသည်။
1
He who does an act through another does it himself
6
another to do work for him on the terms that he, the servant is to
သဆဘာတူ လျှင်ထုသ
ိ ူကို အဆစြံဟုဆြါ်သည်။
13
As an example, in Daw Aye May's Case, while a
the going for the stoppage of work, he died of the injury occurred
premise. The Court held that the death of the workman was
အကကီးအကဲနင
ှ ့်ကိုယစ
် ားလှယ်
the affairs of the employer, and over whom the employer has
Contractor".
အခြားသူအတွက် အလုပ်လပ
ု ်ဆပးသူသည် လုပ်ငန်းဆောင်ရွက်ရာ၌
တစ်ြုကို နဆာင်ရွက်ရာတွင်လတ
ွ ်လေ်နသာ ကေ်ထရိုက်တာကဲ့သုိ ့ တာ၀ေ်
ရှိသည်၊
8
by his servants, but he is not liable for the acts of those who are
တာများ၏အခေုအမူများအတွက်တာဝေ်မရှိနေ။
အကကီးအကဲအဆပါ်တွင် ကိုယစ
် ားလှယ်၏ဆောင်ရွက်မမ
ှု ှ ဆပါ်ဆပါက်
(1) The wrong done by the agent must be within the course of
employment.
နစ်နာမှုသည် ကိုယစ
် ားလှယ်က ၄င်းအားလွှဲအပ်ထားသည့် လုပ်ငန်းကို
ဆောင်ရွက်ဆနစဉ်အတွင်း ခြစ်ဆပါ်ဆစမှုခြစ်ရမည်။
ဆကျာ်လန
ွ ်၍ ဆောင်ရွက်သည့အ
် တွက် ဆပါ်ဆပါက်သည့်နစ်နာမှုခြစ်လျှင် ယင်း
9
ကုမဏ
္ပ ီနှင့် ဒါရိုက်တာလူကကီးများ
supervision.
ကုမဏ
္ပ ီ ၏အဆစြံများ၏ ဆပါ့ဆလျာ့မှုနှင့် နစ်နာဆစမှုများအတွက် တတိယ
ကုမဏ
္ပ ီ၏အကျိုးအတွက် ခြစ်ဆစကာမူ ကိုယ်တိုင်ဆသာ်လည်းဆကာင်း၊
အစုစပ်လပ
ု ်ငန်းနှင့် ြက်စပ်လပ
ု ်ကိုင်သူများ
partner of the firm is the agent of each other and is jointly and
severally liable for the acts of the firm done by them. Although
they can make agreement in limiting their liabilities and rights, but
အစုစပ်လပ
ု ်ငန်းတစ်ြုသည် ြက်စပ်ပါ၀င်သူ တစ်ဦး၏ လုပ်ငန်း
ြက်စပ်ပါ ၀င်သတ
ူ စ်ဦးသည် အခြားြက်စပ် ပါဝင်သူတစ်ဦး၏ ဆောင်ရွက်
အုပ်ထန
ိ ်းသူနှင့် အုပ်ထိန်းြံသူ
Guardians are not personally liable for the tortious acts done
by their minors under their charge. But they can sue for personal
အုပ်ထန
ိ ်းသူများသည် ၄င်းတို ့အုပ်ထန
ိ ်းဆနဆသာ အရွယ်မဆရာက်ဆသး
အုပ်ထန
ိ ်းသူများသည် အရွယ်မဆရာက်ဆသး သူတို ့၏ ကိုယ်ပိုင်အြွင့် အဆရး
Key Terms
Employers= အလုပ်ရှင်
ဆောင်ရွက်လျှင်မိမိကိုယ်တိုင်ဆောင်ရွက်ခြင်း
Personally liable=ပုဂ္ဂိုယ်အားခြင့်တာဝန်ရှိမှု
12
Exercise Questions
servant.
(Assignment)
1
TORT means TWISTED OR WRONG
1- Legal duty
2- Breach of duty by failing to conform his or
her behavior accordingly
3- Injury or loss as a direct result of the
defendant's breach
2
The major purposes of tort law
3
Criminal Law Civil Law
-Plaintiff is the state (e.g., - Plaintiff is private party
-State v. U Hla) (e.g., U Ba v. U Mya)
-Guilty or Not Guilty - Liable or Not Liable
-Guilty verdict results in - Liability results in
prison sentence paying damages (i.e.,
money)
-Prosecution must prove - Plaintiff only needs a
guilt beyond a reasonable preponderance of
doubt. evidence (i.e., 51% or
more)
5
THE DIFFERENCE BETWEEN A
TORT AND A CRIME
• A crime is public /community wrong that
gives rise to sanctions usually designated in
a specified code. A tort is a civil ‘private’
wrong.
• Action in criminal law is usually brought by
the state or the Crown. Tort actions are
usually brought by the victims of the tort.
• The principal objective in criminal law is
punishment. In torts, it is compensation
6
THE DIFFERENCE BETWEEN A
TORT AND A CRIME
• Differences in Procedure:
– Standard of Proof
• Criminal law: beyond reasonable
doubt
• Torts: on the balance of probabilities
7
THE AIMS OF TORT LAW
• Loss distribution/adjustment: shifting losses
from victims to perpetrators
• Compensation: Through the award of
(pecuniary) damages
–The object of compensation is to
place the victim in the position he/she
was before the tort was committed.
• Punishment: through exemplary or punitive
damages. This is a secondary aim.
8
INTERESTS PROTECTED IN TORT
LAW
• Personal security
–Trespass
–Negligence
• Reputation
–Defamation
• Property
–Trespass
–Conversion
• Economic and financial interests 9
In economic affairs, tort law provides remedies for
businesses that are harmed by the unfair and
deceptive trade practices of a competitor.
13
Trespass, Defamation, Libel, Slander
16
SPECIFIC FORMS OF TRESPASS
TRESPASS
PERSON PROPERTY
BATTERY
ASSAULT
FALSE IMPRISONMENT
17
BATTERY
• The intentional or negligent act of D
which directly causes a physical
interference with the body of P
without lawful justification
• The distinguishing element: physical
interference with P’s body
18
THE INTENTIONAL ACT IN
BATTERY
19
FALSE IMPRISONMENT
• The intentional or negligent act of
D which directly causes the total
restraint of P and thereby confines
him/her to a delimited area without
lawful justification
• The essential distinctive element is
the total restraint
20
Intentional Torts
• Invasion of Privacy
personal and fundamental right protected by constitution
• Trespass
entry into realty of another without permission.
• Conversion
depriving of property.
• Interference with contractual relations
encourage to breach.
• Fraud
intentional misrepresentation of a material fact relied on
and causes injury.
21
Negligence
Negligence is carelessness that results in harm =
injury or damage.
Negligence differs from intentional torts in that the
actions are not caused by someone deliberately
wishing to cause harm
Intentional torts, by contrast, are matters such as
assault, false imprisonment, defamation, etc.
24
DAMAGES
26
Joint and Several Tortfeasor
• Definition— according to Salmond “where the same
damage is caused to a person by two or more wrongdoer
those wrongdoers may be either joint or independent
tortfeasors”.
• This happens in commission of three classes of case-
namely ,agency ,vicarious liability and common action.
• Brook v. Bool.
• nature of liability- if a tort is commited jointly by a number
of person each is responsible severally as well as jointly
with each and all the other for the whole ammount of the
damage caused by them and the extent of the participation
of each of them in the commission of the tort is
immaterial.the position is differentin case of independent
tortfeasor
27
Malicious Prosecution
• The term Malicious prosecution is probably not
very appropriate because the word prosecution
has a wider meaning than in criminal law and
,conversely not all proceeding which are
technically prosecution are capable of founding
an action for malicious prosecution malicious
bankruptcy and liquidation proceeding: malicious
arrest: and malicious execution against property:
malicious civil proceeding and abuse of the
process of the court.
28
ACTS OF CONVERSION
• Misdelivery
• Unauthorized dispositions in any
manner that interferes with P’s title
constitutes conversion
29
DETINUE
• Detinue: The wrongful refusal to
tender goods upon demand by P who
is entitled to possession It requires a
demand coupled with subsequent
refusal (General and Finance
Facilities v Cooks Cars (Romford)
30
DAMAGES IN CONVERSION AND DETINUE
31
Duty of care is proved through legal
obligations
For example, if a mechanic neglects to tighten
the bolts on a repair of a car, causing a
subsequent accident or injury, the plaintiff (the
driver) is owed a duty of care, and the defendant
(the mechanic) has breached their duty of care
32
Strict(Product) Liability
• Responsible on an absolute basis.
• Dangerous activities
• Producers are liable for their products.
• Without this concept it would be difficult to
prove negligence.
33
Causation
34
Proximity
36
When duty, breach, and proximate cause have
been established in a tort action, the plaintiff may
recover damages for the pecuniary losses
sustained.
The measure of damages is determined by the
nature of the tort committed and the type of injury
suffered.
Damages for tortious acts generally fall into one of
four categories:
1- damages for injury to person, 2- damages for
injury to personal property, 3- damages for
injury to real property, and 4- punitive damages.
37
Personal Disabilities
38
Personal Disabilities
39
NECESSITY
• The defence is allowed where an
act which is otherwise a tort is
done to save life or property:
urgent situations of imminent
peril
40
Defences
• Prescription.
• Grant.
• Statutory authority. Inevitable.
• Ignorance of state of affairs.
• Contributory negligence.
• Act of trespassers.
41
Urgent Situations of Imminent
Peril
• The situation must pose a threat to life or
property to warrant the act: Southwark
London B. Council v Williams
• The defence is available in very strict
circumstances R v Dudley and Stephens
• D’s act must be reasonably necessary and not
just convenient Murray v McMurchy
–In re F
–Cope v Sharp
42
INSANITY
• Insanity is not a defence as such to
an intentional tort.
• What is essential is whether D by
reason of insanity was capable of
forming the intent to commit the tort.
(White v Pile; Morris v Marsden)
43
INFANTS
• Minority is not a defence as such in
torts.
• What is essential is whether the D
understood the nature of his/her
conduct
• (Smith v Leurs; Hart v AG of
Tasmania)
44
Vicarious Liability
45
Liability for Wrongs committed
by Others
46
The Presence of Particular
Relationship
• (1) Master and Servant
• (2) Employer and Independent Contractor
• (3) Principal and Agent
• (4) Company and Director
• (5) Firm and Partners
• (6) Guardian and Ward
47
• Definition of within scope of employment
• Difference between independent contractor
and employee
• Master liable for torts of servants when
servants outside scope of employment
• Master not liable for torts of independent
contractor
• END
48
Law of Tort
(for PGDL)
Dr Tin May Htun
Professor/ Head
Law Department
YUDE
1
Nature & Definition of Tort
4
A ‘Wrong’ can be civil or criminal. Tort belongs to the
category of civil wrongs. In the case of a civil wrong, the
injured party institutes civil proceedings against the
wrongdoer and the remedy is damages. The injured party is
compensated by the defendant for the injury caused to him
by another party.
Whereas, in the case of a criminal wrong, the State brings
criminal proceedings against the accused, and the remedy is
not compensation. Punishment is provided to the
wrongdoer.
In a case where the act results in both civil as well as
criminal wrong then both the civil and criminal remedies
would concurrently be available.
5
Purpose of Civil Proceedings
(1)Recovery of debt,
(2) Restitution of property,
(3) Specific performance of contract,
(4) Recovery of damages for an injury committed of,
(5) To issue injunction for stopping the wrongful
conduct.
6
Criminal Law Civil Law
-Plaintiff is the state (e.g., - Plaintiff is private party
-State v. U Hla) (e.g., U Ba v. U Mya)
-Guilty or Not Guilty - Liable or Not Liable
-Guilty verdict results in - Liability results in
prison sentence paying damages (i.e.,
money)
-Prosecution must prove - Plaintiff only needs a
guilt beyond a reasonable preponderance of
doubt. evidence (i.e., 51% or
more)
9
THE DIFFERENCE BETWEEN A
TORT AND A CRIME
• A crime is public /community wrong that
gives rise to sanctions usually designated in
a specified code. A tort is a civil ‘private’
wrong.
• Action in criminal law is usually brought by
the state or the Crown. Tort actions are
usually brought by the victims of the tort.
• The principal objective in criminal law is
punishment. In torts, it is compensation
10
THE DIFFERENCE BETWEEN A
TORT AND A CRIME
• Differences in Procedure:
– Standard of Proof
• Criminal law: beyond reasonable
doubt
• Torts: on the balance of probabilities
11
THE AIMS OF TORT LAW
• Loss distribution/adjustment: shifting losses
from victims to perpetrators
• Compensation: Through the award of
(pecuniary) damages
–The object of compensation is to
place the victim in the position he/she
was before the tort was committed.
• Punishment: through exemplary or punitive
damages. This is a secondary aim.
12
Ingredients and Basic Factors to constitute a
Tort
According to Salmond, “Just as the criminal law
consists of a body of rules establishing specific
offences, also the law of torts consists of a body of
rules.
To constitute a tort there are three ingredients:
(1) Legal wrong
(2) Legal damage
(3) Legal remedy
13
(1) Legal wrong
14
(2) Legal damage
In order to prove an action for tort, the plaintiff
has to prove that there was a wrongful act, an
act or omission by the defendant which
through its breach of a legal duty led to the
violation of a legal right vested in the plaintiff.
So, there must be violation of a legal right of a
person and, if it is not, there can be no action
under law of torts.
15
Public rights (Example: Public peace, Public safety )
Private rights
(1)Right in rem (Example: Right to property, Right to
reputation)
(2)Right in personam (Example : Rights of parties to a
Contract)
21
NECESSITY
The defence is allowed where an act which is otherwise a
tort is done to save life or property: urgent situations of
imminent peril.
In some cases, although damage has been done intentionally,
the defendant will not be liable if he has acted under
necessity to prevent a greater evil. This exception of
necessity is based on the maxim; salus populi est suprema
lex which means "the interest and security of the people is
the supreme law".
(1) Private Necessity - Leigh vs. Gladstone,
1909,26.T.L.R.139. Div: Ct.
(2) Public Necessity - Dewey vs. White, 1827, Mood and
M.56.
Basic Factors to constitute a Tort
(1) Damage
(2) Motive
(3) Malice
(4) Intention
(1) Damage
The difference between the terms "damage" and "damages".
Tortious liability always depends on the nature of the damage
suffered by the injured party.
"Damage" means the loss or grief or harm suffered by the
plaintiff.
"Damages" on the other hand means such compensation
awarded by the court for the pecuniary loss suffered by the
23
plaintiff.
DAMAGES
28
INTERESTS PROTECTED IN TORT
LAW
• Personal security
–Trespass
–Negligence
• Reputation
–Defamation
• Property
–Trespass
–Conversion
• Economic and financial interests 29
In economic affairs, tort law provides remedies for
businesses that are harmed by the unfair and
deceptive trade practices of a competitor.
32
Causation is an element common to all three
branches of torts:
intentional tort, negligence, and strict liability.
1- Intentional tort
Assault, Battery, Trespass, False Imprisonment,
Invasion of privacy, Conversion, Misrepresentation,
and Fraud.
2- Negligence
3- Strict Liability, or liability without fault
(Product Liability)
33
WHAT IS TRESPASS?
• Intentional or negligent act of D
which directly causes an injury to the P
or his /her property without lawful
justification
• The Elements of Trespass:
–fault: intentional or negligent act
- injury must be direct
–injury* may be to the P or to his/her property
- No lawful justification
34
INJURY IN TRESPASS
• Injury = a breach of right, not necessarily
actual damage
• Trespass requires only proof of injury not
actual damage
35
SPECIFIC FORMS OF TRESPASS
TRESPASS
PERSON PROPERTY
BATTERY
ASSAULT
FALSE IMPRISONMENT
36
BATTERY
• The intentional or negligent act of D
which directly causes a physical
interference with the body of P
without lawful justification
• The distinguishing element: physical
interference with P’s body
37
THE INTENTIONAL ACT IN
BATTERY
38
FALSE IMPRISONMENT
• The intentional or negligent act of
D which directly causes the total
restraint of P and thereby confines
him/her to a delimited area without
lawful justification
• The essential distinctive element is
the total restraint
39
Intentional Torts
• Invasion of Privacy
personal and fundamental right protected by constitution
• Trespass
entry into realty of another without permission.
• Conversion
depriving of property.
• Interference with contractual relations
encourage to breach.
• Fraud
intentional misrepresentation of a material fact relied on
and causes injury.
40
DAMAGES
42
Joint and Several Tortfeasor
• Definition— according to Salmond “where the same
damage is caused to a person by two or more wrongdoer
those wrongdoers may be either joint or independent
tortfeasors”.
• This happens in commission of three classes of case-
namely ,agency ,vicarious liability and common action.
• Brook v. Bool.
• nature of liability- if a tort is commited jointly by a number
of person each is responsible severally as well as jointly
with each and all the other for the whole ammount of the
damage caused by them and the extent of the participation
of each of them in the commission of the tort is
immaterial.the position is differentin case of independent
tortfeasor
43
Malicious Prosecution
• The term Malicious prosecution is probably not
very appropriate because the word prosecution
has a wider meaning than in criminal law and
,conversely not all proceeding which are
technically prosecution are capable of founding
an action for malicious prosecution malicious
bankruptcy and liquidation proceeding: malicious
arrest: and malicious execution against property:
malicious civil proceeding and abuse of the
process of the court.
44
ACTS OF CONVERSION
• Misdelivery
• Unauthorized dispositions in any
manner that interferes with P’s title
constitutes conversion
45
DETINUE
• Detinue: The wrongful refusal to
tender goods upon demand by P who
is entitled to possession It requires a
demand coupled with subsequent
refusal (General and Finance
Facilities v Cooks Cars (Romford)
46
DAMAGES IN CONVERSION AND DETINUE
47
Negligence
Negligence is carelessness that results in harm =
injury or damage.
Negligence differs from intentional torts in that the
actions are not caused by someone deliberately
wishing to cause harm
Intentional torts, by contrast, are matters such as
assault, false imprisonment, defamation, etc.
50
Neglience
Duty of care is proved through legal
obligations
For example, if a mechanic neglects to tighten the
bolts on a repair of a car, causing a subsequent
accident or injury, the plaintiff (the driver) is
owed a duty of care, and the defendant (the
mechanic) has breached their duty of care
A breach of duty of care can only be determined
(through negligence) by examining the expected
standard of care
51
Contributory Negligence
For example, a driver negligently drove his car at an
excessive speed and nearly reached a situation
resulting in a collision. The plaintiff, a passenger was
afraid of becoming an accident and he jumped from
the car. Thus, both did negligence contributed to the
accident. Under the doctrine of contributory
negligence, the plaintiff was able to recover
compensation from the defendant because of evading
the accident and meeting with other danger.
52
Volentinonfitinjuria" which means "no injury is done
to one who consents".
Dann v Hamilton [1939] 1 KB 509
53
Strict(Product) Liability
• Responsible on an absolute basis.
• Dangerous activities
• Producers are liable for their products.
• Without this concept it would be difficult to
prove negligence.
54
Causation
55
Proximity
57
When duty, breach, and proximate cause have
been established in a tort action, the plaintiff may
recover damages for the pecuniary losses
sustained.
The measure of damages is determined by the
nature of the tort committed and the type of injury
suffered.
Damages for tortious acts generally fall into one of
four categories:
1- damages for injury to person, 2- damages for
injury to personal property, 3- damages for
injury to real property, and 4- punitive damages.
58
Nuisance
(1) Public Nuisance
(2) Private Nuisance
Public Nuisance
Section: 268 of the Penal Code of Myanmar,5 defines public
nuisance as follows:
"A person is guilty of a public nuisance who does any act or is
guilty of illegal omission which causes any common injury,
danger or annoyance to the public or to the people in general
who dwell or occupy property in the vicinity, or which must
necessarily cause injury, obstruction, danger or annoyance to
persons who may have occasion to use any public right.
Soltau.vs. eHeld
59
Private Nuisance
Private nuisance is not only limited to servitude, but also to the
wrongful acts causing or allowing the escape of deleterious
things into another's land , for example, water, smoke, smell,
fumes, gas , noise, heat, vibrations, electricity, disease-gems,
animals and vegetation.
NgaMyatHmwe vs. Nga Yi &MiKyweCase
Remedies
1- Abatement
2- Damages
3- Injunction
60
Personal Disabilities
61
Personal Disabilities
63
Defences
• Prescription.
• Grant.
• Statutory authority. Inevitable.
• Ignorance of state of affairs.
• Contributory negligence.
• Act of trespassers.
64
Urgent Situations of Imminent
Peril
• The situation must pose a threat to life or
property to warrant the act: Southwark
London B. Council v Williams
• The defence is available in very strict
circumstances R v Dudley and Stephens
• D’s act must be reasonably necessary and not
just convenient Murray v McMurchy
–In re F
–Cope v Sharp
65
INSANITY
• Insanity is not a defence as such to
an intentional tort.
• What is essential is whether D by
reason of insanity was capable of
forming the intent to commit the tort.
(White v Pile; Morris v Marsden)
66
INFANTS
• Minority is not a defence as such in
torts.
• What is essential is whether the D
understood the nature of his/her
conduct
• (Smith v Leurs; Hart v AG of
Tasmania)
67
Vicarious Liability
68
Liability for Wrongs committed
by Others
69
The Presence of Particular
Relationship
• (1) Master and Servant
• (2) Employer and Independent Contractor
• (3) Principal and Agent
• (4) Company and Director
• (5) Firm and Partners
• (6) Guardian and Ward
70
• Definition of within scope of employment
• Difference between independent contractor
and employee
• Master liable for torts of servants when
servants outside scope of employment
• Master not liable for torts of independent
contractor
71
END
72
1. Every promise and every set of promises, forming the consideration for each
other, is ---------- .
an agreement
a contract
an offer
an acceptance
4. The general rule is that a postal acceptance ---------- when the letter of
acceptance is posted.
takes effect
does not take effect
9. An order for ---------- will compel the addressee to fulfill the terms of a contract.
specific performance
injunction
10. A agrees to sell to B "a hundred tons of oil". There is nothing whatever to show
what kind of oil
was intended. The --------- is void for uncertainty.
agreement
contract
acceptance
proposal
11. Agreements by way of wager are --------- and to suit shall be brought for
recovering anything
alleged to be won on any wager.
valid
invalid
void
voidable
13. Every promise and every set of promises, forming the consideration for each
other, is an ----------
.
agreement
contract
offer
acceptance.
15. If the person to whom the proposal is made signifies his assent the proposal is
said to have been -
----------- .
accepted
agreed
provisionally agreed
tentatively accepted.
17. Promises which form the consideration or part thereof, for each other -------- .
acceptances for different proposals
agreements
reciprocal promises
consideration.
18. Every promise or set of promises forming the consideration for each other ------
----- .
reciprocal promise
contract
agreement
none of the above.
20. .-------- which form the consideration or part of the consideration for each
other, is an agreement.
agreement
promise
offer
proposal
23. ---------- must have an economic value in order for it to be valid in a contractual
context.
Consideration
Agreement
Contract
26. Repudiation means giving up the agreement and considering the contract to be
at an end due to
the breach committed by the other side.
Yes
No
29. B accepts A's proposal by a letter sent by post. The communication of the
acceptance is
complete:___________, when the letter is posted.
as against A
as against B
30. A person who is usually of sound mind, but occasionally of unsound mind,
_______ make a
contact when he is of unsound mind.
may
may not
31. A promises to paint a picture for B by a certain day, at a certain price. A dies
before the day.The
contract _______enforced by A's representative.
can be
cannot be
32. A, B and C are under a joint promise to pay D Ks 3,000. C is unable to pay
anything.A _______
entitled to receive Ks. 1.500 from B.
is
is not
33. In a case of alternative promises, one branch of which is legal and the other
illegal, the legal
branch alone ________ enforced.
can be
cannot be
34. MaungBa , a tradesman, leaves goods at U Mya's house by mistake. But treats
the goods as his won, he ______ bound to pay Maung Ba for them.
is
is not
36. The general rule is that a postal acceptance ---------- when the letter of
acceptance is posted.
takes effect
does not take effect
37. A ------------ is a false statement of fact made by one party to another, which
induces the other
party to enter into the contract.
innocent misrepresentation
fraudulent misrepresentation
misrepresentation
39. If the plaintiff can show that damages are inadequate, then the court may grant
his claim for -------
----- .
specific performance
injunction
40. ------------ will be inadequate where the plaintiff cannot get a satisfactory
substitute.
Damage
Damages
41. The court does not grant ----------- unless it can give full relief to both parties.
specific performance
injunction
42. ------------ are obligations which though not contracts technically give rise to
relations which look
like those created by contracts.
Quasi-contracts
Contract
Treaty
43. -------- are obligations which though not contracts technically, give rise to
relations which
resemble those created by contracts.
quasi-contract
contract
agreement
deed
44. Where a contract is broken, the injured party can take actions for the injury
sustained by the ------
---- of contract.
discharge
breach
Waive
45. --------- is an order of the Court ordering the breached party to perform the
contract.
injunction
compensation
specific performance
damages
46. An agreement without consideration is void but there are ------- exceptions to
this rule.
two
three
47. Promises which form the consideration or part of the consideration for each
other are called ------
----- .
reciprocal promises
cross offers
conditional offer
conditional promises.
48. Offer as defined is ----------- .
communication from one person to another
suggestion by one person to another
willingness to do or abstain from doing an act in order to obtain the assent of other
thereto
none of the above.
51. .-------- which form the consideration or part of the consideration for each
other, is an agreement.
agreement
promise
offer
proposal
52. An advertisement in a newspaper offering a reward for the finder of the lost
dog amounts to a ----
-----.
general offer
offer
specific offer
proposal
55. When one person signified 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
an acceptance
56. Every person shall be deemed to have attained his majority when he shall have
completed the age of __________in Myanmar.
eighteen years
twenty one years
57. A person who is usually of sound mind, but occasionally of unsound mind,
_______ make a contact when he is of unsound mind.
may
may not
58. A, B and C are under a joint promise to pay D Ks 3,000. C is unable to pay
anything.A _______
entitled to receive Ks. 1.500 from B.
is
is not
60. The general rule is that a postal acceptance ---------- when the letter of
acceptance is posted.
takes effect
does not take effect
61. An informal exchange of promises can be as binding and legally valid as a
written contract.
Yes
No
65. Agreements in restraint of trade are contrary to public policy and therefore -----
----.
void
voidable
valid
invalid
68. --------- must be communicated to the person who made the offer.
acceptance
proposal
offer
agreement
69. The contract may be formed orally, by parties agreeing the terms on the
telephone.
Yes
No
70. An agreement which is enforceable by law at the option of one or more of the
parties thereto, but
not at the option of the other or others, is___________.
a voidable contract
a void contract
71. A statutory company _______ enter into a contract out of its memorandum
cannot
can
72. Every agreement by which any one is restrained from exercising a lawful
profession, trade or
business of any kind is to that extent ______.
void
valid
80. A person who is interested in the payment of money which another is bound by
law to pay, and
who therefore pays it, _______entitled to be reimbursed by the other.
is not
is
81. In estimating the loss or damage arising from a breach of contract means which
existed of remedying the inconvenience caused by the non- performance of the
contract ________taken into account.
must be
must not be
83. Such agreements are -------------- which do not give rise to legal consequences.
social agreements
84. Torts or civil wrongs obligations -------------- in nature, but are enforceable in a
court of law.
are not contractual
85. The Latin maxim of--------------means that a specific person and not against the
world at large.
Rights in personam
86. All agreements are -------------- if they are made by competent to contract.
Contracts
5 conditions
89. Certain agreements which have been -------------- illegal or void by the law.
not expressly declared
90. The meaning of the agreement must be certain or capable of being made certain
.Otherwise the agreement -------------.
will not be enforceable at law.
96. ---------- must have an economic value in order for it to be valid in a contractual
context.
Consideration
100. Once ------------ has been accepted, the parties have an agreement.
An offer
102. Many social arrangements do not amount to ----------- because they are not
intended to be legally binding.
Consideration
103. Many domestic arrangements, such as between husband and wife, or between
parent and child, lack force because ---------- did not intend them to have legal
consequences.
the parties
104. ---------- is committed when a party, without lawful excuse, fails or refuses to
perform what is
due from him under the contract, or performs defectively, or incapacitates himself
from performing.
A breach of contract
105. ----------- is the remedy by which one party the injured party is released from
his obligation to perform because of the other party's defective or non-
performance.
A breach of contract
110. In a contract for the sale of goods, it is ----------- that the goods will be of a
certain quality and, if sold for a particular purpose, will be fit for that purpose.
an express term
112. ------------- is clear and absolute refusal to perform, which includes conduct
showing the party is unwilling, even though he may be able, to perform.
A breach of contract
113. ----------- is the remedy by which one party the injured party is released from
his obligation to perform because of the other party's defective or non
performance.
A breach of contract
115. There are multiple remedies available once ---------- has been proved.
Misrepresentation
117. Torts or civil wrongs obligations -------------- in nature, but are enforceable in
a court of law.
are not contractual
119. -------------, the terms of a contract may be inferred from the conduct of the
parties or from thecircumstances of the case.
An express contract
120. ------------- are strictly not contracts as there is no intention of parties to enter
into a contract.
Quasi contracts
125. ----------- is the remedy by which one party the injured party is released from
his obligation to perform because of the other party's defective or non-
performance.
Repudiation
129. A contract may contain terms which are not ----------- stated but which are
implied, either because the parties intended this, or by operation of law, or by
custom or usage.
Expressly
130. ---------- is committed when a party, without lawful excuse, fails or refuses to
perform what is due from him under the contract, or performs defectively, or
incapacitates himself from performing.
A breach of contract
131. ------------- is clear and absolute refusal to perform, which includes conduct
showing the party is unwilling, even though he may be able, to perform.
Termination
135. ------------ means the court may order payment for expenses necessarily
incurred in complying with the terms of the contract.
Indemnity
137. Section 2(b) defines promise in these words: “When the person to whom the
proposal is made signifies his assent thereto, the proposal ----------------.
is said to be proposal
149. A contract may contain terms which are not ----------- stated but which are
implied, either because the parties intended this, or by operation of law, or by
custom or usage.
Expressly
151. Many terms which are ----------- in law have been put into statutory form.
express and implied
153. There are multiple remedies available once ---------- has been proved.
Misrepresentation
155. A contract may contain terms which are not ----------- stated but which are
implied, either because the parties intended this, or by operation of law, or by
custom or usage.
Expressly
156. In a contract for the sale of goods, it is ----------- that the goods will be of a
certain quality and, if sold for a particular purpose, will be fit for that purpose.
an express term
158. ----------- is the remedy by which one party the injured party is released from
his obligation to perform because of the other party's defective or non-
performance.
A breach of contrac
165. Substantial failure to perform is any defect in ----------- must attain a certain
minimum degree of seriousness to entitle the injured party to terminate.
Misrepresentation
167. An advertisement in a newspaper offering a reward for the finder of the lost
dog amounts to a -----
----.
general offer
offer
specific offer
proposal
169. Acceptance of the proposal means the acceptance of ------ the terms.
two
some
one
all
170. -------- and acceptance are the two basic elements of contract.
proposal
offer
agreement
promise
172. Every person is competent to contract who is of the age of ----------- according
to Myanmar law.
16
17
18
173. A and B make a contact grounded on erroneous belief that a particular debt is
barred by the law of
limitation, the contract is --------.
valid
voidable
not voidable
invalid
174. If both of the contracting parties have not yet performed what with agreed to
do under the contract,
the contract is ---------.
not discharged
discharged
performed
not performed
175. --------- are obligations which though not contracts strictly, give rise to
relations which resemble
those created by contracts.
Quasi-contract
Contract
Agreement
Deed
178. The fundamental basis of contract law is the --------- of the contracting parties.
agreement
consideration
179. The rule of law is that where an offer is required by statute to be in writing,
then also the acceptance must be --------- in order for the offer to become a
contract binding on both parties.
in writing
not in writing
182. The --------- to enter into a contract can also be considered one of the
principles of contract law.
quality
quantity
capacity
187. Proposal or acceptance is made otherwise than in words, the promise is said to
be ---------.
implied promise
express promise
promise
agreement
188. ----------- under mistake of fact or mistake of law is called void agreement.
Agreement
Contract
Communication
190. To form a ---------, the first essential element is a proposal which is made by
one person and
accepted by another.
promise
agreement
contract
191. Every promise or every set of promises forming the ----------- for each other is
an “agreement”.
communication
consideration
contract
193. A proposes by letter, to sell a house to B at a certain price. In this case, the
communication of the
proposal is -------- when B receives the letter.
not complete
complete
incomplete
194. The parents of the minor may not attest a contract and the --------- only may
attest on behalf of
the minor.
possession
guardian
ownership
195. The Parties to a contract must either perform, or offer to perform, their
respective ------------.
communications
promises
contracts
196. Promises bind the representatives of the promisors in case of the death of such
promisors before -
-----------.
proposal
performance
communication
197. Rights and liabilities of finder of goods are subject to the same responsibility
as a -------.
bailor
bailee
indorsee
203. Every promise and every set of promises, forming the consideration for
each other, is an ---------.
(a)agreement
(b)acceptance
(c)proposal
(d)offer
204.-------- which form the consideration or part of the consideration for each
other, is an agreement.
(a)agreement
(b)promise
(c)offer
(d)proposal
205. An agreement not enforceable by law is said to be ---------.
(a)void
(b)voidable
(c)valid
(d)invalid
210. --------- must be communicated to the person who made the offer.
(a)acceptance
(b)proposal
(c)offer
(d)agreement
213. --------- and acceptance are the two basic elements of contract.
(a)proposal
(b)offer
(c)agreement
(d)promise
218. Every person is competent to contract who is of the age of ----------- according
to Myanmar law.
(a) 16
(b)17
(c) 18
219. If both of the contracting parties have performed what with agreed to do under
the contract, the contract is----------------.
(a) discharged
(b) breached
(c) waived
221. ------------ are obligations which though not contracts technicallygive rise to
relations which look like those created by contracts.
(a) Quasi-contracts
(b) Contract
(c) Treaty
222. Where a contract is broken, the injured party can take actions for the injury
sustained by the ---------- of contract.
(a) discharge
(b) breach
(c) Waive
225. An agreement without consideration is void but there are ------- exceptions to
this rule.
(a) two
(b) three
(c) four
226. Tort is the name of civil wrongs (not being merely breaches of contract) for
which there is a remedy by action in courts of common law jurisdiction by
(a)Dr.Ba Han
(b) Underhill
(c) Lord Denning
(d) Oxford Dictionary
228. The third and the last ingredient of tort is that the plaintiff must have entitled
to
get a--------.
(a)Legal wrong
(b)Legal damages
(c)Legal damage
(d)Legal remedy
230. Every man is presumed to intend and to know the natural and ordinary
consequences of his acts, which means the following one.
(a)Damage
(b)Malice
(c) Intention
(d) Motive
231. ---------can be properly used to describe the emotion which prompts the
defendant to commit the act.
(a)Damage
(b)Malice
(c)Intention
(d)Motive
232. To throw water at a person is an assault but if any drops fall upon him, it is
----------.
(a) battery
(b) assault
(c) false imprisonment
(d) attempted battery
233. A license is ---------that it shall be lawful for the licensee to enter upon
the land of the licensor or to do some other act in relation thereto which
would otherwise be illegal.
(a)an agreement
(b) a deed
(c)a certificate
(d)a convention
234. Actionable----------consists of the neglect of the use of ordinary care or
skill towards a person or his property.
(a)damage
(b)negligence
(c)contributory negligence
(d)breach of duty
235. Under the doctrine of ---------, the plaintiff was able to recover
compensation from the defendant because of evading the accident and
meeting with other danger.
(a)damage
(b)negligence
(c)contributory negligence
(d)breach of duty
236. A person is guilty of ---------- who does any act or is guilty of illegal
omission which causes any common injury, danger or annoyance to the
public.
(a)public nuisance
(b)private nuisance
(c)assault
(d)battery
237. One must aware of the fact that a --------- when undergoing a sentence,
cannot sue for an injury to his property, or for recovery of debt.
(a)convict
(b) alien enemy
(c) married women
(d) corporation
238. An ------- is one whose State or sovereign is at war with the sovereign
of other, or one who, whatever his nationality is voluntary resident or
carries on business in an enemy's country.
(a)convict
(b) Alien enemy
(c) Married women
239. A corporation ---------for libel .It is affecting property of business, but
not affecting personal reputation.
(a)may sue
(b)may not sue
(c)may be sued
(d)may not be sued
240. Public officials are not liable ------- in tort in their representative
character for torts committed by them or by their subordinate.
(a)to sue
(b)to be sued
(c)may sue
(d)may be sued
241. To constitute a tort there are ingredients as follows:
(a)legal wrong, damage and remedy
(b) legal wrong and remedy
(c) legal wrong and damage
244. Volenti non fit injuria means that no injury is done to one who
consentssuch as -----------.
(a) dancing
(b) walking
(c) motor racing
245. Nuisance is consist of -----------.
(a) public nuisance
(b) private nuisance
(c) public nuisance and private nuisance
246. If his legal interest is injured, he cannot sue by himself, but can do so only
through a next-friend or guardian respectively.
(a) yes
(b) no
249. The law of torts is concerned with the redress of wrongs or injuries by means
of a civil action brought by the victim.
(a) yes
(b) no
250.If A says in conversation with “B” that he would sell his house will not
amount to an “offer” or ---------.
(a)promissor
(b)promisee
(c)proposal
(d)promise
255. If both of the contracting parties have performed what with agreed to
do under the contract, the contract is ---------.
(a)not discharged
(b)discharged
(c)performed
(d)not performed
256.--------- are obligations which though not contracts technically, give rise
to relations which resemble those created by contracts.
(a)quasi-contract
(b)contract
(c)agreement
(d)deed
257.--------- is an order of the Court ordering the breached party to perform
the contract.
(a)injunction
(b)compensation
(c)specific performance
(d)damages
263. Agreements by way of wager are --------- and to suit shall be brought
for recovering anything alleged to be won on any wager.
(a)valid
(b)invalid
(c)void
(d)voidable
265. At Common Law, a husband was ------- to be joined with his wife in
all actions for tort committed by her during the subsistence of the
marriage.
(a)not liable
(b)liable
(c)not liability
(d)liability
268.An employer may be ------- for the torts committed by his servants, but
he is not liable for the acts of those who are his independent contractors.
(a)liable
(b)vicarious liable
(c)not liable
(d)not vicarious liable
271.Not all civil injuries are torts. No civil injury is to be classified as a tort,
unless the appropriate remedy is an action for --------.
(a)relief
(b) remedy
(c)damages
(d)compensation
272.In ------, the action is brought by the injured party.
(a) crime
(b) breach of contract
(c)tort
(e) wrong
274.Liability for ------- can lie solely on account of the type of accident that
occurred, without direct evidence of negligence.
(a) nuisance
(b) negligence
(c)damage
(d)compensation
277.If a person sells you a second hand car and tells you that he has owned it and it
later turn out that it has been owned by 10 people. What are your --------?
(a) remedies
(b) response
278.A contract is an agreement usually between two persons giving rise to ---------
on the part of both persons which are enforced or recognised by law.
(a) obligations
(b) rights
279.Generally speaking, an agreement is made when one person accepts an -------
made by the other.
(a) offer
(b) consideration
280.The fundamental basis of contract law is the --------- of the contracting parties.
(a) agreement
(b) consideration
287.A void contract is one which is deemed at law never to have existed.
(a) Yes
(b) No
288.Voidable contracts are the ones made when one of the parties is an infant or a
minor or under the majority age.
(a) Yes
(b) No
289.An illegal contract is one which is made for an illegal purpose, and which is
therefore always void such as, contracts to commit a crime or tort.
(a) Yes
(b) No
290.If the representation is innocent, the party can sue for rescission of the
contract.
In the case of negligent or fraudulent misrepresentation, the affected party ---------
for damages as well.
(a) can sue
(b) cannot sue
292.In a tort action the proper plaintiff is the person injured by the------------.
(a) wrongdoer
(b) third party
293.Where several persons are injured by a tort, any one of them ----------- without
joining the other injured parties.
(a) may sue
(b) may not sue
294.Where there is more than one plaintiff, one or more of them ----------- by the
others to appear, plead, or act for them in any proceeding.
(a) may be authorized
(b) may authorize
300. ---------- is the omission to do something which a reasonable and prudent man
would not do.
(a) Negligence
(b) Remoteness of damage
(c) Vicarious liability
301.The -------- depends upon the ability to appreciate that unreasonable conduct
might hurt or harm others.
(a) strict liability
(b) breach of the duty of care
(c) duty of care
302. Tort is a civil wrong for which the remedy is ------- and is part of what is
called
the law of obligations.
(a) Demurrages
(b) Damage
(c) Damages
303. One must aware of the fact that a --------- when undergoing a sentence, cannot
sue for an injury to his property, or for recovery of debt.
(a)convict
(b) alien enemy
(c) married women
(d) corporation
304. An ------- is one whose State or sovereign is at war with the sovereign of
other,
or one who, whatever his nationality is voluntary resident or carries on business in
an enemy's country.
(a)convict
(b) Alien enemy
(c) Married women
305. A corporation ---------for libel .It is affecting property of business, but not
affecting personal reputation.
(a)may sue
(b)may not sue
(c)may be sued
(d)may not be sued
306. Public officials are not liable ------- in tort in their representative character for
torts committed by them or by their subordinate.
(a)to sue
(b)to be sued
(c)may sue
(d)may be sued
310. Volenti non fit injuriameans that no injury is done to one who consentssuch as
-
----------.
(a) dancing
(b) walking
(c) motor racing
311. Business agreements are created with an intention to create legal obligation
with the ------ who are entered in to that agreement.
(a) properties
(b) policy
(c) parties
312. The basic concepts of law of ----- include the terms such as ‘negligence”,
‘duty
of care’, ‘breach of the duty of care’ ‘damage’ ‘loss’ and ‘injury’ ‘strict liability’,
‘vicarious liability’ ‘remoteness of damage’.
(a) contract
(b) crime
(c) tort
314.If A says in conversation with “B” that he would sell his house will not
amount
to an “offer” or ---------.
(a)promissor
(b)promisee
(c)proposal
(d)promise
315. “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 --------- of understanding.
(a)incapable
(b)able
(c)unable
(d)capable
316. -------- is defined as “Two or more persons are said to consent when they
agree
upon the same thing in the same sense”.
(a)free consent
(b)consent
(c)coercion
(d)fraud
317.A and B make a contact grounded on erroneous belief that a particular debt is
barred by the law of limitation, the contract is not voidable.
(a)valid
(b)voidable
(c)not voidable
(d)invalid
318. In order to be a valid contract, the agreement must not be expressly declared
to
be void.
(a)void
(b)voidable
(c)not voidable
(d)not void
319. If both of the contracting parties have performed what with agreed to do under
the contract, the contract is ---------.
(a)not discharged
(b)discharged
(c)performed
(d)not performed
320.--------- are obligations which though not contracts technically, give rise to
relations which resemble those created by contracts.
(a)quasi-contract
(b)contract
(c)agreement
(d)deed
321.--------- is an order of the Court ordering the breached party to perform the
contract.
(a)injunction
(b)compensation
(c)specific performance
(d)damages
324.The person for whom such act is done, or who is so represented, is called the --
-
------.
(a)sub-agent
(b)agent
(c)principal
(d)bailor
325.Not all civil injuries are torts. No civil injury is to be classified as a tort,
unless the appropriate remedy is an action for --------.
(a)relief
(b) remedy
(c)damages
(d)compensation
328.Liability for ------- can lie solely on account of the type of accident that
occurred, without direct evidence of negligence.
(a) nuisance
(b) negligence
(c)damage
(d)compensation
329. Agreements in restraint of trade are contrary to public policy and therefore ---
--
----.
(a)void
(b)voidable
(c)valid
(d)invalid
330. A agrees to sell to B "a hundred tons of oil". There is nothing whatever to
show
what kind of oil was intended. The --------- is void for uncertainty.
(a)agreement
(b)contract
(c)acceptance
(d)proposal
332. At Common Law, a husband was ------- to be joined with his wife in all
actions
for tort committed by her during the subsistence of the marriage.
(a)not liable
(b)liable
(c)not liability
(d)liability
334. An employer may be ------- for the torts committed by his servants, but he is
not liable for the acts of those who are his independent contractors.
(a)liable
(b)vicarious liable
(c)not liable
(d)not vicarious liable
335.Not only directors are personally liable for any-------- committed themselves,
but also for the torts committed by others under their direction of supervision.
(a)crime
(b)tort
(c)wrong
(d)damage
337. A contract is an agreement usually between two persons giving rise to ---------
on the part of both persons which are enforced or recognised by law.
(a) obligations
(b) rights
338.The fundamental basis of contract law is the --------- of the contracting parties.
(a) agreement
(b) consideration
342.In a tort action the proper plaintiff is the person injured by the------------.
(a) wrongdoer
(b) third party
343.Where several persons are injured by a tort, any one of them ----------- without
joining the other injured parties.
(a) may sue
(b) may not sue
344.Where there is more than one plaintiff, one or more of them ----------- by the
others to appear, plead, or act for them in any proceeding.
(a) may be authorized
(b) may authorize
348.The --------- to enter into a contract can also be considered one of the
principles
of contract law.
(a) quality
(b) quantity
(c) capacity
352. According to Lord Denning , Tort means :The Province of tort is to allocate --
--
------- for injurious conduct.
(a)responsibility
(b)duty
353. In ----------, the duties are created by operation of law, but the contractual
dutymay be said to spring from agreement of the parties.
(a) contract
(b) tort
354.In tort, the wrongdoer is to ------------ the injured party, i.e., he has to
paydamages for the injury he has done.
(a)damages
(b)compensate
(c)remedy
355. In tort, the Court would not take into consideration the intention of the
wrongdoer. i.e., whether the wrong is done --------------, if there is an invasion of a
legal right, the Court will give remedy to the injured party.
(a) no intention
(b) intention
(c) intentionally or not
356. An award of damages may serve to ------------- the plaintiff and to deter the
defendant and other from similar conduct in the future.
(a)remedy
(b)compensate
(c)damages
357. To pull away a chair from a person as a practical joke is probably an assault,
but when he falls to the ground it becomes a ------------.
(a)no battery
(b)battery
(c)assault
358.Pointing a loaded pistol is an assault. But if the pistol is not loaded, it would be
------------.
(a)no assault
(b)assault
(c)battery
361. An advertisement in a newspaper offering a reward for the finder of the lost
dog amounts to a ----------.
(a) general offer
(b) specific offer
364. B accepts A's proposal by a letter sent by post. The communication of the
acceptance is -------------.
(a) complete
(b) incomplete
365. An acceptance may be revoked at any time before the communication of the
acceptance is ---------- as against the acceptor, but not afterwards.
(a) incomplete
(b) complete
366. If the proposor prescribes that the acceptance must be made through the
medium of post office, there is no acceptance if it is done by --------.
(a) written
(b) oral
368. “The performance of any ---------- may be made in any manner, or at any
time,
which the promisee prescribes or sanctions.”
(a) offer
(b) promise
(c)acceptance
371. Every promise and every set of promises, forming the consideration for
each other, is an ---------.
(a)agreement
(b)acceptance
(c)proposal
(d)offer
372.-------- which form the consideration or part of the consideration for each
other, is an agreement.
(a)agreement
(b)promise
(c)offer
(d)proposal
378. --------- must be communicated to the person who made the offer.
(a)acceptance
(b)proposal
(c)offer
(d)agreement
379. Acceptance of the proposal means the acceptance of ------ the terms.
(a) two
(b)some
(c)one
(d) all
381. --------- and acceptance are the two basic elements of contract.
(a)proposal
(b)offer
(c)agreement
(d)promise
384. Tort is the name of civil wrongs (not being merely breaches of contract) for
which there is a remedy by action in courts of common law jurisdiction by
(a) Dr.Ba Han
(b) Underhill
(c) Lord Denning
(d) Oxford Dictionary
386. The third and the last ingredient of tort is that the plaintiff must have entitled
to
get a--------.
(a)Legal wrong
(b)Legal damages
(c)Legal damage
(d)Legal remedy
388. Every man is presumed to intend and to know the natural and ordinary
consequences of his acts, which means the following one.
(a)Damage
(b)Malice
(c) Intention
(d) Motive
389. ---------can be properly used to describe the emotion which prompts the
defendant to commit the act.
(a)Damage
(b)Malice
(c)Intention
(d)Motive
390. To throw water at a person is an assault but if any drops fall upon him, it is
----------.
(a) battery
(b) assault
(c) false imprisonment
(d) attempted battery
391. A license is ---------that it shall be lawful for the licensee to enter upon
the land of the licensor or to do some other act in relation thereto which
would otherwise be illegal.
(a) an agreement
(b) a deed
(d)a certificate
(c)a convention
393. Under the doctrine of ---------, the plaintiff was able to recover
compensation from the defendant because of evading the accident and
meeting with other danger.
(a)damage
(b)negligence
(c)contributory negligence
(d)breach of duty
394. A person is guilty of a ---------- who does any act or is guilty of illegal
omission which causes any common injury, danger or annoyance to the
public or to the people in general who dwell or occupy property in
vicinity, or which must necessarily cause injury obstruction, danger or
annoyance to persons who may have occasion to use any public right. This
paragraph is the following one section.
(a)public nuisance
(b)private nuisance
(c)assault
(d)battery
395. One must aware of the fact that a --------- when undergoing a sentence,
cannot sue for an injury to his property, or for recovery of debt.
(a)Convict
(b) Alien enemy
(c) Married women
(d) Corporation
396. An ------- is one whose State or sovereign is at war with the sovereign
of other, or one who, whatever his nationality is voluntary resident or
carries on business in an enemy's country.
(a)convict
(b) Alien enemy
(c) Married women
398. Public officials are not liable ------- in tort in their representative
character for torts committed by them or by their subordinate.
(a)to sue
(b)to be sued
(c)may sue
(d)may be sued
400. An advertisement in a newspaper offering a reward for the finder of the lost
dog amounts to a ---------.
general offer
offer
specific offer
proposal
402. Acceptance of the proposal means the acceptance of ------ the terms.
two
some
one
all
403. -------- and acceptance are the two basic elements of contract.
proposal
offer
agreement
promise
405. Every person is competent to contract who is of the age of ----------- according
to Myanmar law.
16
17
18
406. A and B make a contact grounded on erroneous belief that a particular debt is
barred by the law of limitation, the contract is --------.
valid
voidable
not voidable
invalid
407. If both of the contracting parties have not yet performed what with agreed to
do under the contract, the contract is ---------.
not discharged
discharged
performed
not performed
408. --------- are obligations which though not contracts strictly, give rise to
relations which resemble those created by contracts.
Quasi-contract
Contract
Agreement
Deed
411. The fundamental basis of contract law is the --------- of the contracting parties.
agreement
consideration
412. The rule of law is that where an offer is required by statute to be in writing,
then also the acceptance must be --------- in order for the offer to become a contract
binding on both parties.
in writing
not in writing
415. The --------- to enter into a contract can also be considered one of the
principles
of contract law.
quality
quantity
capacity
420. Proposal or acceptance is made otherwise than in words, the promise is said to
be ---------.
implied promise
express promise
promise
agreement
421. ----------- under mistake of fact or mistake of law is called void agreement.
Agreement
Contract
Communication
423. To form a ---------, the first essential element is a proposal which is made by
one person and accepted by another.
promise
agreement
contract
424. Every promise or every set of promises forming the ----------- for each other is
an “agreement”.
communication
consideration
contract
426. A proposes by letter, to sell a house to B at a certain price. In this case, the
communication of the proposal is -------- when B receives the letter.
not complete
complete
incomplete
427. The parents of the minor may not attest a contract and the --------- only may
attest on behalf of the minor.
possession
guardian
ownership
428. The Parties to a contract must either perform, or offer to perform, their
respective ------------.
communications
promises
contracts
429. Promises bind the representatives of the promisors in case of the death of such
promisors before ------------.
proposal
performance
communication
430. Rights and liabilities of finder of goods are subject to the same responsibility
as
a -------.
bailor
bailee
indorsee
436. Every promise and every set of promises, forming the consideration
for each other, is an ---------.
(a)agreement
(b)acceptance
(c)proposal
(d)offer
443. --------- must be communicated to the person who made the offer.
(a)acceptance
(b)proposal
(c)offer
(d)agreement
444. Acceptance of the proposal means the acceptance of ------ the terms.
(a) two
(b)some
(c)one
(d) all
446. --------- and acceptance are the two basic elements of contract.
(a)proposal
(b)offer
(c)agreement
(d)promise
449. Tort is the name of civil wrongs (not being merely breaches of contract) for
which there is a remedy by action in courts of common law jurisdiction by
(a) Dr.Ba Han
(b) Underhill
(c) Lord Denning
(d) Oxford Dictionary
451. The third and the last ingredient of tort is that the plaintiff must have entitled
to get a--------.
(a)Legal wrong
(b)Legal damages
(c)Legal damage
(d)Legal remedy
453. Every man is presumed to intend and to know the natural and ordinary
consequences of his acts, which means the following one.
(a)Damage
(b)Malice
(c) Intention
(d) Motive
454. ---------can be properly used to describe the emotion which prompts the
defendant to commit the act.
(a)Damage
(b)Malice
(c)Intention
(d)Motive
455. To throw water at a person is an assault but if any drops fall upon him, it is
----------.
(a) battery
(b) assault
(c) false imprisonment
(d) attempted battery
460. One must aware of the fact that a --------- when undergoing a
sentence, cannot sue for an injury to his property, or for recovery of debt.
(a)Convict
(b) Alien enemy
(c) Married women
(d) Corporation
463. Public officials are not liable ------- in tort in their representative
character for torts committed by them or by their subordinate.
(a)to sue
(b)to be sued
(c)may sue
(d)may be sued
Short Questions
5.. How many kinds of requirements are there for quantum meruit? Express.
It means that the rights and liabilities to an implied (quasi) contract are the same as
if they entered
into contract themselves. The principle of Quantum meruit is closely associated
with the law relating
to quasi-contract. Where a building contractor does "extra work" over and above
the work mentioned
in the contract, he would be entitled to be paid at the market rate for such extra
work.
6. Under Section 2(h)of Contract Act, 1872, how many distinct parts are
required ? Express.
Under section 2(h) of the Contract Act 1872 provides that "A Contract is an
agreement enforceable
by law".
"All agreements are contracts if they are made by the free
consent of parties competent to contract, for a lawful
consideration and with a lawful object, and are not hereby
expressly declared to be void. Nothing here in contained shall
affect any law in force in the Republic of the Union of Myanmar,
by which any contract is required to be made in writing or in the
presence of witnesses, or any law relating to the registration of
documents.”
7. How many types of promise are there? Define the term implied promised.
There are two type of promise, they are Express and Implied Promise.
implied promised
In so far as such proposal or acceptance is made otherwise
than in words, the promise is said to be implied.[Section 9]
11. What do you understand by the term the mistake of fact ? Express with
conditions.
Agreement is void where both parties are under mistake as to
matter of fact essential to the agreement.
Explanation
An erroneous opinion as to the value of the thing which forms the subject-matter of
the agreement is
not to be deemed a mistake as to a matter of fact. (S20)
17. What do you understand by the term the thing must be done lawfully?
There are three conditions to establish a right of action under this
section, such as:-
(i) The thing must be done lawfully
(ii) The person who did it must not have intended to act
gratuitously: and,
(iii) The person for whom the act is done must enjoy the benefit
of it.
Section 70 provides for the third kind of quasi - contract as follow:-
“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 there of, the latter is bound to make
compensation to the former in respect of , or to restore, the thing so
done or delivered.”
19. U Maung Maung supplies the wife and children of U Aung Aung , a
lunatic, with necessaries
suitable to their condition in life. Can U Maung Maung entitle to be
reimbursed from U Aung's property?
Yes, U Maung Maung can entitle to be reimbursed from U Aung's property.
Because, U Maung Maung supplies the wife and children of U Aung Aung, a
lunatic, with
necessaries suitable to their condition in life U Maung Maung is entitled to be
reimbursed from U
Aung Aung's property.
Claim for necessaries supplied to persons incapable of contracting, or on his
account.
Reimbursement of person paying money due by another in payment of which he is
interested.
Thus, U Maung Maung can entitle to be reimbursed from U Aung's property.
24. "Ni Ni" agrees to buy a picture by a dead painter and two rare China
vases, and "Phyu Phyu" also agree to sell them. May "Ni Ni" compel "B" ?
No, "Ni Ni" may not compel "B". A dead painter promises to paint a picture for Ni
Ni by a certain day, at a certain price. A painter dies before the day. The contract
cannot be enforced by painter's
representative or by Ni Ni. For Phyu Phyu, Promises bind the representatives of
the promisors in case of the death of such
promisors before performance, unless a contrary intention appears from the
contract.
So, "Ni Ni" may not compel "B".
25. Maung Maung without Mi Mi's authority lends Mi Mi's money to Thu
Thu. Afterwards Mi Mi accepts interests on the money from Thu Thu. Can
Mi Mi's conduct implies a ratification of the loan?
Yes, Mi Mi's conduct can implies a ratification of the loan. Section 199, “A person
ratifying any
unauthorized act done on his behalf ratifies the whole of the transaction of which
such act formed a
part.”
So, Mi Mi's conduct can implies a ratification of the loan.