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Course Name : BFIA
Subject Name : LEGAL ASPECTS OF BUSINESS Semester ± III Session-5
Faculty Name : SANTOSH KUMARI
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AGENCY
Agency: An µagent¶ is that person who is employed another, to do or to represent another in dealings with the third person´ Creation of agency:  By need, Clear cut contract  Implied contract  Confirmation

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Condition when agency is terminated: 

Termination of agency by law: 
Expiry of the period Destruction of the subject matter Death of party Becoming insolvent Becoming insane 

Completion of target  Principal declared foreign enemy 

Termination by conduct of parties 
Termination by principal  By agent  Mutual

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BAILMENT

³Delivering of goods by one person (bailer) to another (bailee) for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned on other wise disposed of, according to the direction of the person delivering them ´

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Rights of the Bailer: 
Receive the goods with profit Demand the goods back Revocation Loss caused by bailee Combining own goods 

Duties of the Bailor: 
Making payment of necessary expenses  Declare fault of goods  Giving delivery of the goods  Damages to the bailee  Payment of extraordinary expenses  Paying remuneration to the bailee

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Rights of Bailee: 
Realizing necessary expenses Realizing the damages  Damages on the non dis-closure of the fault in good Taking delivery of goods Receiving payment of extra ordinary expenses Receiving remuneration from the bailor 

Duties of Bailee:  Not mix goods 
Returning the goods Bailed  Giving the goods with profit  Not making unauthorized goods,  Not working against the condition,  Supervising the goods
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Pledge: A bailment of goods as a security for payment of a debt of performance of a promise is called Pledge. The Bailor in this case is known as µpawnor¶ and the bailee is called ¶pawnee¶ Right to use: Pawnee does not have any right to use the goods

Rights of Pawnee:  Right of Retainer  Retainer for subsequent advances  Extraordinary Expenses
Duties:  Reasonable Case  No Unauthorized used  Not to mix  Not to do any act in violation of the terms of the contract  Return the goods Pledge
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Right of Pawnor: 
Enfacement of pawnees duties  Defaulting Pawnor¶s right to redeem

Duties: 
To compensate Pawnee for extra ordinary expenses  To meet his obligation

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Meaning of unpaid seller: ³When the whole of the price has not been paid or tendered, When a bill of exchange or any other negotiable instrument has been received as a conditional payment and the condition on which it was received has not been fulfilled by reason of dishonor of the instrument or otherwise´

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Doctrine of µcaveat emptor¶: ³The buyer must be caution us in buying the goods, should examine the goods as to their fitness to the purpose before he actually buy them´ Exception to the rule: Sale by description Implied condition on warrants Sale under a trade name Merchantable quality Usage of trade

Rights of an unpaid seller: Right of lien Stoppage of goods in transit Right of re sale Detain the delivery of goods

Implied conditions‡ Condition as to title ‡ Sale by description ‡ Sale by sample ‡ Samples as well as description ‡ Fitness of goods and quality ‡ Usage of trade ‡ Condition as to wholesomeness Implied warranties: ‡ Warranty by quick possession ‡ Goods being free from encumbrance

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Unpaid seller¶s right against the buyerSuit for the price Suit for damages Suit for interest

CONTRACT OF SALE
³A contract of sale is a contract where by the seller transfer or agrees to transfer the property in goods to the buyer, for a price´  Essentials:  Buyer and seller  Goods  Price  Transfer of property  Element of a valid contract Meaning of µagreement to sale¶: ³A contract of sale, the property in goods is to take place at a future time or subject to certain condition, it is called to be an µagreement to sell´
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Meaning of condition warranties: ³The stipulations which are quite significant to the contract of sale and the breach of which is taken as breach of the contract are known as condition and the stipulation which are not so vital and breach of which known as warranties´

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Meaning of transfer of ownership: ³When the buyer becomes the owner of the goods only there the transfer of the ownership of goods considered to have been established´ Significance: ‡ Transfer of risk ‡ Right to file suit ‡ Accruing of goods by the liquidation Meaning of sale by auction: ³A sale by auction is a sale among the public, inviting the price proposal and selling the goods to the person bidding the highest amount for purchasing´

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Rules: ‡ Treating the different contracts separately ‡ Right to withdraw the bid bidding by the seller ‡ Craving no recognition ‡ Declaring the prescribed price for sale ‡ Use of pretended bids Meaning of goods: ³Means every kind of movable property other than actionable claim and money and includes stock and shares growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale´

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Classification of goods:  Existing goods:  Specified or ascertained goods  Unascertained good  Future goods  Contingent goods The price of the goods: ³ Price means the money consideration for a sale of goods´ Determination of price: ³By the contract of sale, By the manner agreed between the parties, Course of dealings Reasonable price Government´
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AGREEMENT Sec 2(e )
³Every set of promises, forming consideration for each other´ Essentials: ‡ Two parties ‡ competent to contact ‡ Consideration ‡ Free consent Contract: Sec 2(b): enforceable by law Essentials of a valid contact: ‡ Agreement, Capacity of parties, ‡ Free Consent, ‡ Lawful Consideration, ‡ Lawful Object, ‡ Agreement not expressly declared as void, ‡ Legal formalities
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Type of Contract: ‡ Void ‡ Voidable ‡ Illegal ‡ Un-enforceable Contract ‡ Unilateral ‡ Bilateral ‡ Express ‡ Implied ‡ Executed Offer: Signifies to another his willingness to do or to abstain from doing anything Acceptance: expression of consent to offer

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‡ Competence of Parties: Age of majority, Sound Mind, Not disqualified by any law ‡ Free Consent: Consent is free when it is not caused by the coercion, undue influence, Misrepresentation, Fraud and mistake ‡ Coercion: Use of Force or threat to enter an agreement ‡ Undue influence: One party is in a position to dominate the will of the other person ‡ Mis-representation: the person making the statement believes the same to be true, contract is voidable at the option of the party where consent has been to obtained but no such remedy is available if the party seeking to avoid the contract had the means of discovering the truth with ordinary diligence
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‡ Fraud: when a false statement is made with the knowledge that it is false, ‡ Mistake: If one or both of the contracting parties enter into a contract under some misunderstanding, ‡ Adequate Consideration: Only requirement of law is that there must be consideration, it is not necessary that it must be sufficient or adequate consideration, ‡ Lawful Considerations: for making agreement a valid agreement there must be lawful consideration.

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CONTRACTS EXPRESSLY DECLARED AS VOID

³Contracts obstructing the marriages, Contracts obstructing the trade, Contracts obstructing the legal Proceeding, Contracts of uncertainty, Contracts of wager, Contracts for getting the impossible acts done´ ‡ Contingent Contract: Contracts under which, on the happening or non happening of any probable event, promise is made for doing or obtaining from doing any act, there lies a condition in these contracts, hence these are also known as contracts with condition ‡ Difference between wagering agreement & contingent Contract: A wagering agreement is void whereas a contingent contract is valid, wagering agreement consists of reciprocal promises whereas a contingent contract may not contain reciprocal promises

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‡

Agreement in Restraint of trade: Section 27 ³every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void, Exceptions: Sale of Goodwill, Exceptions under the partnership act, restraint by a contact of service, trade combinations, Sole agreement Methods for discharge of contracts: By Impossibility of performance By operation of law By performance

‡

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By mutual Agreement:by novation by Rescission by Alteration by Remission by Lapse of time by breach of contract

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Remedies available to the aggrieved party for breach of contract
‡ Right for damages, ‡ Injunction, Specific Performance, ‡ Declaratory Suit, Kinds of Damages: Nominal Damages,  General  Specific  Remote & indirect Loss ‡ Contract of Indemnity:³A contract by which one party promises to save the other from loss caused to him by the conduct of the promiser himself or by the conduct of any other person, is called a contract of indemnity´
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‡ Rights of Indemnity holder when he is compelled to pay: All damages which he may be compelled to pay, all costs which he may be compelled to pay, all sums which he may have paid in compromise of any such suit ‡ Contract of Guarantee: Sec 126: ³A contract of guarantee is a contract to perform the promise or discharge the liability of a third person in case of his default.´ Kinds of Guarantee: ‡ Specific or simple guarantee, ‡ Continuity Guarantee :³A guarantee which extends to a series of transactions, is called a continuing Guarantee´
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‡ ‡     

 

Revocation of Continuing Guarantee: By notice of revocation, By death of surety, By discharge of surety in various circumstances Discharge of surety from Liability: By Revocation: Notice by surety Death of surety Novation By Conduct of the creditor: Variance i.e.; charge in terms on the contract Discharge of principal debtor Loss of security

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‡ By Invalidation of contract of Guarantee: 
Misrepresentation  Guarantee obtained by concealment 

Failure Co-surety to join a surety

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Rights of the Surety:
Rights against the principal debtor: Right of subrogation Right of indemnity Right Against the creditor: Right to securities Right to claim set-off Right against the Co-sureties: Equal Contribution Liability of co-sureties bond in different sums Right to share benefits of securities

Introduction
‡ What is business?
(Business is as old as civilization. Over the period of time it has gained enormous power over customers/employees/shareholders)

‡ Environment of Business ‡ Factors Constituting the Business Environment

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‡
a) b) c) d)

Meaning & Nature of Law What is Law? ( Legally Accepted Ways)
Law to ;
A Citizen A Lawyer A Legislator A Judge
³A set of rules derived by the State to regulate the conduct of its people, recognized by the State and enforced by it on its people termed as Law´ ³Business Law represents all those legal rules which are connected with Trade, Industry & Commerce´

‡ ‡

Nature of Law -- Changing (Non Static) Objective ± Establishing Order

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Characteristics of Law
A body of rules For the guidance and conduct of persons Imposed Enforced by the executive Presupposes a State Contents are non-static Develop Social Order & Compel Social Member to remain in order ‡ Serves Social/Political/Economic purpose ‡ Law & Morality ‡ ³ignorantia juris non excusat´
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‡ ‡ ‡ ‡ ‡ ‡ ‡

Classifications of Law

‡ ‡ ‡ ‡ ‡

Public Law / Private Law Criminal Law / Civil Law Substantive Law / Procedural Law International Law / Municipal Law Public International Law / Pvt. Int. Law

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Sources of Business Law

‡ ‡ ‡ ‡

English Mercantile Law Business Customs & Usages Statute Law Judicial Decisions of Higher Courts / System of Precedents

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Law of

Contract

³ The law of contract is that branch of law which determines the circumstances in which promises made by the parties to a contract shall be legally binding on them. Its rules define the remedies that are available in court of law against a person who fails to perform his/her contract and conditions under which the remedies are available´
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Nature of Indian Contract Act, 1872 ‡ Provides for remedies against failure ‡ The conditions under which remedies are available ‡ Ensures realization of reasonable expectation of the parties ‡ Not as exhaustive act (deals with the general principles of law of contract and some special contracts only) ‡ Doesn¶t lay down limits & duties rather create limiting principles ‡ The act is neither the whole law agreements nor whole law of obligations ‡ jus in rem v/s jus in personem (privity of contract)
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Agreement & Contract
‡ ³A contract is an agreement made between two or parties which the law will enforce´ - Section 2 (h) ‡ Agreement = Offer + Acceptance >> Promise (Promisee & Promisor) ‡ Consensus ad idem ‡ Legal Obligation should be created

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What is a Contract ?
‡ An Agreement ‡ Enforceable by law ‡ Made between atleast two parties ‡ By which rights are acquired by one, & ‡ Obligations are created on the part of another ‡ And on failure, the other party has a remedy.

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AGREEMENT & ENFORCEABILITY Every promise and very set of promises forming consideration for each other. Enforce by law

³All agreements are not contracts, but all contracts are agreements´

Essential Elements of a Valid Contract
‡ Offer & Acceptance ‡ Intention to create a legal relationship ‡ Lawful consideration ± (advantage/benefits moving to & from - between the two parties) ‡ Capacity (Competency) of Parties ± (age/sound mind/not disqualified to enter) ‡ Free & Genuine consent of the parties ± (undue influence, fraud, misrepresentation may cause absence of free consent) ‡ Lawful Objects ‡ Must not have been expressly declared Void ‡ Certainty & possibility of performance ‡ Legal Formalities
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Classification of Contract ‡ Classification as per Validity
(void/voidable/illegal/unforceable)

‡ Void Agreement & Void Contract ‡ Classification as per formation
(Express/Implied/Quasi)

‡ Classification as per performance
(Executed/Executory/Unilateral-Executed Consideration /Bilateral ± Executory Consideration)
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Offer & Acceptance
‡ ³A person is said to have made an offer/proposal, when he ³signifies to another his willingness ³to do´ or ³not to do´ (i.e. abstain from doing) anything, with a view to obtaining the ascent of that other to such act or abstinence´ ± Section 2 (a) Offerer/Proposer/Promisor Offeree/Proposee/Promisee/Acceptor
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Offer - Legal Rules
‡ Offer must be such that is capable to be accepted in law and gives rise to legal relationship ‡ Terms of offer must be definite, unambiguous and not loose & vague ‡ Offer must be communicated ‡ An offer must be distinguished from (i) an invitation to make an offer (ii) declaration of intention to offer ‡ Offer must be made with a view to obtaining the ascent ‡ Offer should not contain a term the noncompliance of which may be assumed to amount to acceptance
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Acceptance & Legal Rules
‡ Acceptance is the act of assenting by the Offeree to the offeror ‡ Acceptance may be express OR implied ‡ Who can accept? (only the Offeree) ‡ Acceptance must be legal & unqualified ‡ It must be communicated to the offeror ‡ It must be according to the mode prescribed ‡ It must be given within a reasonable time ‡ Showing intention to fulfil the terms of promise ‡ It cannot be implied by silence (mere mental acceptance is no acceptance) ‡ Must be given before the offer lapses
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Revocation or Lapse of Offer
‡ By Communication of Revocation ‡ Death of insanity of either party before acceptance ‡ By lapse of time (if not accepted within the prescribed time) ‡ Non fulfillment of specific condition ‡ If a counter offer is made ‡ If the acceptance is not according to the prescribed mode and the Offeree is informed ‡ Revocation & Rejection
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Completion of Communication
Offer or Acceptance OFFER : when it comes to the knowledge of the Offeree ACCEPTANCE : (i) As against the offeror : when putted into course of transmission (out of acceptors¶ power) (ii) As against the acceptor : when it comes to the knowledge of the offeror Revocation of Offer or Acceptance (i) As against the person who makes it -when putted into course of transmission. (ii) As against the person to whom it is made -- when it comes to his knowledge

Consideration
‡ When A promises to do µsomething¶ A must get µsomething¶ in return ± this something is known as µconsideration¶ (Affirmative Act / Abstinence / Promise) ‡ It must move at the desire of the promisor ‡ It may move from promisee or any other person ‡ It may be act, abstinence, forbearance or promise ‡ It may be past, present, future ‡ Need not be adequate ‡ It must be real and not illusory ‡ It must not be something which the promisor is not already bound to do ‡ It must not be illegal / immoral ‡ Stranger to the Contract
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Contract without Consideration (Exceptions) ‡ Love & Affection [Sec 25 (1)] -- A registered
agreement between near relatives based on natural love & affection is enforceable.

‡ Compensation for Voluntary Services [25 (2)] ‡ Promise to pay a time barred debt [25 (3)] ‡ Completed gift [Expl. 1 to Sec. 25] ‡ Agency [Sec. 185] ‡ Charitable subscription
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Capacity to Contract
‡ As per Sec. 10 an agreement becomes a contract if it is entered into between the parties competent to contract. ‡ As Sec. 11 declares following persons to be incompetent to contract; a) Minors b) Persons of unsound mind c) Persons disqualified by from contracting ‡ Alien Enemies / Corporations / Insolvent / Convicts
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Free Consent
‡ Sec. 13 ³two or more persons are said to be consented when they agree upon the same thing in the same sense´ ‡ A consent is said to be free when it is not caused by; a) coercion ± sec 15; b) undue influence ± sec 16; c) fraud ± sec 17; d) misrepresentation ± sec 18; e) mistake ± sec 20, 21 & 22
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Legality of Object
‡ Sec 23 declares that object & consideration of a contract should be lawful ‡ Consideration & object could be unlawful:a) If it is forbidden by law b) If it is of such a nature that, if permitted, it would defeat the provisions of any law c) If it is fraudulent d) If it involves or implies injury to the person or property of another e) If the court regards it as immoral f) If the agreement opposed to public policy
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Void Agreements
‡ ‡ ‡ ‡ ‡ ‡ The following agreements have been expressly declared to be void by the Contract Act; Agreements by incompetent parties-(Sec11) Agreements made under a mutual mistake of fact (Sec 20) Agreements, the consideration or object of which is unlawful (Sec 24) Agreements made without consideration (Sec 25) Agreements, meaning of which is uncertain (Sec 29) Agreements to do impossible acts (Sec 56)

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Contingent Contracts
‡ ‡ Contract may be Absolute OR Contingent Absolute contract is one in which the promisor binds himself to performance in any event unconditionally A contingent contract is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen (Sec 31) 3 essential characteristics of Contingent. Contract;
i) ii) iii) Its performance depends upon happening or non-happening of some event in future The event must be uncertain The event must be collateral, i.e. incidental to the contract

‡

‡

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Performance of Contract
‡ Sec 38 says if a promisor has made an offer to perform as per the contract and the promisee does not accept that, the promisor is not responsible for non performance. ‡ By whom the contract must be performed; Promisor himself, Agent, Legal Rep., Third Person, Joint Promisors. ‡ Devolution of joint liabilities (Sec 42 to 44) (When 2 or more Promisors have made the promise, they are known as the joint promisors) All of them must fulfil the promise jointly (42), If not, 43 comes into effect thereby; liability of joint promisors is joint & several, a joint promisor may claim contribution, sharing of loss arising from default of one (43 para 1,2,3)
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Discharge of Contract
‡ Discharge of contact means termination of the contractual relationship between the parties. A contract may be discharged by; Performance Agreement of Consent Impossibility Lapse of time Operation of law Breach of contract

a) b) c) d) e) f)

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Remedies for Breach of Contract
‡ ‡ 1. 2. 3. 4. 5. A remedy is the means given by law for the enforcement of right When a there is breach of contract, the injured party has one or more of the following remedies; Rescission of contract Suit for damages Suit upon quantum meruit Suit for specific performance of the contract Suit for injunction

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Quasi Contracts
Law of Quasi Contract ± Law of Restitution ‡ As a matter of fact Quasi Contract is not a contract at all. It is rather created by Law. ‡ It is an obligation which the law creates in the absence of any agreement. ‡ Sec. 68 -72 deals with following kinds of quasicontractual obligations; 1. Supply of necessaries 2. Payment by an interested person 3. Obligation to pay for non-gratuitous 4. Responsibilities of finder of goods 5. Mistake or Coersion 6. Quantum meruit >> µas much as erned¶ 7. Compensation for failure to discharge obligation created by quasi contracts
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Contracts of Indemnity & Guarantee
‡ Chapter VIII (sec. 124- 147) of Indian Contract Act 1872 covers these provisions ‡ A contract by which one party promises to save the other from loss caused to him by the conduct fo the promisor himself, or by the conduct of any other person, is called a µcontract of indemnity¶. (sec 124) ‡ Promisor >> indemnifier & the promisee >> indemnity holder ‡ Rights of indemnity holder when sued (sec 125) (all damages/all expenses-costs/all sums) ‡ Rights of indemnifier (the act is silent)
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Guarantee
(Sec. 126) ‡ A contract of guarantee of a contract to perform the promise or discharge the liability of a third person in case of his default. ‡ The person who gives ± µsurety¶ ‡ Who defaults ± µprincipal debtor¶ ‡ To whom it is given ± µcreditor¶ ‡ It may be oral or written; express or implied ‡ Essential features; Concurrence/Primary & Secondary liability/Essentials of a Valid Contract (in case of principal debtor being a minor, the surety is regarded as principal debtor)

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Contract of Indemnity v/s Contract of Guarantee
CoI
Two parties Liability is Primary Only one Contract Indemnifier not to Act on the request Of Indemnified Liability arises only In case of Contigency
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>>
>> >> >> >>

CoG
Three Parties Liability is Secondary Total three contracts Surety to give guarantee upon debtor¶s request Debt/duty already exists the performance of which has been guaranteed by the surety

>>

A few features
‡ Nature of surety¶s liability (coextensive/limitation) ‡ Kinds of guarantee (specific / continuing) ‡ Revocation of Continuing Guarantee (notice/death etc.) ‡ Discharge of Surety (surety¶s liability ends) (revocation/creditor¶s conduct/invalidation)
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Bailment
Ch. IX (sec 148 - 181) of Indian Contracts Act 1872 ‡ µBailment¶ means µdelivery of goods¶ by one person to another for some purpose upon a contract, that they shall, when the purpose is accomplished be returned or disposed off as per the directions given by the person delivering them. One who delivers called µBailor¶ and to whom delivered called µBailee¶. >>> (sec. 148) ‡ Duties of Bailee (take care of bailed goods/not to make unauthorise use/exclusive benefits to the bailee/not to mix the bailed goods with his own/to return the goods) ‡ Duties of Bailor (disclose known faults/bear extraordinary expenses of the bailee/receive back the goods/indemnify bailee in case of premature termination)
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Cntg. >>>
Law relating to lien; Lien means right of a person to retain possession of some goods until the claims are satisfied. These could be of two types; i) Particular Lien & ii) General Lien (sec 170) (sec 171) Only those goods All the goods which Against which services are in possession Have been rendered (bankers/attorneys)

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Pledge
‡ ‡ ‡ ‡ ‡ ‡ Bailment of goods as security for payment of a debt for performance of a promise is called µpledge¶; in this case The bailor is called >> pledger or pawnor The bailee is called >> pledgee or pawnee (sec 172) Pledge is bailment of goods as security, bailment is for a purpose of any kind In case of default, pawnee may sell the pledged goods, bailee may either retain the goods or sue for his charges In case of pledge, the pawnee cannot use the goods pledged, in case bailment bailee may do so if the contract so provides
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Contract of Agency
Ch. X (sec. 182-238) of Indian Contract Act 1872 ‡ An Agent is a person employed to do any act for another, or to represent another in dealings with third person(s) --- [sec. 182] Person who represent called ³Agent´ Person who is represented called ³Principal´ ‡ Essentials of Agency Relationship; 1. Agreement btn. Principal and the Agent (no consideration is necessary to create agency) & 2. Intention of the Agent to act on behalf of the Principal
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A few features
‡ Creation of an Agency
(Express Agreement/Implied Agreement/Ratification)

‡ Duties of Agent
(to carry out work undertaken as per instructions/to carry out work with reasonable care,skill & dilligence/to render accounts to the Principal/not to deal on his own account/to pay sums received for the principal/to protect & preserve interest of the principal in case of his death or insolvency/not to use the information obtained in the course of agency against the principal/not to make secret/not to delegate authority

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Sale of Goods Act 1930
Chapter VII of the Indian Contracts Act 1872 (contained the provisions earlier) ‡ Sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price.[sec. 4 (1)]. ‡ Sale & Agreement to Sell ‡ Essentials of Contract of Sale (Two parties-Buyer & Seller, Goods, Price, Transfer of Property, Essential elements of a valid contract) ‡ Sale & Hire Purchase Agreement ‡ Sale & barter or exchange ‡ Sale & bailment ‡ Price here means the money consideration for a sale of goods [sec 2 (10)] ‡ Earnest (some tangible thing as a token)
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Thank You
Please forward your query To:santoshsrcc@gmail.com CC: manoj.amity@panafnet.com

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