ILLEGAL CONTRACTS
Contracts are sometimes said to be illegal, either because the consideration of the promise is illegal, or
because the promise itself is illegal. If a contract is executed between two parties, and if the wrong is
done, the illegality of the consideration does not confer upon the party guilty of the wrong the right to
renounce the contract; i.e. no man can take advantage of his own wrong; and the innocent party,
therefore, is alone entitled to such a privilege.2 But if both parties be guilty, neither can ordinarily obtain
relief on their contract, either at law or in equity.
The general rule is, that where an illegal contract has been made, neither courts of law nor of equity will
interpose to grant any relief to the parties, but will leave them where it finds them, if they have been
equally cognizant of the illegality
DIFFERENCE BETWEEN EXPRESS AND IMPLIED CONTRACT
Express contract is a contractual term specifically stated to be part of the contract i.e. they are
expressly or specifically stated, either orally, say at the initial interview, or in writing. Express
terms include things like pay, hours and holidays. The law states that certain express terms must
be put in writing and handed to the employee in the form of a written statement of particulars
within two months of starting work
Implied contract means the duties and obligation of both parties are not expressed but are
implied by their acts or conducts. Both indicate by their conduct that they have a mutual
agreement and need not express the agreement in words. These are not expressly or explicitly
stated because, in the main, they are fairly obvious to both parties to the contract of employment.
Occasionally the courts will imply a term in a contract of employment where an important term
has been left out. Implied terms include statutory rights, such as the right to equal pay and duties
such as a duty of care.
EXPLAIN FRAUD
Fraud is a deliberate misrepresentation which causes another person to suffer damages, usually
monetary losses. It is an act of stealing money without giving proper service that they promised.
In actual sense it is not lying but a form of lying. It is a gross violation of someone's trust.It is an
Act or course of deception, an intentional concealment, omission, or perversion of truth, to (1) gain unlawful or
unfair advantage, (2) induce another to part with some valuable item or surrender a legal right, or (3) inflict
injury in some manner. Willful fraud is a criminal offense which calls for severe penalties, and its prosecution
and punishment is not bound by the statute of limitations.
EXPAIN HUNDIS ?
Hundis refer to financial instruments evolved on the Indian sub-continent used in trade and credit
transactions. They were used
as remittance instruments (to transfer funds from one place to another),
as credit instruments (to borrow money [IOUs]),
for trade transactions (as bills of exchange).
Technically, a Hundi is an unconditional order in writing made by a person directing another to
pay a certain sum of money to a person named in the order. Hundis, being a part of the informal
system have no legal status and are not covered under the Negotiable Instruments Act, 1881.
Though normally regarded as bills of exchange, they were more often used as equivalents of
cheques issued by indigenous bankers
Crossed Cheque
A crossed cheque is a cheque which is payable only through a collecting banker and not directly at the
counter of the bank. Crossing ensures security to the holder of the cheque as only the collecting banker
credits the proceeds to the account of the payee of the cheque.
A cheque is crossed when two parallel transverse lines, with or without any words, are drawn generally,
on the left hand top corner of the cheque. A crossed cheque does not effect the negotiability of the
instrument. It can be negotiated the same way as any other negotiable instrument.
Types of Crossing There are two types of negotiable instruments:-
• General Crossing
• Special Crossing
• Account Payee or Restrictive Crossing
• ‘ Not Negotiable ‘ Crossing
CAVEAT EMPORTOR
Caveat emptor, is Latin word for "Let the buyer beware".Generally, caveat emptor is the property law
doctrine that controls the sale of real property after the date of closing. Under the doctrine of caveat
emptor, the buyer could not recover from the seller for defects on the property that rendered the
property unfit for ordinary purposes. The only exception was if the seller actively concealed latent
defects or otherwise made material misrepresentations amounting to fraud.
MARINE INSURANCE
Marine insurance covers the loss or damage of ships, cargo, terminals, and any transport or
cargo by which property is transferred, acquired, or held between the points of origin and final
destination. In 1906, the Marine Insurance Act was passed under British law, creating a standard
operating procedure for policies that dictates the world's policies to this day. Inland marine
insurance can be procured for floating vessels that are not ocean-bound, but travel primarily on
lakes, rivers and reservoirs. There are also more general policies that cover the boat itself and its
passengers, liability for damages to other moving vehicles and liability during an encounter with
a non-moving object. These all fall under the heading of a marine insurance policy. Marine
insurance is often available through general insurance companies. There are also dealers who
work singularly in this area and only offer marine boat insurance.The rates of a marine insurance
company vary depending upon the type of boat, size of boat, use of boat and the owner's current
insurance history.
CORPORATE VEIL
The corporate shield or corporate veil is a term used to describe the separation of a corporation from
its owners. As a separate entity, a corporation or limited liability company (LLC) is set up to "shield" the
owners of the corporation (or members of the LLC) from personal liability for the debts or negligence of
the business.Legal concept that separates the personality of a corporation from the personalities of its
stockholders (shareholders), and protects them from being personally liable for the firm's debts and other
obligations. This protection, however, is not ironclad or impenetrable. Where a court determines that a firm's
business was not conducted in accordance with the provisions of corporate-legislation ,it may hold the
stockholders personally liable for the firm's obligations under the legal concept of 'lifting (or piercing) the
corporate veil.
PROMOTER
A corporate promoter (also "projector") is a person who solicits people to invest money into a
corporation, usually when it is being formed. An investment banker, an underwriter, or a stock promoter
may, wholly or in part, perform the role of a promoter. Promoters general owe a duty of utmost good
faith, so as to not mislead any potential investors, and disclose all material facts about the company's
business.
DIRECT TAXES
In the general sense, a direct tax is one paid directly to the government by the persons (juristic or
natural) on whom it is imposed (often accompanied by a tax return filed by the taxpayer). Examples
include some income taxes, some corporate taxes, property taxes and transfer taxes such as estate
(inheritance) tax and gift tax. In India, all the direct tax related matters are taken care by the Central
Board of Direct Taxes (CBDT), which is a significant division of the Department of Revenue, Ministry of
Finance, Government of India.
CIRCUMSTANCES UNDER WHICH A CONSENT IS SAID TO BE FREE
CiteMan
CiteHR
o Human Resources
Employee Recruitment Techniques, Process And Sourcing
Human Resource Management
Forms, Formats & Questionnaires
o Employee Management
Employee Compensation & Benefits
Performance Appraisal
Labor & Employee Relations
Employee Training & Development
HRIS
Talk To Seniors
o Organizational Development
Organizational Development
Safety & Health Of Your Employees
Motivation & Improvement
Corporate Events & Conferences
Knowledge & Information Management
o Looking For Consultant
o Consultant Listing
o HR Career
o Events & Announcements
CiteFin
o Financial Planning and Forecasting
Tax
Budgeting
Cash Flow
Mergers & Acquisitions
Strategic Planning
Retirement Planning
o Finance Sections
Accounting
Tax Audit
Financial Services
Venture Capital
Private Equity
o Evaluating Financial Performance
Asset management
Profitability
o Consultant Listing
o Looking For Consultant
o Finance Jobs
CiteSales
o Sales Management
Sales Team Management
Sales Force Recruiting
Sales Training
Sales Tracking and Forecasting
o Sales And Marketing Channels
Direct Sales
Telemarketing
Retail Sales
International Sales
Trade Shows
o Internet Marketing
Search Engine Promotion
Email Marketing
o Marketing Campaigns & Effectiveness
Television Advertising
Print Advertising
Competitions & Promotions<
Special offers by brands<
Radio Advertising<
o Customer Relationship Management
Customer Service
Customer Data
CRM Software
o Sales Skills
Getting Sales Leads
Sales Presentation Skills
o Marketing Management
Marketing Basics
Advertising And Branding
Public Relations
o Events And Announcements
o Consultant Listing
o Looking For Consultant
o Sales & Marketing Jobs
CiteOps
o Processes And Techniques
Operations Management
Project Management
Quality Management
o Theory And Practices
Managing Innovation and Technology
Purchasing and Supply Management
Business Process Re-engineering
o Operations Jobs
CiteLegal
o Corporate Law
Intellectual Property Laws
Corporate Law Discussions & Advice
Labour / Employee Related Laws
Commercial Laws Discussions & Advice
Income Tax Laws Discussions & Advice
o Civil Laws
o Criminal Law
o Family Law
o Immigration Law
o Cyber Law
o Human Rights Law
o Property Law
o LAWbby for lawyers
o Bare Acts Database
Jobs
About
Contact
Testimonials
Free Consent
November 5, 2009
in General / Interesting
Definition:
Parties to the contract must give consent. Consent must be free. Free consent is one of the
essential elements of a valid contract.
According to section 13 of the Act two or more persons are said to consent when they agree upon
the same thing in the same, sense. The whole agreement must be consented to in the same sense.
When both parties agree upon the same thing in the same sense, they are said to be ad-idem.
Where both the parties are not ‘ad-idem’ or when the minds of both parties are directed to
different objects, there is no consent. Some instances when consent is not free:
1) Where a person endorses a bill of exchange which, he was told was signing as a guarantee.
2) Where a document is read over, but it is different from the one pretended to be read over,
signature thereon would be of no force.
In one Blenkarn taking advantage of similarity of his name with Blenkiron & Co ordered goods
from Lindsay & Co by writing his signature to look like Blenkiron. M/s Lindsay & Co mistook
his order for that of Blenkiron. Blenkiron was a respectable firm. Lindsay & Co delivered the
goods to Blenkarn. Blenkarn in turn sold the goods to Cundy and did not pay Lindsay & Co filed
a suit against Cundy. It was held due to a mistake caused by Blenkarn, there was no real
agreement between Blenkarn and Lindsay & Co. Cundy, therefore did not get any title to the
goods as Blenkarn acquired no property in the goods.
Free Consent – When?
Parties consenting to the same thing in the same sense is not sufficient. Consent must be free.
Section 14 of the Act proceeds to define “free consent” as under:
“Consent is said to be free when it is not caused by (1) coercion (2) undue influence, (3) fraud,
(4) misrepresentation, or (5) mistake.
Consent is said to be so caused when it would not have been given but for the existence of such
coercion undue influence, fraud, misrepresentation or mistake. When there is no ‘consent’ there
is no contract at all. When there is consent but not ‘free consent’, the contract is void at the
option of the party whose consent was not free. If consent is given under the first four
circumstances, then the contract is void at the option of the party whose consent was so caused.
A consent induced by false representation may not be ‘free’ within the meaning of section 14,
but it can nevertheless be real; and ordinarily the effect of fraud or misrepresentation is to render
a transaction void only and most void.
When consent is caused by mistake of both the parties, then the agreement is void. It will,
therefore, be observed that consent under the first four circumstances, i.e. under coercion, undue
influence, fraud and misrepresentation makes the contract void, while consent under mistake of
both the parties makes the agreement void.
Coercion:
Coercion is committing, or threatening to commit, any act forbidden by the Indian Penal Code,
or the lawful detaining, or threatening to detain to detain any property, to the prejudice of any
person whatever, with the intention of causing any person to enter into an agreement.
It is immaterial whether the Indian Penal Code is or is not in force in the place where the
coercion is employed (Sec 15).
Illustration:
A, on board an English ship on the high seas, causes B to enter into an agreement by an act
amounting to criminal intimidation under the Indian Penal Code. A afterwards sues B for breach
of contract at Calcutta. A has employed coercion although his act is not an offence by the Law of
England and although section 506 of the Indian Penal Code was not in force at the time when or
at the place where the act was done.
What is negociation ? Explain various modes of negociation
Negotiation is a dialogue between two or more people or parties, intended to reach an
understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce
an agreement upon courses of action, to bargain for individual or collective advantage, to craft
outcomes to satisfy various interests of two person/ parties involved in negotiation process.
Negotiation is a process where each party involved in negotiating try gaining advantage for
themselves at the end of the process. Negotiation is intended to aim at compromise. According to
the Negotiable Instruments Act, 1881 there are just three types of negotiable instruments i.e.,
promissory note, bill of exchange and cheque.
Negotiation occurs in business, non-profit organizations, government branches, legal
proceedings, among nations and in personal situations such as marriage, divorce, parenting, and
everyday life
There are five modes of negotiation, recognition of which will enable the negotiator to be more
effective.
1) The co-operative mode: Here both parties seek to gain from the negotiation process. To
do so, both parties seek the ways of doing so.
2) The competitive mode: One party’s loss is another party’s gain. The gains achieved by
one party are at expenses of the other.
3) The organization mode: behind each negotiator there are many others in his
organization. The negotiator may well have more difficulty negotiating with his
organization than with the other side. Your job is to help the opponent negotiate with his
organization.
4) The attitudinal mode: trust, friendship, goodwill, integrity, credibility, etc form the
parts of this mode.
5) The personal mode: One’s personal ego, workload, and home commitment are the
important issues to be considered while negotiating. You will improve your negotiation if
you are aware of these issues concerning your opponent.
Distinguish between a sale and an agreement to sell and explain fully essentials of a
contract of sell of goods
A "sale" is (colloquially) a completed transaction where the only remaining duties of the buyer
may be timely rejection after inspection, and the only remaining duty of seller is to honor any
express or implied warranty. This assumes the full price was paid during the sale and the goods
were delivered, otherwise, the sale is not technically complete.
An "agreement to sell" is a contract that envisions (or defines) a future sale, thus all conditions
precedent and other terms (delivery, payment, etc), continue to be "executory", that is, are yet to
be fully carried out. A breach of this contract could result in a court order of specific
performance, or for damages caused by the loss of the opportunity to buy or sell.
Transfer of property (ownership): - In a 'sale' the property in goods passes to the buyer
immediately at the time of making the contract In 'an agreement to sell' there is no transfer of
property to the buyer at the time of the contract.
Risk of loss. The general rule is that unless otherwise agreed, the risk of loss primarily passes
with property (Sec. 26). Thus in case of sale, if the goods are destroyed the loss falls on the buyer
even though the goods may never have come into his possession because the property in the
goods has already passed to the buyer. On the other hand, in case of an agreement to sell where
the ownership in the goods is yet to pass from the seller to the buyer, such loss has to be borne by
the seller even though the goods are in the possession of the buyer.
A holding company is a company or firm that owns other companies' outstanding stock. It
usually refers to a company which does not produce goods or services itself; rather, its only
purpose is owning shares of other companies. Holding companies allow the reduction of risk for
the owners and can allow the ownership and control of a number of different companies.
Company over which control is executed is called subsidiary company
Sometimes a company intended to be a pure holding company identifies itself as such by adding
"Holdings" or "(Holdings)" to its name
A statutory corporation or public body is a corporation created by statute. While artificial
legal personality is almost always the result of statutory intervention, a statutory corporation does
not include corporations owned by shareholders whose legal personality derives from being
registered under a relevant company statute.
Common examples of statutory corporations include municipal councils, universities, central
banks and government regulators.
Statutory corporation are public enterprises into existence by a Special Act of the Parliament.
The Act defines its powers and functions, rules and regulations governing its employees and its
relationship with government departments.
This is a corporate body created by the legislature with defined powers and functions and is
financially independent with a clear control over a specified area or a particular type of
commercial activity. It is a corporate person and has the capacity of acting in its own name.
Statutory corporations therefore have the power of the government and considerable amount of
operating flexibility of private enterprises. Few are
Airport Authority of India
Damodar Vally corporation
National Highway authority of India
Central warehousing Corporation
Inland Waterways authority of India
Food Corporation of India
http://www-307.ibm.com/pc/support/site.wss/MIGR-67855.html#bluetooth
