Draft A Perfect Legal Notice

How To Draft A Perfect Legal Notice:
Legal notice is a formal letter sent by a person through its counsel asking the
address/receiver of this to discharge his legal liability towards the sender of the letter
such as payment of the due amount, compliance of the terms of the agreement etc. A
legal notice is issued as the sender wishes to give a final opportunity to the receiver
prior to initiate legal proceedings against him. Generally an advocate on behalf of his
client and acting upon his instructions issues a legal notice asking the receiver of the
notice to clear all his liabilities or to perform his part of obligations as per the
agreement between them or warn the receiver to do or not to do any act.
Some of the key point which needs to be kept in mind while drafting a legal notice are
as under: a . Address & Title: A legal notice must contain the complete and correct
address of the persons to whom it is addressed so that it may successfully delivered to
them. Secondly legal notice must contain proper title such as ‘Legal Notice under
section 138 of Negotiable Instrument Act’, ‘Notice under section 433 of Companies Act
for winding up’. b . Facts: A legal notice must contains the complete facts of the matter
in dispute so that the other party cannot take plea before the court that same are after
thought and the complete and true facts are not narrated before the court.
It should clearly spell out the matters which forced the sender to take this extreme step
of issuing legal notice. It states in complete details about the violations and/or breach
committed on the part of the receiver. c . Demand: A legal notice must contain the
details of the demands of the sender of the notice as what he wants from the receiver
of the notice or what he expect the receiver to do or not to do. Secondly legal notice
should mention a reasonable time to be given to the receiver to comply with the
demands of the sender or such time period as may be specifically prescribed in the
statutes (e.g. N.I. Act etc.), so that the receiver may comply the demands.
Further in a legal notice there must a clear warning be given to the receiver to the
effect that if the demands of the sender are not fulfilled or complied with then the
sender will initiate appropriate legal proceedings against him in the court of law. d .
Consequences: A legal notice must contain the consequences or action that may
follow in case the demands are not met in time. Kindly note that above are indicative
only and depending upon facts, circumstances and objective of each case, the
language of the notice may gone change.
Further the practice of issuing legal notice differ from person to person and from one
state to another state so there is no single rule of thumb of what should contain a legal
notice. All depends upon peculiarities of each case and should be dealt accordingly.
Breach of Contract and Remedy

1 Breach of Contract and Remedy
Breach of contract means the failure of a party to perform or fulfil its obligations under
the contract. Section 82 of the Contract Act.Two Types:Anticipatory Breach: When a
party to a contract refuses to perform its part of the contract before the due date of
performance.Express Renunciation: Communicating inability to perform.Implied
Renunciation: Making it impossible to perform by act or conduct.Actual Breach: When
a party totally or partially fails to perform its obligations under the contract on the due
date of performance or during the performance.
2 Remedies for Breach of Contract
A remedy is the means given by law for the enforcement of a right. A right accruing to
a party under a contract is meaning-less if there is no remedy to enforce that right in
the event of its violation.In the case of breach of contract, the injured party has one or
more of the following remedies:Rescission of the Contract: Section 82 (2) of the
Contract Act.Damages: Sections 83 and 84.Quantum Meruit: Section 85.Specific
Performance of the Contract: Section 86.Injunction: Section 87.
3 Rescission of Contract
In case of Actual Breach: Cancellation of the contract by the aggrieved party by giving
notice to the other party.In case of Anticipatory Breach: The Aggrieved Party has two
options—Treat the anticipatory breach as an immediate breach and may elect to
rescind the contract (and sue for damages) immediately (Hochster v. De La Tour);
orTreat the contract as still operative and subsisting and wait for the time of
performance, and then hold the other party responsible for all the consequences of
non-performance or breach of contract.If the aggrieved chooses the second option, the
other party would be able to perform the contract by the due date and also take
advantage of the intervening circumstances. (Avery v. Bowden ).
4 Rescission Continue...Refusal of Rescission: The Court may refuse to rescind the
contract in any of the following cases:Where the party entitled to rescission has
expressly or impliedly ratified the contract;Where the parties cannot be substantially
restored to their original positions because of a change of circumstances after the
making of the contract;Where third parties have, during the subsistence of the contract,
acquired rights in good faith and for value; andWhere only a part of the contract is
sought to be rescinded, and such part is not separable from the rest of the contract.
5 DamagesDamages may be defined as the monetary compensation payable by the
defaulting party to the aggrieved party for the loss suffered by him/her.The primary aim
of damages (Doctrine of Restitution)—to compensate the aggrieved party for the loss
or injury suffered by it, and to place him in the same position—as far as money can do
it—which he/she would have occupied had the breach of contract not occurred.The
foundation of the modern law of damages with respect to a breach of contract is the
judgment in the UK case of Hadley v. Baxendale. The principles of damages
developed in this case has been incorporated in the provisions of Section 83 of the
Contract Act.
6 Rules Regarding Damages
Observations of Justice Alderson, Where two parties have made a contract which one
of them has broken, the damages which the other party ought to receive in respect of
such breach of contract should be such as may fairly and reasonably be considered
either arising naturally, i.e. according to usual course of things, from such breach of
contract itself, or such as may be reasonably be supposed to have been in the
contemplation of both the parties at the time they made the contract, as the probable
result of the breach of it.Actual or ordinary damages (proximate consequence of the
breach of contract) are recoverable—Such damages which may fairly and reasonably
be considered as naturally and directly arising in the usual course of things from the
breach of contract.Special damages may be recoverable if the parties to the contract
knew about it when they made the contract—Such damages which may reasonably be
supposed to have been in the contemplation of both the parties at the time they made
the contract, as the probable result of the breach of it.
7 Rules Regarding Damages Continue...
The remote, indirect or hypothetical damages are not recoverable.Damages which are
not due to natural or probable consequences of the breach of contract.Liquidated
damages may be recoverable.If a sum is mentioned in the contract as the amount to
be paid in case of its breach, the aggrieved party is entitled to receive from the party
who has breached the contract, a reasonable compensation not exceeding the amount
so mentioned. Section 83 (2) of the Contract Act.The damages are determined on the
date of breach.The injured party has to take all reasonable steps to minimise the loss
caused by the breach.
8 Quantum MeruitLiteral Meaning: as much as earned or as much as merited. It is an
amount to be paid in proportion to the work done.When a person has done some work
under the contract, or some event happens which makes the further performance of
the contract impossible, then the party who has performed the work can claim
remuneration for the work he/she has done.The claim for quantum meruit arises only
when the original contract is terminated or discharged, and the claim for quantum
meruit can be brought only by the party who is not in default.
9 Cases for Quantum Meruit
When an agreement is discovered to be void. Section 84 of the Contract Act.Any
person who has received any advantage under a void contract is bound to restore it, or
to make compensation for it , to the person from whom he/she received itWhen a thing
is lawfully done or goods or services are supplied by a person without any intention to
do so gratuitously. Section 85 (b) of the Contract Act.When there is an express or
implied contract to render services but there is no agreement as to remuneration.When
the performance of the contract has been prevented by the other party to the
contract.When a contract is divisible and the party in default has enjoyed the benefit of
the partial performance.
10 Specific Performance of Contract
In certain cases of breach of contract, damages are not an adequate remedy for the
aggrieved party.In such cases, the court may direct the party in breach to carry out
his/her promise according to the terms of the contract. This is called Specific
Performance of Contract.When specific performance of contract may be ordered by the
Court:When the act agreed to be done is such that compensation in money for its non-
performance is not an adequate relief.When there exists no standard for ascertaining
the actual damage caused by the non-performance of the act agreed to be done.
11 Non-availability of Specific Performance
When specific performance will not be granted: Section 86(2) of the Contract
Act.Where the compensation in terms of money is an adequate relief for the breach of
contract.Where the contract is of personal nature, i.e. depends upon the personal
qualification, skill or knowledge of the parties.Where the performance of contract
cannot be supervised by the court.Where the situation is such that the contract cannot
be performed as agreed.Where the party who has breached the contract him/herself
demands for the performance of the contract as stipulated.
12 Injunction Section 87 of the Contract Act.
Where a party is in breach of a negative term of a contract, i.e. Where he/she is doing
or about to do something which he/she promised not to do, the Court (in the case of
Nepal, an Appellate Court) may, by issuing an order, restrain him/her from doing what
he/she promised not to do. Such an order of the court is known as an
injunction.Damages in case of the failure of the party to comply with the order so
issued, if the aggrieved party suffers an additional loss.It is at the discretion of the court
whether or not to issue an injunction.
Betty Sue Flowers, Professor at The University of Texas
Writing With Style A Conversation on the Art of Writing by Professor John Trimble
Getting Launched… • Think of a belief that means something to you. • Think of a
belief that makes you different from the masses. • Think of a belief that is based on
your personal experiences…this will interest others. • Think of ways to teach the reader
something.
Talk your ideas out as you write. • Write as if explaining to a friend. • For the ZERO
DRAFT, avoid even thinking about spelling, grammar, or the perfect sentence.
You have to let the madman out. The madman has got to be allowed to go wild.
Then you can let the architect in and design the structure. After that, you can have the
engineer come in and put it together. And then you let the janitor in to clean it up. The
problem is, most people let the janitor in before they let the madman out. • Betty Sue
Flowers, Professor at The University of Texas

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How To Draft A Perfect Legal Notice:

Breach of Contract and Remedy

Betty Sue Flowers, Professor at The University of Texas

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