Business laws & Contract Management

Introduction

Indian Contract 1872

Section 2(b)
When a person to whom the proposal in made signifies his assent, thats the proposal said to be accepted. A proposal when accepted becomes promise.

Section 2(c)
Agreement covers every promise are every set promises forming considerations for each other.

Section 2(h)
Contract is an agreement enforceable by law.

 A contract contain a number of limiting principles, subject to which the parties may create rights and duties for themselves and the law will uphold those rights and duties

Two elements of an agreement

Offer or a proposal Acceptance of that offer or proposal

Two laments contract

An agreement Legal obligation, it should be enforceable by law.

 All contracts are agreements but all agreements are not contracts A legal obligation having its source in an agreement will give rise to a contract. Agreement to do an unlawful, immoral or illegal act viz smuggling, murder etc cannot be enforceable by law.

Essential elements of a valid contract

Agreement Intention to create a legal relationship Free and genuine contract Parties competent to contract Lawful consideration Lawful object Agreements not declared void or illegal Certainty of meaning Possibility of performance Necessary legal formalities

 Q. What is a lawful consideration? When would a consideration or object of an agreement unlawful? Explain with illustration. Section 23 says that a consideration or an object of an agreement is lawful unless, it is prohibited by law. it is of such nature that, if permitted, defeats the provisions of a law. it is fraudulent. it involves or implies injury to another person or property of another. it is immoral or against public policy.

 Void agreements - An agreement not enforceable by law is said to be void. [section 2(g)]. - - Note that it is not void contract, as an agreement which is not enforceable by law does not become contract at all. Following are void agreements - * Both parties under mistake of fact (section 20) * Unlawful object or consideration (section 24) * Agreement without consideration (section 25) * Agreement in restraint of marriage (section 26) * Agreement in restraint of trade (section 27) * Agreement in restraint of legal proceedings (section 28) * Uncertain agreement (section 29) * Wagering agreement (section 29) * Agreement to do an impossible Act (section 56). - These are discussed below.

Performance of contract
Section 37
Tender or attempted performance promiser, his/her Agent or legal representative (in case of death)

Section 62
If both the parties agree to substitute the original contract by new contract. The original contract need not be performed. Time, place and manner (8 hours or 24 hours foreign, Indian etc). Reciprocal promises: Both sides have to perform their roles correctly

 http://www.incorporatetime.com/FaqCorp. htm

Private Company 2 1. Min.No.of Person

Public Company 7

Rs/dollar
2. Capital 3. Max no. of Members 4. Fixed deposit 5. Statutory meeting 6. Managerial Remuneration 50 No not needed No limit

Rs 5 Lakhs
No limit can accept Compulsory Guidelines are there

7. No. of directors
8. Project

No permission needed
Cannot issue

Central govt. permit needed to go beyond 17

Can be issued for share capital

Sale of Goods Act,1930

Sale of Goods Act is one of very old mercantile law. Sale of Goods is one of the special types of Contract. Initially, this was part of Indian Contract Act itself in chapter VII (sections 76 to 123). Later these sections in Contract Act were deleted, and separate Sale of Goods Act was passed in 1930.

Sale of Goods Act,1930

The Sale of Goods Act is complimentary to Contract Act. Basic provisions of Contract Act apply to contract of Sale of Goods also. Basic requirements of contract i.e. offer and acceptance, legally enforceable agreement, mutual consent, parties competent to contract, free consent, lawful object, consideration etc. apply to contract of Sale of Goods also.

Sale of Goods Act 1930

Section 4
A contract of sale of goods is a contract whereby the seller transfer or agrees to transfer the property in goods to the buyer for a price a) Existing goods b) Future goods c) Contingent goods
i. Sale across a counter ii. Sale as per agreement

 Contract of Sale - A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another. [section 4(1)]. A contract of sale may be absolute or conditional. [section 4(2)].

Essentials of contract of sale

It is contract, i.e. all requirements of contract must be fulfilled It is of goods Transfer of property is required Contract is between buyer and seller Sale should be for price A part owner can sale his part to another partowner Contract may be absolute or conditional.

How Contract of sale is made

A contract of sale is made by an offer to buy or sell goods for a price and the acceptance of such offer. The contract may provide for the immediate delivery of the goods or immediate payment of the price or both, or for the delivery or payment by installments, or that the delivery or payment or both shall be postponed. [section 5(1)].

 Subject to the provisions of any law for the time being in force, a contract of sale may be made in writing or by word of mouth, or partly in writing and partly by word of mouth or may be implied from the conduct of the parties. [section 5(2)]. Thus, credit sale is also a sale. - - A verbal contract or contract by conduct of parties is valid. e.g. putting goods in basket in super market or taking food in a hotel.

Conditions
There must be two parties Transfer or agreement to transfer the ownership of goods Relates to goods only excludes only immovable property or services Consideration is price Absolute or conditional All other essentials of a contract

Two parties to contract

Two parties are required for contract. - Buyer means a person who buys or agrees to buy goods. [section 2(1)]. Seller means a person who sells or agrees to sell goods. [section 2(13)]. A part owner can sale his part to another part-owner. However, if joint owners distribute property among themselves as per mutual agreement, it is not sale as there are no two parties.

Contract of Sale includes agreement to sale

Where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell. [section 4(3)].

 An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred. [section 4(4)]. The provision that contract of sale includes agreement to sale is only for the purposes of rights and liabilities under Sale of Goods Act and not to determine liability of sales tax, which arises only when actual sale takes place.

Transfer of property
Property means the general property in goods, and not merely a special property. [section 2(11)]. In laymans terms property means ownership. General Property means full ownership. Thus, transfer of general property is required to constitute a sale. If goods are given for hire, lease, hire purchase or pledge, general property is not transferred and hence it is not a sale.

POSSESSION AND PROPERTY

Note that property and possession are not synonymous. Transfer of possession does not mean transfer of property. e.g. - if goods are handed over to transporter or godown keeper, possession is transferred but property remains with owner. Similarly, if goods remain in possession of seller after sale transaction is over, the possession is with seller, but property is with buyer.

Goods
Goods means every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. [section 2(7)].

Price
Price means the money consideration for a sale of goods. [section 2(10)]. Consideration is required for any contract. However, in case of contract of sale of goods, the consideration should be price i.e. money consideration.

Ascertainment of price
The price in a contract of sale may be fixed by the contract or may be left to be fixed in manner thereby agreed or may be determined by the course of dealing between the parties. [section 9(1)]. Where the price is not determined in accordance with the foregoing provisions, the buyer shall pay the seller a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case. [section 9(2)].

Conditions and Warranties

Opening para of section 16 makes it clear that there is no implied warranty or condition as to quality of fitness of goods for any particular purpose, except those specified in Sale of Goods Act or any other law. - - This is the basic principle of caveat emptor i.e. buyer be aware.

 However, there are certain stipulations which are essential for main purpose of the contract of sale of goods. These go the root of contract and non-fulfillment will mean loss of foundation of contract. These are termed as conditions. Other stipulations, which are not essential are termed as warranty. These are collateral to contract of sale of goods. Contract cannot be avoided for breach of warranty, but aggrieved party can claim damages. - - A breach of condition can be treated as breach of warranty, but vice versa is not permissible.

 A stipulation in a contract of sale with reference to goods which are the subject thereof may be a condition or a warranty. [section 12(1)]. A condition is a stipulation essential to the main purpose of the contract, the breach of which gives rise to a right to treat the contract as repudiated. [section 12(2)]. A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not to a right to reject the goods and treat the contract as repudiated. [section 12(3)]. Whether a stipulation in a contract of sale is a condition or a warranty depends in each case on the construction of the contract. A stipulation may be a condition, though called a warranty in the contract. [section 12(4)].

Caveat Emptor
The principle termed as caveat emptor means buyer be aware. Generally, buyer is expected to be careful while purchasing the goods and seller is not liable for any defects in goods sold by him. This principle in basic form is embodied in section 16 that subject to provisions of Sale of Goods Act and any other law, there is no implied condition or warranty as to quality or fitness of goods for any particular purpose. As per section 2(12), Quality of goods includes their state or condition.

Rights of unpaid seller against the goods

After goods are sold and property is transferred to buyer, the only remedy with seller is to approach Court, if the buyer does not pay. Seller has no right to take forceful possession of goods from buyer, once property in goods is transferred to him. However, the Act gives some rights to seller if his dues are not paid.

Suits for breach of the contract

Unpaid seller can exercise his rights to the extent explained above. In addition, seller can exercise following rights in case of breach of contract. Buyer has also rights in case of breach of contract.

Measure for compensation and damages

The Sale of Goods Act does not specify how to measure damages. However, since the Act is complimentary to Contract Act, measure of compensation and damages will be as provided in sections 73 and 74 of Contract Act.