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Lawful consideration
Competent parties
Free consent
Consideration and object to be legal
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, he is said to make a proposal/offer.
EXAMPLES
A real estate company proposes, by a letter or over telephone, to sell the flat to Rajiv at a certain price A company owns a fleet of motorboat for taking people from Mumbai to Goa. The boats are in water at gateway of India. Akbar, a creditor, offer not to file a suit against Begum, a debtor, if the latter pays him the amount of Rs 2000 outstanding.
CASE
A patent medicine company advertised that it would give a reward of $100 to anyone who will contact influenza after using smoke balls of the company for a certain period according to printed directions. Mrs Carlill purchased the advertised smoke ball and contacted influenza by using the same according to printed guidelines. She claimed the reward of $100. the company resisted the claim on the ground that advertisement was only invitation to offer and no offer was made to her and she had not communicated her acceptance assuming the advertisement was an offer. She filed the suit for the recovery of reward.
Definition Of acceptance: Sec. 2(b) When a person to whom the offer is made, signifies his assent thereto, the offer is said to be accepted. Rules of a valid acceptance: The person to whom the offer is made must give it. It must be absolute and unqualified. Example A offered to sell his land to B for Rs 50,000. B replied purporting to accept and enclosed Rs 10,000 promising to pay the balance of Rs 40,000 by monthly installment A offers to sell his house to B for Rs 5,00,000. B replies, I am prepared to buy your house for Rs 5,00,000 provided you purchase my Maruti car for Rs 2,00,000 A, a real estate company, offers to sell a flat to B and B agrees to purchase it subject to the title of the flat being approved by Bs solicitor.
Consideration: Sec. 2 (d) 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 abstain from doing something, such act or abstinence or promise is called as Consideration for the promise. Example A agrees to sell his motorcycle to B for Rs 20,000. Here, Bs promise to pay the sum of Rs 20,000 is the consideration for As promise to deliver the motorcycle, and As promise to deliver the motorcycle is the consideration for Bs promise to pay Rs 20,000.
Essentials of valid consideration: Consideration must move at the desire of the promisor Consideration may move from the promisee or any other person It may be past, present or future Consideration need not be adequate Consideration must be real and competent Example: A received summon to appear as a witness at trial. B, a party to the suit, promises to pay A Rs 1000 in addition to As expenses. However, B declined to pay the amount later. Can A enforce the Bs promise. Consideration must be legal Sec 23 defines illegal agreements as one the consideration or object of which (1) is forbidden by law (2) defeats the provision of any law (3) is fraudulent (4) involves or implies injury to the person or property of another (5) the court regard it as immoral or opposed to public policy
Voidable contracts
A voidable contract is one which may be repudiated (i.e., avoided) at the will of one or more of the parties, but not by others. Until it is so repudiated it remains valid and binding It is affected by a flaw (misrepresentation, fraud, coercion, undue influence), and the presence of any of these defects enables the party aggrieved to repudiate the contract.
Valid and binding on both the parties until avoided by aggrieved party Can be avoided only by aggrieved party within a reasonable time Example: A purchased certain goods from B by making misrepresentation of some facts. Later B come to know about the representation made by A. However, B does not within a reasonable time, repudiate the contract. A sells those goods to C. The party at whose option the contract is voidable, is not bound to repudiate it The party repudiating the contract is entitled to get damages for any loss that he may have suffered Aggrieved party has two-fold rights (a) to repudiate the contract and therefore not to be bound there under (b) to carry out the transaction as stipulated in spite of flaw therein.
An agreement which is not enforceable by either of the parties to it is void. (sec 2 (j)) Sometimes contract is valid at the time of formation, but may become void afterwards The act has declared certain type of agreements to be void, viz., (1) agreements entered into through a mutual mistakes of facts between the parties (s.20) (2) agreements the object or consideration of which is unlawful (s.23) (3) agreements part of the consideration or object of which is unlawful (s.24) (4) agreements made without consideration (s.25) (5) agreements in restraint of trade (s. 27) (6) agreements in restraint of legal proceedings (s. 28) (7) agreements in restraint of marriage (s. 26) (8) uncertain agreements (s. 30) (9) wagering agreements (s.30) (10) impossible agreements (s. 56) (11) an agreement to enter into agreement in future
Void contracts
Legality: a void agreement is without any legal effect, a voidable contract can be enforced by the party at whose option it is voidable Enforceability: a void agreement is uneforceable from very beining, whereas voidable contract become unenforceable only when the party at whose option the contract is voidable rescinds it Example: A pays B Rs 10000 in consideration of Bs promise to sell him some goods. The goods had been destroyed at the time of promise. A, a doctor, by exercising undue influence over his patient B induces him to sell his car woth RS 1,50,000 for Rs 1,00,000
Contd
Compensation: under voidablee contracts, any person who has received any benefit must compensate or restore it to the other party, however compensation in the event of non performance of void agreement does not arise
Sec.10 states: Essential ingredient of a valid contract is that the contracting parties must be competent
Who is a Minor? As per Indian Majority Act: a person below age of eighteen years under normal circumstances and a person below age of twenty one years in case of a guardian being appointed for his person or property
Usually it is Void ab - initio (absolutely void and inoperative) No ratification on attaining age of majority
Effects of agreement with or by a minor Minor is however responsible for necessaries provided to him during his minority Minor can be admitted to benefits of partnership Beneficial agreements are valid minor is eligible to get benefits but can not be responsible towards liabilities
Consent i.e. 'Agreeing upon the same thing in the same sense' Free Consent: Section 14-Consent is said to be free when it NOT caused by any one of the following Coercion Misrepresentation Mistake . Undue influence . Fraud
Coercion: (Sec 15):" It is a) Committing or threatening to commit, any act forbidden by Indian Penal Code, or b) 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 Example: A threatens to kill B if he doesnt transfer his house in As favour for a very low price A threatens to kill B (Cs son) if C does not let his house to A and thereupon C gives his consent.
Coercion: (Sec 15) Effect of Coercion: Contract is voidable at the option of the party whose consent was so obtained
Burden of proof that coercion was used lies on the aggrieved party.
Undue Influence: Sec 16(1) "A contract is said to be induced by undue influence where, i) 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 ii)he uses the position to obtain an unfair advantage over the other."
Undue Influence In a position to dominate the will of the other means: a) Where he holds a real or apparent authority over the other, for eg. lawyer & client, trustee & beneficiary, master & servant, judge and the accused, doctor and a patient etc. b) where he stands in a fiduciary relation to the other
Misrepresentation: Sec 18 "It means and includesa) the positive assertion in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true, or b) any breach of duty, which without any intent to deceive, gains an advantage to the person committing it, by misleading other person to his prejudice, or c) causing, however innocently, a party, to make a mistake as to the substance of the thing which is the subject of the agreement
Fraud: Sec 17
It means and includes any of the following acts committed by a party to the contract
i)The suggestion that a fact is true when it is not true, by the one who does not believe it to be true ii)The active concealment of a fact by a person who has knowledge or belief of the fact iii)A promise made without any intention of performing it iv)Any other act fitted to deceive
Representation =
the contract
with an intention to induce the party to enter into the contract
Effects of Misrepresentation
2. He may affirm the contract and insist that he shall be put in a position in which he would have been, if the statement was true.
EXAMPLE
A, by a misrepresentation leads B erroneously to believe that 500 kilos of indigo are made annually at As factory. B examines the account of the factory, which shows only 400 kilos of indigo have been made. After this, B buys the factory. Is contract voidable on account of As mispresentation.
1. He can rescind (set aside) the contract, treating it as voidable 2. He may affirm the contract and insist that he shall be put in a position in which he would have been, if the statement were true.
3. He can also sue for damages, if any, because fraud is a civil wrong and hence compensation is payable
Mistake= erroneous belief concerning something Mistake can be of Law Or of Fact Mistake of law | |
Mistake of Law
|
Mistake of law
of the country
| Bilateral Mistake
| Unilateral Mistake
Mistake of law of one's own country is no excuse. Mistake of foreign law however stands on the same footing as mistake of fact Bilateral mistake =
a) Both parties to an agreement misunderstood each other and are at cross purposes b) Mistake relates to a fact and not to judgment or opinion etc. c) The fact must be essential to the agreement
Bilateral mistake:
Mistake as to the existence of the subject matter of the agreement Mistake as to the identity of the subject matter Mistake as to the title of the subject matter
EXAMPLE
A, who owns two fiat cars, offers to sell his white fiat for Rs 80,000. B accepts the offer thinking A is selling his brown fiat. P wrote to H inquiring the price of the rifle of particular make and suggested that he might buy as many as 30. on receipt of the information, he telegraphed, send three rifles. But because of the mistake of telegraph authorities message transmitted was send the rifles. H dispatched 30 rifles. A buys an article thinking it is worth Rs 10,000 while actually it is worth Rs 5,000 only. Later he wants to avoid the agreement on the ground of mistake as to the price of subject matter. Can he avoid. A agrees to sell B a specific cargo of goods supposed to be on its way from London to Mumbai. It turns out that before the date of bargain the ship carrying the cargo had been cast away and the goods lost. Neither party was aware of the facts.
Unilateral Mistake : only one of the contracting parties is mistaken as to a fact of material to the contract EXAMPLE: A sold rice to B by sample, and B thinking that they were old rice, purchased them. Infact, the the rice were new. Can B avoid the contract. Effect of Unilateral Mistake: Contract remains valid unless caused by misrepresentation or fraud. Where the mistake is caused by misrepresentation or fraud the contract becomes voidable at the option of the aggrieved party.
Cases where agreement does not give rise to any contract in spite of a unilateral mistake: Mistake as to the identity of the person contracted with, where such identity is important Mistake as to nature and character of the written document. Reason for these two exceptions is that the mistake is so fundamental as to go to the roots of the agreement
Contd
c) Contracts in the nature of champerty and maintenance: Where, a person, having no interest, agrees to maintain a suit on behalf of another against a third party, it is known as maintenance. Champerty is a bargain whereby one party is to assist another in recovering property, and in return, is to share in the proceeds of the action. Champerty and maintenance are not illegal but court refuses to enforce it, when i. They are found to be extortionate and unconscionable ii. Not made with the bonafide object of assisting the claims of the person unable to carry on litigation himself.
CASE
A, a financier, promises to spend Rs 30,000 for the consideration that a part of the estate recovered through litigation will be conveyed to him, the value of which amounted to Rs 90,000 A promises to render services for the conduct of litigation in consideration of payment of 10 percent of the amount recovered through court
Contd..
a) Agreements for the sale of public offices and titles Example: A promises to pay B Rs 5,000 if B secures him an employment in public office b) Agreements in restraint of parents right c) Agreements in restraint of marriage of any person other than a minor d) Marriage brokerage e) Agreements in restraint of legal proceedings f) Agreements interfering with the course of justice: any agreement for the purpose of using any influence of any kind with judges or officers of justice g) Agreements in restraint of trade
Sec 27 provides that every agreement by which anyone is restrained from exercising a lawful profession, trade or business of any kind is void Example 29 out of 30 manufacturers of combs in the city of Patna agreed with R to supply him with combs and not to anyone else. Under the agreement R was free to reject the goods if he founds there was no market for them. Is agreement void. J, an employee of company, agreed not to employ himself in a similar concern within a distance of 800 miles from Chennai after leaving the companys service. Is agreement void. A and B carried on business of readymade garments in a certain locality in calcutta. A promised to stopped business in that locality if B paid him Rs 900 which he had paid to his workmen as advances. A stopped his business but B did not paid him the promised money. Is agreement void.
1) 2) 3)
4)
Sale of a goodwill of business Example: S, a seller of imitation jewellery, sells his business to B and promises not to carry on business of imitation jewellery and real jewellery. Is agreement valid? Partners agreement: partners may agree that A partner shall not carry on any business other than that of a firm while he is a partner A partner on ceasing to be a partner will not carry on similar business to that of the firm within specified period or within specified local limits Partners may , upon or anticipation of the dissolution of firm, make an agreement that some or all of them will not carry on business similar to that of a firm within a specified period or within a specified local limits and such an agreement shall be valid if the restriction imposed are legal A partner, may upon the sale of a goodwill of the firm, make an agreement that such a partner will not carry on any business similar to that of a firm within a specified period or within a specified local limits and such an agreement shall be valid if restriction imposed are legal
Contd
Restrictive trade agreements: if restrictive trade agreement is not against public interest, it is valid. Service agreements: an agreement of service by which a person binds himself during the term of agreement not to take service with anyone else or directly or indirectly take part in promotion of any business in direct competition with that of his employer.
Wagering agreements
A promise to give money or moneys worth upon the determination of an uncertain event Example: A and B bet as to whether it would rain on aprticular day or not - A promises to pay Rs 100 to B if it rained and B promising an equal amount to A, if it did not. A borrows Rs 500 from B pay to C, to whom A has lost bet. Wagering agreements void and not illegal: unless the wager amounts to a lottery, which is crime under the Indian Penal Code S. 294 A, its not illegal. However, supreme court upheld lotteries as legal where prior permission of Govt. is obtained and winner of the lottery has a right to receive the prize and sale of lotteries is subject to the payment of sales tax.
Exceptions
Transactions for the sale and purchase of stocks and shares Prize competitions An agreement to contribute a plate or prize of the value of Rs 500 or above to be awarded to the winner of horse race Contracts of insurance
Quasi contract
A situation in which law imposes on one person, on grounds of natural justice, an obligation similar to that which arises from a true contract, although not contract, express or implied, has infact been enterd into by them Example X supplies goods to his customer Y, goods are delivered by a servant of X to Z, mistaking Z for Y. Is Z liable to pay compensation to X.
Contd
Reimbursement to a person paying money due by another in payment of which he is interested: A person who is interested in payment of money which another is bound by law to pay, and who, therefore, pays it, is entitled to be reimbursed by the other (S. 69) EXAMPLE: B holds land in Bengal, on lease granted by A, the Zamindar. The revenue payable by A to the govt being in arrear, his land is advertised for sale by the govt. Under the revenue law, the consequence of such sale will be the annulments of Bs lease. B, to prevent the sale and consequent annulment of his own lease, pays the govt, the sum due from A. A is bound to make good to B the amount so paid.
Contd
Obligation of person enjoying benefits of non-gratuitous act: where the person lawfully does anything for another person, or delivers anything to him, not intending to do it gratuitously, and such another person enjoys the benefit thereof, later is bound to make compensation to the former (s. 70) Example A, a tradesman, leaves goods at Bs house by mistake. B treats the goods his own. Is B bound to pay for them. A saves Bs property from fire. Is A entitled to get compensation from B. Responsibility of finder of goods: A person who finds goods belonging to another and take them into his custody, is subject to the same responsibility as bailee.
CONTD
Liability of person to whom money is paid or things delivered by mistake or under coercion: A person to whom money has been paid, or thing delivered by mistake or under coercion, must repay or return them Example: A and B jointly owe Rs 1,000 to C. A pays the amount to C. Also, B, not knowing this fact, pay Rs 1,000 to C. Is C bound to repay the amount to B.
Contingent Contracts
A contingent contract is to do or not to do something, if some event collateral to such contract does or does not happen. A contingent contract may be contingent upon The happening or not happening of some event within a specified time Example: A contract to pay B Rs 10,000 if Bs house is burnt
Performance of Contract
Performance of contract means carrying out of obligation under it
Who must perform the promise under the contracta) By promisor himself b) By his agent c) By his legal representative
Performance of joint promises a) When two or more person has made a joint promise, all such persons must jointly fulfill the promise b) When two or more person make a joint promise, the promisee may compel any one or more of such joint promisors to perform whole of the promise.
Contd
c) Where, a joint promisor has been compelled to perform the whole promise, he may compel other joint promisor to contribute equally. If any one of the joint promisor makes default in such contribution, the remaining joint promisor must bear the loss in equal shares. Examples A, B and C are under joint promise to pay D Rs 3,000. a is compelled to pay the whole amount. Can A recover the amount from B and C. if yes, how much. A, B and C are under joint promise to pay D Rs 3,000. C is compelled to pay the whole amount. A is insolvent, but his assets are sufficient to pay half of his debt. Can C recover the amount from B and A. If yes, how much. A, B and C are under joint promise to pay D Rs 3,000. C is unable to pay anything. And A is compelled to pay the whole amount. B is insolvent, but his assets are sufficient to pay half of his debt. Can A recover the amount from B and C. If yes, how much.
CONTD
d) When a person has made a promise to two or more persons jointly, the right to claim performance rests with all the joint promisees and after death, with the representative of such a deceased promisee jointly with survivors and after death of survivors with representatives of all jointly Example: A, in consideration of Rs 5,000 lent to him by B and C, promises B and C jointly to repay them that sum with interest on a day specified. B dies. Later on C also dies. Who will claim the right to performance?
Remedies for Breach of contract: Remedies are available under Indian Contract Act, 1872 and under Specific Relief Act 1963. Remedies under specific relief act are 1. A decree for specific performance: the court direct the party in breach to carry out his promise according to the term of the contract 2. An injunction: an order of the court prohibiting a person to do something where a party is in breach of negative term of contract 3. A suit on quantum meruit: means as much as merited (earned). A right to sue on a quantum meruit arises where a contract partly performed by one party has become discharged by breach of other party. Remedies under Indian Contract Act, 1872 1. Recession of contract (s. 39) 2. Damages for the loss sustained or suffered
Damages Damages are awarded as per rules laid down in Ss. 73-74. As per S.73 1. compensations as general damages will be awarded only those losses that directly or naturally results from breach of contract 2. compensation for losses indirectly caused by breach may be paid as special damages 3. aggrieved party should try to take steps to keep the losses to the minimum S. 74 provides that if the parties agree in their contract that whosoever commits the breach shall pay the agreed amount as compensation, the court has power to award a reasonable amount only, subject to such agreed amount.
Example
A, a builder, contracts to erect and finishes the house by the 1st Jan, in order that B give possession of it at that time to C, to whom B has contracted to let it. A is informed of the contract between B and C. A builds the house so badly that before 1st Jan it falls down and had to be rebuilt by B, who in consequence losses the rent, which he has to receive from C and is obliged to make compensation to C for the breach of contract. Can B claim for compensation? How much? Xs mill was stopped due to breakdown of shaft. He delivered the shaft to Y, a common carier, to be taken to manufacturer to copy it and make a new one. X did not make known to Y that delay would result in loss of profit. By some neglect on the part of Y the delivery of the shaft was delayed in transit beyond a reasonable time. As a result, the mill remain idle for a longer time than otherwise would have been, had the shaft been delivered in time. Is Y liable for loss of profit?
Contd..
Liquidated damages & Penalty: The parties to the contract pre-estimate of the loss which might happen to them in case contract was broken by any of them (Liquidated damages) The parties made no attempt to estimate the loss that might happen to them in case of breach but still stipulate a sum to be payable in case of breach with the object of coercing the party to perform the contract (penalty) Example: A contracts with B to pay B Rs 1000 if he fails to pay B 500 on a particular day. A fails to pay Rs 500 on that day. Is B entitled for compensation? A contracts with B that if A practices as surgeon in Calcutta, he will pay B Rs 5000. A practices as surgeon in Calcutta. Is B entitled for compensation?
Contd
Exemplary, punitive or vindictive damages: awarded to punish the defendant and not solely of awarding compensation to the plaintiff. These have been awarded a) For breach of a promise to marry b) For wrongful dishonor of the cheque of the customer by a banker possessing adequate funds of the customer. Nominal damages: awarded where there is only technical violation of legal rights but no substantial loss is caused thereby.
Contracts of Indemnity.
A contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person, is called a " contract of indemnity". Eg - A contract to indemnify B against the consequences of any proceedings which C may take against B in respect of a certain sum of 20000/- rupees. This is a contract of indemnity.
Contracts of Guarantee
A "contract of guarantee" is a contract to perform the promise, or discharge the liability, of a third person in case of his default. Eg A lends money to B and C promises A that if B fails to repay he will pay the money. The person who gives the guarantee is called the "surety. The person in respect of whose default the guarantee is given is called the "principal debtor . The person to whom the guarantee is given is called the "creditor. A guarantee may be either oral or written.
Essentials of a Guarantee
1. There must be a debt existing, which should be recoverable. 2. Existence of 3 parties ie. Principal debtor, creditor & surety. 3. There should be some consideration 4. The liability must be legally enforceable. 5. The principal debtor must be primarily liable. Suretys liability is secondary. 6. There must be a distinct promise, oral or written by the surety to pay the debt in case of default by principal debtor. 7. All essentials of a contract.
Rights of Surety
Rights of Subrogation (Right of surety against principal debtor).When the surety pays gauranted sum to creditor on behalf of principal debtor, he owns all the rights of the Creditor. Rights to indemnity - Surety is entitled to recover from the principal debtor whatever sum he has rightfully paid under the guarantee, but, no sums which he has paid wrongfully Rights to benefit of Creditors Securities A surety is entitled to the benefit of every security which the creditor has against the principal debtor To be contributed equally in case where two or more persons are co-sureties.
Contract of Bailment
A bailment is the transfer of possession of personal property without the transfer of ownership, usually on the understanding that the property will be returned. The party who transfers the property is called the bailor, and the party to whom the property is transferred is the bailee.
Types of Bailment
There are two main types of bailment: contractual and non-contractual. Contractual bailment exists where the elements of a bailment are found in a contract. Non-contractual bailment exists where the elements of a bailment are present without a contract.
Pledge
The bailment of goods as a security for payment for debt or performance of promise is called pledge Example: A borrows Rs 100 from B and keeps his watch as security for payment of debt. The bailment of watch is called pledge Distinction between bailment and pledge 1. As to purpose: pledge is bailment of goods for a specific purpose while no such purpose in case of bailment 2. As to right of sail: pledgee has a right of sale in case of default after giving notice to pledger while there is no such right to sale to bailee 3. As to right of using the goods: pledgee has no rights of using the goods pledged while no such restriction exists for bailee
Law of Agency
When people do business, they often deal with each other directly Buyer Seller However, sometimes they deal with each other using a middleman (or representative or intermediary) Buyer Middleman Seller The legal relationship between the middleman and the businessperson is governed by the law of agency The legal term for a middleman or representative is an agent The person who is represented by the agent is called the principal Therefore, in our example Buyer Middleman Seller If the middleman represents the buyer Principal Agent Seller
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Forms of Agency
There are several different forms of agency A general agent has the power to act for the principal in all business matters A special agent only has the authority of the principal for one transaction A del credere agent guarantees to the principal that if the third party does not pay then the agent will pay.
The agent usually takes a higher commission for this
A marketing agent has limited authority to introduce potential clients to the principal. He does not have the authority to negotiate or enter into contracts on behalf of the principal A distribution agent is appointed by a supplier to arrange for distribution of the suppliers goods in a particular place.
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Creation of Agency
The principal/agent relationship can be created in several ways Express Appointment Ratification Implication Necessity Estoppel
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Express Appointment
This is the most common way of creating an agency The agent is specifically appointed by the principal for a particular task or a general function It can be done by contract, but this is not necessary What matters is authority
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Ratification
In this case, a person who does not have the authority of the principal enters into a contract with a third party on behalf of the principal Ratification occurs when the principal expressly accepts the contract later The effect of this is to make the earlier actions of the agent valid The following conditions apply to ratification 1. The principal must have been in existence at the time the agent made the contract with the third party This is not a problem where the principal is a real person, but it could apply to companies or partnerships which have not been formed 85
Ratification (cont.)
2. The principal must have had the legal capacity to contract at the time the contract was made 3. An undisclosed principal cannot ratify a contract In other words, when the agent made the contract with the third party, he must have stated to the third party that he was acting as an agent for a particular person
Even though the principal had not actually authorised him
If the agent appeared to be acting for himself, then the principal cannot ratify the contract later. 4. The principal must adopt the whole of the contract 5. Ratification must take place within a reasonable time
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Implication
Agency by implication is where it is assumed that the principal has authorised the person to act as his agent It is assumed that because the agent holds a particular position, then he has the authority of the principal to enter into contracts Eg: in Panorama Developments v Fidelis Furnishing Fabrics Ltd, it was held that a company secretary had the implied authority to make contracts in the companys name for the day to day running of the company
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Necessity
A principal/agent relationship can be created where there has been no agreement between the parties when there is an emergency and one person acts to protect the interests of another person. There are 3 conditions for necessity to apply 1. There must be a genuine emergency Eg in Great Northern Railway Co v Swaffield, the railway company transported the defendants horse When no one arrived at the destination to collect it, the railway company paid to put the horse in some stables The court allowed the company to recover the costs as necessity had forced them to pay for the stables
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Necessity (cont.)
2.
3.
There must also be no practical way of getting further instructions from the principal In Springer v Great Western Railway Co, some tomatoes arrived late at a port because of a storm The railway company could not transport them to London immediately because of a strike. The company decided to sell the tomatoes locally before they became rotten The court held that the railway company should pay the owner of the tomatoes the difference in the price between the price obtained locally and the (higher) price which would have been obtained in London The reason for this is that it was possible for the company to have contacted the owner for instructions before selling the tomatoes locally The person who acted as agent must have acted in the 89 genuine interests of the principal
Estoppel
This form is also known as agency by holding out It occurs where there is no actual principal/agent relationship, but the principal makes a third party think that there is In this case the agent has apparent authority and the principal is bound by any contract entered into by the agent and a third party who thought there was a proper principal/agent relationship There are 2 conditions for estoppel to apply 1. The principal must have made a representation that the agent had his authority 2. The party who claims there has been estoppel must have 90 relied on the principals representation
2. Apparent
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Actual Authority
Express Actual Authority: This is the authority given by the principal expressly to the agent The principal tells the agent what he wants the agent to do and what powers (or authority) the agent has to do those things Implied Actual Authority: A third party can assume that someone has the powers which a person in the agents position usually has, whether or not the agent has been given those powers expressly For example, in Watteau v Fenwick, the new owners of a hotel employed the previous owner as the manager. They expressly told him that he could not buy certain things, including cigars. However, the manager bought cigars from a third party. The third party sued the owners for payment as the manager was their agent. The court held that buying cigars was within the usual authority of the manager of a hotel. If the owners wanted to limit the managers authority in buying things then they would have to tell third parties of the limits of his authority
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Apparent Authority
1. 2. Apparent authority relates to agency created by estoppel Apparent authority occurs in 2 ways A person makes a representation to a third party that another person has their authority to act as their agent even though that person has not been appointed as their agent In this situation, the person who makes the representation is bound by the actions of their apparent agent A person will also be liable if he knows that someone is claiming to be his agent, but he does nothing to stop that person When a principal told a third party in the past that someone was his agent If the principal ends the agency but does not tell the third party, then he may still be liable for the actions of his former agent
93
Transfer of property (ownership): In sale, property in goods transfers immediately to the buyer at the time of contract while in an agreement to sell there is no transfer of property to the buyer at the time of contract Risk of loss: in sale, if goods are destroyed the risk passes to buyer even though the goods may not have come into his possession while in agreement to sell such loss has to be borne by the seller Consequences of breach: in sale, if buyer wrongfully neglects or refuses to pay the price of the goods, the seller can sue him even though the goods are still in his possession while in agreement to sell, if buyer breaks his promise, the seller can only sue for damages and not for price
Right of resale: in sale, the property is with the buyer and as such the seller can not resell the goods. In agreement to sell, the property in goods remain with the seller and as such he can dispose of the goods as he like and the original buyer can sue him for the breach of contract only Insolvency of buyer before he pays for the goods: in sale, if buyer is adjudged insolvent before payment of goods, the seller in absence of right of lien, must deliver the goods to the official receiver or assignee. In an agreement to sell, the seller may refuse to deliver the goods Insolvency of seller if buyer has already paid the price: in sale, if seller is adjudged insolvent, the buyer is entitled to recover the goods from official receiver or assignee. In an agreement to sell, if buyer has already paid the price and seller is adjudged insolvent, the buyer can only claim a rateable dividend (as a creditor) and not goods
Contd
In sale, property in the goods transferred immediately at the time of contract, whereas in hire-purchase property in the goods transferred only after the payment of last installment In sale, position of buyer is that of owner while in hire purchase position of buyer is similar to bailee till the payment of last installment In sale, buyer can not terminate the contract and he is bound to pay the price of goods. In hire purchase, the hirer may terminate by returning the goods to owner without any liability to pay remaining installments In sale, seller takes the responsibility of any loss resulting from the insolvency of buyer. In hire-purchase, owner takes no such risk, if hirer fails to pay installments the owner has a right to take back the goods In sale, sales tax is levied at the time of contract whereas in hirepurchase sales tax is not leviable until it eventually ripens into sales.
1. a. b. 2. 3.
Goods form the subject matter of contract of sale Goods may be classified into three types Existing goods Specific goods Unascertained goods Future goods Contingent goods
Contd
1. Existing goods Goods which are physically in existence and which are in sellers ownership or possession, at the time of entering the contract Existing goods may be either specific or unascertained Specific: goods identified and agreed upon at the time of the making of contract Example: A agrees to sell B a particular radio bearing a distinctive number Unascertained goods: the goods which are not separately identified or ascertained at the time of making of contract Example: A agrees to sell B one bag of sugar out of the lot of one hundred bags lying in the godown
Contd
2. Future goods: goods to be manufactured, produced or acquired by the seller after the making of contract of sale Example: A agrees to sell B all the milk that his cow may yield during the coming year 3. Contingent goods: Goods, the acquisition of which by seller depends upon an uncertain contingency Example: A agrees to sell B specific rare painting provided he is able to purchase it from its present owner
Contd
Effect of perishing of goods 1. Perishing of specific goods at or before making of contract Incase of perishing of whole of goods: where specific goods form the subject matter of sale, and they without the knowledge of seller perish at or before the time of contract, the agreement is void Example: A agrees to sell B a certain horse. It turns out that the horse was dead at the time of bargain In case of perishing of only part of the goods: where in specific goods only part of the goods perished , the effect of the perishing will depend upon whether the contract is entire (void) or divisible (not void). Case: There was a contract for the sale of a parcel containing 700 bags of chinese groundnuts of different qualities. Unknown to the seller, 109 bags had been stolen at the time of contract. The seller delivered the remaining 591 bags and on the buyers refusal to take them, brought an action for the price.
Contd
2. Pershing of specific goods before sale but after agreement to sell: where there is an agreement to sell specific goods , and subsequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes to the buyer, the agreement is thereby avoided i.e., contract of sale becomes void Example: a buyer took a horse on trial for 8 days on condition that if found suitable for his purpose the bargain would become absolute. The horse died on 3rd day without the fault of any of the party. Is contract valid. If only part of the goods perish, the contract becomes void if it is indivisible but if it is divisible the parties are absolved from their obligations only to the extent of perishing of goods
Contd
3. Effect of perishing of future goods: future goods, if sufficiently identified, are to be treated as specific goods, the destruction of which makes contract void. Example: C agreed to sell H 200 tons of potatoes to be grown on Cs land. C sowed sufficient land to grow the required quantity of potatoes, but without the fault on his part, a disease attacked the crop and he could deliver only about 10 tons. Is contract valid.
Sec. 12(2) defines conditions as a stipulation essential to the main purpose of contract, the breach of which give rise to a right to treat the contract as repudiated Sec. 12(3) defines warranty as stipulation collateral to main purpose of contract, the breach of which gives rise to claim for damages but not to a right to reject a goods and treat the contract as repudiated Example: Kaushal asks a dealer to supply him a shirt which would not shrink after use and wash. The dealer supplies a shirt which shrinks after use and wash. Kaushal can reject the shirt or keep the shirt and claim for damages. here stipulation to supply a shirt which would not shrink after use and wash is condition. Kaushal buys a particular shirt which is warranted by a dealer to be one which would not shrink after use and wash and the shirt does shrink after use and wash, kaushals only remedy is to claim damages
1. 2. 3. 4. 5. 6. 7.
Express and implied conditions and warranties: Express condition or warranty: these may be of any kind that the parties may choose to agree upon Implied conditions and warranty: implied conditions and warranties are deemed to be incorporated by law in every contract of sale of goods unless the terms of contract shows a contrary intention. It includes Condition as to title Sale by description Condition as to quality or fitness for buyers purpose Condition as to merchantable quality Condition as to wholesomeness Implied condition in case of sale by sample Implied condition in case of sale by sample and description
Condition as to title: in contract of sale, it is implied condition on the part of seller in case of sale that he has a right to sell the goods and in agreement to sell, he will have a right to sell the goods at the time when the ownership is to pass unless circumstances of contract shows a contrary intention Sale by description: in contract for the sale of goods by description it is implied condition that the goods shall corresponds with the description
Condition as to quality or fitness: as a general rule, buyer has to satisfy himself about the quality and fitness of goods before purchase and seller is not responsible for it. However, there is an exceptions When buyer make known to the seller particular purpose for which goods are required, there is an implied condition that goods shall be reasonably fit for such purpose. For this, 3 condition must be fulfilled 1) The purpose must have been disclosed 2) The buyer must have relied on the skills of seller 3) The sellers business must be to sell such type of goods Example: a person who is a carpenter, and has no special knowledge about the hot water bottle, purchases it from chemist. The bottle bursts and injures his wife. Is chemist liable for refund of price or damages? The above exception does not apply if the specific goods are sold under their patent or trademark Example: A buyer orders a patent smoke consuming furnace by its patent name for his brewery. The furnace supplied is found to be unsuitable for the purpose. Can buyer take action against seller?
Condition as to merchantable quality: another implied condition is that goods should be merchantable Example: Ameer buys a black yarn from Daleep and finds it to be damaged by white ants. There is a contract of sale of manila hemp. The hemp, that is supplied, though manila hemp, is so damaged by sea water that no one in the market would accept it as manila hemp. However, if buyers examines the goods prior to sale, there is no implied condition as to merchantability However, inspite of examination, if goods have certain latent defects which would not reveal by examination, the implied condition as to merchantability subsists.
Implied condition as to wholesome: condition of merchantability includes another condition, namely that of wholesome or soundness in the case of sale of provisions or foodstuff. Example: C bought a bun at Ms factory and broke one of the teeth by biting on a stone in a bun. Is M liable of damages? Implied condition in case of sale by sample: implied conditions are: The bulk shall correspond to the sample in quality The buyer shall have reasonable opportunity of comparing the bulk with sample The goods shall be free from any defects rendering them unmerchantable Implied condition in case of sale by sample as well as description: the goods must correspond with the description as well as sample Example: there was a sale of foreign refined rape-oil warranted only equal to sample. The oil supplied was same as the sample but was not foreign refined rape-oil, being a mixture of it and other oil.
Implied warranties
There are two implied warranties: 1. Warranty of quiet possession: in contract of sale, unless contrary intention appears, there is an implied warranty the buyer shall have and shall enjoy quiet possession of goods 2. Warranty of freedom from encumbrance: goods are free from any charge or encumbrance in favour of third person, not declared to or known to buyer
Meaning of transfer of ownership: When 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
Contd
Sale by a seller in possession of goods after sale Eaxmple: Shyam sells 100 bags of sugar to Bali. Bali delays in taking the bags away. In the meantime, Shyam sells those bags to another purchaser Kamal who takes it without notice of prior sale and for value. Can Kamal get the title of goods? Sale by a buyer in possession of goods: Example: Amrik sells Bhatia some copper and transfers him Bill of lading along with Bill of Exchange. Bhatia endorses the Bill of Lading to Sultan. Bhatia subsequently becomes insolvent without making payment. Can Amrik stop the goods in transit? Sale by an unpaid seller Exceptional cases under other acts
Meaning of unpaid seller: When 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 Rights of an unpaid seller: Right of lien Stoppage of goods in transit Right of re sale Unpaid sellers right against the buyer Suit for the price Suit for damages Suit for interest
Law relating to negotiable instruments is primarily contained in Negotiable Instruments Act, 1881. The term instruments means any written document by which a right is created in favour of some person The word negotiable has a technical meaning whereby rights in the instruments can be transferred from one person to another. An instrument is called negotiable if it possesses the following features: 1. Freely transferable 2. Holders title free from defects 3. The holder can sue in his own name 4. A negotiable instrument can be transferred infinitum
Definition
Promissory Note Section 4 of the Negotiable Instruments Act, 1881 defines a promissory note as an instrument in writing (not being a bank note or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to or to the order of a certain person or to the bearer of the instrument. Suppose you take a loan of Rupees 5,000 from your friend Ramesh. You can make a document stating that you will pay the money to Ramesh or the bearer on demand. Or you can mention in the document that you would like to pay the amount after three months. This document, once signed by you, duly stamped and handed over to Ramesh, becomes a negotiable instrument. Now Ramesh can personally present it before you for payment or give this document to some other person to collect money on his behalf. He can endorse it in somebody elses name who in turn can endorse it further till the final payment is made by you to whosoever presents it before you. This type of a document is called a Promissory Note.
Cheque
The Negotiable Instruments Act, 1881 defines a cheque as a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand. A cheque is an order by the account holder of the bank directing his banker to pay on demand, the specified amount, to or to the order of the person named therein or to the bearer. From the point of view of the holder, a cheque contains the implied promise of its drawer that the drawer has funds on deposit at the bank to meet the amount.
TYPES OF CHEQUES
Open cheque: A cheque is called Open when it is possible to get cash over the counter at the bank. The holder can do the following: i. Receive its payment over the counter at the bank, ii. Deposit the cheque in his own account iii. Pass it to some one else by signing on the back of a cheque. b) Crossed cheque: Since open cheque is subject to risk of theft, it is dangerous to issue such cheques. This risk can be avoided by issuing another types of cheque called Crossed cheque. The payment of such cheque is not made over the counter at the bank. It is only credited to the bank account of the payee. c) Bearer cheque: A cheque which is payable to any person who presents it for payment at the bank counter is called Bearer cheque. A bearer cheque can be transferred by mere delivery and requires no endorsement. d) Order cheque: An order cheque is one which is payable to a particular person. In such a cheque the word bearer may be cut out or cancelled and the word order may be written. The payee can transfer an order cheque to someone else by signing his or her name on the back of it.
Crossing of Cheques
Crossing of cheque is direction to the paying banker by the drawer that payment should not be made across the counter Sec 123 defines crossing as where a cheque bears across its face an addition of words and company or any abbreviation thereof, between two parallel transverse lines, or of two parallel lines simply, either with or without the words, not negotiable, that addition shall be deemed a crossing, and the cheque shall be deemed to be crossed generally Significance of crossing: crossing of cheque serves as a measure of safety against theft or loss of cheque in transit.
Modes of crossing: (1) General crossing: implies the addition of two transverse lines. (2) Special crossing: implies the specification of name of banker on the face of cheque. Not negotiable crossing: general or special crossing may also be accompanies by the word not negotiable which means the cheque is deprives of its special feature of negotiability Account payee crossing: signifies that drawer intends that payment to be credited only to the payees account and in none else. Not negotiable, A/c payee crossing: safest form of crossing
A holder in due course is one who acquires more rights in an instrument than the transferor had. To obtain the rights to which the holder in due course is entitled, he or she must satisfy a number of conditions.
Negotiation
The transfer of an instrument by one party to another so as to constitute the transferee a holder thereof. Distinction between negotiability and assignability: Negotiation can be affected by mere delivery if the instrument is bearer one and by endorsement and delivery in case it is an order instrument. Assignment requires a written document signed by the transferor. In assignment, the title of the transferee is always subject to the title of its transferor. In case of of negotiation, holder in due course gets better title than its transferor Consideration is always presumed in case of negotiable instruments; in case of assignment the transferee must prove consideration for the transfer.
Dishonour of instruments
1. 2. 3. 4. 5. 6. A bill of exchange may be dishonoured either by non-acceptance or non-payment. Sec. 91 enumerates circumstances when the bill will be considered dishonoured When the drawee does not accept it within 48 hrs. from the time of presentment of acceptance When presentment for acceptance is excused and it remains unaccepted When the drawee is the person incompetent to contract When the drawee could not be found after reasonable search Where the acceptance is qualified Where one or more of the several drawees refuse to accept the bill
Contd
Dishonour of instrument by non-payment: when maker, acceptor or drawee makes default in payment upon being duly required to pay the same or when presentment for payment is excused and instruments remain unpaid after maturity Effect of dishonour: render the drawer and all the endorsers liable to holder
Discharge of instrument
A negotiable instrument is said to be discharged when it becomes completely useless I.e., no action on that will lie and it can not be negotiated further. In the following cases, the instrument deemed to be dischargedWhen the party primarily liable on the instrument makes the payment in due course to the holder at or after maturity When the bill of exchange which has been negotiated is, at or after maturity, held by an acceptor in his own right When the party primarily liable becomes insolvent, the instrument is discharged and the holder can not make any other prior party liable thereon. When the holder cancels the instrument with an intention to release the party primarily liable thereon from the liability
1. 2. 3.
4.
Persons who have agreed into partnership with one another are called individually PARTNERS and collectively FIRM and the name under which their business is carried on is called the FIRM NAME
Partnership is thus Invisibility which binds the partners together and firm is the visible form of those partners who are thus bound together.
10 20
If the number of partners exceeds the aforesaid limit, the partnership firm becomes an illegal association.
If an association of persons or firm having members or partners exceeding the Above limit will not be an illegal association if that firms objective is not to earn profit.
Sharing of profit
Mutual agency
An agreement
Business
For forming a partnership the above elements should be present. Though each element is important, Mutual Agency is the conclusive proof For explanation go through the next slides:
Nature of Partnership
partnership firm is not a person in the eyes of Law (except for the purpose of taxation [sec.2 (31)] ). It has no separate legal entity (like company) apart from the partners constituting it. Further Section 5 of the Act provides that partnership arises from contract and not from status
a.There is an agreement to share the profits of business and b.The business is carried on by all or by any of them acting for all. Contd.
partners
can
be
relation is from the partnership contract. b.If there is no express The real relation is contract ascertained from all the relevant factors such as contract of parties, books of account, statement of employees etc.
Characteristics of Partnership
A partnership firm has the following characteristics: 1. Two or more members 2. Unlimited liability 3. Voluntary registration 4. No separate legal existence 5. Restriction on transfer of interest: 6. Based on agreement 7. Partners are competent to contract 8. Partnership may be only for lawful business.
Types of Partnership
On the Basis of Duration
then such partnership is called a particular partnership. Such partnership comes to an end on the completion of the venture or the expiry of time period. If such partnership is continued after the expiry of term or completion of venture, it is deemed to be a partnership at will. A particular partnership may be dissolved before the expiry of the term or completion of the venture only by the mutual consent of all the partners.
Contd.
Sec. 17 (b) of the Act provides that if a firm ,constituted for a fixed term, continues to carry on business after the expiry of that term, then the partnership will become partnership at will AND mutual rights and duties of partners will remain same as they were before the expiry.
Contd.
Partnership deed
A partnership is formed by an agreement. This agreement may be in writing or oral.though the law does not expressly require that the partnership agreement should be in writing, it is desirable t o have it in writing in order to avoid any dispute with regard to the terms of the partnership. The document which contains the term of a partnership as agreed among the partners is called partnership deed. The partnership Deed is to be duly stamped as per the Indian Stamp Act, and duly signed by all the partners. Contd.
Minor Partner
Sec. 30(1): A person who is a minor according to the law to
which he is subject may not be a partner in a firm, but with the consent of all partners for the time being, may be admitted to the benefits of partnership
Types of partnership
Partnership at will :
M O H Uduman v Ashurn AIR 1991 SC 1020: Karumuthu Thiagarajan Chettiar v Muthappa Chettiar AIR 1961 SC 1225
Partnership for a fixed term Particular partnership : Limited Partnership : Partnership by Holding out
Sleeping partner Nominal partner Working partners
Rights of a partner
1. Joint ownership of partnership property 2. Right to take part in the management [sec. 12] 3. Access accounts and act during emergency 4. Right to profit 5. No claim for interest of capital 6. Right to indemnity sec. 13(e) 6. Right not to be expelled 7. No new partner to be introduced: right to prevent 8. No liability before joining unless with consent and expressly stated in the deed 9. Right to retire
Malyn v John Houston 1903 1 KB 81 Moreton v Harden 1825 Citizens Life Assurance v Brown 1905 R W Pathirana v Pathirana 1967 1 AC 233
2. Act must be done on behalf of the firm and not on personal behalf 3. Act must relate to activities within the scope of business 4. Act must be done in the firms name Offer: CommunicationExceptions
Company law
A company formed and registered i.e. incorporated under the Companies Act, 1956 or an existing co. [Sec.3]
Incorporated Association Artificial person Separate Legal Entity Perpetual Succession i.e. continued existence Limited Liability Common Seal Transferability of Shares Separation of ownership from its management Capacity to Sue and be sued in its own name
Incorporated Association
A company must be incorporated or registered under Companies Act Minimum number required is 7 in case of public company and 2 in case of private company.
Artificial person
A company is a purely a creation of law. It is invisible, intangible and exists only in the eyes of law. It has no soul, no body, but has a position to enter or exit into a contract, to appoint a people as its employees In short it can do every thing just like a natural person.
Limited liability
It means that the liability of a member shall be limited to the value of the share held by him, he cannot be called upon to bear the loss from his personal property.
Common seal
A company being an artificial person can not work as a natural being. Therefore, it has to work through its directors, officers and other employees. Common seal used as a official signature of a company.
Separate property
Shareholders are not, in the eyes of law, part owners of undertaking. Shareholders are only given certain rights by law, e.g., to vote or attend meetings, to receive dividends.
Solomon carried on business as leather merchant. He sold his business for a sum of $30,000 to a company formed by him along with his wife, a daughter and four sons. The purchase consideration was satisfied by allotment of 20,000 shares of $1 each and issue of debentures worth $10,000 secured by floating charge on the companys assets in favour of Mr Solomon. All the other shareholders subscribed for one share of $1 each. Mr. Solomon was also the MD of company. The company almost immediately ran into difficulties and immediately became insolvent and winding up commenced. At the time of winding up the total asset of company amounted to $6,050; its liabilities were $10,000 secured by debentures issued by Solomon and $8,000 owing to unsecured trade creditors. The unsecured sundry creditors claimed the whole of the company assets, viz., $6,050 on the ground that the company was mere alias or agent for Solomon.
Incorporated
Liability
Number of members
Control
ownership
Chartered companies
limited liability
private
holding
government
Statutory companies
unlimited liability
public
subsidiary
non government
Registered companies
a. b. c. 2. 3.
MoA - Charter of the company and contains the powers of the company. Contents
Name Clause Domicile Clause Objects Clause Liability Clause Capital Clause
Exercise of borrowing powers including issue of debentures. General Meeting, Notices, Quorum, Proxy, Voting, resolution, Minutes etc. Appointment, No., & Powers of Directors. Dividends- Interim & Final- General Reserve. Accounts & Audits. Keeping of books.
Modes of winding up
(i)Compulsory winding up by Court [Sec.433] (ii)Voluntary winding up Members voluntary winding up Creditors voluntary winding up
Special Resolution. Default in holding statutory meeting. Failure to commence business. Reduction in membership. Inability to pay debts. Just & equitable.
Ordinary resolution passed where the period fixed by the Articles for the duration. If the company resolves by special resolution that it shall be wound-up voluntarily [sec.484]
Members Solvent companies No need of creditors meeting Liquidator appointed by the member No committee of inspection can be formed.
Creditors Insolvent Companies Creditors meeting necessary Liquidator appointed by the creditor If wish can formed a Committee of inspection.
Minimum no. of member is 2 & maximum is 50 Right to transfer shares is restricted Can Commence business immediately after receiving certificate of incorporation Need not to hold statutory meeting Directors are not required to file with registrar written consent to act as director or sign MoU or enter into contract for their qualification shares Directors are not required to retire by rotation
Public company
Minimum no. is 7 & no restriction on maximum no. Shares are freely transferable Can commence only after receiving certificate to commence from registrar Must hold statutory meeting Directors are required to file with registrar written consent to act as director or sign MoU or enter into contract for their qualification shares At least 2/3rd of directors must retire by rotation
No. of directors may be increased to any extent without the permission of central govt. Two members have to be personally present to form a quorum
Public company
If the no. of directors is more than 12 approval of central govt is necessary The number is five
Divided into three parts 1. Promotion 2. Registration 3. Floatation Promotion Preliminary steps taken for the purpose of registration and floatation of co. The person who assumes the task of promotion is called promoter The promoter may be an individual, syndicate, association, partnership or company
Promoters are in fiduciary relationship with the company Promoters are not forbidden to make profit but to make secret profit Example: In Gluckstein vs. Barnes, a syndicate of person was formed to buy a property called Olympia and resell this Olympia to the co. to be formed for the purpose. The syndicate first bought the debenture of old olympia co. at discount. Then they bought the co. itself for $1,40,000. out of this money, provided by themselves the debentures were repaid in full and profit of $ 20,000 made thereon. They promoted a new co. and sold olympia to it for $ 1,80,000. the profit of 80,000 was revealed in the prospectus but not the profit of $ 20,000. Liabilities of promoters For non-disclosure the co. may (1) rescind the contract and recover the purchase price (2) recover the profit made, if rescission is not claimed or impossible (3) claim damages for breach of fiduciary duty Under companies act for mis-statement contained in prospectus imprisoned upto 2 yrs. Or fine upto Rs 50,000. in course of winding up court may make promoter liable for breach of trust
Registration
Promoters will have to get together atleast 7 person in case of public co. and 2 persons in case of private co. to subscribe to MoU 3 documents are required to be presented to Registrar of Companies where office is to be situated (1) Memorandum of the Co. (2) the article (3) agreement, if any. Availability of name: co. cannot be registered by name which in opinion of central govt. is undesirable Two documents are to be submitted within 30 days of the registration of the company: (1) address of the registered office of the co. (2) particulars regarding directors, managers and secretary, if any. Certificate of incorporation/ consequence of incorporation: when the documents have been filed and fees paid, Registrar, if satisfied, enter the name of co. and issue a certificate of incorporation
Floatation
When company has been registered and received certificate of incorporation, it is ready for floatation
Prospectus
Steps necessary before issue of prospectus: public co. limited by shares, generally issues shares to the public for which it has to issue the prospectus. After certificate of incorporation, first appointed director takes over and elect one of the members as Chairman of the BOD. The Board attends following matters 1. Appointment of expert agencies 2. Entering into underwriting/brokerage contracts 3. Listing of shares on stock exchanges 4. Drafting prospectus to be issued to public Prospectus A document is called prospectus, if it satisfies 2 things 1. It invites subscription to shares or debentures or invites deposits 2. Aforesaid invitation is made to public
Contents of prospectus
General information Capital structure of the company Terms of present issue Particulars of the issue Company management and project Certain prescribed particulars Outstanding litigations Management perception of risk factors
Shares
Sec 2(46) defines share as a share in the share capital of a company and includes stock except where a distinction between share and stock is expressed or implied A share signifies the following 1. The interest of shareholder in a company; the right to receive dividends, attend meetings, vote at the meeting 2. The liability of shareholder in a company 3. The right of shareholder to transfer shares subject to article of association 4. Binding covenants on the part of the company as well as the shareholder, as given in the article of company
Preference shares: carries 2 rights over holders of equity shares (1)preferential right in respect of dividends at a fixed amount or at a fixed rate (2) a preferential right in regard to repayment of capital on winding up Priority of preference shareholder in relation to rights of equity shareholder 1. Participating or non-participating: participating means to (1) to participate further in the profit either along with or after payment of certain rate of dividends on equity share (2) to participate in surplus asset at the time of winding up 2. Cumulative or non cumulative: dividends not paid in any year/years accumulate and are paid out whenever profits are available cumulative. 3. Redeemable or irredeemable: a preference share which can be redeemed upon the resolution of BOD, if article so provide - redeemable
Classes of shares
Contd
Equity share: share which is not preference share. The rate of dividend is not fixed. Deferred or founders share: a) Normally held by promoters or director b) Usually of small denomination, say 1Rs each c) Generally given equal voting rights as that of equity share d) Carry a dividend fixed in relation to profit available after dividends have been declared