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LAW MAKING:PROCESS
Difference between Law and Ordinance Bill----Proposal Committees of the House Approval by the Legislature Assent by the President.
PURPOSE OF LAW
Object of law is to maintain law and order in the country i.e. police functions Another view limit natural liberty; Man is born free but is in chains everywhere. Hindu view , purpose of law is the welfare of the people in the world and also salvation after death. Muslim: the end of the law is to promote the welfare of man both individually and socially, not merely in respect of life on this earth but also life hereafter.
KINDS OF LAW
1.
2. 3.
4.
5.
6. 7. 8.
IMPERATIVE LAW. Imposed upon on men by some authority. Emphasis on the will and physical force of the organized political community. PHYSICAL OR SCIENTIFIC LAW . Laws of science e.g. law of gravity NATURAL or MORAL LAW. Universal rules of governance. Principles of natural justice. Divine Law. CONVENTIONAL LAW. Rules or regulations of voluntary organizations e.g. associations, clubs etc. CUSTOMARY LAW. Customs, practices, traditions with historical sanction and support e.g. jirga TECHNICAL LAW. For efficient conduct of business e.g building laws, laws of health INTERNATIONAL LAW. Sum of laws and rules recognized by civilized in their dealings with each other CIVIL LAW. Municipal Law.
Law divided into PARTS and each deals with a particular subject e.g. Part II Jurisdiction og Courts, Part III SECP, Part IV Incorporation of Companies Sections Sub Sections DEFINITIONS: The word or a term specifically defined has a special meaning assigned to it and replaces its ordinary meeting. Otherwise have their ordinary dictionary meaning e.g. Proceed in alphabetical order Section 7 Company means a company formed and registered under this Ordinance or an existing Company
CONTD.
CONTD:
OBJECTIVES of COMPANIES ORDINANCE: Healthy growth of the corporate enterprises Protection of investors and creditors Promotion of investment Development of economy.
CONTD:
A company is an artificial person created by law, endowed with a perpetual succession and an entity apart from its members. It signifies assent by means of common seal. It is capable of holding property, incurring debts, and suing and being sued in the same manner as an individual Under the law three different types of companies: Limited by shares Limited by Guarantee
Unlimited liability
Two types of limited companies: A Private Limited
COMPANY: CHARACTERISTICS
Five core characteristics: 1. Legal personality/entity 2. Limited Liability 3. Transferable Shares 4. Centralized management under a board structure 5. Shared ownership by contributors of capital
CONTD:
Granted a charter/permission (incorporated) by the competent authority (SECP/Registrar of Companies) A separate legal entity distinct from its members is created with its own privileges and liabilities It can sue and can be sued Creation of a specific law safeguarding the interests of the stakeholders. Not to put their interest at risk by interim arrangement Management operate the company As they are born when issued a certificate of incorporation they also die when they go bankrupt
LIMITED LIABILITY
If the company fails shareholders normally only stand to lose their investment and the employees their jobs but neither will be further liable for debts that are outstanding against the companys creditors. Can be convicted of criminal offence like fraud, misstatements etc.
KINDS OF COMPANIES
THREE: 1. Company Limited by Shares. Each person becoming a member (shareholder) of the company acquires one or more shares in which the Companys capital is divided. His liability is limited to his share holding. 2. Company Limited by Guarantee. Liability limited by Memorandum of Association to such amount as members may respectively undertake to contribute to the assets on being wound up . 3. Unlimited Company. More akin to a partnership where each member liable to all the debts of the company. He is free from his liability at the end of the year from his ceasing to be a member.
CONTINUED
May be registered under the Law as: Private: restricts number of members to 50, invitation to public to subscribe and right to transfer its shares Public: Three or more persons associate to form. Not Private deemed to be public Listed/Quoted Unlisted/Unquoted. A company limited by shares, whether private or public, is the most common vehicle for carrying out business in Pakistan. Single Member: Only one subscriber to the Memorandum of Association. A private limited company for all intents and purposes of the Company Ordinance
PRIVATE vs PUBLIC
Difference 1. Subscription 2. Transfer of shares 3. Members 4. Upper Limit of Members 5. Certificate of Commencement 6. Min. subscription 7. Prospectus or statement in lieu of 8. Filing of Accounts 9. Qualification of Auditors 10. Investment in associate company
DEFINITIONS.
MEMORANDUM OF ASSOCIATION . Sets out the constitution of the Company. The foundation on which the Companys structure is based. Defines scope of activities. Tells what it does spelling out its objectives 1. Name 2. Province of registration. 3. Objects 4. Limited by shares or guarantee
A STATEMENT OF THE OBJECTS OF THE COMPANY, ITS POSITION AND ITS RELATION TO THE WORLD WITHOUT
DEFINITIONS Contd:
ARTICLES OF ASSOCIATION A document regulating the rights of the member of company among themselves. The manner in in which the business of the company shall be conducted. Dealing with the whole internal arrangement of the Company. Originally framed when the Company incorporated. Subsequent changes by special resolution RULES AND REGULATIONS PRESCRIBED FOR THE INTERNAL MANAGEMENT OF A COMPANY.
PROSPECTUS
A document which invites persons to take shares in a company and set forth the advantages of the company. Contains the information for invitation of subscription from the public Any notice, circular, advertisement or other intimation, offering to the public for subscription, or purchase of any shares or debentures of a company 1. Discussed and approved by the Board of Directors 2. Public companies issuing prospectus required to file application to SECP for approval of prospectus for publication. 3. Date of application to SECP and no publication unless prospectus registered with SECP
PROSPECTUSContd.
Prospectus to include: Memorandum Number of shares fixed Particulars of directors and managers Minimum subscription before allotment Number and amount of shares and debentures Particulars of vendors Auditors Interest of every director LIABILITY OF PERSON ISSUING PROSPECTUS IF IT IS NOT ACCORDING TO PROVISIONS OF LAW.
SHARES
Prospectus: Invitation to the public to make offers to the company Application: from the public is an offer to take them Allotment; acceptance of the offer by the company creating a contract between the parties Allotment complete when notice of allotment issued. Registered: Name of share allottee is entered in the Register and becomes a member of the company Shareholder : The person who holds a share by having his name on the register. Distinctive number for each share
SHARES: TRANSFER
Transfer: The making over to another the document(shares in public companies) by one to another. An act of a member. Transmission: By devolution of law e.g. by death, bankruptcy etc. PROCEDURE: Apply: Transferor or transferee to the Company Checking and Verification: By the Company Notice: Maybe issued by Company Processed Approval: BOD or Committee of BOD Register of Members: Entry and Delivery Normally transfer of shares is not refused by Company (defective/invalid)
MANAGEMENT
Articles of Association: Rules and Regulations drawn up for the conduct of a Company. DIRECTORS 1. First Directors determined in writing by majority of subscribers of the memorandum 2. Hold office till first AGM 3. One who directs a business 4. Persons of the select body of shareholders of a Company 5. Delegated duty to manage affairs of the Company 6. Trustees of Companys assets 7. Not trustees of individual shareholders 8. Enters into contract on behalf of Company
DIRECTORS----Contd.
9. Number of Directors: SMC: At least one Private: Not less than two Unlisted Public: Not less than three Listed Public: Not less than seven DIRECTORS REPORT. Attach with every Balance Sheet: 1. State of Companys affairs 2. Recommendation for dividend 3. Re-appropriation of profits 4. Disclose material changes 5. Explanation on any adverse remarks of auditors.
MANANGEMENT: Contd.
CHIEF EXECUTIVE An individual entrusted with powers to manage to affairs of the Company Subject to control and direction of directors Includes a director or any other person First appointment within 15 days of commencing business by Directors. Hold office till first AGM Subsequent by the BOD within 14 days of vacancy Till successor appointed continues to work Conflict of Interest; directly or indirectly engage in any business which directly competes with the business of the Company.
MANAGEMENT: Contd.
SECRETARY: An officer of the Company Responsible for the compliance by the Company of its statutory duties Listed company shall have whole time Secretary Prescribed qualifications under the Law
MANAGEMENT: Contd.
AUDITORS: To carry out audit an examination of accounts which may be detailed or administrative. Comply with directions Appointed at each AGM Hold office till conclusion of next AGM Removal through Special Resolution.
COMPANY MEETINGS
STATUTORY MEETING Limited Company (share capital and guarantee) not less than three months or more than 6 months of entitled to commence business hold general meeting Held once in a lifetime Purpose to put before shareholders all important facts shares taken up, monies received, contracts entered, preliminary expenses Furnish particulars for shareholders to discuss Management, method and prospects STATUTORY REPORT: Report submitted by the directors 21 days before the Statutory Meeting to every member
MEETINGS: Contd.
ANNUAL GENERAL MEETING: First meeting within eighteen months of its incorporation Subsequent once at least in one year, within four months close of financial year At it consider accounts ,B.S. Profit and Loss Account, Auditors and Directors Reports. Declaration of dividend Appointment /remuneration of auditors Election/appointment of directors.
MEETINGS: Contd.
EXTRA ORDINARY GENERAL MEETING All general meetings other than Statutory or AGM Conduct special business Called in three ways: 1. Directors on their own initiative 2. By the directors on requisition by shareholders 3. By those requisitioning it MEETING OF BOARD OF DIRECTORS: Quorum Minimum number of meetings
RESOLUTIONS
Any proposal at a Company Meeting and put to the vote Ordinary: decided by a bare majority Extraordinary or Special: requires a majority of three-fourths to carry it Resolution by Circulation: Urgent, cannot wait for next BOD
WINDING UP
Artificial Person. Born has to die Winding up is the closing up of a companys concern, which may be by reason of insolvency, or otherwise Winding up is a proceeding by means of which the dissolution of a company is brought about and its assets realised and applied in payment of its debts, and after satisfaction of the debts, the balance, if any, remaining is paid back to the members in proportion to the contribution made by them to the capital of the company
WINDING UP----Contd.
Modes of winding up: 1. Compulsory winding up by the Court e.g. special resolution by the Company, defaults (statutory reports etc.), unable to pay debts, violation of Companys Ordinance, Memorandum of Association etc. 2. Voluntary winding up by: a) Members b) Creditors 3. Voluntary winding up under the supervision of the court
WINDING UP---Contd.
BANKRUPTCY: In it the whole estate, both legal and equitable, is taken out of the bankrupt and is vested in the trustee WINDING UP : The estate, legal or equitable, still remains in the company until its dissolution DISSOLUTION: Puts an end to the existence of a company i.e. completely wound up or court feels that official liquidator cannot proceed with the winding up LIQUIDATION: Process of distributing a bankrupts estate i.e. realising the assets and paying the money over to the creditors.
PARTNERSHIP
PARTNERSHIP: The state or condition of being a partner The association of two or more persons for the purpose of undertaking and prosecuting conjointly any business, occupation, or calling The which subsists between persons who have agreed to combine their property, labour skill in some business and to share the profits thereof between them A type of business entity in which partners share with each the profits or losses of the business. FIRM: Persons who enter into partnership are collectively called a firm
PARTNERSHIP--Contd
In Pakistan for small to medium size business set ups the common mode of business. Advantage of structural flexibility and formality of relationship between partners. Maybe registered or not. Not compulsory Registered firms have the advantage of tax and consequences of litigation. Favoured over corporate structure (companies) as no dividend is levied. But partners exposed to greater personal liability than the shareholders of a company.
PARTENERSHIP ACTContd.
SCHEME OF LAW: Divided into 8 Chapters Sections 74 Schedule 1 CHAPTERS: 1. Preliminary 2. The Nature of Partnership 3. Relations of Partners to One Another 4. Relations of Partners to Third Parties
PARTNERSHIP ACTContd.
5. Incoming and Outgoing Partners 6. Dissolution of a Firm 7. Registration of Firms 8.Supplemental SCHEDULE: Fees Prescribed
DEFINITIONS
Intention to economise words Does not lay down general principles With reference to the whole Act and with reference to the content ACT OF A FIRM Binds every one of the partners An act in which every one of them had actually participated Gives rise to a right enforceable by or against the firm
DEFINITIONSContd.
BUSINESS: Includes every trade, occupation and profession. Includes and not Means. An Inclusive and not Exhaustive definition General and vague Broadly, any activity which, if successful, would result in profit Must be in existence May be temporary or permanent (indefinite)
DEFINITIONSContd.
PARTNERSHIP: The relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all Persons who have entered into partnership with one another are individually called partners and collectively a firm and the name under which their business is carried on is called the firm name A voluntary act between two or more persons.
PARTNERSHIP---Contd.
Placing their money, effects, labour and skill, or some or all of them In lawful commerce or business Understanding that there shall be communion of profits or thereof between them. Contains the following elements/essentials
PARTNERSHIP---Contd.
ESSENTIALS: Association of two or more persons to carry on a business An agreement entered into by all concerned Agreement must share the profits Business must be carried on. Carried on by all or any of the persons concerned acting for all.
PARTNERSHIP--- Contd.
All elements must be present before a group of persons can be called partners Elements may appear to overlap but are distinct Existence of partnership is a question of fact. Association of two or more persons: A group of persons with no legal relations (no mutual rights and liabilities) not a partnership No existence or responsibility separately from its partners.
ESSENTIALS OF PARTNERSHIPContd.
An Agreement: Agreement arises only as a result of an agreement, express or implied Created by a contract, it does not arise by operation of law e.g. joint operation (heirs on death ) Voluntary contractual Lawful agreement; founded on good faith, for lawful object between competent persons Can even come into being upon an oral agreement
ESSENTIALS OF PARTNERSHIPContd.
Sharing Profits: An essential element of partnership agreement Different from clubs, societies, charitable associations etc. How to be shared left to the parties themselves Sharing of losses not essential. Profits refer to net profits.
ESSENTIALS OF PARTNERSHIP---Contd.
Carrying of Business: Must be carried on by all or by any concerned acting for all Business must be lawful Mutual agency True test of partnership.
PARTNERS
Can be entered into by every competent person Attained age of majority Of sound mind Disqualified from any law to which he is subject Unsound mind Married woman is competent Minor cannot become a partner but can be admitted to benefits of partnership.
PARTNERS--- Contd.
WORKING PARTNER: Not necessarily a partner in business Maybe only an employee Gets a share in the net profits Remuneration for services rendered.
FIRM
Firm: Persons who have collectively entered into partnership with one another is collectively called a firm Name under which business is carried is Firm Name. Business under any name or style Taking care of rules like trade name, goodwill etc.
ILLEGAL PARTNERSHIP
Object of partnership is unlawful. Section 23 of Contract Act Number of persons entering into partnership exceed the permitted. Section 4 of Companies Act.1913: 1. Business of bankingmore than 10 2. Any other businessmore than 20 With an alien enemy (alien friend); enjoys civil and personal rights as a citizen Against international comity.
PARTNERSHIP---DISTINGUISHED
CO-OWNERSHIP Akin but different Partnership result of an agreement Mutual rights and obligations different Consent of all trade/business: Examples Transfer of interests
PARTNERSHIP---DISTINGUISHED
COMPANY: 1. Person---Legal 2. Creation Legal formalities/agreement 3. Transfer of interest 4. Agents of others 5. Liability to debts 6. Contract 7. Private arrangements 8. Number
PARTNERSHIP DISTINGUISHED--Contd.
9.DeathDissolution 10. Property 11. Restrictions 12. Sue and be sued 13. Decree 14.Registration 15. Shareholder
PARTNERSHIP/DISTINGUISHED--Contd.
CLUB: Entirely different Club members not liable for acts of other members Not liable to be creditor of club Liabilityextent of Clubs regulations No implied authority i.e. bind other members of the club.
PARTNERSHIP DISTINGUISHEDContd.
TRADE ASSOCIATION: Mutual agency does not exist
PARTNERSHIP---EXISTENCE
HOW TO DETERMINE: Real relation between the partners Mainly a question of fact Onus to prove on the appellant
GOODWILL---Contd.
No independent existence Cannot subsist by itself Attached to business Attribute of a business, trade or profession.
DISSOLUTION OF FIRM
So far: 1. Formation of partnership 2. Nature of partnership 3. Rights and liabilities of partners 4. Partners inter se third persons. 5. Changes in a firm without dissolution i.e reconstitution where business continues as before.
DISSOLUTIONContd.
Literal Meaning: Breaking Up. Of partnership: The discontinuance of a partnership from any legal cause. Breaking up or the extinction which subsisted between all the partners of the firm. There are various ways of dissolution of firm. It may take place:
DISSOLUTION---Contd
1. AGREEMENT: By agreement (consent) between all the partners or according to the contract amongst themselves 2.COMPULSORY: Occurrence of events making dissolution unavoidable e.g. Insolvency of all partners or all except one (when only one remains then no longer a partnership) Unlawful business. When object of partnership is illegal and carrying on of business becomes unlawful 3. CONTINGENCIES: Activities for which firm constituted coming to an end, it cannot function and stands dissolved on its own death
DISSOLUTIONContd.
Expiry of the fixed term for which the firm was constituted The undertaking or particular adventure for which constitutes firm has been completed Death of partner as partnership based on personal relations A partner declared insolvent
DISSOLUTIONContd.
4. AT WILL: Any partner can give notice in writing to all partners of his intention to dissolve. Definite term not specified exists only during pleasure of all partners. Dissolution from date mentioned in notice if not then from date of communication of notice
DISSOLUTION---Contd.
5. BY COURT Seven grounds in which the Court on any can order dissolution on a suit filed by a partner Unsound mind: As it is necessary to protect the interest of the insane and other partners Permanent Incapacity: Due to illness, mental or physical but should be of permanent nature, incapable of performing duties Conduct: Guilty of conduct to effect carrying of business; moral turpitude, professional misconduct. Connected with business and damage it.
DISSOLUTIONCONTD.
Conduct: Willful and persistent breach of agreements relating to firm or conduct e.g. destroying old account books, false in books of account etc. Mutual confidence does not exist and continuance not practical. Transfer of share: by a partner of his whole share to a third party. Motive: Business cannot be continued only at a loss as motive of every partnership is profit Any other ground: just and equitable to dissolve. Judicial discretion with regard to circumstances and exigencies.
REGISTRATION OF FIRMS
Law provides for registration of firms but has not imposed any penalties for non registration Non registration does not partnership agreement void Optional for a firm to get itself registered or not Prudence dictates registration is implications of non registration are serious Non registration imposes certain disabilities for enforcing claims in courts
REGISTRATION OF FIRMS.
Each Province has its own Rules Registrars of firms appointed by the Provincial Government and defines areas of jurisdiction. PROCRDURE: 1. Application by firm to Registrar of Firms on prescribed form: Name of firm Place or principal place of business Names of any other place where business is carried on
REGISTRATION OF FIRMSContd.
Date on which each partner joined the firm Names and permanent address Duration of firm Signed and verified by all partners. Restriction on use of names like Government, Jinnah etc. Sending/submitting the application to the Registrar of Firms in the area of jurisdiction. Registration is only of a firm which is in existence and not which has been dissolved.
REGISTRATION OF FIRMSContd.
Registration takes place after receipt of statement (application) by Registrar and after verifying all particulars filed and compliance made makes an entry in the Register of Firms Once a firm has been registered further and subsequent changes like: Name and place of business Opening and closing of branches Name and addresses of partners Changes in and dissolution of a firm Can be made by intimating the Registrar who shall make an entry in the Register of Firms
REGISTRATION OF FIRMSContd.
In case of a court order regarding a registered firm the Registrar shall make consequential entries in the Register The Register of Firms is open to inspection by any person on payment of prescribed fees The entries and any subsequent changes in Register of Firms is conclusive proof of facts. Original documents filed with the Registrar shall be the conclusive proof.
REGISTRATION OF FIRMSContd.
NON REGISTRATION: Mentioned earlier is not mandatory and does not make a partnership illegal but its effects: 1. If firm not registered and person suing not registered as a partner cannot bring a suit to enforce a right arising from a contract Against the firm Against any past or present partner of firm
REGISTRATION OF FIRMSContd.
2. No suit to enforce a right arising from a contract shall be instituted by or on behalf of firm against any third party But this does not effect the right of a third party to proceed against an unregistered firm and its partners. 3. Claim to set off and other proceedings to enforce any right arising from a contract.
REGISTRATION OF FIRMSContd.
BUT Non Registration does NOT effect: 1. Right of third party to sue firm or any partner 2. Right of partner to sue for dissolution 3. Receiver to realise property of an insolvent partner 4. Firm or its partners having no place of business in Pakistan
PUBLIC NOTICE
By intimation to Registrar of Firms By publication in official Gazette In at least one vernacular newspaper circulating in the district.
CONTRACT ACT,1872
CHAPTER I Of the Communication Acceptance and Revocation of Proposals. CHAPTER II Of Contracts, Voidable Contracts and Void Agreements CHAPTER III Of Contingent Contracts.
CONTRACT ACT
Extends to whole of Pakistan Main source of law regulating contracts in Pakistan law Determines the circumstances in which promises made by the parties to a contract shall be legally binding on them. Contract creates right and duties upon contracting parties The Act deals with the enforcement of these rights and duties upon the parties.
FUNCTION OF CONTRACTS
No aspect of life is entirely free of contractual relationships Contract law is designed to provide stability for both buyers and sellers Followed in business agreements to avoid potential problems Necessary to ensure compliance
CONTRACT--DEFINITION
A contract is an agreement that can be enforced in court. It is formed by two or more parties who agree to perform or to refrain from performing some act now or in the future, Is an agreement enforceable at law. It is bilateral document meant to create legal relationship
INTERPRETTION CLAUSE
PROPOSAL: Is declaration by the proposer of his intention to be bound by an obligation if the offeree fulfills or undertakes to fulfill certain conditions A proposal is made when one person signifies to another his willingness to do or abstain from doing anything, with view to obtaining the assent of that other to such act or abstinence The starting point for a contract
INTERPRETATION CLAUSE
PROMISE: The technical use is narrower than the popular use. The proposal when accepted becomes a promise. There must only be a proposal but there must be an acceptance of the proposal by the other side Every promise is an accepted proposal
INTERPRETATION CLAUSE
PROMISOR: Person making the proposal PROMISEE: Person accepting the proposal The promisor and the promisee must be two different persons The two must exist to constitute a contract
INTERPRETATION CLAUSE
CONSIDERATION: Act, done or promised to be done, at the desire of the promisor. At the desire of the promisor The promisee or any other person Must have done or abstained from doing, or Must do or abstain from doing or Must promise to do or abstain from doing something
INTERPRETATION CLAUSE
AGREEMENT: Every promise and every set of promises, forming consideration for each other. An accepted proposal. Result of a proposal from one side and its acceptance by the other. Regarded as a contract when it is enforceable by law. An agreement that the law will enforce is a contract.
INTERPRETATION CLAUSE
VOID AGREEMENT: Not enforceable at law Lawful having a lawful consideration. Entered into with a lawful object Every contract is an agreement but every agreement is not a contract. Agreement enforceable at law when it is not against public policy, immoral, without consideration, having not been hatched through fraud or deceit.
INTERPRETATION CLAUSE
CONTRACT: An agreement Agreement enforceable by law Succession of definitions of the elements: 1. Proposal 2. Acceptance 3. Promise 4. Promisor 5. Promisee
INTERPRETATION CLAUSE
6. Consideration 7.Agreement A bilateral document meant to create legal relationship. It is conceived by valid acceptance of a valid offer at the desire of the promisor.
INTERPRETATION CLAUSE
VOIDABLE CONTRACT: Enforceable at the option of one party to the contract but the party can exercise this option once. One of the parties may affirm or reject at its option Different from void contract which is abinitio void. Has no legal value. Cannot be enforced at law. Voidable contract enforceable at law at the option of the parties.
INTERPRETATION CLAUSE
VOID CONTRACT: Difference between void agreement and void contract Ceases to be enforceable by law e.g. impossible unlawful.
COMMUNICATION
Communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. Communication of an acceptance is complete, as against the proposer, when it is put in course of transmission to him. Acceptance Agreeing to a previous act or promise to do by another. The acquiescence to an offer of a party makes the agreement enforceable in law. Signifying ones assent to the proposal made by another.
REVOCATION.
REVOCATION: The calling back of a thing done. The making void of a deed that was in force, the cancelling of an authority once given. The communication of a revocation is complete, as against the person who makes it, when it is put it is put into course of transmission to the person who made it
REVOCATION
A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer but not afterwards. An acceptance may be revoked at any time before the communication of the acceptance is complete against the acceptor but not afterwards
REVOCATION
A proposal can be revoked, obviously before it becomes a contract, by: 1. Communication of notice of revocation 2. Lapse of stipulated time in the proposal 3. If the proposal is conditional or qualified by the failure of the acceptor to fulfill the condition precedent 4. By the death or insanity of the proposer, if the fact comes to the knowledge of the acceptor before acceptance
CONTRACTSVALID?
A valid contract has the elements necessary for contract formation; An agreement (proposal and acceptance. Supported by legally sufficient consideration For legal purpose Made by parties who have the legal capacity to enter into the contract i.e. contractual capacity:
CONTRACTS---VALID?
1. Age of majority: when supplies made to minor binding on him and his estate responsible for payment 2. Sound mind: at the time making contract is capable of understanding it, and of forming a rational judgment as to its effect upon his interest 3. No other disqualification like foreign enemy 4. Free Consent i.e. when not caused by:
CONTRACTS---VALID?
Coercion. It becomes voidable at the option of the person whose consent was obtained by coercion. Undue influence. Domination of a weak mind by a strong mind. Fraud: False representation of fact made with a knowledge of it Misrepresentation. causing a party to make a mistake.
CONTRACTPERFORMANCE.
Deals with time, mode, and order of performance as also who is bound to perform and who can demand performance Parties to contract must perform or offer to perform their respective performances unless dispensed by law. In case of death binding on legal heirs unless contrary to it from the contract. TIME AND PLACE OF PERFORMANCE: When promisor to perform without demand from the promisee and no time fixed then promisor must perform within reasonable time ( reference to nature of character of goods dealt, surrounding circumstances, facts of case)
CONTRACT---PERFORMANCE
To be performed when promisee applies then it his (promisee) responsibility to apply---proper place and within usual business hours If no application from promisee then duty of promisor to apply to promisee When parties agree on the time of performance of any obligation under the contract and is made a condition of the contract then time is the essence of the contract. Breach entitles the party to repudiate the contract
CONTRACT--PERFORMANCE
Avoiding the contract. Circumstances: Parties agree to substitute a new contract, rescind or alter original. Every promisee may dispense with or remit wholly or in part the performance of the promise. Contract is ab initio void
CONTRACT--ASSIGNMENT
ASSIGN is to transfer, make over or set over to another. ASSIGNMENT is the act of transferring to another all or part of ones property, interest or rights----Assignment of contract: transfer of rights or liabilities under a contract. Maybe: 1. Operation by law: in cases of bankruptcy or purchase or loss of interest of law 2. Assignment by act of parties: cannot be
CONTRACT--ASSIGNMENT
assigned (liability passed on) without the consent of other party. Where personal considerations are involved contracts cannot be assigned. Benefit can be assigned over to other party provided the benefit does not entail any liability.
CONTRACTTERMINATION &DISCHARGE
The contractual ties may be loosened and the parties wholly freed from the rights and liabilities under the contract by: 1. By Agreement. Contract discharged by the same process which created it by mutual agreement: Waiver: Parties agree to demand performance. Waive rights and by waiver other party discharged.
CONTRACT--TERMINATION&DISCHARGE.
Novation or Substituted Agreement: Mutual desire of the parties to substitute a new contract in place of old. Old contract need not be performed. 2. By Performance: Duties undertaken by either party fulfilled. 3. By Breach: A contract may be broken. Will discharge either party from performance. It maybe:
CONTRACT---BREACH
In case of breach of contract three remedies are available to the other party: 1. Damages: The amount is to the extent of damages. For loss which is direct result of breach. Cannot claim for indirect loss 2. Specific Performance of the Contracts: Actual carrying out of contract by a party. Court orders one party, at the suit of the other, to carry out the agreement. Usually not granted where damages sufficient compensation to the party.
CONTRACT---BREACH
3. Injunction. An order or judgment of a court restraining some person or persons from doing certain things which are detrimental to the interests of another or others. It is considered to be a negative remedy
CONTRACTSSPECIAL TYPES.
CONTINGENT CONTRACT: A contract to do or not do something unless such event takes place e.g. life insurance where contract is complete only when the insurer passes away. The uncertainty and futurity of the event to which the contract is related. Liability of performance is not absolute but depends upon the happening or not happening of certain event
CONTRACTS---SPECIAL TYPES
The event being collateral to the event.. Contingency should relate to a matter collateral to the main purpose of the agreement The contingency should not depend on the mere will and pleasure of a party, but must depend on the act of a party.
CONTRACTSSPECIAL TYPES
INDEMNITY: An undertaking to make good monetary or other loss or damage CONTRACT OF INDEMNITY: 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 e.g. A contracts to indemnify B against the consequences of any proceeding which C may take against B in respect of a certain amount.
INDEMNITY
The person (A) who gives the indemnity is called the indemnifier and the person (B) for whose protection it is given called the indemnity-holder or indemnified. Scope of indemnity is restricted to those cases where there is a promise to indemnify against loss, caused by the (a) promisor himself or (b) by any other person. Excludes loss from accidents like fire etc. Promise of indemnity may be expressed or implied.
INDEMNITY
INDEMNITY HOLDER: The person to whom the indemnity is given i.e. the promisee acting within the scope of his authority.. His rights: Entitled to claim all damages which he may have been compelled to pay. Recover all cost reasonably covered in resisting, reducing or ascertaining the claim Can compromise a claim on best term he can and then bring an action on the contract of indemnity
GUARANTEE
Guarantee is a promise to be answerable for the debt, default or miscarriage of another. Contract of Guarantee: to perform the promise, or discharge the liability of a third person in case of his default. When a third person promises to pay debt owed by another in the event the debtor does not pay a guarantee relationship is created. Surety: Person who gives the guarantee. Principal Debtor: Person in respect of whose default the guarantee is given. Creditor: Person to whom the guarantee is given.
GUARANTEE
A takes a loan from B when C guaranteed repayment of the loan. A is the principal debtor, B the creditor and C the surety. The function of a contract of guarantee is to enable a person to get a loan, or goods on credit or an employment Mutual assent is an essential element of a contract of guarantee. It is not a unilateral contract. There must be an offer and acceptance.
GUARANTEE
ESSENTIALS: It is a contract To perform the promise or To discharge the liability Of a third person In case of his default The contract may either be written or oral.
GUARANTEE
Differences between Contracts of Guarantee and Indemnity: 1. In case of Guarantee there are 3 parties. In case of Indemnity 2 parties 2. In case of Guarantee there is a Principal debtor. In Indemnity an original and direct engagement; independent of the existence of the third party 3. Guarantee exists for the security of the creditor. Indemnity is for reimbursement of loss
BAILMENT
Bailment from bailler (French) meaning to deliver. Signifying a contract resulting from delivery. Bailment implies a sort of relationship in which the personal property of one person temporarily goes into the possession of another. The ownership of the articles or goods is in one person and the possession in another e.g. leaving a car for repair, cloth to a tailor, parcel to TCS, goods in a cold store.
BAILMENTContd.
The delivery of goods by one person the bailor to another the bailee for some purpose, upon a contract that they shall, when purpose is accomplished, be returned or otherwise disposed of according to the direction of the person delivering it. Formed by the delivery of personal property , without transfer of title by bailor to a bailee usually under an agreement. Obligations and duties arise from the bailment relationship.
BAILMENTContd.
CHARACTERISTICS: 1. Delivery of goods. Delivery of possession is essential. Not transfer of ownership; that would be sale or exchange 2. Delivery of possession is temporary but it is for some purpose.Bailor reserves right to claim redelivery of goods deposited. 3. Delivered goods to be returned according to directions of bailor when purpose accomplished. 4. Only movable properties can be bailed.
BAILMENTContd.
RIGHTS AND DUTIES OF BAILEE and BAILOR. DUTIES of BAILEE: Take care of the goods entrusted to him reasonable. Not to make unauthorized use of goods entrusted to him. Becomes responsible for any loss. Not to mix goods with his own goods Not to set an adverse title to the goods Return the goods after purpose or period of bailment is over.
BAILMENTContd.
DUTIES of BAILOR: To disclose defects of goods bailed To bear extraordinary expenses Compensate or indemnify for reasons not entitled to make bailment AGAINST THIRD PARTIES: If use or possession wrongfully deprived by third party bailee can claim damages. Option also with bailor.
BAILMENTContd.
TERMINATION: Bailee wrongfully uses or disposes goods. Period or purpose of bailment over Gratuitous bailment terminated any time by bailor On death of bailor or bailee gratuious bailment.
AGENCY.
Since it is not possible for every person to do everything by self, the allows the person to be represented in the performance of persons legal acts by another and gives acts done by such representative the same effect as they would have done it by self. One of the most common, important and pervasive legal relationship is that of the agency; relationship between (agent) who agrees to represent or act for the other (principal). The principal has the right to control the agents conduct in matters entrusted to the agent, and the agent must exercise its powers for the benefit of
AGENCYContd.
the principal only. The principal, by using agents, can conduct multiple business operations simultaneously in various locations e.g. corporate officer. AGENCY: A legal relationship between a person and another called the principal for whom he acts. There must be an authority from the principal, express or implied.
AGENCYContd.
Is founded upon a contract, either express or implies, by which one of the parties confides to the other the management of some business to be transacted in his name and on his account and by the other assumes to do business and to render an account of it. Agent a person employed to do any act for another or so represent the other in dealings with the third person. Principal the person for whom such act is done or who is so represented.
AGENCYContd.
In every transaction of agency three persons, agent, principal and third party to whom such representation is made, are involved. Sub Agent a person employed and acting under the control of the original agent. He is not responsible for his acts to the principal. He is only responsible to the agent. DUTIES OF PRINCIPAL TO AGENT:
AGENCYContd.
1. Indemnify him against all lawful acts done in exercise of conferred authority 2. Indemnify for acts done in good faith. 3. Compensate for injury caused by principals neglect RIGHTS OF AGENTS: 1. Right of retainer out of sums received on principals account 2. Entitled to commission (subject to contract) 3. Entitled to retain property, documents etc. until commission due received 4. Indemnified by principal for lawful acts 5. Indemnified by principal for acts done in good faith.
AGENCYContd.
RIGHTS OF PRINCIPAL: 1. Agent to carry out business according to principals directions as a prudent man. 2. Entitled to examine accounts. 3. Agent to obtain instructions from principal 4. Can repudiate transaction if agent carries out business in his own account. 5. Agent cannot delegate authority without consent.
AGENCYContd.
CREATION : 1. By Direct Appointment when agents authority is expressly given 2. By Implication when agency is inferred from dealings between two persons. 3. By Necessity when an emergency acts without authority 4. By Estoppel (a plea in bar, grounded on ones own act). Principal induces third person that the acts done by his agent are by his authority. 5. By Ratification when a previous unauthorised act is approved and made valid.
AGENCYContd.
TERMINATION: BY ACT OF PARTIES: Lapse of Time: Period for agency relationship expires. Purpose Achieved Occurrence of Specific Event Mutual Agreement BY OPERATION OF LAW: Death or mental incompetence. Automatic and immediate. Knowledge of death not required.
MY CONCEPT OF HAPPINESS
MUNNA BHAI MBBS TENSION NAA LO ABSENCE OF WORRY THE CONQUEST OF HAPPINESS BERTRAND RUSSEL
MY CONCEPT OF HAPPINESS
I think I could turn and live with animals, they are so placid and self-contained, I stand and look at them long and long They do not sweat and whine about their condition, They do not lie awake in the dark and weep for their sins, They do not make me sick discussing their duty to God,
MY CONCEPT OF HAPPINESS
Not one is dissatisfied, not one is demented with the mania of owning things, Not one kneels to another, nor to his kind that lived thousands of years ago, Not one is respectable or unhappy over the whole earth. WALT WHITMAN