GENERAL AND COMMERCIAL LAW

Laws of Contract

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 Definition of Contract
Section 2(h) of the Contract Act of 1872
enforceable in Bangladesh provides that,
An Agreement enforceable by law, is a
contract".

Therefore, in a contract,
(1) there must be an agreement, and
(2) the agreement must be enforceable by law.

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Essential Elements of a Contract
An agreement becomes enforceable by law when it fulfils
certain conditions :
1. Offer and Acceptance
2. Intention to create Legal Relationship
3. Lawful Consideration
4. Capacity of Parties : to enter into an agreement
5. Free Consent : free from Coercion, Undue influence,
Misrepresentation, Fraud, and Mistake
6. Legality of the Object
7. Certainty : agreement must not be vague
8. Possibility of Performance
9. Writing, Registration and Legal Formalities

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 Formation of Contract
All contracts are made by the process of
a lawful offer by one party, and
the lawful acceptance of the offer by the other party.
Offer
A proposal is called an offer.
The person making the offer is called the offeror.
The person to whom the offer is made is called the offeree.
Proposal
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.

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 Rules regarding Offer
The Contract Act contains various rules regarding offer :
An offer may be express or may be implied from the
circumstances.
An offer may be made to a definite person; to some
definite class of persons.
Legal relationship is required.
The terms of the offer must be certain, definite,
unambiguous and not vague.
A mere statement of intention is not an offer.
An offer must be communicated to the offeree.
An offer may be conditional.

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 Rules regarding Acceptance
Acceptance of an offer must satisfy some requirements to be legally effective:
It must be an absolute
Conditional Acceptance will be considered as a counter offer.
The offeree must follow the mode of acceptance prescribed
by the promisor.
Acceptance must be done within the Time prescribed by the offerer.
Acceptance is complete when the communication is complete.
Acceptance cannot be given before Offer is given.
The acceptance must be made while the offer is in force.

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Communication of Offer and Acceptance

The communication of proposals, the acceptance of

proposals, and the revocation of proposals and
acceptances, respectively, are deemed to be made
by any act or revoking by which he intends to
communicate such proposal, acceptance or
revocation or which has the effect of communication
it.
An offer may be communicated to the offeree(s) by
word of mouth, by writing or by conduct. A written
offer may be contained in a letter or a telegram. A
circular or advertisement or a notice may be written
in such a language that it amounts to an offer.
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 Definition of Consideration
Consideration is an essential element in a contract.
Without consideration a contract cannot be made.
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 to abstain
from doing, something, such act or
abstinence or promise is called a
consideration for the promise.
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 Rules regarding Consideration
Desire (or request) of the promisor is essential.
It must be real.
Consideration must be reasonable.
Public duty will not amount to a consideration.
Promise made to a stranger is enforceable.
Consideration need not be adequate.
The consideration must not be illegal, immoral, or opposed to
public policy.
The consideration may be present, past, or future.
Consideration may move from the promisee or from any other
person.

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 No Consideration, No Contract
Without consideration there may not be any contract.
Consideration is essential for making a valid contract.
According to our Contract Act-
An agreement made without consideration is void, unless
(1) it is expressed in writing and registered under the law for
the time being in force for the registration of documents, and is
made on account of natural love and affection between
parties standing in a near relation to each other; or unless
(2) it is a promise to compensate, wholly or in part, a person
who has already voluntarily done something for the promisor, or
something which the promisor was legally compellable to
do, or unless
(3) it is a promise, made in writing and signed by the person to be
charged therewith, or by his agent generally or specially
authorized in that behalf, to pay wholly or in part a debt of
which the creditor might have enforced payment but for the
law for the limitation of suits.
In any of these cases, such an agreement is a contract. `

Continued 10
 No Consideration, No Contract
Continued..2

Explanation 1 Nothing in this section shall affect the validity, as

between the donor and donee, of any gift actually made.
Explanation 2 An agreement to which the consent of the promisor
is freely given is not void merely because the consideration is
inadequate; but the inadequacy of the consideration may be taken
into account by the Court in determining the question whether the
consent of the promisor was freely given. Illustrations
(a) A promises, for no consideration, to give to B Taka 1,000. This is a
void agreement.
(b) A, for natural love and affection, promises to give his son, B, Taka
1,000. A puts his promise to B into writing and registers it. This is a
contract.
(c) A finds B's purse and gives it to him. B promises to give A Taka 50.
This is a contract.
(d) A supports B's infant son. B promises to pay A's expenses in so
doing. This is a contract.
(e) A owes B Taka 1,000, but the debt is barred by the Limitation Act. A
signs a written promise to pay B Taka 500 on account of the debt.
This is a contract.
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 No Consideration, No Contract
Continued..3

(f) A agrees to sell a horse worth Taka 1,000 for Taka 10. A's consent to
the agreement was freely given. The agreement is a contract
notwithstanding the inadequacy of the consideration.
(g) A agrees to sell a horse worth Taka 1,000 for Taka 10. A denies that
his consent to the agreement was freely given.

The inadequacy of the consideration is a fact which the Court should

take into account in considering whether or not A's consent was
freely given.

Exception to the Rule No Consideration, No Contract

National love and affection
Voluntary compensation
Time-barred debt
Agency
Completed gifts

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 Types of Contracts (1)
Types of Contracts according to Method of Formation :
(i) Express Contract : Express contract is one which
is expressed in words spoken or written.
When such a contract is formed, there is no difficulty
in understanding the rights and obligations of the
parties.
(ii)Implied Contract : When a contract is implied from
the conduct of a person, it is called implied contract.
The conditions of an implied contract are to be
understood from the acts, the conduct of the parties
and/or the course of dealing between them.
(iii) Quasi Contract : There are certain dealings which
are not contracts strictly, though the parties act as if
there is a contract.
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 Types of Contracts (2)
Types of Contracts according to Time of Performance :
(i) Executed Contract : There are contracts where the
parties perform their obligations immediately i.e. as soon
as the contract is formed. Example : B buys an article
from a shop and pays the price immediately. The
consideration moving from B is present or executed
consideration.
(ii) Executory Contract : When the consideration is to
move at a future date, it is called future consideration or
executory consideration. In such contract, the obligations
of the parties are to be performed at a later time.

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 Types of Contracts (3)
Types of Contracts according to Parties of the Contract :
(i) Bilateral Contracts : (there are two parties)
(ii) Multilateral Contracts : (more than two parties)
(iii) Unilateral Contract : In a certain contracts one
party has to fullfil his obligations whereas the other
party has already performed his obligations. Such a
contract is called unilateral contract.
Types of Contracts according to Validity and Legality :
Valid, Void, Illegal, Voidable, and Unenforceable

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 Valid vs. Void Agreement
An agreement which satisfies all the essential
elements of a contract, and which is enforceable
through the courts is called valid contract.
Such agreement creates an outstanding obligation
or legal liability, law steps into enforce whenever a
party breaks it.
An agreement not enforceable by law is said to
be void. A void agreement has no legal effect. It
confers rights on any person and creates no
obligations.
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Agreement which becomes Void
Following agreements are void ab initio :
Agreement having a unlawful part in
consideration(s)
Agreement for unlawful object
Agreement made without consideration
Agreement in restraint of the marriage of any
person other than a minor
Agreement in restraint of a lawful profession,
trade or business of any kind
Continued ..

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 Agreement which becomes Void
.. Continued

Agreement in restraint of a judicial proceedings,

except for reference of disputes to arbitration
Agreement which is uncertain
Agreement by way of wager
Agreement entered into by minors, lunatics and
insolvents
Agreement where both parties are under mistake
Agreement to do an act which is impossible in
itself
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 Illegal vs. Voidable Agreement
An Illegal Agreement is one which is against a law
in force or whose object is declared illegal by law.
(e.g. agreement to commit murder, robbery or cheating)
An Illegal Agreement is prohibited by law on pain of
penalty.
An Illegal Agreement affect the collateral transaction.
An agreement which is enforceable by law at the
option of one or more of the parties thereto, but not
at the option of the other or others, is a voidable
contract.

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 Capacity of Parties to Contract
Every person is competent to contract who is
of the age of majority according to the law to
which he is subject, and who is of sound mind,
and is not disqualified from contracting by any
law to which he is subject. Sec. 11
So, every person is competent to contract if he
is of the age of majority according to the law
is of sound mind, and
is not disqualified from contracting by any law.

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 Free Consent
An agreement is valid only when it is the result of
the free consent of all the parties to it.
The Law of Contract lays down that the consent is
not free if it is caused by the following ways :
Coercion
Undue influence
Misrepresentation
Fraud
Mistake

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 Coercion & Undue Influence
Coercion is the committing or threatening to commit,
any act forbidden by the Penal Code, or the 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.
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.

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 Misrepresentation
Misrepresentation means and includes :
(a) 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 an intent to
deceive, gains an advantage to the person committing
it, or any one claiming under him, by misleading
another to his prejudice or to the prejudice of any
one claiming under him; or
(c) causing, however innocently, a party to an
agreement, to make a mistake as to the substance of
the thing which is the subject of the agreement.

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 Fraud
The term "fraud" includes all acts committed by a person
with an intention to deceive another person.
According to Section 17, "fraud" means and includes any of
the following acts committed by a party to a contract, or
with his connivance, or by his agent, with intent to
deceive or to induce another party thereto or his agent,
to enter into the contract :
The suggestion that a fact is true when it is not true by one
who does not believe it to be true.
The active concealment of a fact by a person who has
knowledge to belief of the fact.
A promise made without any intention of performing it.
Any other act fitted to deceive.
Any such act or omission as the law specially declares to
be fraudulent.
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 Mistake
Mistake may be defined as an erroneous belief
concerning something. It may be of two kinds :
(i) Mistake of law, and (ii) Mistake of fact.
Mistake of Law may be of three types :
(a) Mistake of general law of the country;
(b) Mistake of foreign law;
(c) Mistake of private rights of a party relating to
property and goods etc.
Mistake of Fact may be of two types :
(a) Bilateral mistake; or
(b) Unilateral mistake.
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 Performance or Tender
A contract creates legal obligations. Performance of a
contract means the carrying out of these obligations. Each
party must perform or offer to perform the promise which
he has made.
The parties to a contract must either perform, or offer
to perform, their respective promises, unless such
performance is dispensed with or excused under the
provisions of this act, or of any other law.
The offer to perform the contract is called Tender.
Offer to perform or Tender may be called attempted
performance.

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 Methods of Termination of
Contracts ..1
When an obligation created by a contract comes to an end,
the contract is said to be discharged or terminated.
A contract may be discharged or terminated in any of the
following ways :
Termination by Performance of the promise or tender
Termination by mutual agreement :
a. Novation : a new contract is substituted
b. Alteration : change in terms of a contract
c. Remission : acceptance of less than what was contracted
e. Rescission : cancellation of all or some of the terms
f. Merger : inferior right vanishes into the superior right
Termination by Frustration or Supervening Impossibility

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 Methods of Termination of Contracts ..2
(Continued)

When the common object of a contract can no longer be carried

out, the court may declare the contract to be at an end. This is
known as the Doctrine of Frustration.
Frustration or Supervening Impossibility may be
Pre-contractual Impossibility (void ab initio)
Post-contractual Impossibility (due to Destruction of an object,
Change of law, Failure of Pre-conditions, Death or Incapacity
for personal services, Outbreak of War)
Termination by Operation of Law (death, insolvency, merger)
Termination by Lapse of Time
Termination by Material Alteration
Termination by Breach of Contract
Anticipatory Breach of contract
Actual Breach of Contract
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 Remedies of Breach of Contract
When a breach of contract occurs, the aggrieved
party or the injured party becomes entitled to the
following reliefs :
Rescission of the contract
Suit for Damages
Suit upon Quantum Meruit (The phrase "Quantum
Meruit" means "as much is merited)
Specific performance of the contract
Injunction

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