Business & CommBusiness & Commercial Lawercial Law

8/12/2019 Business & CommBusiness & Commercial Lawercial Law

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Business and Commercial Law. (Knowledge Level).2010.

Businessand Commercial Law.Knowledge Level.

Business and Commercial Law. (Knowledge Level).

2010.


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contents

Sl.No Act PagO1.

The Contract and Agency Act------------ 3-2

!2. The Sale" o# $ood" Act--------------------- 2&-31

!3. The Partner"h'( Act------------------------ 32-1

!. The Negot'a)le *n"tr+,ent Act----------- 2-8

!&. The -an.r+(tcy Act------------------------ %-&!

!/. The Ar)'trat'on Act------------------------- &1-&2


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Contract Act 1872.

1. What is contract?An agreement enforceable by law is a contract. Therefore in a contract there must be

i). an agreement

ii). the agreement must be enforceable by law.

There some agreements like an agreement to play cards or to go to a cinema, which cannot be enforced through

the courts of law, are not contract. So an agreement, which can be enforced through the courts of law, is called a

contract.

2. What are the elements of a contract?An agreement becomes enforceable by law when it fulfills certain conditions. These conditions, which may

be called the essential elements of a contract, are explained hereunder:

i). !ffer and acceptance

ii). "ntention to create legal relationship

iii). #awful consideration

i$). %apacity of the parties

$). &ree consent

$i). #egality of the ob'ect

$ii). %ertainty

$iii). (ossibility of performance

ix). oid agreement

x). *riting, registration and legal formalities.

3. Definition of acceptance & proposal.(roposal: *hen one person signifies to another his willingness to do or to abstain from doing anything, with a$iew to obtaining the assent of that other to such act or abstinence, he is said to make a proposal.

!ffer: A proposal is also called an offer. The promisor or the person making the offer is called offeror. The

person to whom the offer is made is called the offeree.

4. When is the communication of proposal and acceptance complete?%ompletion ofproposal:The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.

5. How and when can be revoed a proposaland acceptance?+e$ocation#apse ofproposal:

A proposal comes to an end, and no longer opens to acceptance under the following circumstances:

i). -y notice

ii). -y lapse of time

iii). After expiry of reasonable

time i$). -y failure of reasonable

time$). -y failure of a condition precedent

$i). -y death of insanity

$ii). %ounter offer

$iii). -y refusal

+e$ocation of AcceptanceAn acceptance can be re$oked any time before the acceptance comes to the knowledge of the proposer but

not afterwards.


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circumstances

iii. Silence is fraud where silence is in itself e1ui$alent tospeech


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13. Distinuish between void and voidable contract.89 & :oints ;oid contract ;oidable contract

4. /efinition. An agreement not enforceable by law

is said to be $oid.

An agreement which is enforceable

by law at the opinion of one or more

of the parties thereto, but not at all

the opinion of the other or others is a

$oidable contract. .

5. +ight and obligation A $oid agreement confers no right on

any person and creates no obligations

-ut in case of $oidable agreement

the rights and obligations of the

parties concerned are present unless

it becomes $oid.

6. /eclaration for $oiding As a $oid agreement is $oid from

the beginning it is not necessary for

the effected party to declare the

agreement $oid.


the effected party needs to call the

agreement $oid.

7. +efund the benefit "n case of $oid agreement the party is

not bound to refund the benefit

recei$ed to the other party.


the party may refund the benefit to

the other party, if the agreement

becomes $oid later on.

14. Distinuish between a continent contract and wa&erin&a&reement.The distinctions between contingent contract and wagering agreement are gi$en below:

8ub


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6b&reement

4. /efinition. An agreement enforceable by law is

contract.

(romise or e$ery set of promises

forming the consideration for each

other, is an agreement.

5. Similarity All contracts are agreements All agreements are not contact.


1'. n which cases a contract can be void?6*. When is an areement said to be void?An agreement is said to be $oid because of mistake, lack of consideration, want of capacity etc. A list of

$oid agreements is gi$en below:

4. #ack of capacity.

5. 3utual mistake of fact.

6. ;nlawful consideration or ob'ect.

7. %onsideration or ob'ect partly unlawful.

. Agreements in restraint of legal proceedings.

?. ;ncertain Agreement.

. Agreements by way of wager.

49. "mpossible acts.

44. Agreements contingent on impossible e$ent.

45. +eciprocal promises where there are $oid promises.

46. Agreement is restraint of trade

2-. What are the differencesbetween ndemnit" and =uarantee ?8ub


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Oter !m"ortant #uestions

69. Short otes

8xpress %ontract

"mplied %ontract @uasi %ontract

8xecuted %ontract)

8xecutory %ontract

-ilateral %ontract

;nilateral %ontract

31. (lassification of (ontract

alid contract

oid contract

oidable contract

"llegal contract

;nenforceable contract

32. *ules reardin an offer

An offer may be express or may be implied from the circumstances

An offer may be made to a definite person2 to some definite class of persons2 or to the world at large.

#egal relationship is re1uired

The terms of the offer must be certain, definite, unambiguous and not $ague.

A mere statement of intension is not an offer.

An offer must be communicated to the offeree

An offer may be conditional

(rinted contracts

33. Who can accept an offerAn offer can be accepted only by the person or persons for whom the offer is intended which includes the following:

An offer made to a particular person can only be accepted by him because he is the only person to accept.

An offer made to a class of persons can be accepted by any member of the class.

An offer made to the world at large can be accepted by any person whatsoe$er.

34. How an offer to be communicated?An offer may be communicated to the offeree or offerees by word of mouth, by writing or by conduct.

35. How an acceptance to be

communicated? An acceptance to becommunicated by the following: i). !ffer and

Acceptance by post

ii). !ffer and acceptance through telephone

iii). 3icrophone

3!. s a promise to mae a contribution to charit" enforceable b" law?o, a promise to make to charity is not enforceable because it is without consideration.

3#. (an a person who is not a part" to a contract sue it ?A stranger to a contract, i.e., one who is not a party to it cannot file s suite to enforce it. A contract between ( and @

cannot be enforced by +. -ut a stranger to the consideration can sue to enforce it pro$ided he is a party to the

contract. A contract between (, @ and + whereby ( pays money to @ for deli$ering goods to + can be enforced by

+ although he did not pay any part of the consideration.


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3%. *ules reardin acceptance of an offer.The acceptance of an offer to be legally effecti$e must satisfy the following re1uirements:

i). "t must be an absolute and un1ualified acceptance of all the terms of the

offer. ii). %onditional acceptance %ounter offer.

iii). %ontract sub'ect to condition

i$). %larification

$). The acceptance must be expressed in some usual or reasonable manner

$i). 3ental acceptance or uncommunicated assent does not result in a

contract $ii). The mode of acceptance

$iii). Time of acceptance

ix). *hen acceptance is complete

x). -efore offer

xi). The acceptance must be made while the offer is in force.

3'. What are the eceptions to sue upon a person who is not a part")a straner to a contract?There arecertain exceptions to the rule that a stranger to the contract cannot sue upon it. They are as follows:

i). -eneficiaries in the case of trust

ii). (ro$ision of marriage settlement of 3inor

iii). Assignee of a contracti$). &amily settlement

$). Acknowledgement or 8stoppel

4-. What are the rihts and liabilities of a stran&er?*ith the exception of the abo$e cases, a contract cannot confer rights upon a person who is not a party to it. Also

a contract cannot impose a liability upon a person who not a party to it.

41. What are t"pes of areements said to be void ?The following agreements are $oid from the beginning:

4. An agreement made by a minor

5. Agreements without consideration

6. %ertain agreements against public policy

42. What is void or voidable a&reement?An agreement, which does not satisfy the essential elements of a contract, is $oid. An agreement not enforceable

by law is said to be $oid. A $oid agreement has no legal effect. "f confers no right on any person and creates no

obligations

43. What t"pes of areements become void?An agreement, which was legal and enforceable when it was entered into, may subse1uently become $oid due to

impossibility of performance, change of law or other reasons. *hen it becomes $oid the agreement ceases to

ha$e legal effect.

44. What t"pes of areements are epressl" declared void?

There are certain agreements, which are expressly declared to be $oid are summariCed hereunder:4. 8$ery agreement in restraint of marriage of any person, other than a minor, is $oid

5. e$ery agreement by which anyone is restrained from exercising a lawful profession, trade or business of any

kind, is to that extent $oid

6. (ri$ate indi$iduals cannot by agreement alter or $ary their personal law or the statute law

7. Agreements, the meaning of which is not certain, or capable of being made certain, are $oid

. Agreements whose ob'ects or considerations are unlawful are $oid


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8ub&reement

4./efinition An agreement not enforceable by lawis said to be $oid. .

An illegal agreement is one, which isagainst a law in force.

5.ature 4. A $oid agreement is not necessarilyillegal.

4. An illegal agreement is also $oid


45. What are the differences between void areement and voidable a&reement?8ub


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51. Who is a minor?th

A minor is one who has not completed his or her 4? year of age.

52. What are the eceptions reardin the rules to minor?To the minorDs rule there are two exceptions which are gi$en below:

4). *hen a guardian of the minorBs person or property is appointed by a court of law and5). *hen a minorBs property is taken o$er by the %ourt of *ards for management

. "n either case minority continues up to the completion of the 54st year.

53. What do "ou mean b" 8ound Bind?A person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he

is capable of understanding it and forming a rational 'udgment as to it effect upon his interests.

54. n which case an unsound mind ma" mae a contact?A person who is usually of unsound mind, but occasionally of sound mind may make a contract when he is of

sound mind.

55. n which case a 8ound Bind ma" not mae a contact? 0

A person who is unusually of sound mind, but occasionally of unsound mind, may not make a contract when he isof unsound mind.

5!. What is the test of soundness of mind?The test of soundness of mind are gi$en

hereunder: i). capacity to understand the business

concerned ii). ability to form a rational 'udgment

5#. How ma" the unsoundness of mind arise?;nsoundness of mind arise from

insanity or lunacy

idiocy

drunkenness

similar factors

5%. What do "ou mean b" .dioc"?"diocy is a congenital defect caused by lack of de$elopment of the brain. The term idiot is applied to a person

whose mental powers are completely absent.

5'. What do "ou mean b" 9unac" or nsanit"?A lunatic is one whose mental powers are deranged so that he cannot form a rational 'udgment on any sub'ect.

!-. What do "ou mean b" >liens?An alien means a citiCen of foreign state. %ontracts with alien are $alid.

!1. What are the effects of areements made b" persons of unsound mind?The effects of agreements made by persons of unsound mind are describing hereunder:i). Agreements made by a person of unsound mind are $oid

ii). -ut agreements for supply of necessaries for unsound himself or for persons whom he is sound to support

is $alid as 1uasi contracts.

!2. What do "ou mean b" ,ree (onsent ?Two or more persons are said to consent when they agree upon the same thing in the same sense.


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!3. n which situation consent is not free?The consent is not free if it is caused by

%oercion

;ndue "nfluence

&raud

3isrepresentation 3istake

!4. What do "ou mean b" (oercion?%oercion is the committing or threatening to commit, any act forbidden by penal %ode, or unlawful detaining, or

threatening to detain, any property, to the pre'udice of any person whate$er with the intention of causing any person to

enter into an agreement.

!5. What are the conse/uences of coercion?The conse1uences of coercion are gi$en below:

4. A contract brought about by coercion is $oidable at the option of the party whose consent was so caused

5. The aggrie$ed party can ha$e the contract set aside or he can refuse to perform it and take the defense of coercion if

the other party sought to inforce it.

6. The aggrie$ed party may if he so desires abide by the contract and insist on its performance by the other party.

!!. What are the features of coercion ?i). %oercion means

committing or threatening to commit an act forbidden by the (enal %ode.

the unlawful detaining or threatening to detain any property.

ii). The act constituting coercion, must be directed at any person and not necessarily at the other party to the

agreement.

iii). The act constituting coercion, must ha$e been done or threatened with the intention of causing any person to

enter into an agreement.

8 x ce ptio n s :

i). (rosecution

ii). Eigh prices and high interest rates. iii).A threat to commit suicide.

!#. What are the special causes which does not constitute coercion?The special causes which does not constitute coercion are listed below:

i. (rosecution

ii. Eigh prices and high interest rates iii. A

threat to commit suicide

!%. What do "ou mean b" undue influence?A contract is said to be induced by undue influence where

iii. one of the parties is in position to dominate the will of the other i$. he

uses the position to obtain an unfair ad$antage o$er the other.

!'. What are the presumption to eist undue influence?;ndue influence may be presumed to exist in the following cases:

i. +ealor apparent authority or fiduciary relationship stands

ii. %ontract makes with a mentally incapable person.

#-. What do "ou mean b" unconscionable bar&ains?;nconscionable bargain is one which is against the conscience of reasonable persons and what shocks the public. "f

exercise profit is made it will also be within this term.


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Andue influence (oercion

4. The influence arises from the domination of the will of

one person o$er another.

4. The influence arises from committing or threating to

commit punishable offence or detaining or threating to

detain property unlawfully.

5. ;ndue influence is mental pressure 5. %oercion are mostly cases of the use of physical force.


#1. What do "ou mean fiduciar" relationship?&iduciary relationship means a relationship of mutual tr ust and confidence. Such a relationship is supposed to

exist in the following cases:

father and son

guardian and ward

solicitor and client

doctor and patient

preceptor and disciple

trustee and beneficiary

#2. What are the conse/uences of undue influence?The conse1uences of undue influences are describing are describing hereunder:

4). "t is $oidable at the option of the party whose consent was so caused

5). Such an agreement may be set aside absolutely or

6). if the party who was entitled to a$oid it has recei$ed any benefit thereunder, the court can set it aside upon

such terms and conditions as may seem 'ust

7). The aggrie$ed party may, if he desires, treat the agreement as binding and enforce it against the other party.

#3. How is an undue influence suspected?An undue influence is suspected in the following cases:

4). "nade1uacy of consideration

5). &iduciary relationship

6). "ne1uality between the parties as regard age, intelligence, social status etc.

7). Absence of independent ad$isors for the weaker party


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%#. What is meant b" bilateral mistae?*hen both the parties of the contract mistake is called bilateral mistakes.

%%. What is meant b" unilateral mistae?*hen one of the parties of the contract mistakes is called unilateral mistakes.

%'. What are the rules reardin mistae?4). 3istake of law

5). 3istake of fact

6). !pinion

7). ;nilateral mistake

'-. When are the consideration and the ob


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'5. What do "ou mean b" continent contract?A contingent contract is a contract to do or not to do something, if some e$ent, collateral to such contract, does

or does not happen.

'!. What do "ou mean b" collateral event ?A collateral e$ent means an e$ent which is neither a performance directly pro mised as part of the contract, nor

the whole of the consideration for a promise.

'#. What are the characteristics of continent contracts?4. The performance of such contract depends on a contingency, i.e., on the happening or non happening of the

future e$ent.

5. The e$ent must be collateral i.e., incidental to the contract.

6. The contingency is uncertain.

'%. What are the methods of termination of a contract?4. -y performance of the promise or tender.

5. -y mutual consent canceling the agreement or substitute in a new agreement in place of the old.

6. -y subse1uent impossibility of performance.

7. -y lapse of time.


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1-3. What are the eceptions of the principle of supervenin impossibilit"?Some points are gi$en below of cases which do not come within the principal of super$ening impossibility:

4. /ifficulty of performances.

5. %ommercial impossibility.

6. Strikes, lockouts, ci$il disturbances and riots.

7. &ailure of one of the ob'ects.

1-4. What are the effects of supervenin impossibilit"?*hen the performance of contract becomes subse1uently impossible or illegal, the contractbecomes$oid.

1-5. What is the doctrine of frustration?*hen the common ob'ect of a contract can no longer be carried out, the court may declare the contract to at an

end. This is known as /octrine of &rustration.

1-!. When does a contract terminate b" law?A contract terminates by operation of law in case of the following cases:

4. -y death

5. -y insol$ency

6. -y merger

49>. Eow may the breach of contract ariseA-reach of contract may arise in two ways :

4. by anticipatory breach.

5. by actual breach present breach

1-%. What are the remedies for breach of contract ?4. +escission of the contract.

5. Suit for damages.

6. Suit upon @uantum 3eruit

7. Specific performance of the contract.


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112. What are the rules reardin the doctrine of /uantum meruit ?The rules regarding the doctrine of 1uantum merit are stated below:

4. The in'ured party entitlement to claim reasonable compensation

5. A person who has done something under the contract which is disco$ered to be unenforceable by law for

some technical reasons, is entitled to get compensation.

6. (resumption of law regarding an implied agreement to pay for ser$ices rendered.

7. *here a contract is not di$isible into parts and lump sum of money is promised to be paid for the entire work,partperformance does not entitle a party to claim payment 1uantum meruit.


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12%. What are the duties of the ailor?The duties of the -ailor are gi$en below:

4. -ailorBs duty to disclose faults in goods bailed.

5. (ayment of expenses in Fratuitous -ailment.

6. +esponsibility for breach of warranty of title.

12'. What are the rihts and duties of finder of oods ?4. (ossession.

5. %ompensation and #ien.

6. +eward.

7. Sale.

13-. What are the rihts of ailor?The rights of -ailor are enumerated hereunder:

4. 8nforcement of rights.

5. Act inconsistent with the terms.

6. +estoration of goods lent gratuitously.

131. What are the rihts of ailee?The rights of -ailee are enumerated hereunder:

4. 8nforcement of rights.

5. -ailment by se$eral 'oint owners.

6. -ailee not responsible on redeli$ery to bailor without title.

7. -aileeBs particular lien.


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13!. When can a nonowner mae a valid :led&e?4. 3ercantile Agent.

5. (ossession under a $oidable contract.

6. (awnor with a limited interest.

7. (ossession with coowner.

13#. What are the rihts of the :lede or :awnee?4. +ight of +etainer.

5. +etainer of subse1uent ad$ance.

6. 8xtraordinary expenses.

7. (awneeBs right where pawnor makes default.

13%. What are the rihts of :led&or?4. /efaulting pawnorBs right to redeem.

5. (reser$ation and maintenance.

6. (rotection of debtor

13'. What do "ou mean b" >ent7 :rincipal and >&enc"?Agent: An agent is a person employed to do any act for another or to represent another in dealings with third person.

(rincipal : The person for whom such act is done or who is so represented, is called the principal.

Agency :The relationship is called Agency.

14-. What are the differences between aent and servant?The differences between agent and ser$ant are gi$en below:

Sub'ect Agent Ser$ant

4. Authority 4. An agent is to exercise his authority in

accordance with the principalBs

instructions

4. A ser$ant has to act according

to the orders of the master in e$ery

particular

5. +elationship 5. An agent is appointed and employed tobring the principal into contractual

relationship with third parties

5. A ser$ant cannot do that

6. -inding 6. An agent can bind the principal to the

third parties

6. A ser$ant cannot do so

7. +emuneration 7. The mode of remuneration of an agent

may $ary, including a commission on the

basis of the work done

7. A ser$ant is generally paid

through wages


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141. What are the differences between >ent and ailee?Sub'ect -ailee Agent

4. (ossession 4. The bailee has possession of goods

of the bailor

4. An agent may not ha$e possession

of any goods or property of the

principal

5. +elationship 5. The bailee has no power to create

any contractual relationship with the

third party

5. An agent has that authority.

6. Act on behalf 6. ;nder certain circumstances a bailee

may act as an agent

6. An agent canDt.

142. What are the different classes of >&ents?4. -roker.

5. &actor.

6. A %ommission Agent.

7. Auctioneer.

&enc"?4. Agency by 8xpress Agreement.

5. Agency by "mplied Agreement.

6. Agency by 8stoppel or by Eolding !ut.

7. Agency of ecessity.


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14%. What are the eceptions reardin the appointment of an aent b" an a&ent?4. *hen it is permitted by the custom, of the trade with which the agency is concerned.

5. *hen it is necessary because of the nature of the agency.

14'. What do "ou mean b" co5a&ent?A coagent is a person appointed by the agent according to the express or implied authority of the principal, to act

on behalf of the principal in the business of the agency.

15-. How does an aenc" terminate?4. Termination by act of parties.

5. Termination by operation of law.

8fflux of time.

(erformance of the ob'ect.

/etermination of sub'ectmatter.

/eath or insanity of the principal or agent.

"nsol$ency of the principal.

The principal becoming an alien enemy.

Termination of the subagents authority.

151. What are the duties of aents to the :rincipals?4. Agents duty in conducting principals business.

5. Skill and diligence re1uired from agent.

6. AgentBs duty to render accounts.

7. AgentBs duty to communicate to principal.

. Agents duty to pay sums recei$ed for principal.

?. (rincipalBs death or insanity.

. 3iscellaneous.

152. What are the duties of principals to a&ents?4. Agent to be indemnified against conse1uences of lawful acts.

5. Agent to be indemnified against conse1uences of acts done in good faith.

6. onliability for criminal acts.

7. %ompensation for principalBs neglect.

153. What are the rihts of principals?4. %ompensation

5. AgentDs duties

6. +e$ocation

154. What are the rihts of a&ents?4. 8nforcement of rights.

5. AgentBs right of retainer.

6. *hen agents remuneration becomes due.

7. Agent not entitled to remuneration for business misconduct.


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155. What are the personal responsibilit" of a&ent?"n case of

4. &oreign principal.

5. ;ndisclosed principal.

6. *hen principal cannot be sued.

7. &ictitious person or nonexistent person.

. (retended agent.

?. +epresentation as to liability.

15!. What are the leal conse/uences of the contracts with an undisclosed principal?#egal conse1uences are as follows

4. (rincipal may re1uire performance of the contract.

5. !ther party may refuse to fulfill the contract.

6. (erformance is sub'ect to the rights and obligations between agent and the other party.

7. Agent is personally liable.


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ale o *oods Act+1,-0

"%A-@uesti ons a nd Ans wers1. When does an a&reement to sell become sale?An agreement to becomes a sale when the prescribed time elapses or the conditions, Sub'ect to which

the title (roperty in the goods is to be transferred, are fulfilled.

2. What are the features of a contract of sale of &oodsThe essential elements of a contract for the sale of goods are gi$en hereunder:4. 3o$able Foods.

5. 3o$able Foods for 3oney.

6. Twoparties.

7. &ormation of the contract of sale.

. !ther essential elements.

3. What are the differences between (ondition and Warrant"?The differences between condition and warranty are sitedbellow:

89 o& 8ub


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5. What is doctrine of (aveat +mptor?%a$eat 8mptor is a #atin expression which means Gbuyers bewareH. The doctrine of ca$eat emptor means

that, ordinarily, a buyer must buy goods after satisfying himself of their 1uality and fitness. "f he makes

a bad choicehe cannot blame the seller or reco$er damages from him.

!. What are the rules7which determinewhen ownershipof propert" passes from theseller to the bu"er?

!r, When does title in the propert" in oods sold pass from the sellerto the bu"er?4). ;nascertained Foods.

5). The intention of the (arties.6). Specific goods.

7). *hen seller has something to do.

). /eli$ery to the carrier.

?). Foods sent on appro$al or Gon sale or returnH.

#. What are the prevailin&rules re&ardin& deliver"?4). (ossession of -uyer.

5). 8ffect of part deli$ery.

6). Application for deli$ery.7). (lace of deli$ery.

). 8xpenses of deli$ery.

?). /eli$ery of the wrong 1uantity.). "nstallment deli$ery.

49). /eli$ery to the %arrier or *harfinger.

44). 8xamining the goods.

45). Acceptance.46). -uyer is not bound to return re'ected goods.

47). #iability of -uyer.

%. o sellercan ive the bu"erbetter title to the oods then he7 himself has 0 +plain.

Seller is the trueowner of the goods. -ut he cannot gi$e better title property in the goods then

he, himself has. There is a #atin phrase in this concept Demo dat 1ui non habetD, which

represents, none can gi$e, who does nothimself possess. This rule is applicable for mo$able and

immo$able goods excepting some conditions.

8xample: A horse was sold in a public auction. -ut the horse was a thie$ery item and was

without the knowledge of both the buyer and the auctiontaker. "t was held that the real owner of

the horse couldreco$er his horse.

'. Who is an unpaid seller?The seller of goods is deemed to be an unpaid seller: when the whole of the price has not been paid to tendered.

when a bill of exchange or other negotiable instruments has been recei$ed and the condition on which

it wasrecei$ed has not been fulfilled by reason of the dishonor of the instrument or otherwise.


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15. What are the conse/uences of breach of contract of sale?A. SellerBs +emedies Against the Foods.

4). SellerBs lien or endorBs lien.5). The right of stoppage in transit.

6). The right of resale.

-. +emedies of the Seller Against -uyer (ersonally.4). Suit for theprice.5). Suit for damages.

6). %laim for interest and special damages.

%. -uyerBs +emedies Against the Seller.4). /amages for nondeli$ery.

5). Specificperformance.

6). +emedy for breach of warranty.

7). +epudiation of contract.

!ther"mportant@uestions and Answers4=. 8hort notes :4. +istin oods : 8xisting goods are goods which are already in existence and which are presented insome personDs possession and ownership.

5. &uture goods: &uture goods mean goods to be manufactured or produced by the seller after themaking ofthe contract of sale.

6. %ontingent goods : There may be a contract for the sale of goods for the ac1uisition of which by theseller depends upon a contingency which may or may not be happen.

7. (rice: (rice, means the money consideration for a sale of goods.

. /eli$erable State: Foods, are said to be in a deli$erable state, when they are in such state that thebuyer wouldunder the contract be bound to take deli$ery of them.

?. Specific Ascertained Foods: Specific Ascertained goods identified and agreed upon at the timewhen acontract of state is made.

. Feneric ;nascertained Foods: Feneric ;nascertained goods are not identified and agreed upon atthe timewhen a contract of state is made.

49. Sale and Agreement to Sell: *here the transfer of the property in the goods is taken place at a

future timeor sub'ect to some condition thereafter to be fulfilled, the contract is called agreement to sell.

1#. What are the essential elements of (ontract for the 8ale of =oods?i) 3o$able goods

ii) 3o$able goods for money

iii) Twopartiesi$) &ormation of the contract of sale

$) The terms of contract

$i) !ther essential elements:


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1%. What are the differences between sale and a&reement to sale?8l.& 8ub&reementto sale

4./efinition *here under a contract of sale, theproperty in the goods is transferredfrom the seller to the buyer, the

contract is called a sale

*here the transfer of the property

in the goods is taken place at afuture time or sub'ect to some

condition thereafter to be fulfilled,the contract is called agreement to

sell.

5.Transfer of ownership The property in the goods passes tothebuyer.

The property remains with the seller

until the agreement to sell becomes

a sale.

6. ature of contract Sale is an Dexecuted contract The agreement to sell is an

Iexecutable contractB.

1'. What is meant b" Hire :urchase >&reement?

A higherpurchase agreement is one under which a person takes deli$ery of goods promising to pay theprice by acertain number of installments and until full payment is made, to pay higher charges for using

the goods.

2-. What do "ou mean b" (ondition?A condition is a stipulation essential to the main purpose of the contract, the breach of which gi$es rise

to right totreat the contract as repudiated 0re'ected). Sec. 45 05)

8xample: A buyer placed an order to the seller of furniture stating that, the furniture would be madeof tickwood, otherwise he would not take it. "n this case, furniture made of tickwood is a condition.

21. When can a condition be treated as a Warrant"?

4). oluntary wai$er of a condition.

5). %ompulsory wai$er of a condition.

22. What do "ou mean b" warrant"?A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gi$es rise

to a claim fordamages but not to a right to re'ect the goods and treat the contract as repudiated. Sec. 45

06)

8xample: A buyer placed an order to the seller of furniture stating that, the furniture would be made

of good 1uality wood, and the seller agreed to make it with tickwood. "f the furniture would not

make of tickwood, itwould be treated as the breach of warranty not any condition.

23. What are the conse/uences for breach of Warrant"?4). Suit for damages:

A breach of warranty gi$es rise to claim for damages but not to a right to re'ect the goods and treat the

contract asrepudiated.5). Ad'ustment for damages:A breach of warranty by the seller may rise to claim to the buyer for compensation or making

ad'ustment from theselling price of the goods.


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24. What are the conse/uences for breach of (ondition?4). +epudiation or re$ocation ofgoods:A buyer, upon the breach of condition if it done by the seller, may re'ect the goods. !n the other handa seller, uponthe breach of condition if the buyer does it, may repudiate the contract.

5). +epudiation ofcontract:*here either parties to a contract of sale repudiates the contract before the date of deli$ery, the other

party may either treat the contract as subsisting and wait till the date of deli$ery, or he may treat the

contract as rescindedand sue for damages for thebreach.6). %laim fordamages:

"n the case of any breach of contract, the $ictim is moreo$er entitled to claim for damages after

repudiation of goods and contract.

25. What are the conse/uences of mplied (onditions?4). %ondition as to

title.5). Sale by

description.6). Sale by

sample.

7). Sale by sample as well as

description.


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valid title to the&oods?4). 8stoppel.

5). Sale by a mercantileagent.

6). Sale by one of se$eral 'oint

owners.

7). Sale of goods obtained under a $oidable

agreement.

). An unpaid seller.

?). Sale under the %ontractAct.


3-. What are the duties of sellerof &oods?The following are the duties of seller of goods:

4. /eli$ery

5. +isk of deterioration of goods

6. /amages for nondeli$ery

7. Specificperformance.

31. What are the duties of bu"erof &oods?The buyer of goods has the following duties:

4. (ayment ofprice

5. %ompensation

6. /eli$ery

7. #iability ofbuyer


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'artnersi" Act 1,-2.

"%A-

@ ue stio n a nd Ans wer

1. (an a partner bind the firm?A partner can bind the firm by the means of his acts relating to partnership business. (ersons carrying onbusiness in partnership are agents as well as principals. The business of a firm is carried on by all or any oneor more of them acting for all. 8$ery partner has the authority to act on behalf of all and can, by his actions,bind all the partners of the firm.

2. What are the essential elements of a :artnership?The following three elements are the essential of a partnership4.%ontractual relation oluntary agreement:

There must be an agreement entered into by two or more 059, but in case of -anking 49) persons.

5. Sharing profit loss:The agreement must be to share the profits of a business.

6. %arrying ofbusiness:The business must be carried on by all or any of the partners acting for all.

3. (an a firm be liable for the wron&fulacts of a partner?A firm can be liable for the wrongful acts of a partner. *here, by the wrongful act or omission of a partneracting in the ordinary course of the business of a firm, or with the authority of his partners,

loss or in'ury is caused to any third party, or any penalty is incurred, the firm is liable therefore is liable to

the same extent as the partner.

4. What do "ou under

standb" partnership at will?A partnership is called a partnershipatwill2a. when the partnership is not for a fixed period of time, and

b. when no pro$ision is made as to when and how the partnership will come to an end. Apartnership at will can be dissol$ed whene$er any partner chooses to do so.

5. What do "ou mean b" *e&istration of ,irms?

+egistration of firm means the registration of the contract with the registrar. "t is not compulsory but anunregistered firm suffers from certain disabilities and therefore registration is necessary for carrying onbusiness.

!. s it mandator" for a firm to re&istration?

The registration of a partnership firms is not mandatory. Therefore an unregistered firm is not an illegalassociation. -ut an unregistered firm suffers from certain disabilities and therefore registration is necessaryform carrying on business.


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#. (an "ou spell out the procedure for re&istrationof a firm?a. "f any firm wants to be registered then it shall ha$e to made application to the registrar

;nder prescribed form J fee mentioning the following sub'ects information:

i. ame of the firm

ii. The principal office

iii. The branch office 0if any)

i$. !b'ecti$es

$. /ate of 'oining of each partner $i. /ate

of constitutions

$ii. ame and full address of the partners

$iii. /uration of the firm

b. The abo$e application must be signed J $erified by all partners or their agent specially authoriCed on this

behalf.

c. "f registrar satisfies with the application he record an entry of the statement in the +egister of &irm

and the firm is thereupon considered to be registered.

%. What are the effects or conse/uences of 3on5re&istrationof a firm?An unregistered firm and the partners thereof suffer from certain disabilities:

4. A partner of an unregistered firm cannot file a suit 0against the firm or any partner thereof)for the purpose of enforcing a right arising from contract or a right conferred by the

(artnership Act.5. o suit can be filed on behalf of an unregistered firm against any third party for the

purpose of enforcing a right arising from a contract.

6. An unregistered firm cannot claim a setoff in a suit.

7. %annot claim to the court for the recei$able amount exceeding Tk.499 from the third party.

8 xcep t ion s :

4. A partner of an unregistered firm can file a suit for the dissolution of the firm and foraccounts.5. Suits can be filed for the realiCation of the properties of a dissol$ed firm e$en though it

was registered.

6. The !fficial Assignee or +ecei$er can realiCe the properties of an insol$ent partner of anunregistered firm.

7. There is no bar to suits by unregistered firms and by the partners thereof in areas where the

pro$ision relating to the registration of firms do not apply by notification of State

Fo$ernment under Section


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12. Happenin& of certain continencies ma" lead to dissolution of partnership what are

those?

Sub'ect to contract between the partners, a firm is dissol$ed on the happening the following of certain

contingencies

a. if constituted for a fixed term, by the expiry of that term2

b. if constitute to carry out one or more ad$entures or undertakings, by the completion thereof2

c. by the death of a partner2 and

d. by the ad'udication of a partner as an insol$ent.

13. (an an outoin partner carr" &uarantee?A continuing guarantee gi$en to a firm or to a third party in respect of the transactions of a firm is, i n

the absence of agreement to the contrary, re$oked as to future transactions from the date of any changein the constitution of the firm.

14. What are the ten .mportant elements of a stand and partnership deed? F: 0 2-%GThe important elements of a stand and partnership deed are as follows:

4. ame and address of the partners5. &irm name

6. ature of business

7. (lace of business and business address. The mode of management

?. The powers of the partners. Terms on which a partner can retire

49. 8xpulsion of partners

44. "ntroduction of new partners

!ther"mportant@uestions15. What do "ou mean b" :artnership?

(artnership is the relation between persons who ha$e agreed to share the profits of a business carried on by

all or any of them acting for all.

1!. What are the t"pes of partnership forbiddenb" law?a. umber of partners.

b. An agreement to form a partnership, for the purpose of carrying on an illegal trade.

1#. What do "ou mean b" ,irm7 ,irm5name7 :artner?(ersons who ha$e entered into partnership with one another are called indi$idually GpartnersH and

collecti$ely Ga firmH and the name under which their business is carried on is called the Gfirm nameH


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Business and Commercial Law. (Knowledge Level).

2010.

1%. What is the leal status of a ,irm?1'. Who can be a partner?;nder the (artnership Act, a person may be partner if he has the capacity to enter into acontract.

&rom the purposes of the (artnership Act, the term IpersonB does not include a partnership or a

limited company. Thus a company ( cannot form a partnership with a company @. Similarly, afirm M cannot form a partnership with firm N. -ut all the partners of firm M and all the partners of

firm N can form a single partnership, sub'ect to the rules regarding the number of partners.

Eowe$er, it is assumed that except the followings all are eligible to become a partner of a firm:

a. 3inor: A minor cannot be a partner. -ut in an existing partnership, a minor can be

admitted into a firm if all the partners of the firm agree. Such minor gets all the

benefits of the partnership.

b. (erson of unsound mind: A person who is of unsound mind cannot become a partner.

c. "nsol$ent: A person, who is ad'udged insol$ent by the court, cannot become a partner.

d. %ompany: "n a %ompany the capacity to enter into contract is determined by the

3emorandum and Articles of the Association of the %ompany. The liability of themembers of a firm under the (artnership Act, for the debts of the firm, is

unlimited. -ut a company cannot incur unlimited liability. Therefore a company

cannot become a partner of a firm.

e. An alien enemy: An alien enemy cannot enter into a contract of partnership with a citiCen

of the country.

f. Ambassador: Any foreign ambassador in -angladesh cannot enter into a partnership inthe country.

2-. What are the differencebetween :artnership and (o5ownership?

/ifference between partner and coownership are sitedbelow:

8ub


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5. The power to expel is exercised in good faith by the ma'ority of the partners6. The expelled partner has been notice of the charges against him and has been gi$en an

opportunity to answer the charges.

Business and Commercial Law. (Knowledge Level).2010

.4-. What are the ri&hts of an outoin partner?

4. +estraint of trade.

5. To carry on competing business.

6. To share subse1uent profits.7. +e$ocation of continuing guarantee by change in firm.

41. What do "ou mean b" dissolution of firm?/issolution of a firm means the end of a firm by the breakup of the relation of partnership between

all the partners.

42. What are the conse/uences of dissolution?

4. Acts done af ter dissolution: ;ntil public notice is gi$en of the dissolution, the partners

continue to be liable to third parties for all acts done in connection with the affairs of the

firm.

5. *inding up: (artner is liable to winding up by the following way:

a. 3eet up liabilities by sale of properties2 andrd

b. 3eet up liabilities of 6 parties at first

"f any deficit arise in doing the abo$e work partners will bear that according to the terms of

agreement of partnership. And"f any surplus arises they ha$e right to take the same in proportion of their respecti$e share.

6. %ontinuing authority of partners for purposes of winding up: (artners ha$e riht

to a. complete pending work regarding winding up2 and

b. complete incomplete transactions.

7. (rofit earned after dissolution: "f any partner earns any profit from any transaction

connected with the firm after its dissolution, he must share it with the other partners

and the legal representati$e of the deceased partners.


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4. #osses are to be paid first out of profits, next out of capital, and lastly if necessary by the

partners indi$idually in the proportions in which they were entitled to share profits.

%apital deficiency is to be treated as loss and is to be borne by the partners in

proportion to the profit sharing ratio.

5. The assets of the firm including any sums contributed by the partners to make updeficiencies of capital, shall be applied in the following manner and order:

a. "n paying the debts of the firm to third parties2

b. "n paying to each partner ratably what is due to him from the firm for ad$ances as

distinguished from capital2

c. "n paying to each partner ratably what is due to him on account of capital2 and

d. The residue, if any, shall be di$ided among the partners in the proportions in which

they were entitled to share profits.

e. "f a partner becomes insol$ent or otherwise cannot pay his share of the

contribution, the capital of the sol$ent partners cannot be returned in full. "n

this case, the sol$ent partners must share ratably the a$ailable assets, i.e. the

rule laid down in the 8nglish case, Farner s. 3urray.

6. (ayment of the firm debts and of separate debts: *here there are 'oint debts from the

firm, and also separate debts due from any partner, the property of the firm shall be

applied in the first instance in payment of debt of the firm, and if there is any surplus,

then the share of each partner shall be applied in payment of his separate debts or

paid to him The separate property of any partner shall be applied first in the payment

of his separate debts, and the surplus 0if any) in the payment of the debts of the firm.


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%egotiale !nstrument Act+1881.

1. What is promissor"note?

A promissory note is a negotiable instrument, containing an unconditional undertaking signed by themaker topay a certain sum of money only to, or to order of a certain person, or to the bearer of the"nstrument. "t is notabank note or currency. There are two parties in the promissory note2 maker

and thepayee.

2. What do "ou mean b" eotiable .nstruments?DegotiableD means transferable by deli$ery, and D"nstrumentD means a written document by which a

right iscreated in fa$or of some person who is holder of it. So, egotiable "nstrument means

document transferablebydeli$ery.-esides abo$e, egotiable "nstrument means a promissory note, bill of exchange or che1ue .

3. Define che/ue with essential elements.A %he1ue is a bill of exchange drawn upon a specified banker and payable to bearer or on demand.

The essential features of che1ue are gi$enbelow:4). *ritten.

5). Signed6). (ayable to bearer, order or on demand

7). Sufficient funds). /ated

?). Time ofpresentation

). alidity 0six months)

49). ;nconditional order.44). %ertain amount of money.

45). Transferability.

46). (rinted

7. Who can crossa che/ue?A che1ue can be crossed by the drawer, the holder and the bank 0for collection). -ut,

The holder and the bank can cross a che1ue under the following circumstances:

*here a che1ue is uncrossed, the holder may cross it generally or specially.

*here a che1ue is crossed generally, the holder may cross it specially.

*here a che1ue is crossed generally and specially, the holder may add the words,

Qnot negotiableQ

*here a che1ue is crossed specially, the banker to whom it is crossed specially may

again cross it specially to another banker, his agent, for collection.


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5. How does a promissor"note differfrom bill of e1chan&e?

6r7Differencebetween promissor"note and bill of e1chan&e.

The differences between the promissory note and bill of exchange are stated here under:

$erms of differences :romissor"3ote ill of +1chan&e4. /efinition A promissory note is a negotiable

instrument in writing containing anunconditional undertaking signed by

the maker, to pay a certain sum of

money only to, or to orderof a certain person, or to the bearer of

the instrument.

A bill of exchange is an instrument in

writing containing an unconditionalorder, signed by the maker, directing a

certain person to pay a certain sum of

money only to, or tothe order of a certain person or to the

bearer of the instrument.

5. umber ofparties

Two parties2 the maker and the

payee

Three parties2 drawer, drawee and

payee.

6. Acceptance o acceptance is necessary acceptance is re1uired

7. +elationship The maker stands in an immediate

relationship to thepayee

A drawer stands in immediate

relationship with the acceptor andnot to thepayee.

!. What are the differencebetween bill of echane and (he/ue?/ifference between -ill of exchange and che1ue are sitedbelow:8ub


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'. Who can accept a bill of e1chan&e?!nly the following persons can accept a the bill of exchange:

4). The drawee of thebill.5). The drawee in case of need.

6). The legal representati$e, when the drawee is dead.

7). The !fficial Assignee or !fficial +ecei$er.


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1!.What is distin&uish between dishonor b" non5performance and dishonor b"

non acceptance?

/ishonor by nonperformance:when any negotiable instrument is not presented in compliance with the terms and condition of the

instrument and isdishonor subse1uently on presentation by the /raweeAcceptor. "t is known as

dishonor by nonperformance.

/ishonor by nonacceptance:*hen only bill of exchange is presented to the /rawee for acceptance and the /rawee disagree to

gi$e acceptance."t is known as dishonor of bill of exchange by non acceptance.

!t her"mportant@ ue stio ns a nd Ans wers1#. What are the essential elements of a :romissor"3ote?i). *ritten

ii). Signed by the maker markedcrossediii). (romise to pay 0not implied or

inferred) i$). ;nconditional

$). The maker must certain and

definite $i). Stamped

$ii). %ertain sum of

money $iii). #egal

tender moneyix). (ayable to a definiteperson

x). (ayable on demand or after definite period of time

1%. Who are called Drawer7Drawee7 :a"ee7 Holderand >cceptorof a ill of+1chan&e?

/rawer: The maker of the bill of exchange

/rawee: The person who is directed to pay the bill of exchange.

(ayee: The person who will recei$e the money

Eolder: The payee who has the custody of the bill of exchange

Acceptor: *hen the drawee accepts the bill, the drawee becomes the acceptor.

1'. What are the different t"pes of che/ue?4). !pen che1ue: (ayable in cash across the counter of thebank

5). %ross che1ue: Two parallel lines marked across its face paid only another banker

not across thecounter of thebank.

2-. What are the essential elements of a bill of e1chan&e?i). *ritten

ii). Signed by the drawer

iii). ;nconditional order topay

i$). The drawer, drawee and payee must be certain and definite

indi$iduals $). %ertain sum of money

$i). #egal tender

money $ii). Stamped

$iii). (ayable on demand or after definite period of time


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2'. Who can crossa che/ue?A che1ue can be crossedby

The drawer

The holder

The bank 0for collection).

The holder and the bank can cross a che1ue under the following circumstances: *here a che1ue is uncrossed, the holder may cross it generally or specially.

*here a che1ue is crossed generally, the holder may cross it specially.

*here a che1ue is crossed generally and specially, the holder may add the

words, Qnot negotiableQ

*here a che1ue is crossed specially, the banker to whom it is crossed specially

may again cross it specially to another banker, his agent, for collection.

3-. What are the ri&hts of Holderin Due (ourse?The holder in due course of negotiable instruments has the following rights:

4). /efects of instruments are eliminated.5). ;nauthoriCed acts of an agent may be $alid.

6). Food title in an inchoate stamped instrument.7). #iability of prior parties to holder in due course.

). ;nlawful instruments.

?). 8stoppel against denying original $alidity of instrument.

). 8stoppel against denying capacity of payee to endorse.49). Transferee from a holder in due course.

31. What are the essential featuresof eotiable .nstrument?The essential features of egotiable "nstrument are listed below:

4). *riting and signature.5). 3oney.

6).egotiability.

7). Title.

). Specialprocedure.

?). (opularity.

). 8$idence.

32. What do "ou mean b" acceptance?A bill of exchange is said to be accepted when the drawee puts his signature on it,

thereby acknowledge his liability under the bill.

63. What are the t"pes of acceptance?4). Feneral Acceptance: ;nconditional and un1ualified

5). @ualified Acceptance: %onditional

34. Who can present a bill for acceptance?The holder or agent can present a bill for acceptance.


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35. What do "ou mean b" presentment?(lacing of the negotiable instrument before the drawee is called presentment. (resentment may be

for any of the following threepurposes:

(resentment for acceptance.

(resentment for sight

(resentment forpayment.

3!. Who can accept a bill?4). The drawee of thebill.

5). The drawee in case of need.6). The legal representati$e, when the drawee is dead.

7). The !fficial Assignee or !fficial +ecei$er.


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-ankruptcyAct 4>

1. What do "ou understandb" banruptc"?

-ankruptcy is also referred to as the insol$ency. "t means one unable to pay his debts. "t has

two conditions:

A person is to be a debtor who has not sufficient assets to pay of his debts.

Ee will do any act of insol$ency.

2. What are the purposesof insolvenc"?

The purposes of the law insol$ency are as

under:

/istribution of assets of the insol$ent rationally.

Settlement of all liabilities of the insol$ent to make him free. To sa$e the interest of creditors.

ew life starting of the insol$ent.

3. Who are official receivers?

As per section =7 of the -ankruptcy Act 4> the court appoints official recei$er ha$ing

general power as conferred by section =< of the Act for administering the property of the

insol$ent. The court may itself actas an official recei$er under section >9 of the Act.

4. Who ma" be ad


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#. (an an infant be insolvent?

o, an infant cannot be declared as an insol$ent.

%. What properties of a banrupt debtor are eempted from attachment)freeIe?

The following properties are exempted from attachment

4. Tools used by the debtors.0maxim 6 lac)

5. *earing apparels, household furniture or accessories 03axi 6 lac).

6. /ebtorBs unmortgaged dwelling place. 0ot exceeding 5


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Arbitration Act 5994.

1. What is international commercialarbitration?

The arbitration that arises between the parties in different countries and which is created for

settlement ofdisputes, noncompliance by any party of stipulations relating to any

international transaction that is calledinternational commercial arbitration. #ike #%.

2. What matters cannot be referred to arbitration?

The following matters cannot be referred to arbitration:

3arital matter. 0#ike di$orce).

Testamentary matter, 0like $alidity of a will).

"nsol$ency matters.

3atters relating to the guardianship.

%riminal matters.

@uestions relating to charities or charitable trust.

3. What is an arbitration a&reement?

An arbitration agreement means a written agreement to submit present or future differences

to arbitrations, whether an arbitrator is named therein or not.

4. What is arbitration?

Arbitration means the settlement of dispute by referring the dispute to third party andabidingtaking by hisdecision.

5. Discuss the &roundon which the court can

a. Set aside award,and

b. +emit an award for reconsiderationunder The Arbitration Act 5994

a) Set aside award: The decision of arbitration may be set aside as under:

The arbitrator umpire adopts unfair means.

The order is made after the setting aside of the order.

The decision is made un'ustified.b) +emittance of the award:

The decision is

uncertain.

Any decision outside of the arbitration brought in the arbitration for decision.

The decision is impossible for execution.


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!. Discuss the characteristics of an arbitration a&reement.

An arbitration agreement shall be in writing and, and it deemed to be in writing if there

contained in:

A document signed by the

parties.

An exchange of letters, telex, telegrams, fax, email, or other means

of telecommunication which pro$ide a record of the agreement.

An exchange of statement of claim and defenses in which the existence of the

agreement is allegedby one party and not denied by the other.

#. What is effect of an arbitration a&reement?

*hen some persons ha$e entered into an agreement to refer disputes relating to a matter to

arbitration they maybe pre$ented from agitating the same matter in court of law.

%. What is procedure of appointment of arbitrators?Tow arbitrators are appointed by one of each party and third by the arbitrators.

'. What is award?

The award means the decision of arbitrator or the umpire.

1-. What are essential futuresof award?

The essential futures of award are stated below:

*riting

/ate and signature

&ees and charge

#egality

11. Describethe appeals procedure.

An appeal shall lay the following orders of the court to the Appellate /i$ision, namely

4. Setting aside 0out of the way) or refuse to set aside an arbitral award.

5. +efuse to enforce the arbitral award.

6. +efuse recogniCe or enforce foreign arbitral award.

12. How man" t"pes of >rbitration are there?

There are three types of arbitration in there:

0a) Arbitration without the inter$ention of court.

0b) Arbitration through court when no suit

pending. 0c) Arbitration a suit.


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Documents

Business & CommBusiness & Commercial Lawercial Law