CONTRACTS &

AGREEMENTS

DEFINITIONSCONTRACT- In the words of Pollock, ‘every agreement and promises enforceable by law is contract’. Section 2(h) of the Indian Contract Act, 1872 states that ‘an agreement enforceable by law is contract’. This definition gives us two ingredients—an agreement and ‘enforceable by law’. E.g. - An agreement to buy certain specific goods at an agreed price lets say 100 bags at Rs 1430 per bag is a contract becoz it gives rise to a duty enforceable by law and in case of default on the part of either party an action for breach of contract could be enforced.AGREEMENTAn agreement means a promise and a reciprocal set of promises forming consideration for each other—Section 2(e). All contracts are agreements but all agreements are not contracts.

CONTRACT = Agreement + Enforceable by law

PROMISE-As per Section 2(b) of the Contract Act, a proposal when accepted becomes a promise.

PROPOSAL-Section 2(a) states that ‘when one person signifies another person his willingness to do or abstain from doing anything with a view to obtaining the assent of that other to such an act or abstinence, he is said to make a proposal’. A Proposal is also known as an offer. So,

Characteristics Of An Agreement:

Plurality Of Persons

Consensus-ad-idem

PROMISOR PROMISEE

 PARTIES TO AN AGREEMENT/A CONTRACTPromisor: A person making the proposal (offer) is known as a

promisor. He is also known as an offeror. We can also recognize him as a proposor.Promisee: A person accepting the proposal (offer) is known as a promisee. He is also known as an offeree. We can also recognize him as an acceptor.

NATURE OF CONTRACT There must be two parties There should be an Agreement between

the party – offer and acceptance Legal Obligations

Example- if ‘X’ agrees to sell his motor cycle to Y & Mr. Y to pay Rs 5000 for motor cycle.

ESSENTIAL ELEMENTS OF VALID CONTRACTS—SECTION 10,29,56

Offer and acceptanceIntention to create legal RelationsLawful considerationCapacity of partiesFree consent – shouldn’t b coercion, undue

influence , fraud, misrepresentationLawful objectWriting and RegistrationCertaintyPossibility Of PerformanceNot Expressly declared void

TYPES OF CONTRACTSOn the Basis

of the Mode of Formation

On the Basis of Performance

On the Basis of Validity or

Enforceability

On the basis of form of contract

Express contract

Executed contract Valid contract Formal contract

Implied contract

Executory contract Void contract Simple contract

Quasi-contract Unilateral contract Voidable contract

Bilateral contract Illegal agreement

Unenforceable contract

On the basis of formation:

1. Express contract: Where the terms of the contract are expressly agreed upon in words (written or spoken) at the time of formation, the contract is said to be express contract.

ExampleA says to B ‘Will you purchase my bike for  20,000?’ B says ‘Yes’ to A.

2. Implied contract: An implied contract is one which is inferred from the acts or conduct of the parties or from the circumstances of the cases. Where a proposal or acceptance is made otherwise than in words, promise is said to be implied.

ExampleA stops a taxi by waving his hand and boards it. There is an implied contract that A will pay the prescribed fare on reaching his destination.Withdrawal of cash from the ATM of a bank.

3. Quasi contract: A quasi contract is created by law. Thus, quasi contracts are strictly not contracts as there is no intention of parties to enter into a contract. It is legal obligation which is imposed on a party who is required to perform it. A quasi contract is based on the principle that a person shall not be allowed to enrich himself at the expense of another. For example, Mr. X who is businessman forgot his articles he sell at Mr. Y’s residence Mr. Y utilized that articles as if owned by himself, here Mr. Y. must pay to Mr. X for the article. He utilised

On the basis of performance:

1. Executed contract: An executed contract is one in which both the parties have performed their respective obligation.ExampleA sells his car to B for  1 lakh. A delivered the car and B paid the price. This is an executed contract.

2. Executory contract: An executory contract is one where one or both the parties to the contract have still to perform their obligations in future. Thus, a contract which is partially performed or wholly unperformed is termed as executory contract.ExampleA sells his car to B for  1 lakh. If A is still to deliver the car and B is yet to pay the price, it is an executory contract.

3. Unilateral contract: A unilateral contract is one in which only one party has to perform his obligation at the time of the formation of the contract, the other party having fulfilled his obligation at the time of the contract or before the contract comes into existence.

ExampleAtul promises to pay  1000 to anyone who finds his lost cellphone. Bansi finds and returns it to Atul. From the time Bansi found the cell phone, the contract came into existence. Now A has to perform his promise, i.e., the payment of  1000.

4. Bilateral contract: A bilateral contract is one in which the obligation on both the parties to the contract is outstanding at the time of the formation of the contract. Bilateral contracts are also known as contracts with executory consideration.

ExampleA promises to sell his car to B for  1 lakh and agrees to deliver the car on the receipt of the payment by the end of the week. The contract is bilateral as both the parties have exchanged a promise to be performed within a stipulated time.

On the basis of validity:

1. Valid contract: An agreement which has all the essential elements of a contract is called a valid contract. A valid contract can be enforced by law.

2. Void contract[Section 2(g)]: A void contract is a contract which ceases to be enforceable by law. A contract when originally entered into may be valid and binding on the parties. It may subsequently become void. – There are many judgments which have stated that where any crime has been converted into a "Source of Profit" or if any act to be done under any contract is opposed to "Public Policy" under any contract—than that contract itself cannot be enforced under the law-Reasons:Supervening Impossibility( marriage)Subsequent Illegality( wheat-pvt trading)Repudiation of a voidable contract( lack of free concent)Uncertain Future event( c dies)

3. Voidable contract[Section 2(i)]: An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of other or others, is a voidable contract. If the essential element of free consent is missing in a contract, the law confers right on the aggrieved party either to reject the contract or to accept it. However, the contract continues to be good and enforceable unless it is repudiated by the aggrieved party. Lack of free consent

4. Illegal contract: A contract is illegal if it is forbidden by law; or is of such nature that, if permitted, would defeat the provisions of any law or is fraudulent; or involves or implies injury to a person or property of another, or court regards it as immoral or opposed to public policy. These agreements are punishable by law. These are void-ab-initio.“All illegal agreements are void agreements but all void agreements are not illegal.”

5. Unenforceable contract: Where a contract is good in substance but because of some technical defect cannot be enforced by law is called unenforceable contract. These contracts are neither void nor voidable. Bill of exchange become unenforceable after three years

DISTINGUISH BETWEEN VOID AND ILLEGAL AGREEMENT

Matter Void Agreement

Illegal Agreement

What Void agreement is not prohibited by law.

It is prohibited by law.

Effect on collateral transaction

Any agreement which is collateral to the void agreement is enforceable.

Any agreement or transaction which is collateral to illegal agreement is not enforceable.

Punishment It is not punishable.

It is punishable.

Void ab initio May not void ab initio.

Always void ab initio.

Matter Agreement Contract

Definition Every promises and set of promises forming the consideration for each other

An Agreement enforceable by law is contract

Concept Agreement is wider concept than that of contract

contract is part of Agreement & it’s a narrower concept

Nature Every contract is an Agreement

Every Agreement is not a contract

Performance Legal Obligation not necessary

Legal Obligation is necessary

Legal bindings It Does not create Bindings between the Parties

It creates Binding between the parties

Meaning Agreement= Offer + Its acceptance

Contract = Agreement + its enforceable by law

VOID AGREEMENTS Agreement by incompetent parties (Sec11) Agreements made under mutual mistake of facts (Sec

20) Unlawful object or consideration (Sec 23)/ Party

unlawful (Sec 24) Agreement without the consideration (Sec 25) Agreement made in restrain of marriage (Sec 26) Agreement made in restrain of trade, business,

Occupation (Sec 27) Agreement restrain in of legal proceedings (Sec 28) All agreement the meaning of which if not certain

(sec 29) Wagering Agreements- Absolute, Contingent Impossible events (sec 36)

DISCHARGE OF CONTRACT By performance of contract By agreement- By novation, recession,

Alteration (sec 62), By remission (sec 62), waiver, By merger, By owing to the occurrence of an event

By lapse of time By operation of law- death, insolvency, Merger

By breach made by any party to contract

By Assignment By impossibility of performance By material alteration without the

consent of the concerned party

REMEDIES OF BREACH OF CONTRACTS Recession of contract- means revocation or setting aside. If

one party breaks the contract other party may sue & refuse further performance

Suit for damages- damages means monetary compensation payable by the defaulting party to injured party

Damages for loss of Reputation

-Ordinary Damages

- Special Damages

- Nominal Damages

- vindictive damages- heavy amt dishonor of customer

cheque

- Damages agreed upon in advance in case of breach of

contract

Quantum of meruit – means as much as earned, right to sue when contract perform by one party & not by another

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